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Legal news from Friday, October 1, 2004

ACLU appeals Florida gay adoption ban to Supreme Court
Gretchen E. Moore on October 1, 2004 8:39 PM ET

The American Civil Liberties Union (ACLU) appealed Florida's gay adoption ban to the US Supreme Court on Friday. The primary argument advanced by the ACLU is that the 1977 law violates the equal protection clause by singling out homosexuals as a class. Florida is the only state with a complete ban on adoption by gays and lesbians.

In July, the 11th US Circuit Court of Appeals refused to rehear a challenge to the law, declaring that the issue should be left to the legislature. The Supreme Court will decide whether to hear the appeal in January. Read the ACLU press release here. AP has more. To view the statute, click here, then proceed to Chapter 63, Section 63.042.

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Annual reviews of Guantanamo detainees to begin in November
Gretchen E. Moore on October 1, 2004 8:15 PM ET

The first annual administrative reviews of the release status of enemy combatant detainees at Guantanamo Bay are likely to begin in November, according to Navy Secretary Gordon England, speaking at the Pentagon Friday. Detainees are currently going through a two-step process. In step one, a Combatant Status Review Tribunal (CSRT) determines whether an individual detainee has properly been classified as an "enemy combatant." To date, approximately 1/5 of the CSRTs have been conducted, covering 115 of the approximately 550 detainees. In step two, if there has been a determination that a detainee is indeed an enemy combatant, that detainee is subject to an administrative review board (ARB) hearing. These are the hearings that are expected to start in November under procedures approved by Secretary England on September 14.

The ARB session is an annual process at which evidence and witnesses are presented to determine if the detainee is still a threat. If it is determined that the detainee is not a threat, the detainee will be returned to his home country, to face further detention or release. Otherwise the detainee will remain in US custody. Audio from England’s media briefing is available here. American Forces Press Service has more.

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11th Circuit rules Commerce Clause no basis for making child porn possession federal crime
Phillip Hong-Barco on October 1, 2004 4:40 PM ET

The 11th US Circuit Court of Appeals ruled Friday that federal prosecutors unduly stretched the US Constitution's Commerce Clause in their attempt to federally prosecute Florida resident James Maxwell for possession of child pornography. The prosecution offered no evidence that Maxwell transported the illegal pornography across state lines but rather based their case on the fact that Maxwell stored the explicit material on zip and floppy disks that were not produced in Florida.

Judge Gerald Bard Tjoflat, writing the opinion [PDF] for the three-judge panel, concluded, "It strains reason to conceive of how Maxwell's activity of possession was in any sense 'commerce.'" Read the Child Pornography Prevention Act of 1996 here. AP has more.

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Bosnian pleads not guilty to US immigration charges in war crimes related case
Phillip Hong-Barco on October 1, 2004 3:48 PM ET

Bosnian Marko Boskic, 40, was arraigned in federal court in Massachusetts Friday and pleaded not guilty to charges that he lied on his US immigration applications for refugee and permanent resident alien status. A federal grand jury issued an indictment a few days ago after it found that Boskic did not disclose his military history, including his former membership of the 10th Sabotage Detachment, a unit which participated in 1995 executions of over 1,200 Muslim Bosnians near Srebrenica.

Boskic faces four counts of document fraud, each with a 10 year maximum sentence, along with one count of making false statements. Boskic also faces deportation to Bosnia-Herzegovina where he could be prosecuted as a war criminal. AP has more.

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Alabama appeals court upholds conviction for 1963 KKK bombing
Phillip Hong-Barco on October 1, 2004 2:55 PM ET

The Alabama Court of Criminal Appeals Friday unanimously upheld the 2002 murder convictions and life sentences imposed on Bobby Frank Cherry. Cherry, an ex-member of the Ku Klux Klan, was indicted in 2000, 37 years after a 1963 Birmingham church bombing that killed four African-American girls, ages 11-14. Read about the bombing here.

Cherry argued before the court that his case was prejudiced by the long delay and by its extensive media coverage due to the trial's location in Birmingham, a center of civil rights history. Judge Sue Bell Cobb, who authored the 5-0 decision, wrote, "There is no proof in the record before us that the State intentionally caused the pre-indictment delay." As to the other claims, the court stated that the media coverage was "factual, objective and non-sensational." According to his family, Cherry's health is failing in prison. He will be 74 years old this year. AP has more.

