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 Legal news from Monday, March 24, 2008 |
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Monday, March 24, 2008 |
Supreme Court hears voting rights, sentencing enhancement, Tucker Act cases
Andrew Gilmore at 7:48 PM ET
[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [transcript, PDF] Monday in Riley v. Kennedy [LII case backgrounder; merit briefs], 07-77, a voting rights case where the Court is considering whether the state of Alabama and Alabama Governor Bob Riley must seek federal government approval in order to appoint a Republican to a vacant county commission seat in a primarily black, Democratic district. Section 5 of the Voting Rights Act of 1965 [DOJ backgrounder] requires several states, including Alabama, to obtain federal approval from the US Department of Justice (DOJ) before changing election procedures that were in effect on November 1, 1964 and that impact minority voters. Riley appointed Republican Juan Chastang to a vacant seat on the Mobile County Commission [official website]. Local Democrats challenged the appointment, and argued that a special election should have been held to fill the empty seat. In January 2007, the DOJ found that Chastang's appointment appeared to weaken minority voters and the US District Court for the Middle District of Alabama subsequently vacated the appointment. Several justices, including Chief Justice John Roberts and Justice Ruth Bader Ginsburg, seemed during arguments to side with Riley in the dispute. AP has more.
The Court also heard arguments [transcript, PDF] Monday in Burgess v. United States [Duke Law case backgrounder; merit briefs], 06-11429, a sentencing enhancement case in which the Court is attempting to resolve an ambiguity in federal drug statutes. Keith Burgess pleaded guilty to conspiracy to commit a drug offense, and was sentenced according to a federal sentencing enhancement provision that sets a mandatory minimum of 20 years' imprisonment if the defendant had a previous felony drug conviction. Burgess had previously been convicted of possession of cocaine in South Carolina, which is a misdemeanor offense in that state, punishable by two years' imprisonment. There are two conflicting definitions of "felony" in the relevant federal code, one which defines a felony as a crime classified as such by federal or state law, and the other which defines a felony as any drug offense punishable by more than one year of imprisonment. Burgess has asked the Court to find the federal law to be ambiguous regarding the definition of a felony, and to apply the rule of lenity to resolve the ambiguity in Burgess' favor.
Additionally, the Court heard arguments [transcript, PDF] Monday in United States v. Clintwood Elkhorn Mining [Duke Law case backgrounder; merit briefs], 07-308, a tax refund case in which the Court is considering whether a taxpayer who was barred from bringing an action in federal court to obtain a tax refund may file a direct action under the US Constitution through the Tucker Act [text]. The Tucker Act allows any claim against the United States which is founded upon the US Constitution, federal legislative acts, or other means to be brought directly in the United States Court of Federal Claims [official website].
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Russia court sentences Bolshevik activists to prison for 'hooliganism'
David Frueh at 6:05 PM ET
[JURIST] The Tagansky District Court in Moscow on Monday sentenced seven members of the banned National Bolshevik Party [party website, in Russian] to prison for "armed hooliganism." The sentences ranged from 1 1/2 to 2 1/2 years. The charges stem from an April 2006 protest outside the Tagansky District Court, in which Bolshevik demonstrators clashed with pro-Kremlin youth while the Tagansky court considered whether the National Bolshevik Party should be banned. Defense lawyer Dmitry Agranovsky said he would appeal the case to [the European Court of Human Rights [official website] in Strasbourg. AP has more. The Moscow Times has local coverage.
In April 2007, a Moscow City Court judge heard arguments [JURIST report] on whether to grant the chief prosecutor's request to label the National Bolshevik Party as an extremist organization and ultimately outlawed the party [Reuters report]. Prosecutors had requested the ban [JURIST report], which entails a mandatory suspension of party activity, in March 2007.
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Federal judge sentences engineer to over 24 years in China espionage case
Alexis Unkovic at 3:51 PM ET
[JURIST] US District Judge Cormac J. Carney of the Central District of California Monday sentenced former Chinese-American engineer Chi Mak [CI Centre backgrounder] to over 24 years in prison [press release] for conspiring to commit espionage, attempting to violate export control laws, failing to register as an agent of a foreign government, and making false statements to federal agents. Mak went to trial [JURIST report] in March 2007 and was convicted [BBC report] in May 2007 of conspiring to smuggle sensitive naval intelligence data to China. He allegedly stole computer disks from his employer, defense contractor Power Paragon [corporate website], copied sensitive information and attempted to send it to the Chinese government through an intermediary before his arrest at Los Angeles International Airport in October 2005. Mak's lawyer said Monday he plans to appeal his client's sentence within the next 10 days.
