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Legal news from Wednesday, November 04, 2009 |

Wednesday, November 04, 2009 |

Sarajevo researchers unveil Bosnia war crimes atlas
Dwyer Arce at 2:14 PM ET

[JURIST] Researchers in Sarajevo on Tuesday unveiled [press release, in Croatian] a Google Earth tool mapping the sites of war crimes committed during the 1992-1995 Bosnian genocide [PPU backgrounder]. The Bosnian war crimes atlas [materials, in Croatian] was compiled by the Research and Documentation Center (RDC) [advocacy website, in Croatian], a Sarajevo-based research organization tasked with collecting data regarding the events of the three-year conflict. RDC director Mirsad Tokaca described the project as:
an educational tool offering access to facts regarding mass killings, rape, war victims, and court judgments, as well as data on the destruction of the religious, cultural and historical heritage of Bosnia and Herzegovina ... represent[ing] a digital memorial to all victims of the last war, regardless of their ethnic, religious, political and social affiliation.
The atlas pinpoints [screenshot] 50,000 individual geographical locations where war crimes occurred, including those of mass killings and mass graves, in addition to the names of individual victims and court documentation. The project has been criticized [Reuters report] by prominent Bosnian Muslims for placing the estimated number of casualties at around 100,000, significantly lower than the frequently cited figure of 250,000.
The launch of the atlas came on the same day that the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] denied [JURIST report] a request by former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] for additional time in preparing his defense against numerous charges [amended indictment, PDF], including genocide and murder, for his conduct during the Bosnian genocide. The ICTY resumed the trial in abstentia last week after Karadzic boycotted the proceedings [JURIST reports], citing a lack of time for preparation. Karadzic is expected to be the final indictee tried by the ICTY. His trial is expected to conclude by early 2012.


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Supreme Court hears arguments in prosecutorial immunity, capital cases
Jaclyn Belczyk at 1:04 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in two cases. In Pottawattamie County v. McGhee [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant's "substantive due process" rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial. The US Court of Appeals for the Eighth Circuit held [opinion, PDF] that prosecutors were not protected from suit by absolute immunity. Counsel for the petitioners argued:
If a prosecutor's absolute immunity in judicial proceedings means anything, it means that a prosecutor may not be sued because a trial has ended in a conviction, Yet that is exactly what happened in this case.
The US government argued on behalf of petitioners as amicus curiae. Counsel for the respondents argued that the Court had already ruled against immunity on exactly the same issue in a previous case.
In Wood v. Allen [oral arguments transcript, PDF], the Court heard arguments on whether the state court erred in concluding that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) [text, PDF] to the review of the state court decision. The US Court of Appeals for the Eleventh Circuit reversed [opinion, PDF] a district court decision that had granted the defendant Holly Wood's habeas petition. Counsel for the petitioner Wood argued, "that there was no strategic decision here, that in fact it was a failure to investigate in violation of this Court." Counsel for the respondents argued that the AEDPA was applied correctly.


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Italy judge convicts 23 former CIA agents in rendition trial
Carrie Schimizzi at 12:24 PM ET

[JURIST] Judge Oscar Magi of the Fourth Chamber of the Court of Milan [official website, in Italian] on Wednesday convicted 23 former CIA agents for the 2003 kidnapping and rendition [JURIST news archive] of Egyptian terror suspect Osama Moustafa Hassan Nasr. The nearly three-year trial, which was delayed [JURIST news archive] many times, is the first in the world involving the CIA's extraordinary rendition flights [JURIST news archive]. Former Milan CIA station chief Robert Seldon Lady was sentenced to eight years in prison, while 22 other Americans were sentenced [IGN report, in Italian] to five years. Magi acquitted three other Americans, finding diplomatic immunity, and five Italian operatives, due to Italy's withholding of evidence [JURIST report] because of national security issues. The convicted Americans were tried in absentia and are not in custody. A US State Department [official website] spokesperson said [video] the US is "disappointed by the verdicts," but declined to comment further. The enforceability of the verdicts remains in question as sentences in Italy are not served until all appeals are exhausted.
Nasr, also known as Abu Omar, was seized on the streets of Milan in 2003 by CIA agents with the help of Italian operatives, then allegedly transferred to Egypt and tortured by Egypt's State Security Intelligence before being released [JURIST reports] in February 2007. In September, the US Department of Justice (DOJ) [official website] filed a motion to dismiss [JURIST report] a lawsuit brought by former State Department official Sabrina De Sousa seeking diplomatic immunity against the Italian charges. De Sousa was one of the Americans sentenced to five years. The CIA's rendition program has been the source of much controversy and litigation. Earlier this year, President Barack Obama announced [JURIST report] the US would continue its practice of sending terror detainees to third countries for interrogation with increased oversight by the State Department to prevent torture.


