New court decision destroys the last element of justice system

[rangerrebew]

New court decision destroys the last element of the justice system


Simon Black
 Sovereign Man
 April 19th, 2014


In the Land of the Free, people grow up hearing a lot of things about their freedom.

You’re told that you live in the freest country on the planet. You’re told that other nations ‘hate you’ for your freedom.

And you’re told that you have the most open and fair justice system in the world.

This justice system is supposedly founded on bedrock principles– things like a defendant being presumed innocent until proven guilty. The right to due process and an impartial hearing. The right to counsel and attorney-client privilege.

Yet each of these core pillars has been systematically dismantled over the years:

1. So that it can operate with impunity outside of the law, the federal government has set up its own secret FISA courts to rubber stamp NSA surveillance.

According to data obtained by the Electronic Privacy Information Center, of the nearly 34,000 surveillance requests made to FISA courts in the last 35-years, only ELEVEN have been rejected.

Unsurprising given that FISA courts only hear the case from the government’s perspective. It is literally a one-sided argument in FISA courts. Hardly an impartial hearing, no?

2. The concept of ‘innocent until proven guilty’ may officially exist in courts, but administratively it was thrown out long ago.

These days there are hundreds of local, state, and federal agencies that can confiscate your assets, levy your bank account, and freeze you out of your life’s savings. None of this requires a court order.

By the time a case goes to court, you have been deprived of the resources you need to defend yourself. You might technically be presumed innocent, but you have been treated and punished like a criminal from day one.

3. Attorney-Client privilege is a long-standing legal concept which ensures that communication between an attorney and his/her client is completely private.

In Upjohn vs. the United States, the Supreme Court itself upheld attorney-client privilege as necessary “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law. . .”

It doesn’t matter what you’re accused of– theft. treason. triple homicide. With very limited exceptions, an attorney cannot be compelled to testify against a client, nor can their communications be subpoenaed for evidence.

Yet in a United States Tax Court decision announced on Wednesday, the court dismissed attorney client privilege, stating that:

“When a person puts into issue his subjective intent in deciding how to comply with the law, he may forfeit the privilege afforded attorney-client communications.”

In other words, if a person works with legal counsel within the confines of the tax code to legitimately minimize the amount of taxes owed, that communication is no longer protected by attorney-client privilege.

Furthermore, the ruling states that if the individuals do not submit attorney-client documentation as required, then the court would prohibit them from introducing any evidence to demonstrate their innocence.

Unbelievable.

While it’s true that attorney-client privilege has long been assailed in numerous court cases (especially with regards to tax matters), this decision sets the most dangerous precedent yet.

With this ruling, government now has carte blanche to set aside long-standing legal protections and even deny a human being even the chance to defend himself.

Naturally, you won’t hear a word about this in the mainstream media.

But it certainly begs the question, what’s the point of even having a trial? Or a constitution?

When every right and protection you have can be disregarded in their sole discretion, one really has to wonder how anyone can call it a ‘free country’ any more.
- See more at: http://www.thedailysheeple.com/new-court-decision-destroys-the-last-element-of-the-justice-system_042014#sthash.28mSLRxF.dpuf

[EC]

We have compared the current trajectory of the USA to 1930s Germany a fair bit recently.

This decision by the courts has shifted the goalposts way back - the US is now looking more and more like 11th Century England.

[Oceander]

I don't disagree with the basic premise that so-called fundamental rights like due process, presumption of innocence, and the like, only matter if one has the internal and financial fortitude to make it to an appeals court, and the smarts to hire a trial attorney who properly preserves a record for appeal.

that being said, warrants are always issued in a one-sided affair where only the government gets to have its say and this would be the case even if the criminal justice system faithfully observed everyone's rights down to every last punctilio.  the problem with FISA warrants is that its almost impossible for the target to get the warrant reviewed even after the warrant has been executed.  it's the lack of after-the-fact judicial review that makes FISA warrants so subject to abuse.

The tax court case is interesting and a little curious, but i think it's ultimately unsound, or at least that its conclusions are premature.  the basic idea:  that you give up your attorney-client privilege if you put those discussions in issue - typically by saying something along the lines of "I did this because my attorney said it was ok."  and if one is defending against penalties in a tax case on the ground that one reasonably relied on the advice of a tax professional, then the rule clearly applies:  there is no way to know if your reliance on that advice was reasonable unless we can see what that advice was.

but that isn't the case here, at least not at the stage of the matter.  The defense the partnerships have raised is that they - i.e., their internal staff conducted a thorough analysis based on the law and the facts and came to the asserted conclusions - and have not raised any issue with respect to what their attorneys told them.  Whether their attorneys' advice contradicts the position they took, or not, is irrelevant at this point because it is perfectly reasonable to believe that after the partnerships got negative advice from their attorneys, they did an even better job of analysis, both factual and legal, and thus in good faith arrived at conclusions different from those their attorneys reached.

since they have asserted that they did all the work themselves, the proper avenue of inquiry should be to force the partnerships to prove that they in fact did sufficient legal and factual analysis to arrive at the conclusions in question.  And for that, the IRS would be entitled to get discovery of all of their internal papers relevant to the matter including not only accounting work papers but also all emails from employees up to senior staff related to that question.  son-of-BOSS transactions are not easy or simple to set up or analyse, so if the partnerships did not actually do their own research and analysis, that would become evident fairly quickly.  Also, emails from employees might be quite revealing as to whether they were doing actual analysis themselves or were just trying to replicate what the law firm had done on its own.  only if the IRS managed to sustain the burden of persuading the court that the partnerships could not have reasonably done the actual analysis themselves should the contents of their attorney's opinion letters become relevant under the implied waiver doctrine.  of course, by that time, getting those opinions would probably be irrelevant because it would be obvious that whatever analysis the partnerships did on their own - as they claim - was not sufficient and thus that relying on their own analysis was unreasonable, and thus the IRS would have won on the issue of reasonable belief even without getting a look-see at the opinions.

it seems to me that this is a case of lazy irs attorneys who don't want to actually do the hard work of proving their own case and of a court that is pissed off at the taxpayers and is willing to let the IRS have its way because the court is already subjectively convinced that the taxpayers are not being honest.  the taxpayers' attorneys in this case have probably also dragged their feet and done a lot of cute things to confuse the issues, and the court has probably gotting pissed at them as well - the sanctions issue definitely implies that.