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Legal news from Wednesday, September 24, 2008

Finland government drafting gun control amendments after school shootings
Joe Shaulis on September 24, 2008 11:58 AM ET

[JURIST] The Finnish Interior Ministry [official website, English version] on Wednesday announced [press release] that it is drafting new gun control legislation [JURIST news archive] in response to the fatal shootings [police press release; BBC report] of 10 people at a vocational school in the Finnish city of Kauhajoki. Interior Minister Anne Holmlund [official profile] said the amendments to the Firearms Act of 1998 [PDF text], to be presented to the Finnish Parliament [official website, English version] by spring, will give officials more information about the health of applicants for handgun licenses and will address firearm storage. According to an Interior Ministry statement,

In Ms Holmlund's view, it is important that the licence procedure in Kauhajoki will be investigated by a prosecutor. Only this way can we ascertain whether the instructions and regulations have been followed and whether the police have had information on such matters in the light of which the licence should not have been granted in the first place or the validity period should not have been extended.
After Tuesday's shootings, Finnish Prime Minister Matti Vanhanen [official website] said the government would consider stronger gun control laws [AP report]. Bloomberg News has more. BBC News has additional coverage. Helsingin Sanomat has local coverage.

The prime minister noted "unfortunate similarities" [press release] between the Kauhajoki shootings and those last November in the village of Jokela, where an 18-year-old gunman killed eight people [BBC report] at a high school. Later that month, European Union (EU) lawmakers endorsed a legislative report [JURIST report] to tighten gun control laws and establish an extensive firearms database. The report resulted from 18 months of negotiations with national governments and gun-rights advocates. The EU Parliament and Council adopted a directive [text] based on the report this past May. Finland [JURIST news archive] has the highest rate of gun ownership [AP backgrounder] in the EU.

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US judge orders psychiatric evaluation of Pakistan woman alleged to be al Qaeda agent
Caitlin Price on September 24, 2008 11:17 AM ET

[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Tuesday entered a not guilty plea and ordered a psychiatric evaluation in the trial of Aafia Siddiqui [FBI materials], a Pakistani woman with alleged ties to al Qaeda. Siddiqui was charged [complaint, PDF; JURIST report] in August with assault and the attempted murder of a US officer after allegedly opening fire on agents at the Afghan detention facility where she was being held in July. Judge Richard Berman entered the not guilty plea on her behalf as Siddiqui did not attend her arraignment after refusing to undergo a mandatory strip search. US Attorney Michael Garcia [official profile] requested the psychiatric evaluation [Reuters report] Monday on suspicions that Siddiqui is mentally unfit to stand trial, with defense attorney Elizabeth Fink agreeing that such evaluation is appropriate. A December 17 hearing will determine Siddiqui's mental competence, with a tentative trial date set for March 9. AP has more.

Siddiqui, who was extradited to the US in August, was shot in the abdomen during the July skirmish leading to her charges. She has since refused proper medical care as well as communication with her legal counsel. Siddiqui's family has insisted that she is not an al-Qaeda agent and that the FBI has publicized misleading information about her. They say that Siddiqui, a former student at Brandeis University and MIT in Boston, may have been a victim of extraordinary rendition [JURIST news archive] after she vanished from Karachi, Pakistan in 2003. Defense lawyers have alleged that Siddiqui may have been wrongly detained and tortured [Washington Post report] at Bagram air base in Afghanistan.

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ICTY prosecutors file motion to amend Karadzic indictment
Leslie Schulman on September 24, 2008 10:07 AM ET

[JURIST] Prosecutors in the case of former Bosnian Serb leader Radovan Karadzic [ICTY materials; JURIST news archive] filed a motion to amend [text, PDF] his indictment in the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive] on Tuesday, as was planned [JURIST report] earlier this month. The indictment [text] in question was issued in 2000, and contains 11 charges against Karadzic, including genocide, murder, persecution, deportation and "other inhumane acts." If granted, the motion would cause several significant changes, such as dropping allegations that Karadzic breached the Geneva Convention and was complicit in genocide, reducing the number of alleged municipalities in which Karadzic committed criminal activity, and bifurcating the genocide charge to create one count for his alleged involvement in the 1995 Srebrenica [JURIST news archive] massacre and another count for his alleged role in the killing of Bosnian Muslims and Croats during ethnic conflicts [timeline] in the former Yugoslavia during the early 1990s. Amending the indictment would mean calling fewer witnesses to testify, and prosecutors hope it will simplify the trial process.