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Corporations and securities brief ~ PeopleSoft fires CEO
Amit Patel on October 1, 2004 1:45 PM ET

In Friday's corporations and securities law news, PeopleSoft Inc. announced it has fired Chief Executive and President Craig Conway because of a loss of confidence. The company named its founder and chairman, Dave Duffield, as the new CEO. The move is seen as paving the way for a deal with hostile bidder Oracle. Read the PeopleSoft press release announcing the move here. Read more about Oracle's offer for PeopleSoft here. Reuters has more.

In other news...

  • As previously reported on JURIST's Paper Chase, the Department of Justice announced Friday that it will not appeal a court ruling striking down its challenge to software giant Oracle's proposed hostile takeover of Peoplesoft. CNET has more.

  • Enron announced Chief Financial Officer Raymond Brown has resigned and will be replaced on an interim basis by Robert Bingham. Reuters has more.

  • As previously reported on JURIST's Paper Chase, Darleen Druyun, a former weapons buyer for the US Air Force who is accused of negotiating a job with Boeing Co. while still overseeing billions of dollars of the company's business with the military, was sentenced to nine months in prison on Friday. Read the plea agreement here [PDF]. Reuters has more.

  • Florida's attorney general and the Miami-Dade County inspector general are investigating allegations that Cardinal Health overcharged a public hospital for prescriptions. The SEC and the New York Attorney General are already investigating Cardinal Health's accounting practices. AP has more.

  • US Airways, already operating under bankruptcy protection, announced it has reached an agreement with its pilots which inculdes about $300 million in pay and benefit reductions. Bloomberg has more.

  • The European Union has warned the US Congress that it would refuse to lift trade sanctions against US companies if the US decides to launch a WTO case aimed at ending government subsidies for Airbus. The Financial Times has more.

  • As previously reported on JURIST's Paper Chase, the Department of Justice has opened a criminal investigation of accounting practices at Fannie Mae. The SEC has already begun an investigation on the mortgage financier. AP has more.
Click for previous corporations and securities law news

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DOJ will not appeal ruling against Oracle takeover challenge
Chris Buell on October 1, 2004 1:29 PM ET

The Department of Justice announced Friday that it will not appeal a court ruling striking down its challenge to software giant Oracle's proposed hostile takeover of Peoplesoft. The decision ends DOJ's antitrust challenge that began in February and fueled speculation about the possible merger.

Oracle still faces obstacles, having not yet obtained approval from the European Commission and having to overcome anti-takeover measures at Peoplesoft. CNET News has background on the takeover process. CNET News has more.

Previously on JURIST's Paper Chase....

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International brief - Thai official favored for UN Secretary-General post in 2006
D. Wes Rist on October 1, 2004 11:59 AM ET

Thailand Foreign Minister Surakiart Sathirathai - stock photo
Thailand's foreign minister, Surakiart Sathirathai, has emerged as the frontrunner among the possible candidates to succeed Kofi Annan as Secretary-General of the UN when Annan's term ends in 2006. Sathirathai received the endorsement of the Association of Southeastern Asian Nations (ASEAN) earlier this week. The Straits Times has more on the endorsement here, and the International Herald Tribune has more on Sathirathai's candidacy here.

In other international law news...
  • French President Jacques Chirac has declared his intent to seek a way to amend the French Constitution in order to require a referendum before allowing further admissions to the EU. Chirac has said that he opposes the entrance of Turkey into the European Union without a referendum by the French people, a majority of whom are clearly opposed to the proposal. German Chancellor Gerhard Schroeder was at the Friday press conference where Chirac made his remarks and said that he agreed with France's opinion on Turkey. Deutsche Welle has more.

  • Sudan has agreed to allow an expanded military presence of over 4000 African troops in the Darfur region. The troops will serve as monitors acting under the authority given to the African Union by the UN Security Council to increase its military presence in the area. Sudan has thusfar refused to allow a UN peacekeeping mission, however. JURIST's Paper Chase has background on the Darfur conflict here. BBC News has more.

  • Indonesian police have identified one of the bombers involved in the terrorist attack on the Australian Embassy in September. Heri Golun was identified from DNA samples take from his remains found at the scene of the blast that killed him and eight others. Police said Golun has links to two other Islamic fundamentalist terrorists that the police have been looking for and believe to be the masterminds behind the attack. JURIST's Paper Chase has background on the bombing here. BBC News has more.

