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Legal news from Wednesday, December 7, 2011

Prosecutors decline to continue seeking death penalty for Mumia
Jamie Reese on December 7, 2011 2:36 PM ET

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[JURIST] Philadelphia District Attorney Seth Williams [official website] announced Wednesday that his office will no longer seek the death penalty [press release] against Mumia Abu-Jamal [Philadelphia Inquirer backgrounder; JURIST news archive]. As a result of the decision, Abu-Jamal will remain in prison for life ending a 30-year sentencing battle after he was convicted of killing police officer Daniel Faulkner. Williams said the decision was made after consultation with Faulkner's family and rests on the premise that continuing to seek the death penalty would open the case to an "unknowable number of years" of appeals. The decision was applauded by supporters on both sides. Abu-Jamal's recent legal representative, Widener University law professor Judith Ritter [academic profile] welcomed the decision [AP report].

The conviction was upheld through years of appeals, but a new sentencing hearing was granted [JURIST report] in April on the basis of improper jury instructions. The US Supreme Court [official website] declined to opine on the decision in October, which forced prosecutors to decide whether they would pursue the death penalty through a new sentencing hearing. The Supreme Court had considered Abu-Jamal's case in several previous rulings. The court remanded the case to the Third Circuit [JURIST report] in January 2010 for further consideration in light of the ruling in Smith v. Spisak [opinion, PDF; JURIST report]. The Supreme Court declined to review [JURIST report] Abu-Jamal's conviction in April 2009. In 2008, the Third Circuit affirmed [JURIST report] a district court ruling overturning the sentence in Abu-Jamal's case, and the only issue to be determined on remand was whether the court erred in allowing the new sentencing hearing. Abu-Jamal was convicted of killing police officer Daniel Faulkner [advocacy website] after Faulkner pulled over Abu-Jamal's brother for a traffic violation. The case has become a focal point for death penalty opponents and Abu-Jamal's supporters [advocacy website] who believe he was the victim of a racially biased justice system.

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Illinois ex-governor Blagojevich sentenced to 14 years
Jaclyn Belczyk on December 7, 2011 1:47 PM ET

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[JURIST] Former Illinois governor Rod Blagojevich [personal website; JURIST news archive] was sentenced Wednesday to 14 years in prison on corruption charges. Judge James Zagel of the US District Court for the Northern District of Illinois [official website] handed down the sentence after Blagojevich made a public apology in court earlier in the day. Blagojevich was scheduled to be sentenced on October 6 after he was convicted [JURIST report] in June on 18 counts of corruption, but the sentencing hearing was delayed [JURIST reports] until this week. It is unclear when Blagojevich will report to prison.

Blagojevich was previously found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on 23 additional charges. The prosecutors dropped some of the charges [JURIST report] to simplify the case for retrial, including charges for racketeering. In January 2009, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich and his former chief of staff John Harris were initially arrested [JURIST report] in December 2008 on corruption charges, including allegations that they conspired to sell the Senate seat left vacant by US President Barack Obama.

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France parliament backs proposal to ban prostitution
Katherine Getty on December 7, 2011 12:57 PM ET

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[JURIST] The French parliament approved a proposal [resolution, PDF, in French] on Wednesday to ban prostitution [JURIST news archive]. The non-binding resolution was backed by a show of hands and is expected to be followed by a bill. Prostitution is not currently outlawed in France although certain linked activities are. France's sex worker's trade union, STRASS [advocacy website, in French], opposes the proposed bill, claiming that it would further repress sex workers by endangering their health, livelihood and safety. However, French-led men's initiative ZeroMacho [advocacy website] approved of the attempt to criminalize prostitution. A vote on the bill is expected in the coming days.