Last week, Karadzic reiterated his desire to represent himself, as well as his claim [JURIST report] that Richard Holbrooke [PBS profile], former US ambassador to the UN, had promised him immunity conditioned upon removing himself from public life. Karadzic was arrested [JURIST report] in July after evading capture for nearly 13 years. He was originally indicted in 1995 but had been in hiding under an assumed identity as an alternative medicine practitioner [BBC report]. He repeatedly refused to enter a plea on the charges, with an ICTY judge eventually entering a not-guilty plea [JURIST reports] on his behalf. If the court approves the amended indictment, Karadzic will be asked to enter new pleas.

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FBI investigating major financial institutions for potential fraud: reports
Caitlin Price on September 24, 2008 10:03 AM ET

[JURIST] The Federal Bureau of Investigation [official website] is currently investigating Fannie Mae, Freddie Mac, Lehman Brothers, and AIG [corporate websites] along with 22 other financial institutions for possible mortgage fraud [FBI backgrounder], US media outlets reported Tuesday. The investigations follow a market collapse that led to a Bush administration proposal [fact sheet; JURIST report] circulated over the weekend that would authorize the Treasury Department to acquire as much as $700 billion in mortgages and other loans. Though FBI officials would not comment on which firms are involved in the ongoing inquiries, ABC News reported [text] that FBI spokesman Richard Kolko has confirmed 26 "pending corporate fraud investigations involving subprime lenders." AP reported [text] that the investigations are in the "early stages." The Wall Street Journal has more.

In June, the FBI announced that more than 400 people had been indicted [press release; JURIST report] in connection to what has been termed the US "sub-prime mortgage collapse." The vast majority of the indictments involved fraud related to individual mortgages, with the FBI focusing on lending fraud, foreclosure rescue scams and mortgage-related bankruptcy schemes, which account for more than $1 billion in losses. Earlier month, mortgage giants Fannie Mae and Freddie Mac were placed into a conservatorship under the Federal Housing Finance Agency [CNN report], investment bank Lehman Brothers filed Chapter 11 bankruptcy [AP report], and the Federal Reserve took control of nearly 80% of the shares [Reuters report] of leading insurer AIG. New York Attorney General Andrew Cuomo has also announced a state investigation [JURIST report] into whether some investors used illegal methods to profit from the recent declines in banking and insurance stocks, possibly by short-selling [Forbes backgrounder] stock and spreading of false information to illegally gain from the devaluations in Lehman Brothers, AIG and other stocks.

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Chief judge of US military commissions retiring in April
Joe Shaulis on September 24, 2008 10:01 AM ET

[JURIST] US Marine Col. Ralph Kohlmann [JURIST news archive], chief judge of US military commissions [DOD materials; JURIST news archive], said Tuesday at a pretrial hearing for five suspects in the September 11 attacks [JURIST news archive] that he is scheduled to retire next April. During voir dire, in which defense attorneys questioned Kohlmann about potential bias, the judge said he had submitted retirement paperwork this past February. Kohlmann refused to speculate about whether the trials would conclude before his retirement, telling the attorneys he would reassign the cases if necessary. Among the suspects who appeared before Kohlmann on Tuesday was Khalid Sheik Mohammed [JURIST news archive], suspected of coordinating the 9/11 attacks, who asked Kohlmann [AP report] about his religious affiliation and his ability to preside impartially as a military officer. The Miami Herald has more.

Kohlmann has served as chief judge of the military commissions since last year. After his appointment, the New York Times noted [report] that Kohlmann had criticized the concept of military commissions in a paper [text] he had written in 2002 as a master's student at the US Naval War College [official website]. Kohlmann wrote that US district courts would be a better venue for terrorism suspects' trials because of a perception that military commissions lack independence and credibility. In another recent personnel change at the military commissions, US Air Force Brig. Gen. Thomas Hartmann [official profile; JURIST news archive] was reassigned [JURIST report] to the newly-created position of director of operations of the Office of Military Commissions. In his former position as legal advisor to the military commissions, Hartmann had been barred from taking part in certain detainees' trials on grounds that he was biased toward the prosecution [JURIST report].

