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Legal news from Tuesday, August 18, 2009

Most US federal court judges still white men, but demographics changing: report
Jaclyn Belczyk on August 18, 2009 4:20 PM ET

[JURIST] As Justice Sonia Sotomayor [JURIST news archive] takes a seat on the US Supreme Court - the first Hispanic and only the third woman to do so - the federal judiciary as a whole continues to be heavily dominated by white males, according to a new report [text, PDF] released by the Brookings Institution [think tank website]. As of early August 2009, 70 percent of federal judges were white men, 15 percent were white women, 10 percent were minority (African-American and Hispanic) males, and 3 percent were minority females. According to the report, however, recent appointees have included proportionately fewer white males and, perhaps in a related trend, fewer private practitioners. The trend has been toward appointing district judges from previously sitting judges and then appointing circuit court judges from the ranks of district judges. The report concludes:

Most would agree with the modest proposition that, all things being equal, the federal judiciary should look more or less like the population it serves as to gender, race, and ethnicity — or at least look more or less like the realistic pool of potential judges. Over the last thirty years, the face of the judiciary has changed, although it hardly mirrors the general population and probably not the applicant pool. And it shows different faces in different parts of the country. In any event, there’s little reason to doubt the changes will continue, regardless of the party in the White House.

Whether the change in district judges’ vocational background will or should continue is a more difficult question. For one thing, as an empirical matter, there is scant evidence on whether or not they judge differently.

Sotomayor was sworn in earlier this month after debate [JURIST reports] by the US Senate, much of which focused on her infamous "wise Latina" remark rather than he judicial record. Through the confirmation hearings, Sotomayor maintained [JURIST report] that she decides cases based only on precedent, saying that she does "not believe that any ethnic, racial, or gender group has an advantage in sound judgment."

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ICE acknowledges previously unreported immigration detainee deaths
Jaclyn Belczyk on August 18, 2009 2:44 PM ET

[JURIST] The US Immigration and Customs Enforcement (ICE) [official website] acknowledged Monday that 11 deaths in immigration detention had gone unreported [press release]. ICE added 10 names to the official roster of immigration detainee fatalities [text, XLS] and acknowledged an eleventh death [press release] that occurred last week. The revelation of the additional deaths came in response to an American Civil Liberties Union (ACLU) [advocacy website] Freedom of Information Act (FOIA) [text] lawsuit seeking documents pertaining to detainee deaths. ACLU staff attorney David Shapiro said:

Today's announcement confirms our very worst fears. For too long, the system of detaining immigration detainees has been devoid of transparency and accountability. This forces us to question even further whether there are still more deaths that somehow have gone unaccounted for.

In response, ICE Assistant Secretary John Morton [official profile] directed a review of all detainee deaths to make sure there were no other omissions, saying, "[t]his is a serious matter that we uncovered and it requires an immediate response. Appropriate tracking and accounting of the deaths of individuals in ICE custody is imperative." Also Monday, Morton announced that the agency has stopped using arrest quotas [AP report] as part of the program to remove illegal aliens from the US.

Earlier this month, ICE announced plans to implement large-scale changes [JURIST report] to its immigration detention system. Morton announced the creation of an Office of Detention Policy and Planning (ODPP), which will be charged with overseeing the location and operation of detention facilities, ensuring that detainees have access to health care, and taking steps to prevent the persecution of detainees. Morton also announced that the controversial T. Don Hutto Family Residential Center [ICE fact sheet] would cease to hold families, and proposed turning it into a center for women only. Since its creation in 2003, ICE has been criticized for many of the methods it uses to capture and detain illegal immigrants. Last month, the Immigration Justice Clinic [academic website] at the Cardozo School of Law released a report [text, PDF; JURIST report] saying that immigration agents have committed numerous constitutional violations during raids on immigrants' homes.

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International arbitration commission splits Ethiopia-Eritrea border war damages
Abigail Salisbury on August 18, 2009 2:43 PM ET

