Making a murderer

Trials, tribulations and tax

THE WHEELS OF JUSTICE TURNED FINALLY with the news that a federal court has overturned the murder conviction of Brendan Dassey, co-accused with his uncle, Steven Avery, of the murder of a 25-year old Autotrader photographer, Teresa Holbach, in Manitowoc County, Wisconsin on 31 October 2005. This is the notorious case made so by the Netflix documentary “Making a Murderer” featured elsewhere on this website. Dassey’s treatment at the hands of Manitowoc County’s sheriff department, by the County's public prosecutor, and by his original defence counsel, Len Kaschinsky, since de-certified as a public defender, made a mockery of concepts like a fair trial, the presumption of innocence and the burden of proof. The Netflix documentary, released as a ten-part series in December 2015, captivated and appalled an international audience with the scarcely believable treatment of two of its citizens by a country that claims to lead the free world. Now there is mounting speculation as to the impact the federal appeal court decision in Dassey’s case will have on Avery’s. A hero of Avery’s case at first instance was his former lawyer, Jerry Buting, who tweeted his reaction to the appeal court ruling: “Justice finally strikes”. If prosecutors do not re-file charges within 90 days, Dassey will be a free man. Avery remains imprisoned.

— Jerry Buting (Attorney for Steven Avery)

THE LABOUR PARTY’S LATEST BRUSH WITH THE COURTS is over with the news that there is to be no appeal to the Supreme Court of the Court of Appeal’s decision to uphold the right of the party’s national executive committee to impose a retrospective “freeze date” to exclude from the leadership election members who joined the party after 12 January. The Court of Appeal found that party members did not have a “right” to vote but only the rights given to them under the rules which in turn gave the national executive committee power to circumscribe eligibility. (Jurisprudence-geeks might be put in mind of Wesley Newcomb Hohfeld, the early 20th century American jurist, who drew the distinction between what he called a “right” and a “privilege”.) The decision provoked fury from shadow chancellor John McDonnell who condemned the three appeal court judges, without any sense of irony, as “both wrong legally and democratically”. He also criticised the party’s general secretary for making the appeal, but not the party members who brought the case at first instance. 

THE CONSERVATIVE PARTY too is the legal news with a summary released of Clifford Chance's report into allegations of bullying and improper behaviour among the party's "RoadTrip" flying squad of young campaigners at the last general election, one of whom committed suicide in September 2015. The law firm interviewed 62 individuals although 12 whom investigators particularly wished to speak declined to give evidence. The inquiry found flaws in the party's complaints procedure but cleared top brass of any knowledge of the bullying. It did reveal that former party chairman Grant Shapps regarded retaining the leader of RoadTrip at the time as a "calculated risk".  

HM GOVERNMENT chose this week’s heat wave to issue a consultation on proposals to penalise lawyers, accountants and financial advisers – so-called “enablers” – advising on schemes found to be illegally avoiding tax. Penalties proposed could be as high as 100% of the tax involved. The consultation defines “enablers” as “those who design, promote and market avoidance” and “anyone in the supply chain who benefits from an end user implementing tax avoidance arrangements and without whom the arrangements as designed could not be implemented”. The small print admits of a carve-out for those not giving the tax advice (e.g., a lawyer following instructions to set up the scheme without advising on the tax aspects). Post-financial crash, post-Panama Papers, post-Google/Amazon/Apple-and-other-tax-controversies, post BHS insolvency, the morality of the hitherto sacred adviser/client relationship has come under increasing scrutiny. There is precedent in the shape of the money laundering regulations but now the focus is much wider: the social, economic and ethical responsibilities of professional advisers to the public weal. It’s a classic case of a shift in public mood challenging what were thought to be fundamental tenets of professional advice in the free market. The government also proposes to reverse the burden of proof, currently lying with HM Revenue & Customs, so that suspected tax avoiders would have to demonstrate that they took reasonable care to avoid errors in their tax returns. The Financial Times quotes the Institute of Chartered Accountants in England, in commendably restrained terms, perhaps aware which way the wind is blowing: “The government needs to be sure that any new rules are properly targeted only to tackle those advisers that promote aggressive tax schemes” – as opposed to reputable tax planning. It is going to be challenge to draft legislation to make this kind of distinction. It will also no doubt add a few more pages to the already voluminous letters of engagement and letters of representation expected of clients by the accountancy profession.

— Institute of Chartered Accountants of England and Wales

A PERFECT STORM OF PROPERTY, PLANNING AND CHARITY REGULATION is brewing – or on the grill – near Falkirk. A “German-style” (meaning a great deal of varnished wood is involved) fast food cabin has appeared at one of Scotland’s landmarks, the 100 feet tall Kelpies at the Fourth and Clyde Canal. The Kelpies’ sculptor Andy Scott has complained to Falkirk Council about the “tacky” and “fake” Bavarian effort. Scott says: “It beggars belief that planning permission was ever given... The burger bar quite clearly affects how the public perceives the artworks. It is within clear sight from almost every angle as one approaches and views the sculptures”. The artist is threatening to instruct his lawyers to take formal steps to dissociate him from the site. The Falkirk Community Trust (FCT), a charitable arm of the Council that operates the site, who apparently gave permission to the improbably named “Artisan Grill”, have sidestepped the issue, saying that it a planning matter for the Council to settle. The prospect of so many potentially hungry visitors – over one million since the Kelpies were officially opened last summer – is clearly too tempting commercial prospect. FCT made the revealing statement “[t]hat the matter of the suitability for this operation of land use is a matter for the local authority, not FCT or the sculptor...” as if there is no place for any interests or considerations other than those recognised and ruled on by the planning system. This looks like an abdication of responsibility, to say nothing of the implicit assumption that land use is entirely a matter for local authority omnipotence. The issue is not straighforward: the stall, which appears to be a permanent construction rather than mobile, was refused retrospective planning but the operators have appealed. Meantime, it seems, they are free to trade. The Kelpies have yet to comment.

— Andy Scott, creator of the Kelpies sculpture

THE WS SOCIETY’S LATEST SUMMER INTERNS – Hilary Sharkey, Emma Miller and Rory Swanson – are researching human rights and the Scottish Government’s legislation to assign a “named person” (e.g., health visitor or teacher) to every child in Scotland. The interns’ findings will be presented on Thursday 25 Aug at 3.00 pm. Open invitation. Last week’s intern presentation was on the legality of the Olympic ban on Russian athletes and, appropriately enough, one of the interns was Russian-speaking Regina Gabbasova who is studying law at Aberdeen University.

NETFLIX says it is “committed to pushing the boundaries of the documentary form”. Alongside a second series of “Making a Murderer”, the online streaming service will premiere at the Toronto Film Festival in September a new documentary on another controversial criminal case: American Amanda Knox was acquitted, after various retrials and appeals in the Italian courts, of the murder in 2007 of British student Meredith Kercher in Perugia, Italy. The case continues to fascinate and divide opinion and attracted more publicity earlier this year when the European Court of Human Rights granted Knox the right to pursue a case against the Italian state for violating her rights with an unfair trial and maltreatment during questioning. It remains to be seen whether fellow US citizen Brendan Dassey will seek redress for his treatment under US state and federal law. 

— “Writer”

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