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Serbia president asks UN General Assembly to call for ICJ ruling on Kosovo
Andrew Gilmore on September 24, 2008 9:24 AM ET

[JURIST] Serbia submitted a draft resolution to the UN General Assembly [official website] Tuesday seeking an International Court of Justice (ICJ) [official website] advisory opinion on the legality of the unilaterally-proclaimed independence of Kosovo [JURIST news archive]. The draft resolution was presented following an address to the General Assembly by Serbian President Boris Tadic [official website; JURIST news archive]. The draft resolution and Tadic's address follow a letter to UN members from Tadic sent two weeks ago urging support for the Serbian ICJ advisory opinion request. In Tuesday's address [text, PDF], Tadic said:

Your vote in support of this resolution would serve to reaffirm another key international principle at stake: the right of any member State of the United Nations to pose a simple, elementary question - on a matter it considers vitally important - to the competent court. To vote against is in effect to vote to deny the right of any country—now or in the future—to seek judicial recourse through the UN system. To vote against means to accept that nothing could be done when secessionists in whichever part of the world proclaim the uniqueness of their cause, and claim exception to the universal scope of international law. Such an attitude could lead to the end of the UN system as we know it.
The UN News Centre has more.

Kosovo's constitution [text] went into effect this summer [JURIST report] despite Serbia's argument that the charter of the breakaway province was legally void. Serbia does not recognize Kosovo's declaration of independence [text; JURIST report], and thus cannot recognize the country's constitution as a legal fact. Serbia's official stance is that Kosovo is in violation of the UN Charter and UN Security Council Resolution 1244 [PDF text], which reaffirms the sovereignty and territorial integrity of the Serbian state. The new state of Kosovo has been recognized by the US and most European states, but not by Russia, Serbia's closest ally.

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DOJ to stop sending prosecutors to monitor US elections
Joe Shaulis on September 24, 2008 8:51 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday announced [press release] that it would not post criminal prosecutors at the polls for the November 4 presidential election, responding to concerns raised by civil rights groups. The decision represents a departure from the DOJ's longstanding practice. Grace Chung Becker [profile], assistant attorney general for the DOJ's Civil Rights Division [official website], issued the following statement:

On Election Day, the primary responsibility of the Civil Rights Division is to ensure all eligible voters are able to cast their ballot in an environment free of discrimination, suppression or intimidation. The Division has and will use every statute within its purview to provide all voters with a free and fair electoral process.

On November 4, 2008, hundreds of federal government employees will be deployed in counties, cities and towns across the country to monitor polling places and to ensure compliance with federal voting statutes. In light of questions we have been asked regarding who will serve as election monitors, I want to inform the public that no criminal prosecutors will be utilized as election monitors on Election Day this year. This decision was made as a precaution and is not the result of any instance of intimidation or complaint regarding any specific incident.
Civil rights advocates have criticized what they perceive as the DOJ's emphasis on preventing voter fraud [Wall Street Journal report] rather than ensuring minority access to the polls, questioning whether the presence of prosecutors intimidates minorities [NPR report] in some communities. AP has more.

During a Senate Judiciary Committee oversight hearing [materials] earlier this month, Becker testified [prepared remarks, PDF] that elections monitors are "among the most effective means of ensuring that federal voting rights are respected on election day." She reported that this year, 364 federal observers and 148 other DOJ personnel have monitored 47 elections in 43 jurisdictions. In July, Attorney General Michael Mukasey told the House Judiciary Committee during a hearing [JURIST report] that enforcing voting rights would be a priority for the remainder of his tenure. The Voting Rights Act [text; DOJ backgrounder] authorizes federal courts and the attorney general to appoint federal observers [DOJ backgrounder] to monitor elections for voting-rights violations.

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Justice Department to amend proposed FBI guidelines
Andrew Gilmore on September 24, 2008 8:39 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] will amend proposed investigation guidelines [JURIST report] to comport with the concerns of Congress and civil liberties groups, according to testimony by Assistant Attorney General Elisebeth Cook [official profile] given Tuesday before the US Senate Select Committee on Intelligence [committee website]. The proposed rules, referred to as the Attorney General Guidelines, are intended to shift the focus of the Federal Bureau of Investigation (FBI) [official website] from fighting crime to preventing terrorism in the US. In a joint written statement [text, PDF] with FBI General Counsel Valerie Caproni [official profile], Cook wrote:

Over the last seven years, the FBI has altered its organizational structure, and the Attorney General has issued new policies to guide the FBI as it seeks to protect the United States and its people from terrorism, intelligence threats, and crime, while continuing to protect the civil liberties and privacy of it citizens. The changes reflected in the new guidelines are necessary in order for the FBI to continue its important transformation to being an intelligence-driven organization. We believe that using intelligence as the strategic driver for the FBI’s activities will improve its ability to carry out its national security, criminal law enforcement, and foreign intelligence missions.
AP has more.