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Ohio voters approve creation of controversial livestock care standards board
Sarah Paulsworth at 10:47 AM ET

[JURIST] Ohio voters on Tuesday approved [results] a ballot measure [text] to create the Ohio Livestock Care Standards Board, commonly referred to as Issue 2. The purpose of the board will be to maintain food safety, encourage locally grown and raised food, and protect Ohio farms and families. The measure will amend the Ohio Constitution and prevent groups from putting livestock care issues on future ballots through a citizen-initiated voter referendum. Ohio Department of Agriculture [official website] Director Robert Boggs [official profile] said [op-ed, PDF]:Issue 2 is critical to Ohio for several reasons. It will mean ensuring the continued viability and success of our livestock and poultry farmers. It will mean that we can maintain the excellent care of livestock and poultry in our state. It will mean that we can protect Ohio family farms. It will mean that we can sustain the availability of safe, locally-grown food. This initiative is not a question of policy; it is a process for improvement. Issue 2 was controversial because animal rights groups alleged the amendment was proposed by Ohio's farming industry to prevent certain animal care reforms proposed by the Humane Society of the United States [advocacy website] (HSUS) that some view as a threat to the agriculture industry. President and CEO of HSUS Wayne Pacelle [official profile] said [statement]:By packaging Issue 2 as pro-animal welfare and pro-food safety, the architects of the ballot measure went a long way to assure its passage. We have not viewed Issue 2 as a poisonous package, but rather an empty one. The Ohio Farm Bureau and other agribusiness lobby groups cooked it up in an effort to block real reform. Now that the Issue 2 campaign is over, we can get on with such real reform – a measure to phase out the extreme confinement of animals in veal crates, gestation crates, and battery cages, where they cannot even turn around and stretch their limbs. According to HSUS, seven states — Arizona, California, Colorado, Florida, Maine, Michigan, and Oregon — have banned the use of inhumane confinement devices for farm animals, largely through voter-initiated referenda. HSUS said the approval of Issue 2 ensures "that Ohio lags behind other states and public opinion when it comes to the treatment of farm animals and movement away from the worst factory farming practices."


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Maine voters approve expansion of medical marijuana law
Brian Jackson at 10:18 AM ET

[JURIST] Voters in Maine on Tuesday approved an expansion [proposed legislation, PDF] of the state's existing medical marijuana laws by a 59 to 41 percent margin [Bangor Daily News report], with 87 percent of precincts reporting. The proposed legislation, Question 5 on the Maine ballot, will allow for increased access to medical marijuana through dispensaries, and will increase the number of ailments for which marijuana can be prescribed. Although there were no serious challenges mounted against the proposal, the editorial boards of many Maine newspapers opposed [Bangor Daily News op-ed; Sun Journal op-ed; Morning-Sentinel op-ed] Question 5's passage, citing a lack of oversight of dispensaries and potential law enforcement problems. A group calling itself Maine Citizens for Medical Marijuana, was also opposed to the measure [Bangor Daily News report], claiming that the measure gave the government too much control. Despite the somewhat negative view held by each of those publications and the advocacy group, the Question's passage was never seriously in doubt, as the final tracking poll [text, PDF] showed residents supported the measure by a 59 to 32 percent margin. The overwhelming support for expansion of medical marijuana may also be a positive sign for a proposal that will be circulated to Maine voters for placement on the 2010 ballot entitled An Act to Repeal the Prohibition on Cannabis, Hemp and Marijuana [petition text]. Supporters of that bill will have until September 2010 to collect the required number of signatures for placement on the November ballot.
With Question 5's passage, Maine becomes the fifth state to allow dispensaries [ABC News report], following California, Colorado, Rhode Island, and New Mexico. Last month, US Attorney General Eric Holder issued guidelines for a new policy [JURIST report] for investigating and prosecuting state-sanctioned medical marijuana use. Those guidelines reflect a pledge made by Holder in March to stop federal raids [JURIST report] on medical marijuana dispensaries that comply with state laws. Ending such raids was one of President Barack Obama's campaign promises [Boston Globe report], a view that differed sharply from the policy of the Bush administration.