Other countries have also attempted to outlaw portions of the prostitution trade. In September 2010 the Ontario Superior Court of Justice (OSCJ) [official website] struck down [JURIST report] several provisions of Canada's anti-prostitution laws, citing the danger they generate for sex workers. In Canada, prostitution itself is legal even though many ancillary acts are not. In March, the Supreme Court of Canada [official website] agreed to review a British Columbia Court of Appeal [official website] decision allowing a challenge [JURIST report] to the country's anti-prostitution laws. In November 2009, the Constitutional Court [official website, Taiwanese] of Taiwan ruled that a law penalizing prostitutes [JURIST report] and not their clients was unconstitutional because it undermined equality under the country's constitution.

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Brazil lawmakers approve controversial amendments to forest code
Sung Un Kim on December 7, 2011 12:47 PM ET

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[JURIST] The Brazilian Senate [official website, in Portuguese] voted 59-7 Tuesday to approve amendments [materials, in Portuguese] to the country's Forest Code. Supporters of the bill, including Brazil's National Agriculture and Livestock Federation [official website], say that this change will assist in lowering the carbon emissions while continuing to require farmers and ranchers to preserve significant amount of forest. On the other hand, critics of the new bill, such as the World Wildlife Fund (WWF) [advocacy website] argue [press release], that the new bill will create extended amnesty for those who cut down the forest illegally and promote the continuance of such practice. The amended legislation will now return to the lower house, which approved an earlier version [JURIST report] in May, and then to President Dilma Rousseff [BBC profile]. It remains to be seen how these changes to Brazil's Forest Code will affect deforestation and the global climate.

Currently, the UN Climate Change Conference [official website] is taking place in Durban to focus on the threat of climate change. Weeks before the conference, the Intergovernmental Panel on Climate Change (IPCC) [official website] released [JURIST report] the Summary for Policymakers [text, PDF], which outlined available options to decrease risks posed by extreme disasters including effects arising out of increased greenhouse gases. In July, the UN Security Council [official website] made its first official statement [JURIST report] that the climate change is most likely to pose a serious threat to world peace and security.

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Malaysia bill will curb peaceful assembly rights: UN experts
Max Slater on December 7, 2011 12:14 PM ET

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[JURIST] A UN panel of independent human rights experts warned Wednesday that recently-passed legislation in Malaysia would severely curtail the right to peaceably assemble [UN News Centre report; press release] in that country. The Peaceful Assembly Act 2011 [bill, PDF], which passed the lower house [JURIST report] of Parliament [official website] last week, would limit free speech rights by forbidding Malaysian citizens under the age of 21 and non-citizens from assembling, enacting conditional access for media to public gatherings and outlawing street protests altogether. Those who violate the new law may be penalized with thousands of dollars in fines. The UN Special Rapporteur on free expression urged Malaysia's government not to adopt the bill, calling the right to peaceably assemble "a litmus test for the level of democracy in any country." The Special Rapporteur on the human rights of migrants noted that prohibiting non-citizens from assembling also violates international law, under which "everyone" has the right to freedom of assembly and association, without distinction of any kind. Last week approximately 500 lawyers marched on Parliament in the Malaysian capital of Kuala Lumpur in protest of the bill's ban on street protests. Numerous rights groups reportedly plan to challenge the law in court.

In November Malaysian Prime Minister Najib Razak [official profile] defended the bill [JURIST report], saying it would balance citizens' right to protest with public safety concerns. However, the bill has drawn ire from both Malaysians and the international community. Malaysian opposition leader Anwar Ibrahim [official website; JURIST news archive] has stated that the bill is more draconian than previous free speech crackdowns in Zimbabwe and Myanmar [JURIST reports]. In late October the Malaysian Court of Appeal [official website] ruled that a similar law prohibiting college students from taking part in political activities is unconstitutional [JURIST report]. The suit, filed by four International Islamic University of Malaysia [official website] students in 2010, challenged the constitutionality of the 1971 Universities and University Colleges Act (UUCA) [text, PDF] prohibiting students from political participation. Also last month, Malaysia's government released 125 prisoners [JURIST report] who were being held under a decades-old security law that has been widely criticized by human rights and opposition groups. In September, Razak announced that the government would repeal two strict security laws [JURIST report] that had allowed extended detention of suspects without trial. The government also said that it will review other laws dealing with freedom of the press.