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Former Air Force official sentenced in corruption case
Chris Buell on October 1, 2004 11:48 AM ET

Reuters photo
A former US Air Force official was sentenced Friday to nine months in prison for arranging a $250,000 executive position with Boeing Co. while serving as the second-ranking weapons buyer in the Air Force and handling billions in dollars of contracts with the company. Darleen Druyun, the highest-ranking military official convicted of corruption since the late 1980s, pleaded guilty to charges in April after failing a lie-detector test and admitting that she favored Boeing during negotiations for tanker aircraft.

Druyun was also fined $5,000 and ordered to serve three-years of supervised release following her prison term. The $23.5 billion contract awarded to Boeing for the tankers is currently being reviewed by the Pentagon. View the plea agreement [PDF]. The Office of Government Ethics has this memorandum on requirements for government employees leaving for the private sector. Reuters has more.

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BREAKING NEWS ~ Judge dismisses second trial charges against DC sniper Muhammad
Chris Buell on October 1, 2004 11:40 AM ET

AP is reporting that Judge M. Langhorne Keith of the Fairfax County Circuit Court in Virginia has dismissed charges against convicted "DC sniper" John Allen Muhammad in the second capital murder trial against him (he was previously tried and convicted on charges laid in Prince William County).

Judge Keith held that Muhammad's right to a speedy trial in the second proceeding had been violated. View the court's opinion here [PDF]. Background documents in the case are available here.

Previously on JURIST's Paper Chase....

UPDATE: An AP story is now available.

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Spanish government approves draft law on same-sex marriage
Chris Buell on October 1, 2004 10:47 AM ET

As anticipated earlier on JURIST's Paper Chase, the Spanish government Friday approved a draft law to legalize same-sex marriage. The bill still requires approval by parliament before it will take effect. Under the proposed law, same-sex couples will be able to adopt children, divorce and continue to receive pension benefits after a partner's death.

The Catholic church in Spain has strongly opposed the measure, but polls suggest that a majority of the public supports it. Netherlands and Belgium are the only countries in Europe that currently recognize same-sex marriages. El Mundo has local coverage (in Spanish). BBC News has more.

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First provincewide smoking bans take effect in Canada
Chris Buell on October 1, 2004 10:28 AM ET

Manitoba and New Brunswick Friday became the first Canadian provinces to implement smoking bans effective in all enclosed public places. While the ban in New Brunswick is expected to cost the province some of the $100 million in tobacco taxes it makes each year, Premier Bernard Lord said it would also save the province about $132 million in health-care expenses and lost productivity. Read more about the smoking bans at the provincial Ministry of Health websites of (Manitoba and New Brunswick).

Both Norway and Ireland have imposed nationwide smoking bans in public places. CTV News has more. SmokeFreeWorld provides a breakdown of (mostly local) smoking bans in the US.

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DOJ opens criminal investigation of Fannie Mae
Chris Buell on October 1, 2004 10:09 AM ET

The Department of Justice has opened a criminal investigation of accounting practices at Fannie Mae, the latest development in a brewing crisis for the mortgage giant. The criminal probe was confirmed Friday by an anonymous source. The accounting irregularities under suspicion are the alleged delay of reporting expenses to ensure company executives received bonuses.

Reviews by the Office of Federal Housing Enterprise Oversight, the government body charged with oversight of the lender and its counterpart Freddie Mac, first triggered suspicions last month. View the OFHEO report here [PDF]. The SEC has already begun an investigation of the firm. AP has more.

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British Gitmo detainee alleges abuse in uncensored letter
Chris Buell on October 1, 2004 9:37 AM ET

BBC News photo
A British man held for over two and half years since being detained in Pakistan alleged that he has been tortured by US forces in an uncensored letter released Friday. In the letter, dated July 12, Moazzam Begg protested his detention and demanded to know the charges against him. Begg said he had been forced to strip and walk in front of cameras, as well as sign documents under duress. Begg also said he had witnessed the deaths of two detainees caused by US personnel in Afghanistan.

The letter was given to Begg's attorney in the UK by a lawyer who met with him at Guantanamo Bay. Begg has been held at Guantanamo Bay since being transferred from a US military base in Afghanistan. Begg's lawyers said they plan to initiate an action Monday in US court to force the government to declassify other documents relating to his detention.
View the letter here [PDF]. BBC News has more.