Three of Mak's relatives, including his brother Tai Mak, Tai Mak's wife Fuk Li and their son Billy Mak, pleaded guilty to related charges [JURIST report] as part of a plea agreement [New York Sun report] in June 2007. They were sentenced to 10 years in prison, three years probation, and time already served, respectively. Chi Mak's wife, Rebecca Laiwah Chiu, is also currently serving a three-year prison sentence after she pleaded guilty to one espionage-related count prior to her trial last year. AP has more.
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Cambodia genocide tribunal seeks additional $114 million to fulfill mandate
Alexis Unkovic at 2:53 PM ET
[JURIST] Officials from the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] made a formal request to the United Nations [official website] Monday for $114 million in additional funds to allow the court to continue operation past its originally scheduled completion date in 2009 until March 2011. An ECCC planning document [JURIST report] reported by AP last month indicated the court would ask for the increase; if granted, it would raise the court's budget from $56.3 million to $170 million. The ECCC currently has five former Khmer Rouge [JURIST news archive] leaders in custody charged with war crimes and crimes against humanity for their roles in the Communist regime of the 1970s. AP has more.
The Khmer Rouge is generally held responsible for the genocide of an estimated 1.7 million Cambodians [PPU backgrounder] who died between 1975 and 1979. The ECCC was established by a 2001 law [text as amended in 2005, PDF] to investigate and try surviving Khmer Rouge officials, but to date, no top officials have faced trials. In December 2007, Cambodian students and Buddhist monks held protests [JURIST report] over concerns that the trials were moving too slowly and that many former Khmer Rouge leaders in UN custody could die before facing justice. The ECCC has cited disputes with the Cambodian Bar Association [JURIST report] over membership fees for foreign lawyers, as well as procedural issues [JURIST report] and the language barrier for delays in moving to the trial stage.
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Nepal police arrest hundreds as pro-Tibet protests continue
Caitlin Price at 2:35 PM ET
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Supreme Court to hear gun possession, Fourth Amendment cases
Caitlin Price at 1:13 PM ET
[JURIST] The US Supreme Court [official website; JURIST news archive] Monday agreed to hear two cases [order list, PDF], including US v. Hayes (07-608) [docket; cert. petition, PDF], in which the Court will consider whether a federal law [18 USC 922(g)(9) text] banning the possession of firearms by anyone convicted of a "misdemeanor crime of domestic violence" would bar a man convicted of "general battery" against his wife from owning firearms. Randy Edward Hayes was prosecuted under the federal statute when police found firearms at his home 10 years after he was convicted under West Virginia law of misdemeanor battery against his wife. In April 2007, the US Court of Appeals for the Fourth Circuit dismissed the federal charge [opinion, PDF] against Hayes because his prior conviction did not specifically mention he was in a domestic relationship with the victim and thus did not qualify as a "misdemeanor crime of domestic violence." That decision held that to decide otherwise would "subject individuals to prosecution and possible conviction under the Possession Statute without fair warning." AP has more.
The Court also agreed to hear Pearson v. Callahan (07-751) [docket; cert. petition, PDF], in which it will review a July 2007 ruling [opinion, PDF] by the US Court of Appeals for the Tenth Circuit allowing individuals to directly sue police officers who enter their home without a search warrant to conduct a search and seizure. The Court will consider whether there exists a "consent once removed" exception to the Fourth Amendment which would allow police to enter a home without a warrant when an undercover informant inside the home signals that a drug sale is in progress. Lawyers for the defense say that in such a case, the officers are protected by qualified immunity as they did not violate clearly established law. AP has more.
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Federal judge allows Connecticut campaign finance law challenge to proceed
Alexis Unkovic at 11:05 AM ET
[JURIST] US District Judge Stefan Underhill of the District of Connecticut [official website] has ruled [opinion, PDF; ACLU-CT press release] that a lawsuit [complaint, PDF] challenging the constitutionality of certain portions of Connecticut's campaign finance law [PDF text] could proceed. Connecticut's Green Party, Libertarian Party, and American Civil Liberties Union filed the lawsuit in July 2006, arguing that the law made it impossible for minor party candidates to qualify for public financing of their campaigns. In a ruling issued last week, Underhill specifically dismissed a First Amendment challenge to the law, but said he will consider arguments that the law is unfair to smaller candidates.