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Bank of America to pay $315 million to settle investor claims of deception
Ashley Hileman on December 7, 2011 11:12 AM ET

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[JURIST] Bank of America (BOA) [corporate website] agreed Monday to pay $315 million in a settlement of claims brought by investors alleging they were misled with respect to mortgage-backed investments. Court papers disclosing the settlement agreement [AP report] were filed in the US District Court for the Southern District of New York [official website]. The claims were a part of a class action lawsuit led by the pension fund of the Public Employees' Retirement System of Mississippi [official website], which alleged that BOA's Merrill Lynch unit provided the fund with misinformation regarding the risks of the mortgage-backed investments it made prior to the financial crisis. The settlement agreement now requires the approval of federal Judge Jed Rakoff, who recently rejected a $285 million settlement agreement [JURIST report] between the US Securities and Exchange Commission (SEC) [official website] and Citigroup Inc [corporate website], after deciding that SEC did not put any effort into finding out what Citigroup did wrong.

This settlement agreement by BOA is the latest attempt by the corporation to move past legal issues that have plagued it in recent years. Last month, a senior judge for the US District Court for the Southern District of Florida [official website] gave final approval [JURIST report] to a $410 million settlement in the class action suit against BOA for overdraft fees that affected more than 13 million people. Judge James Lawrence King found this agreement to be fair and reasonable [AP report] even though customers will not be fully compensated for overdraft fees which averaged approximately $35 per transaction. Approximately 13.2 million customers who had a debit card with BOA between January 2001 and May 2011 will have money credited to their account or will receive checks from BOA as a result of this settlement. The settlement with BOA, which was reached in February, was given preliminary approval [JURIST reports] in May. BOA is among more than two dozen US, Canadian and European lenders named as defendants in the class action lawsuit, which consolidated claims across the country in 2009. In their amended complaint [text, PDF], the plaintiffs claimed that BOA's practices were deceptive in that they did not reasonably notify customers that they had the option of opting out of the overdraft scheme and declining transactions. The complaint also alleged that BOA's excessive fees disproportionately effect low-income customers.

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Alabama AG recommends changes to state immigration law
Ashley Hileman on December 7, 2011 10:06 AM ET

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[JURIST] Alabama Attorney General Luther Strange [official website] has suggested repealing specific provisions of the state's controversial immigration law [HB 56 text]. Strange sent a letter to leaders of the Alabama legislature [AP report] suggesting the removal of at least two of the sections that are currently on hold as a result of a federal court order. The sections Strange recommended for removal are one which criminalizes the failure of illegal immigrants to carry registration documents and another that requires public schools to collect information regarding the immigration status of their students. Both of these provisions were temporarily blocked [JURIST report] in an October ruling of the US Court of Appeals for the Eleventh Circuit [official website]. Strange's letter was in response to a request [CNN report] by Alabama Senate President Pro Tempore Del Marsh [official website], who had stated earlier that the legislature would only consider changes that were recommended by the attorney general. According to Strange, the proposed changes would allow the law to be more easily defended in court, make implementation easier for law enforcement, and remove certain burdens of compliance on law abiding citizens.

The immigration law has faced numerous challenges in court since it took effect in September. Last month, the US Department of Justice (DOJ) [official website] filed a brief [JURIST report] in the US Court of Appeals for the Eleventh Circuit urging the court to strike down the law. The DOJ filed its brief in response to a federal judge's September 28 ruling [opinion text] that allowed the state to enforce a provision that makes it a felony for an illegal alien to conduct business with the state, among other provisions. The DOJ argued in its brief that the Alabama immigration laws are preempted by federal laws regulating immigration in the US because of the Supremacy Clause [Cornell LII backgrounder] in the US Constitution. The American Civil Liberties Union (ACLU) [advocacy website] filed a separate brief also asking the court to overturn the new law. The ACLU's brief argued that the laws are designed to make life in Alabama so difficult for illegal aliens that they will be forced to leave the state [JURIST op-ed]. Like the DOJ, the ACLU argued that Alabama's law is a direct attempt to regulate immigration, which is an area that the states have no legitimate interest in regulating and is left only to the federal government to legislate.