Last week, FBI Director Robert Mueller [official profile] defended the proposed guidelines [JURIST report] before the US Senate Judiciary Committee [official website] as a "necessary step" in fighting terrorism. Opponents have argued [JURIST report] that the changes could allow inappropriate racial and ethnic profiling and would permit agents to open terror investigations without evidence of any crime having been committed. Committee Chairman Patrick Leahy (D-VT) [official website] and the committee's ranking Republican, Arlen Specter (R-PA), wrote [letter, PDF; press release] to Attorney General Michael Mukasey last month, calling on him to postpone implementation of the guidelines pending Congressional review. In his own testimony [JURIST report] before the committee in July, Mukasey said the guidelines would take into account not only race or religion but also factors such as travel to foreign terror "hot spots." Wednesday's Senate hearing followed another oversight hearing [materials] Tuesday before the House Judiciary Committee, where Mueller said the federal government would commission an independent review [JURIST report] of the FBI's use of scientific evidence in its investigation of the 2001 anthrax attacks.

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Federal Circuit clarifies rule governing design patents
Devin Montgomery on September 24, 2008 8:22 AM ET

[JURIST] An en-banc panel of the US Court of Appeals for the Federal Circuit [official website] on Monday clarified [decision, PDF] the test to be used to determine whether a design patent [government backgrounder] has been infringed. The issue came before the court in a dispute over an alleged infringement of US Design Patent No. 467,389 [patent materials], a design for a four-sided nail buffer, in which a three-member panel [opinion, PDF] of the court had found no violation. The court had originally denied the claim because it found that the allegedly infringing design did not include a non-trivial "point of novelty." In the rehearing, the court again found no infringement, but broadly rejected the widely-used "point of novelty" test. Instead, the court held that an "ordinary observer test" designed to include relevant knowledge of design trends in a particular field was a better application of legal precedent:

We think, however, that...predecessor cases...are more properly read as applying a version of the ordinary observer test in which the ordinary observer is deemed to view the differences between the patented design and the accused product in the context of the prior art. When the differences between the claimed and accused design are viewed in light of the prior art, the attention of the hypothetical ordinary observer will be drawn to those aspects of the claimed design that differ from the prior art. And when the claimed design is close to the prior art designs, small differences between the accused design and the claimed design are likely to be important to the eye of the hypothetical ordinary observer.
Patently-O has more.

Under 28 U.S.C § 1295 [text], Federal Circuit Court decisions on patent issues can only be reversed by the US Supreme Court. In June, the Supreme Court ruled [opinion; JURIST report] in Quanta v. LG [Duke Law backgrounder; JURIST report] that a patent holder's rights may be exhausted through certain license agreements. In that case, brought by LG Electronics against Quanta Computer [corporate websites] for the allegedly wrongful use of patented computer components, the court overturned a July 2006 US Court of Appeals for the Federal Circuit decision [opinion, PDF] based largely on the disputed doctrine of equivalents [backgrounder, PDF].

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US Supreme Court stays execution of Georgia death row inmate
Leslie Schulman on September 24, 2008 1:52 AM ET

[JURIST] The US Supreme Court [official website] on Tuesday stayed the execution [order, PDF] of Georgia death row inmate Troy Anthony Davis "pending the disposition of the petition for a writ of certiorari." Davis had been scheduled to be executed [AG news release] at 7 PM EDT on Tuesday. According to his lawyers, key witnesses who claimed they saw Davis kill an off-duty police officer in 1989 have recanted their testimony and others say another person has since confessed to the killing. A stay will terminate automatically if Davis's petition for certiorari is denied. The US Supreme Court had previously denied a petition for certiorari in the case, and the Georgia Supreme Court [official website] in March denied [court docket; opinion summary] Davis's request for a new trial. AP has more. The Atlanta Journal-Constitution has local coverage.

Davis would have been the third prisoner in Georgia to be executed since September 2007, after resuming executions in May following an effective moratorium [JURIST reports] on the death penalty in the United States as many federal courts, state courts, and state governors put executions on hold pending the US Supreme Court's ruling in Baze v. Rees [Duke Law case backgrounder; JURIST report], which allowed the Court to consider whether the three-drug lethal injection "cocktail" [DPIC backgrounder] used in most states violates the Eighth Amendment's prohibition on cruel and unusual punishment. The Court upheld the procedure [opinion, PDF] in April. Several other US states have since resumed executions by lethal injection, including Texas [JURIST report], Virginia [Times-Dispatch report], Mississippi, and Florida, which on Tuesday executed Richard "Ric Ric" Henyard [AP reports] by lethal injection.

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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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