The Connecticut General Assembly [official website] originally passed [JURIST report] the campaign finance law on December 1, 2005, and Connecticut Governor M. Jodi Rell [official website] subsequently signed the bill into law [press release]. The campaign finance law bans political contributions from lobbyists, their spouses, and state contractors, limits contributions of political action committees, and closes a loophole that previously allowed unregulated corporate donations. AP has more.
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Tibet government-in-exile says 130 killed in pro-independence protests
David Frueh at 10:15 AM ET
[JURIST] The Tibetan government-in-exile [official website] said Monday that 130 people have been confirmed dead after skirmishes between pro-Tibet protesters [BBC backgrounder] and Chinese authorities, 31 more than an earlier estimate of 99. China's state-run Xinhua News Agency reported the official death toll at 22 on Saturday. China [JURIST news archive] has continued its crackdown against pro-independence demonstrators; on Saturday, it urged people to turn in rioters on a published list of 21 "Most Wanted" from last week's protests in the city of Lhasa. A Saturday editorial [text] in the People's Daily newspaper [media website] denounced the independence movement and called for strong action to end the violence:We must see through the secessionist forces' evil intentions, uphold the banner of maintaining social stability, safeguard the socialist legal system and protect people's fundamental interests, and resolutely crush the "Tibet independence" forces' conspiracy and sabotaging activities so as to foster a favorable social environment for reform and development and for people's happiness and welfare. Reuters has more. AP has additional coverage.
The protests, which began earlier this month, have escalated into violence as protesters attacked police vehicles, non-Tibetans migrants, and businesses and have prompted the Chinese government to block Internet access [JURIST report] to the video-sharing website YouTube after videos of the government crackdown appeared on the site. Rights groups have criticized China for ongoing human rights violations [HRW materials] targeted at Tibetans, and many call for the total independence [advocacy website] of the currently "semi-autonomous" region. The Dalai Lama, who accused China Sunday of committing "cultural genocide" [JURIST report] in Tibet, has encouraged the protests but said he will step down [AFP report] if the violence worsens.
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New Pakistan PM seeking immediate release of ousted judges from house arrest
Michael Sung at 10:07 AM ET
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Turkish politician charged over alleged involvement with secular extremist group
Michael Sung at 9:37 AM ET
[JURIST] Turkish authorities Monday charged Turkish Workers' Party [party website, in Turkish] leader Dogu Perincek [personal website, in Turkish] for his alleged involvement with a secular extremist group suspected of plotting to overthrow the ruling government headed by the Justice and Development Party (AKP) [party website, in Turkish]. Percincek, a staunch Turkish nationalist who was convicted [JURIST report] last March by a Swiss court for denying that the mass killing of 1.5 million Armenians [ANI backgrounder] constituted genocide, was charged along with several other suspects, including a former military official and a lawyer. AP has more.
The AKP, which emerged in 2001 from a banned Islamist party, holds the offices of the prime minister and president, and dominates the 550-seat parliament with 340 lawmakers. The Constitutional Court of Turkey is currently deciding whether to consider a bid [JURIST report] by Turkish Chief Prosecutor Abdurrahman Yalcinkaya [official profile, in Turkish] to disband the AKP for violating constitutional obligations to keep the government secular. On Monday, an AKP official said that the party expects to introduce constitutional changes [Reuters report] in parliament this week that would prevent the party from being dissolved.
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China rights activist sentenced to 5 years for subversion
Joshua Pantesco at 9:14 AM ET
[JURIST] A Chinese court sentenced land rights activist Yang Chunlin [Amnesty profile] to five years in prison Monday on charges of "inciting subversion of state power" [JURIST report] for circulating a petition declaring "we want human rights, not the Olympics," which was signed by over 10,000 people before Yang was arrested in July 2007. The Beijing Olympics [official website] are scheduled to begin in August 2008. A Chinese human rights group reported that police used electric batons to restrain Yang as he attempted to communicate with family members after the sentencing hearing. Yang, a former factory worker, is also known for his support of a legal case brought against the government by more than 40,000 local farmers who say that their land was taken by the government without compensation. AP has more.
In August 2007, Human Rights Watch reported that China, fearing that activists will embarrass the ruling Communist party by highlighting political and social problems during the Games, is clamping down on human rights activists [press release; JURIST report] and other political dissidents as well as silencing independent media coverage. Rights group Dui Hua [advocacy website] reported in November 2007 that the number of political arrests in China more than doubled in 2006 [JURIST report].