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Egypt court rejects motion for new judge in Mubarak trial
Jamie Davis on December 7, 2011 10:02 AM ET

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[JURIST] An Egyptian court on Wednesday rejected the prosecution's motion for a new judge in the trial of former president Hosni Mubarak [Al Jazeera profile; JURIST news archive] and fined the prosecution for making the request. Lawyers representing Mubarak's alleged victims filed the petition, claiming that presiding Judge Ahmed Refaat showed bias in favor of Mubarak [AFP report] and overlooked proper courtroom procedure. Due to the closed-session, nothing has been revealed about the testimony [AP report], nor how the lawyers' actions stem from it. Mubarak faces several charges [JURIST report], including murder, attempted killing of protesters and general abuse of power. Mubarak is facing charges of complicity in the deaths of more than 800 protesters [JURIST report] during the pro-democracy demonstrations in Egypt [JURIST news archive] that resulted in him stepping down in February [JURIST report].

Mubarak's trial is scheduled to resume on December 28, after being postponed [JURIST report] in October to allow the court to rule on the prosecution's motion to removed the three-judge panel. The victims' families argued they were not given enough time [Al Jazeera report] to question Field Marshal Mohamed Hussein Tantawi [GlobalSecurity profile], head of the Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] ruling Egypt. Tantawi, who served as Mubarak's defense minister for over 20 years, testified against Mubarak in a closed-session but left early and refused to be cross-examined by counsel for the victims. The trial was also suspended [JURIST report] from September until October on judicial bias claims. Mubarak pleaded not guilty [JURIST report] to all charges when the trial began in August. Mubarak could face the death penalty [JURIST report] if convicted of ordering attacks on protesters.

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US Senate debates requiring televised broadcasts of Supreme Court proceedings
Julia Zebley on December 7, 2011 8:15 AM ET

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[JURIST] The US Senate Judiciary Committee [official website] returned Tuesday to the longstanding debate [hearing materials] over whether to televise the proceedings of the US Supreme Court [official website], including whether Congress, as an equal branch of government, has the authority to require the court to admit cameras. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) [official websites] submitted the Cameras in the Courtroom Act of 2011 [S 1945 materials] bill on Monday, which would "permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court." Several witnesses opined on the validity of this idea, including former judiciary committee member Arlen Specter [JURIST news archive], a longtime proponent for the admittance of cameras. In his pre-hearing, published testimony [text, PDF], he argued the educational necessity of televising proceedings:
The average man on the street does not understand the intricacies of Supreme Court opinions, but does have the sense that something is amiss when there are so many 5-4 decisions. People think the law is objectively determinable and does not depend upon the individual judges' personal predilections. So the common sense question arises as to whether the Court is really stating the law when there are so many split decisions. When people are told that there are ideological splits, it is even more distressing. Frequent opinion polls show the public has little understanding of the Constitution or how government works. As we strive for an educated citizenry, especially among the younger generation, television should cover the government as well as sports and soaps. The authority and legitimacy of the Supreme Court depends upon its acceptance by the public. Television would give the public the opportunity to understand and evaluate the Court's performance and the Court and opportunity to establish its legitimacy.
Attorney Thomas Goldstein, in his remarks [text, PDF] argued that it is constitutionally valid to require the Supreme Court to televise proceedings, stating that although there is no explicit First Amendment [text] right to televising the proceedings, there is an implicit right to access to government materials. Goldstein also insisted the greatest issue with the idea lies in media exposure: "Here as in so many contexts, the fault lies with Jon Stewart and Stephen Colbert. The Justices would be right to predict that excerpts of questions or opinion announcements will be taken out of context and mocked in some instances." Attorney Maureen Mahoney argued against this understanding [text, PDF] of the Constitution, stating that separation of powers and historical treatment of the Supreme Court by the legislature forbids mandating them to change their practices.