[JURIST] The specially-established Eritrea-Ethiopia Claims Commission [official backgrounder] on Monday awarded damages [press release, PDF] "resulting from violations of international law" that occurred during the nations' 1998-2000 border war. The five-person panel established under the Permanent Court of Arbitration [official website] at The Hague awarded USD $174,036,520 to Ethiopia and $161,455,000 to Eritrea [awards, PDF], not including an additional $2,065,865 granted to individual Eritrean claimants. The nations had agreed to enter into binding arbitration on damages, and on Monday the Commission:

reiterate[d] its confidence that the Parties will ensure that the compensation awarded will be paid promptly, and that funds received in respect of their claims will be used to provide relief to their civilian populations injured in the war.
On Tuesday, Eritrean state media published the government's response to the order [Shabait report]:
the Government of Eritrea accepts the Award of the Claims Commission without any equivocation due to its final and binding nature under the Algiers Agreement. This is indeed consistent with Eritrea's track record of respecting arbitration decisions that emanate from its treaty obligations.
Eritrea officially separated from Ethiopia and became a recognized nation [CIA World Factbook] in 1993 after the Eritrean people voted for independence in a referendum overseen by the UN. The countries continued to dispute the demarcation between them, resulting in a two-year border war and an estimated 80,000 casualties. The conflict was brought to an end through UN intervention [UNMEE backgrounder].

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State Department Mexico rights report paves way for aid
Andrew Morgan on August 18, 2009 2:32 PM ET

[JURIST] The US Department of State (DOS) [official website] on Monday announced [transcript] that it has sent a report [text, PDF] to Congress that gives a favorable opinion of Mexico's recent human rights record, paving the way for US aid to the country. The report outlines Mexico's progress in addressing a variety of human rights issues as part of the Merida Initiative [DOS materials], a $1.4 billion aid program designed to combat criminal organizations in Central America and the Caribbean. In order for Mexico to receive $100 million in aid, DOS must verify [AP report] that Mexico is taking steps to promote human rights, but it need not certify that no abuses are taking place. According to the report, the success of the Merida Initiative will promote a continued push for human rights protections in Mexico:

Our enhanced bilateral cooperation with and assistance to Mexico under the Merida Initiative and our other activities also provide the means and opportunity to address and advance some of the issues that [have been raised], including transparency and accountability; consultations with civil society; promotion of a fair, effective, impartial justice system; professionalization of the police and military, as well as the courts and prosecutors; and advancement of human rights.

The DOS report finds that Mexico is making progress in promoting police transparency, engaging civil society groups, investigating allegations of human rights abuses by police and military personnel, and prohibiting the use of coerced evidence in trial proceedings. Critics, including the Miguel Agustin Pro Juarez Human Rights Center [advocacy website] and US Senator Patrick Leahy (D-VT) [official website] have accused the US government of minimizing Mexican abuses in order to facilitate narco-trafficking enforcement efforts. Leahy express disappointment Tuesday that the report fails to address impunity [press release] within the Mexican military.

In April, advocacy group Human Rights Watch (HRW) [advocacy website] accused the Mexican military of failing [JURIST report] to hold soldiers accountable for human rights violations, which it says undermines "the goal of stopping drug-related violence and improving public security." HRW has previously criticized [JURIST report] Mexico's National Human Rights Commission (CNDH) [official website, in Spanish] for not doing enough to promote remedies and reforms needed to end abuses. Last year, in a report to the Mexican National Congress, CNDH accused the military of committing grave human rights abuses [JURIST report], including the torture, rape and murder of civilians. Amnesty International (AI) [advocacy website] also sent a letter [text, PDF] to President Felipe Calderon [official website] last year raising concerns about human rights violations committed by military personnel.

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Ex-Credit Suisse broker convicted of fraud and conspiracy
Jaclyn Belczyk on August 18, 2009 1:08 PM ET

[JURIST] Former Credit Suisse broker Eric Butler was convicted Monday of multiple counts of fraud and conspiracy in the US District Court for the Eastern District of New York [official website]. His co-defendant Julian Tzolov pleaded guilty [JURIST report] last month and testified against Butler. Butler and Tzolov are accused [complaint, PDF; JURIST report] of defrauding clients out of more than $400 million by selling high-risk, mortgage-backed securities to clients who requested low-risk investments, in violation of the Securities Exchange Act of 1934, the Securities Act of 1933, and other SEC regulations [text]. Butler faces up to 45 years in prison. Both Butler and Tsolov will be sentenced October 27.

In light of the numerous acts of financial fraud that have been reported, the Obama administration has made protecting consumers a top priority. Last month, Securities and Exchange Commission chairperson Mary Schapiro pledged policy changes [JURIST report] that would improve the odds of preventing investment fraud. In May, the House of Representatives passed the Senate version [JURIST report] of the credit card holders' bill of rights, which the president signed the following day [press release]. Just two days prior, Obama signed [JURIST report] the Fraud Enforcement and Recovery Act, strengthening criminal laws against financial fraud.