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New York voters approve inmate non-profit work
Hillary Stemple at 10:11 AM ET

[JURIST] New York voters approved a ballot measure Tuesday amending the state constitution [text] to allow the state legislature to pass a law permitting prisoners to work with non-profit organizations on a voluntary basis. Prisoners previously participated in work programs with non-profit organizations, but a 2005 opinion issued by the Commission of Correction [official website] indicated that the practice might be unconstitutional. Prisoners are currently permitted to work for municipal governments on a voluntary basis. The ballot measure passed [NYT report] 67.6 percent to 32.4 percent with 98 percent of precincts reporting.
The Department of Correctional Services [official website] as well as prisoner advocacy groups were in favor [AP report] of the measure. Chairman of the State Assembly's Correction Committee [official website] Jeffrion Aubrey said the ballot measure would help rehabilitate prisoners and reintegrate them into society. In order for the measure to appear on the ballot [NYT report], it had to be approved by both houses of the state legislature in two consecutive legislative terms.


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UN DR Congo mission urged to stop funding military groups committing rights abuses
Amelia Mathias at 9:49 AM ET

[JURIST] The UN Organization Mission in DR Congo (MONUC) [official website] has given funding and support to military groups that are committing human rights abuses [press release], according to Human Rights Watch (HRW) [advocacy website] Tuesday. HRW detailed the alleged attacks, rapes, and murders of civilians, calling them war crimes. HRW senior researcher Anneke Van Woudenberg said:
Some Congolese army soldiers are committing war crimes by viciously targeting the very people they should be protecting. MONUC's continued willingness to provide support for such abusive military operations implicates them in violations of the laws of war.
MONUC suspended financial support to the Congolese army's 213th Brigade until a report and investigation can be completed [UN press briefing]. HRW urged MUNOC to suspend support to all operations "until abusive commanders are removed and effective measures are in place to protect the civilian population."
In December, Amnesty International (AI) [advocacy website] reported [JURIST report] that rape and sexual warfare have been employed by both the DRC military and by rebel forces. In November 2008, MUNOC head Alan Doss [appointment release] condemned [JURIST report] recent killings of civilians by militias in the country as war crimes. MONUC has been operating in DRC since 1999. The conflict there has claimed more than four million lives and has been ongoing since 1983. MONUC has overseen elections and continues to provide armed protection for civilians in certain areas, particularly the North and South Kivus provinces.


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Texas voters approve amendment limiting eminent domain
Sarah Miley at 9:32 AM ET

[JURIST] An amendment to the Texas Constitution [text] limiting government enforcement of eminent domain was overwhelmingly approved [unofficial results] by voters on Tuesday with more than 80 percent of those polled voting favorably. Proposition 11 [text and materials] prohibits government officials from taking private property and allotting it to private buyers for the purpose of economic development or to increase tax revenues unless the property owner consents. It further limits the government's ability to enforce eminent domain by requiring approval of two-thirds of the bicameral legislature, starting January 1, 2010. Proposition 11 is especially important to farmers in Texas who have suffered at the hands of eminent domain by losing their farmland to private developers. While farmers are glad eminent domain is a prominent issue in the election, the Texas Farm Bureau (TFB) [advocacy website] holds that the proposition falls short [press release] of the necessary actions that need to be taken by the government.
An additional provision the TFB proposed to be included in the amendment would have established fair compensation for land taken for government projects. This proposal arose from the threat of eminent domain abuse by projects such as the Trans-Texas Corridor [official website], a superhighway plan championed by the Texas governor, which would have required the acquisition of more than 600,000 acres of farmland for access roads and ramps. While the project was officially phased out [Dallas Morning News report] last week, the state still plans to make major renovations on I-35, which would inevitably effect farmers in Texas.


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Climate conference may not produce treaty: UN Secretary-General
Amelia Mathias at 9:07 AM ET