The current Supreme Court roster has varying opinions on allowing cameras into their proceedings. In September, Justices Antonin Scalia and Stephen Breyer testified [hearing materials] before the Judiciary Committee on a variety of issues, including televising their arguments and opinion announcements. Both were against the idea, arguing that it would not be used by the populace for anything worthwhile. Scalia was concerned with the ability of the media to misrepresent the court: "I was initially in favor of televising, but the longer I've been there, the less good idea I think it is. [F]or every 10 people who sat through our proceedings gavel to gavel, there would be 10,000 people who would see nothing but a 30-second takeout from one of the proceedings, which I guarantee you would not be representative of what we do." In contrast, Justice Elena Kagan has spoken out for the introduction of cameras [CSPAN interview video]: "[I]f everybody could see this, it would make people feel so good about this branch of government and how it's operating and I thought, it's such a shame actually that only 200 people a day can get to see it and then a bunch of other people can read about it. Because reading about it is not the same experience as actually seeing." Justices Sonia Sotomayor and Samuel Alito were both for televising proceedings in their tenure as lower court judges. Sotomayor continues to warm to the idea, while Alito, in his confirmation hearings, urged that the Supreme Court faces different considerations than lower courts. The other justices, to varying degrees, have seemed wary of the idea [ABC News report], Chief Justice John Roberts speculating that it would encourage grandstanding and reduce substantive discussion. Former justice David Souter was against cameras [NYT report], saying in 1996, "I think the case is so strong that I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body."

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Supreme Court hears arguments on confrontation clause, right to counsel
Julia Zebley on December 7, 2011 7:28 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Tuesday. In Williams v. Illinois [transcript, PDF; JURIST report], the justices heard the latest in a series of arguments over the Confrontation Clause [text] and will decide if a defendant's rights are violated if the state permits an expert witness to testify about the results of a DNA test performed at a private laboratory, when the analysts who performed the tests do not testify, and the expert witness has not had an opportunity to confront the actual analysts. The attorney for Sandra Williams, whose conviction was upheld by the Illinois Supreme Court, argued that without anyone from the lab present to testify about the DNA results, his rights were violated, especially since the lab tests themselves were not entered into evidence. Williams' counsel further argued that there is not an exception in the held understanding that experts may testify using whatever background material that furthers their expert opinion, and claimed that the DNA test was testified to for its ultimate truthfulness, not to aid the expert's knowledge.
Now this—I can give an example or an analogy. Suppose a police officer were to testify: A witness gave me this photograph and told me: This is a photograph of the offender. I compared this photograph to a photograph of the defendant. I found that they match. Now, the police officer, he compared the photographs. You know, we are not contesting [the testifying analyst's] match. But the statement that this is the photo of the offender, that's not the officer's statement. That's a statement of the witness who gave him that photograph.
Counsel for the state of Illinois argued that the Confrontation Clause does not apply in this scenario: "an expert can always testify about the material that they relied on, whether that material is ever admitted into evidence and sometimes that material could never be admitted into evidence." In support of Illinois' position, the US government argued that there can be no Confrontation Clause-issue, because the analyst who testified had to explain her lack of hands-on experience with the test. Although an analyst from the lab would make the state's case stronger, as the witness they presented does not have firsthand experience with the lab or its procedures, the Confrontation Clause does not obligate the state to present the strongest case possible.

In Martel v. Clair [transcript, PDF; JURIST report], the court will determine whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence. The attorney the state of California, argued that due to numerous safeguards and procedural rulings on the effectiveness of Clair's counsel, the state had done due diligence in protecting his rights and did not have an obligation to grant him new counsel after 12 years of proceedings. The attorney for Clair disagreed and argued that Clair did not have a right to new counsel, merely a right to a thorough investigation of his current counsel, which he was denied.

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

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