JURIST's Paper Chase has the following on Begg's detention....

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EPA inspector general says rules change will harm pollution reduction efforts
Chris Buell on October 1, 2004 9:03 AM ET

The Environmental Protection Agency inspector general has said a rules revision by the agency relaxing requirements that older pollution sources update their controls has harmed the country's efforts to cut smog and air pollution levels. In a report released late Thursday, Inspector General Nikki L. Tinsley criticized the agency's decision to relax New Source Review requirements, which generally require utilities to meet new air quality standards if enough modifications are made to facilities. Under the rules change made in October 2003, utilities can make greater improvements before triggering New Source Review. The rules change was stayed in December 2003 by the US Court of Appeals for the DC Circuit. The report concluded:

Fourteen States, several cities, and environmental groups sued EPA over the 2003 NSR rule change, resulting in the December 2003 stay. Their concerns included insufficient support for how the 20-percent threshold was selected and the adverse impact on enforcement actions. We found little basis for the 20-percent threshold, and we saw no evidence that the percent of routine maintenance in ongoing enforcement actions was considered by OAR in determining the threshold. EPA recently announced its plans to reconsider the 2003 NSR rule before the court stay is lifted. This is an excellent opportunity for EPA to fully consider – in an open, public, and transparent manner – the environmental impact of proposed NSR changes at varying levels, including the impact on OECA enforcement activities.
Read the full report [PDF]. Read this press release from Tinsley's office and EPA's statement in reply. EPA has more on New Source Review. The Salt Lake Tribune reports that the rules have been a source of contention between EPA officials. The New York Times has more.

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Legal agenda and live webcasts ~ Friday, October 1
Jeannie Shawl on October 1, 2004 7:01 AM ET

Here's a run-down of law-related events, expected developments and live webcasts on JURIST's docket for Friday, October 1.

Today is the birthday of US Chief Justice William Rehnquist. He turns 80 and becomes the second-oldest chief justice in the nation's history, surpassed only by Roger Taney, who stayed on until he died in office at age 87 in 1864. AP has more.

On Capitol Hill, the US Senate will meet at 9:30 AM ET and will resume consideration of the Intelligence Reform Bill (S 2845). Watch a live webcast (via C-SPAN).... The US House is not considering any legislation today.

At the UN in New York, the Security Council meets at 3:30 PM ET to consider the situation in Iraq, in particular a letter from UN Secretary-General Kofi Annan recommending new security arrangements for the UN Assistance Mission in that country, including the provision by member states of three guard units of up to 160 armed civilian police, paramilitaries, or military personnel. Read the letter here [PDF].

Internationally, the final phase of Britain's Disability Discrimination Act, which requires service providers to remove physical barriers that make it impossible or unreasonably difficult for a disabled person to use a service, takes effect Friday. BBC News has more.... Spain's cabinet is expected to approve a bill to amend the Spanish civil code to allow same-sex marriage. Once approved by the cabinet, the bill will go to parliament for debate. Reuters has more.

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US law and business press ~ Summary jury trials, Enron claims, AIG accounting investigation
Maryam Shad on October 1, 2004 6:00 AM ET

In Friday's US law and business press, the ABA Journal reports on how summary jury trials are still seeking acceptance.... The New York Law Journal reports that an ethics complaint against a NY attorney is raising questions about an attorney's right to publicly disseminate a misconduct complaint.... The New York Law Journal also reports that a NY federal bankruptcy judge has barred CA from pursuing its claims in a pending suit against Enron Corp. arising from CA's energy crisis a few years ago.... The Pittsburgh Business Times reports that the DOJ has launched an investigation of accounting services which AIG provided to PNC that may have violated securities laws.... The Sacramento Business Journal reports that CA Governor Arnold Schwarzenegger has signed a bill changing the way CA nursing homes are paid.... FindLaw's Writ features commentary by Hastings law professor Vikram David Amar and UC-Davis law professor Alan Brownstein on why the US Senate should not pass the Pledge Protection Act.

  • Click for the previous US law and business press review

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    For more legal news check the Paper Chase Archive...


    Unprecedented Notice of Warrantless Wiretapping in a Closed Case
    Ramzi Kassem
    CUNY School of Law

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