[JURIST] UN Secretary-General Ban Ki-Moon [official website] attempted [remarks] Tuesday to temper expectations for the UN Climate Change Conference [official site] in Copenhagen set to take place in a month, saying that it might not result in a treaty. The meeting, which will host world leaders, is an effort to replace the controversial Kyoto Protocol [JURIST news archive], which several nations, including the US, did not sign. While still expressing hope for a binding agreement, Ban said that conference could still be a success. Ban said in remarks after meeting with UK Prime Minister Gordon Brown that:We will continue, together with the world leaders and particularly key developed countries and key major emerging economies, so that we can have a comprehensive, balanced, equitable and binding agreement in December this year.
First and foremost, the developed countries should lead this campaign, considering all their historical responsibilities, and also considering that they are the countries who have most of the capacities, financial and technological. Now, we need at this time more than that, we need political will. If there is political will, I am sure that there is a way we can conclude a binding agreement in Copenhagen. We will continue until such a time. I am reasonably optimistic that Copenhagen will be a very important milestone. At the same time, realistically speaking, we may not be able to have all the words on detailed matters. Despite lowered expectations, Ban also still expects [Financial Times report] a political agreement on mid-term targets, mitigation actions, help for vulnerable countries, and agreements on managing support and technology. The Copenhagen meeting will begin on December 7 and run for a week and a half.
This is not the first time a UN official has drawn attention to the obstacles standing in the way of a binding agreement. In October, a UN official working in Bangkok on the precursor meeting said that US hesitancy to pass a climate bill could doom the conference. Also last month, some 1,500 climate change negotiators from around the world met under UN auspices in Bangkok [official website] as a precursor to the major climate change meeting slated for Copenhagen in December. Western countries have been unable to convince developing nations to commit to reductions in emissions when the Western world has not done so either. In March, the US Special Envoy on Climate Change announced [JURIST report] at a UN Convention on climate change that the US is committed [video] to the creation of an international treaty designed to combat global warming, but that such efforts would only succeed if they were economically feasible. Negotiations on a new treaty began [JURIST report] last year.


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Maine voters veto same-sex marriage legislation
Dwyer Arce at 9:00 AM ET

[JURIST] Maine voters approved a ballot initiative Tuesday that repealed a same-sex marriage [JURIST news archive] bill [text] passed by the state legislature last May. Question 1 [text], which read, "Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?" was projected to prevail by a margin of 53 percent to 47 percent with 87 percent of votes counted, according to unofficial results [WMTW report] as of Wednesday at 9:00 AM ET. The legislation was set to take effect in September until Question 1 qualified for the ballot after gaining the required signatures in a process [materials] allowing voters to override laws passed by the legislature. The petition for the veto began soon after Governor John Baldacci [official profile] signed the legislation into law [JURIST report] last May.
The bill would have made Maine the sixth state to recognize marriage between same-sex couples, after similar legislative initiatives were successful in New Hampshire and Vermont [JURIST reports]. Legislation to the same end was passed [JURIST report] by the New York State Assembly in May, but has since stalled in the state senate. In April, the Iowa Supreme Court overturned [JURIST report] that state's ban on same-sex marriage, following the supreme courts of Connecticut, California, and Massachusetts [JURIST reports]. Last November, California voters approved Proposition 8 [JURIST report], a ballot initiative similar to Maine's, amending the California constitution to exclude same-sex couples from marriage and effectively overriding the ruling of the high court.


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US government settles with post 9/11 detention plaintiffs for $1.26 million
Matt Glenn at 8:41 AM ET

[JURIST] Five men who claim they were illegally detained after 9/11 [JURIST news archive] reached a settlement agreement [CCR release] with the US government for $1.26 million, the Center for Constitutional Rights (CCR) [advocacy website], which represented the men, announced Tuesday. The men were part of Turkmen v. Ashcroft [CCR backgrounder], a suit against several Bush administration officials and law enforcement organizations. The suit [complaint, PDF], which was filed in the US District Court for the Eastern District of New York [official website] in 2004, claims that immigration officials arrested the men on immigration charges as suspected terrorists, that the men were abused while in detention, and that the government held the men for months after they had been eliminated as terror suspects. The government did not admit any wrongdoing as part of the settlement. CCR announced that the two plaintiffs who did not reach an agreement will continue the case, and CCR has sought permission to add five additional plaintiffs.
In 2008, the US Court of Appeals for the Second Circuit [official website] heard oral arguments [NYT report] in the case, but has not reached a decision. In 2007, a district court judge granted the government's motion to dismiss [text, PDF] a number of the claims, but refused to dismiss the abuse claims. Also in 2007, the government charged [JURIST report] several guards at the Metropolitan Detention Center in Brooklyn official website], the location in which men were detained, with abusing prisoners.