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Scotland court allows withdrawal of Lockerbie bomber appeal
Andrew Morgan on August 18, 2009 1:01 PM ET

[JURIST] The Scottish High Court of the Judiciary [official website] on Tuesday accepted a request from convicted Pan Am Flight 103 [BBC backgrounder] bomber Abdelbaset Ali Mohmed Al Megrahi [BBC profile] to withdraw a pending appeal to his 2001 conviction. The court's decision to drop the appeal removes an impediment to Megrahi's petition to serve the remainder of his sentence in his native Libya, which could not be granted while legal actions are pending. Lord Advocate Elish Angiolini [official profile] must now decide whether to drop an appeal of Megrahi's 27-year sentence, which the government sees as too lenient. Justice Minister Kenny MacAskill [official profile] is considering whether to release or transfer [BBC report] Megrahi on "compassionate grounds" in light of his recently diagnosed terminal prostate cancer. On Monday, seven US Senators including Ted Kennedy (D-MA), John Kerry (D-MA) and Charles Schumer (D-NY) [official websites], sent a letter to MacAskill urging [Politics Daily report] him not to agree to Megrahi's release or transfer, joining last week's criticism [transcript] from US Secretary of State Hillary Rodham Clinton [official website].

In November, the High Court denied [JURIST report] Megrahi's request to be released on bail during the appeals process. Lawyers for al-Megrahi, a former Libyan intelligence officer, were denied access in March 2008 to a "missing document," that they had sought [JURIST reports] in appealing his conviction. The Scottish Criminal Cases Review Commission (SCCRC) [official website] granted an appeal [JURIST report] in al-Megrahi's case in June 2007 and referred it the High Court after the commission identified six grounds [press release, PDF] for a possible "miscarriage of justice" in his trial and conviction. In 2003, Libya made its final compensation payment [JURIST report] to a US fund for victims' families in November 2008 after agreeing to accept responsibility [US DOS press release] for the 1988 airline bombing that killed all 259 on board [victims website], including 180 Americans.

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Federal judge denies habeas petition for Yemeni Guantanamo detainee: report
Brian Jackson on August 18, 2009 12:05 PM ET

[JURIST] A judge in the US District Court for the District of Columbia [official website] issued a confidential ruling last week denying a habeas corpus [LII materials] petition by Guantanamo Bay [JURIST news archive] detainee Adham Mohammed Ali Awad, the Miami Herald reported [text] Monday. Yemeni native Ali Awad was detained following a skirmish and standoff outside a hospital in Afghanistan in 2002 and has been held at Guantanamo ever since. There is no record that formal charges have been levied against Ali Awad, a situation that exemplifies many of the issues [San Francisco Chronicle report] facing Guantanamo detainees. With Ali Awad's health reportedly failing [detainee status report, PDF], it is unclear whether the government will act quickly to bring a case against him.

Since the US Supreme Court's June 2008 ruling in Boumediene v. Bush [opinion, PDF; JURIST report] that Guantanamo detainees could challenge their imprisonment in federal court through the use of habeas corpus motions, several detainees have been granted release. Last month, Guantanamo detainee Mohammed Jawad was ordered released [JURIST report] when a federal judge granted his habeas petition. Jawad's release came less than two weeks after the same judge ordered that all of Jawad's statements elicited by torture be suppressed [JURIST report]. Jawad faced charges of attempted murder [JURIST report] for a grenade attack on US soldiers in Kabul in 2002. Also last month, a federal judge ordered the release [JURIST report] of Kuwaiti Guantanamo Bay detainee Khaled Al-Mutairi.

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Supreme Court refuses stay of execution in Sotomayor's first vote as associate justice
Jaclyn Belczyk on August 18, 2009 11:48 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday refused to stay the execution [order, DOC] of death row inmate Jason Getsy. The Court also declined Getsy's petition for review. This was the first decision for newly sworn in Justice Sonia Sotomayor [JURIST news archive], who would have stayed the execution, along with Justices John Paul Stevens, Ruther Bader Ginsburg, and Stephen Breyer. Getsy was executed Tuesday morning at the Southern Ohio Correctional Institution in Lucasville, Ohio. He was sentenced to death for the 1995 murder of Ann Sarafino. The Ohio Parole Board had recommended that Governor Ted Strickland [official website] commute Getsy's sentence to life in prison, but Strickland refused [press release]. Also Monday, the US Court of Appeals for the Sixth Circuit refused to reconsider [order, PDF] Getsy's case en banc.