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Bali nightclub bombers withdraw second appeal of death sentences
Michael Sung at 9:09 AM ET
[JURIST] Three Indonesian Islamic militants sentenced to death for their roles in the 2002 Bali nightclub bombings [BBC backgrounder] withdrew their second appeal [JURIST report] Monday, after the Cilacap district court refused to grant a change of venue and transport the militants to a district court in Bali. The Indonesian Attorney General's Office said that the militants, Mukhlas, Amrozi, and Imam Samudra [BBC profiles], could still petition for clemency.
In February, the Supreme Court of Indonesia ordered the lower district court [JURIST report] to assemble a panel of judges to review the merits of the militants' appeal. The Supreme Court rejected the Bali bombers' first appeal in December, but accepted a second appeal [JURIST reports] to determine whether the bombers should have been tried under retroactive laws that were not in effect when the bombings took place. AAP has more.
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Pakistan court clears Bhutto husband in judge assassination
Michael Sung at 8:46 AM ET
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East Timor parliament again extends state of emergency
Joshua Pantesco at 8:37 AM ET
[JURIST] The National Parliament of East Timor [official website] voted Sunday in favor of a further extension of the national state of emergency imposed after assassination attempts against President Jose Ramos Horta and Prime Minister Xanana Gusmao [BBC profiles]. Horta was critically wounded and rebel leader Alfredo Reinado was killed during the attacks, but Gusmao escaped unharmed. Acting President Fernando Lasama de Araujo called for the extension of the state of emergency, which prohibits public gatherings and establishes a curfew, saying some parts of the country remain unstable following the assassination attempts. The parliament initially extended the state of emergency for one month [JURIST report] at the end of February.
A suspect in the assassination attempt surrendered [JURIST report] to authorities earlier this month and an additional four suspects [ABC Australia report] surrendered over the weekend. Horta, the second president since the small island nation gained independence from Indonesia in 2002, was discharged from an Australian hospital [BBC report] last week. He had been in a coma after sustaining several gunshot wounds during the attacks.
Gusmao was the first named president of East Timor [JURIST news archive] following a 1999 UN-sponsored referendum in which the country voted for independence from Indonesia. He was appointed Prime Minister by Horta in 2007. In 2006, East Timor descended into violence and a state of emergency rule when former Prime Minister Mari Alkatiri [BBC profile] dismissed 600 striking members of the armed forces, causing riots [BBC report] in April and continued violence throughout May [JURIST report] which left 37 dead. Alkatiri resigned in June 2006 and an independent United Nations commission later recommended criminal investigations [JURIST report] into Alkatiri and other government officials for their role in the violence. AP has more.
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Mahmudiya rape-murder case against ex-US soldier belongs in federal court: prosecutors
Joshua Pantesco at 8:22 AM ET
[JURIST] Former US Army Pfc. Steven D. Green [JURIST news archive] should be prosecuted in civilian court under the Military Extraterritorial Jurisdiction Act [text], and not under the military system of justice as urged by the defense, federal prosecutors argued in a motion filed late Friday night. Green faces capital charges for his role in the rape and murder of a 14-year-old Iraqi girl [JURIST news archive] and the murder of her family in Mahmudiya (also "Mahmoudiya"). His civilian trial is currently scheduled for April 13, 2009 [JURIST report]. Green's lawyers have argued that he should have been tried under the military system because the alleged acts occurred while Green was enlisted; Green told his commanding officer about the incident twice while still enlisted; Green was honorably discharged due to a psychiatric disorder diagnosis after the Army knew of the Mahmudiya incident; the Army did not follow proper procedures in discharging Green, and thus Green's discharge was not valid; and the Army rejected Green's offer to re-enlist in the Army and face a court-martial for murder and rape charges. Green's lawyers argued that the circumstances amount to a violation of Green's due process rights. In their motion, federal prosecutors countered Green's factual assertion that Green was not discharged in accordance with standard military procedure, and further argued that the evidence supports a death penalty charge.
Four soldiers [JURIST report] from the 101st Airborne Division have already been convicted in military court for crimes stemming from the Mahmudiya incident. Spc. James P. Barker and Sgt. Paul E. Cortez [JURIST reports] received prison sentences of 90 and 100 years respectively after they pleaded guilty to participating in the attack. Pfc. Bryan L. Howard, who stayed at the soldiers' checkpoint but had prior knowledge of the plan, was sentenced to 27 months after pleading guilty [JURIST report] in March to conspiracy to commit rape and premeditated murder and conspiracy to obstruct justice. Pfc. Jesse Spielman was sentenced to 110 years in prison after being convicted [JURIST report] on four counts of felony murder, rape, conspiracy to commit rape, and housebreaking with intent to commit rape. All four will be eligible for parole in 10 years. AP has more.
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