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Former Madoff accountant pleads guilty to fraud charges
Matt Glenn at 7:45 AM ET

[JURIST] Former outside accountant for Bernard Madoff [JURIST news archive], David Friehling [case materials], pleaded guilty [plea agreement, PDF; DOJ press release, PDF] Tuesday to fraud charges in the US District Court for the Southern District of New York [official website]. Despite his guilty plea, Friehling did not admit knowledge of Madoff's Ponzi scheme. Friehling, who was charged [complaint, PDF; JURIST report] in March, pleaded guilty on nine counts, including securities fraud, investment adviser fraud, making false filings with the Securities and Exchange Commission (SEC) [official website], and obstructing or impeding the enforcement of internal revenue laws. Friehling also agreed to forfeit $3,183,000 in addition to other property obtained through his services to Madoff and promised to cooperate in the government's investigation surrounding the Madoff scandal. Friehling faces a maximum sentence of 114 years in prison. Sentencing is scheduled for February 26.
Madoff's former financial chief Frank DiPascali pleaded guilty [JURIST report] in August for his role in Madoff's scheme. In June, Madoff was sentenced to 150 years in prison [JURIST report]. Madoff pleaded guilty to 11 charges of fraud in March after agreeing to a partial judgment from the SEC [JURIST reports] for civil charges stemming from his role in defrauding investors.


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Europe rights court rules crucifixes in public schools violate Convention
Jonathan Cohen at 7:08 AM ET

[JURIST] The European Court of Human Rights (EHCR) [official website] ruled [judgment, in French] Tuesday that displaying a crucifix in a public school classroom violates the European Convention on Human Rights [text, PDF]. The lawsuit was brought against Italy by Soile Lautsi, who claimed that displaying a crucifix "infringed the constitutional principles of secularism and of impartiality on the part of the public authorities." The EHCR stated [press release] that the hanging of the crucifix was a violation of Article 2 of Protocol I and Article 9 of the rights convention and that:The freedom not to believe in any religion (inherent in the freedom of religion guaranteed by the Convention) was not limited to the absence of religious services or religious education: it extended to practices and symbols which expressed a belief, a religion or atheism. This freedom deserved particular protection if it was the State which expressed a belief and the individual was placed in a situation which he or she could not avoid, or could do so only through a disproportionate effort and sacrifice. Both Italian and Catholic leaders have criticized the ruling. The Vatican recieved the news [Reuters report] with "shock and sadness" according to spokesman Federico Lombardi. Italian Minister of Education Mariastella Gelmini [official profile, in Italian] said that the crucifix was more than just a religious symbol, and that it also represented national traditions [press release, in Italian]. The Italian government plans to appeal the ruling.
In October, the US State Department (DOS) [official website] noted in its annual Report on International Religious Freedom [materials; JURIST report] that the continued presence of Catholic symbols in Italy [materials] has been a source of criticism and lawsuits. Earlier that month, the EHCR ruled [JURIST report] that Russia had illegally interfered with the freedom of religion by not allowing two Scientology groups to register as religious groups.


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Equatorial Guinea president pardons convicted coup leader
Andrea Bottorff at 6:29 AM ET

[JURIST] Former British officer Simon Mann [BBC profile, JURIST news archive], convicted [JURIST report] last year of involvement in a 2004 coup attempt [BBC backgrounder] in Equatorial Guinea, was released from prison Tuesday after being pardoned [Decree 116/2009 text; Decree 117/2009 text] by Equatorial Guinea President Teodoro Obiang Nguema Mbasogo [official profile]. Mann and his accomplices, four South African mercenaries, left the country Wednesday after being given 24 hours to depart. They are banned from reentering Equatorial Guinea. Mann, who had admitted [JURIST report] his involvement in planning the coup, had been serving a 34-year prison sentence. Mbasogo said that he pardoned the prisoners for humanitarian reasons, specifically citing Mann's poor health and need for medical care. UK officials have said they may question [Guardian report] Mann when he returns to the country, in order to determine if he violated terrorism laws by actions he took while living there.
Mann, a former British military officer with the elite Special Air Service [BBC backgrounder], was arrested in 2004 after a plane carrying him and approximately 60 mercenaries landed in Zimbabwe. Mann was sentenced [JURIST report] in 2004 in Zimbabwe for weapons charges, and was deported [JURIST report] to Equatorial Guinea in secret in February 2007. At his trial, Mann testified that Mark Thatcher [BBC profile], the son of former British prime minister Margaret Thatcher, was involved in the plot and that Mann was played only a minor role [JURIST report] in the plan overthrow Mbasogo. Thatcher pleaded guilty [JURIST report] in South Africa in 2005 to charges related to the failed coup and later admitted to having chartered a helicopter for Mann, but denied knowledge of or involvement in the coup.


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