Also Monday, the Court ordered [text, PDF; JURIST report] a federal court in Georgia to review the case of death row inmate Troy Anthony Davis [defense website]. Davis had filed an original writ of habeas corpus [cert. petition, PDF] directly in the Supreme Court. Justice John Paul Stevens wrote a concurring opinion, joined by Justices Stephen Breyer and Ruth Bader Ginsburg. Justice Antonin Scalia filed a dissenting opinion [text, PDF], joined by Justice Clarence Thomas. Justice Sonia Sotomayor took no part in the Court's decision. It is unclear how the remaining justices voted. Davis's case was originally scheduled for consideration at the end of last year's Supreme Court term, but the Court took no action at that time. It is fairly unusual for the Court to issue such a ruling in the summer or for the Court to grant an original writ of habeas corpus.

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Switzerland court rejects assets claim by family of Haiti ex-president Duvalier
Brian Jackson on August 18, 2009 11:22 AM ET

[JURIST] A Swiss court has denied an appeal by the family of former Haitian president Jean-Claude Duvalier [BBC backgrounder] to claim money hidden in Swiss banks by Duvalier while he led the island nation. The family's claim was rejected by the Federal Criminal Court of Switzerland [official website, in French], because the family could not prove that the money had come from legal means. Duvalier's family may appeal the decision [Swissinfo report] to deny recovery of the nearly $7 million to the Federal Supreme Court [official website, in French] within 10 days. In the event the Supreme Court rejects the appeal, it seems certain that the funds will be returned to Haiti [AP report] to provide aid to what is one of the poorest nations in the world [UN report].

Duvalier, also known as "Baby Doc," is the son of former Haitian leader Francois Duvalier, or "Papa Doc," whom he succeeded as leader [BBC report] in 1971. Following a tumultuous reign, which included accusations of thousands of murders by his regime [HRW report], Duvalier fled Haiti in 1986, and has since resided in France. In 2007, current Haitian leader Rene Preval expressed a renewed commitment to bring Duvalier to justice [JURIST report], despite Duvalier's pleas for forgiveness [Guardian report].

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Niger opposition vows to resist new constitution
Andrew Morgan on August 18, 2009 10:23 AM ET

[JURIST] Niger's opposition parties on Monday announced that they would resist any effort to implement a new constitution expanding executive powers, which was approved [JURIST report] by Nigerien voters earlier this month and validated [AFP report] by the country's Constitutional Court on Friday. Human rights activist Abdul Kamardine said [VOA report; recorded audio] that "civil societies are joining hands with the political opposition" to resist efforts by President Mamadou Tandja [BBC profile] to replace Niger's 1999 Constitution [text, in French] by holding three days of public demonstration and recalling members of the House of Assembly. Kamardine added that the opposition is acting in accordance with a provision in the existing constitution that compels the citizenry to resist illegal changes to the constitutional order. Seven labor unions, members of the opposition Coordination of Democratic Forces for the Republic (CDFR), on Sunday announced plans to hold a 72-hour strike [AFP report] to protest the validity of the referendum. CDFR, which disputes [press release, in French] Tandja's claim that 92 percent of the vote [BBC report] approved the referendum, said that Tandja had lost all of his legitimacy and legality [press release, in French], both at home and internationally, by relying on inflated numbers to support the new constitution's adoption.

Among the new constitution's changes is the abolition of a presidential two-term limit, allowing Tandja to remain in office for three more years [AFP report] and to run in any subsequent elections, allowing the president to appoint one third of the members [CBC report] of a newly-created Senate, and establishing a media-monitoring position that would have the authority to jail reporters thought to present a threat to the country. In the lead-up to the election, CDFR had encouraged a popular boycott [AP report] of the referendum on constitutional grounds, forming the basis for its dismissal of official electoral statistics. In June, opposition leader Bazoum Mohamed of the Nigerien Party for Democracy and Socialism (PNDS) [party website] accused Tandja of committing a coup d'etat [JURIST report] by annulling the West African country's Constitutional Court. The Constitutional Court ruled [Pana report] in May that plans to hold a referendum on allowing a third term were unconstitutional. Tandja responded to the ruling by dissolving parliament and assuming emergency powers.

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Honduras interim government skeptical of pending OAS rights report
Jaclyn Belczyk on August 18, 2009 10:15 AM ET

[JURIST] Honduran Interim Deputy Foreign Minister Martha Alvarado said Monday that she expects a biased report from the international panel that arrived Monday to investigate alleged human rights abuses. A delegation from the Inter-American Commission on Human Rights (CIDH), which is part of the Organization of American States (OAS) [official website], arrived in the Honduran capital of Tegucigulpa Monday to assess the human rights situation in the wake of the ouster of President Manuel Zelaya [BBC profile; JURIST news archive]. Alvarado said at a news conference [La Prensa report, in Spanish] that she is skeptical of the panel's report because the OAS has already called the ouster a coup and called for Zelaya's reinstatement, expelling Honduras last month. The OAS delegates met with a Honduran human rights group, but refused [Diario Tiempo report, in Spanish] to meet with members of the interim government, led by Roberto Micheletti. Also Monday, delegates from the interim government went to Washington, DC, to continue talks with the OAS [CCTV report].

Last week, the Honduran Office of the Prosecutor of Common Crimes indicted 24 Zelaya supporters [JURIST report] on charges of sedition and damaging public property. All 24 were accused of robbery, sedition, damages to private property, and illegal demonstrations stemming from recent protests. Zelaya was ousted [JURIST report] on June 28 following a judicial order [press release] asserting he had broken Honduran law by attempting to conduct a controversial referendum on constitutional reform contrary to a Honduran Supreme Court ruling. The US has condemned [DOS briefing transcript] Zelaya's removal and supports his return.

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Groups urge competitive elections to UN Human Rights Council
Andrew Morgan on August 18, 2009 9:43 AM ET

[JURIST] An international coalition of human rights advocates have urged [letter text] UN member nations to support a "competitive, genuinely-contested and principled electoral process" for future seats on the UN Human Rights Council (UNHRC) [official website]. In a letter sent Thursday to members of the General Assembly, 74 human rights groups including Human Rights Watch (HRW), Amnesty International (AI) and the Carter Center criticized the 2009 UNHRC elections [JURIST report], saying that they were marred by "lack of candidates and competition; endorsed regional slates; late, absent or insubstantial pledges and commitments; and widespread vote trading." In an effort to honor Resolution 60/251 [text, PDF], which established the council, member nations were urged to consider candidacies individually, not as part of a regional bloc, to evaluate candidates based on human rights records rather than political and economic concerns, to eschew vote-trading, and to require human rights pledges from candidates 30 days prior to elections. The UNHRC is scheduled to hold its 12th session [council materials] in September, the first such meeting for members elected in 2009.

HRW and other advocacy groups had expressed similar concerns [press release] about the electoral process following the elections in May. The groups criticized the election of Russia, China, Cuba, and Saudi Arabia to the UNHRC, among others. In April, the US State Department [official website] released [press release; JURIST report] its commitments and pledges to human rights in anticipation of May election. The US announced its intent to seek a seat on the council [JURIST report] in early April, hoping to affect more change by working from inside the council than by boycotting the effort. The UNHRC was created [JURIST report] in 2006 to replace the much-criticized Committee on Human Rights, at which time the Bush administration declined to seek a Council seat or participate in its proceedings due to a perceived anti-Israeli sentiment by the UNHRC.

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DOJ indicts 3 in largest identity theft prosecution in US history
Jaclyn Belczyk on August 18, 2009 8:40 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] on Monday announced the indictment [text, PDF; press release] of three men accused of perpetrating the largest hacking and identity theft case ever prosecuted in the US. Albert Gonzales and two unidentified Russian hackers are accused of stealing more than 130 million credit and debit card numbers by hacking into computer systems of companies including credit card payment processor Heartland Payment Systems, convenience store chain 7-Eleven, and supermarket chain Hannaford Brothers. Each of the accused is charged with conspiracy and wire fraud conspiracy. Acting US Attorney for the District of New Jersey Ralph Marra said [press release, PDF]:

This investigation marks the continued success of law enforcement in tracking down cutting edge hacking schemes committed by hackers working together across the globe. When companies make the decision to work with law enforcement and disclose a data breach at the earliest possible opportunity, it provides the best chance at apprehending a hacker and demonstrates that those corporate victims will actively defend their systems.

If convicted, the co-conspirators could each face up to 35 years in prison and more than $1.25 million in fines.

Gonzales is currently in federal custody, having been charged in May 2008 in the Eastern District of New York and in August 2008 in the District of Massachusetts in separate conspiracies. Gonzales is scheduled to go on trial in September 2009 on the New York charges [press release, PDF], which involve hacking into the computer system of a national restaurant chain. He is scheduled to go on trial in 2010 on the Massachusetts charges for other retail hacks and the theft of data involving 40 million credit cards. The DOJ prosecutes identity theft [DOJ backgrounder] and fraud cases under a variety of federal statutes and warns the public to be vigilant in order to avoid becoming a victim.

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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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