JURIST - Paper Chase: Monday, January 26, 2009

[JURIST] US President Barack Obama [official website] issued a Presidential Memorandum [text] to the US Environmental Protection Agency (EPA) [official website] Monday, directing the agency to allow California and several other states to impose state vehicle emissions standards that are more stringent than the federal vehicle emissions standards. The memorandum reverses a policy set by the administration of former US President George W. Bush, which denied a 2007 waiver applied for by California [JURIST report] seeking the authority to regulate vehicle emissions independent of the EPA. In remarks delivered prior to the signing of the memo, Obama said [text]:

[T]he federal government must work with, not against, states to reduce greenhouse gas emissions. California has shown bold and bipartisan leadership through its effort to forge 21st century standards, and over a dozen states have followed its lead. But instead of serving as a partner, Washington stood in their way. This refusal to lead risks the creation of a confusing and patchwork set of standards that hurts the environment and the auto industry.

The days of Washington dragging its heels are over. My administration will not deny facts, we will be guided by them. We cannot afford to pass the buck or push the burden onto the states. And that's why I'm directing the Environmental Protection Agency to immediately review the denial of the California waiver request and determine the best way forward. This will help us create incentives to develop new energy that will make us less dependent on oil that endangers our security, our economy, and our planet.

Obama issued an additional Presidential Memorandum [text] on Monday directing the US Department of Transportation (DOT) [official website] to establish higher fuel efficiency standards for US automakers, starting in the 2011 model year.

In July 2008, California Attorney General Jerry Brown [official website] formally notified [letter, PDF; JURIST report] the EPA that the state would file a lawsuit against the agency if it refused to issue rules regulating greenhouse gas emissions from vehicles as well as industrial and agricultural machinery. In January 2008, California filed suit [JURIST report] to appeal the EPA's 2007 denial of a request for the waiver that would have allowed California and 16 other states to impose stricter greenhouse gas emissions standards on cars and light trucks. In May 2008, a report by the US House Committee on Oversight and Government Reform found that the Bush White House had influenced that decision and the administration later refused to turn over requested documents [JURIST reports] concerning the decision to the committee, citing executive privilege.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday decided six cases. The Court ruled [opinion, PDF] unanimously in Crawford v. Nashville and Davidson County [Cornell LII backgrounder; JURIST report] that Title VII of the 1964 Civil Rights Act [text] protects a government employee against being fired for cooperating with an internal sexual harassment probe against a superior. The issue came before the court in a case where a payroll employee in the Nashville school system was interviewed as part of an investigation into harassment claims against a high-ranking official in the system, and the employee alleged that the official later fired her in retaliation for statements she made against him. Reversing a US Court of Appeals for the Sixth Circuit dismissal of the lawsuit [opinion, PDF], the court held that the Title VII protections extended to the employee even though she was not the originator of the sexual harassment claims being investigated. Writing the opinion of the court, Justice David Souter reasoned that failing to provide such employees protection would undermine the purpose of the Act:

The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of ... preventive or corrective opportunities provided by the employer.”

The Court also ruled [opinion, PDF] unanimously in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan [Cornell LII backgrounder; JURIST report] that the Qualified Domestic Relations Order (QDRO) provision [text; DOL backgrounder] of the Employee Retirement Income Security Act (ERISA) is the exclusive means by which to waive one's right to a divorcing spouse's pension benefits. Justice Souter wrote the opinion of the court, affirming a decision [text] by the US Court of Appeals for the Fifth Circuit that the provision precluded the recognition of a woman's waiver of rights to her former husband's pension in a divorce proceeding.

The Court ruled [opinion, PDF] unanimously in United States v. Eurodif [Cornell LII backgrounder; JURIST report] that the reimportation of uranium enriched abroad may be subject to federal anti-dumping laws prohibiting the sale of certain goods below market value. The question before the court was whether, under 19 U.S.C. § 1673 [text], the Commerce Department [official website] could impose addition duties on the uranium because it was a good, or could not because its foreign enrichment was a service. Reversing a US Court of Appeals for the Federal Circuit decision [PDF text], Justice Souter again wrote for the majority, reasoning that, because the Commerce Department had acted reasonably when it initially ruled the transaction a sale of goods, its decision should stand.

The Court ruled [opinion, PDF] unanimously in Arizona v. Johnson [Cornell LII backgrounder; JURIST report] that the Fourth Amendment [Cornell LII backgrounder] does permit a police officer to search a vehicle passenger during a routine traffic stop if he believes the passenger may be armed and dangerous but has no justifiable reason to believe that a crime is being committed. In this case, Johnson, a passenger in a car, was frisked during a traffic stop. The officer suspected Johnson of gang affiliation, and upon pat-down she discovered a handgun and marijuana. At trial, Johnson was convicted of possession of the gun and marijuana, but the Arizona Court of Appeals Division Two [official website] overturned his conviction [opinion, PDF], finding that the evidence should have been excluded under the Fourth Amendment. Justice Ruth Bader Ginsburg wrote the opinion of the court and, reversing the lower court's decision, held that such searches were lawful as long the did not unreasonably extend the length of the stop.

The Court ruled [opinion, PDF] unanimously in Van De Kamp v. Goldstein [Cornell LII backgrounder; JURIST report] that two Los Angeles County supervising prosecutors have absolute immunity from liability for failing to establish a system that would have instructed a prosecutor to disclose at trial that a jailhouse witness received a lighter sentence in exchange for perjured testimony that wrongly convicted a suspect of murder. Thomas Goldstein, the respondent in the case, was convicted in 1980 of murder on the testimony of a jailhouse informant who committed perjury when he testified that he had not received any benefit for obtaining a confession from Goldstein. Goldstein spent 24 years in prison and was released in 2004 after he filed a federal habeas corpus suit, which was affirmed by the Ninth Circuit Court of Appeals [official website]. Reversing the lower court's decision, Justice Stephen Breyer wrote the court's opinion, and reasoned that even though granting the supervising prosecutors absolute immunity may deny some defendants compensation, the protection was necessary for the efficient administration of justice.

Finally, the Court issued [opinion, PDF] a unanimous per curiam opinion in Nelson v. United States, in which the court again vacated a sentence imposed on a man convicted of distributing cocaine because a lower court misapplied Federal Sentencing Guidelines [materials]. The court held that even though the lower court had not interpreted the guidelines as mandatory, it did, erroneously, presume them to be reasonable.

[JURIST] Impeachment proceedings [materials] began Monday in the Illinois State Senate [official website] against Governor Rod Blagojevich [official website; JURIST news archive], who is boycotting the proceedings. Blagojevich and his lawyers [JURIST report] have refused to attend the proceedings, claiming that Senate procedures are biased and will deny Blagojevich his due process rights. Instead, Blagojevich chose to spend the first day of his trial interviewing with the media. The trial began Monday with Illinois Supreme Court Chief Justice Thomas Fitzgerald [official profile] presiding. Last week, Blagojevich refused to enter a response [JURIST report] to the impeachment charges. Senate president John Cullerton [official profile] entered a not guilty plea on his behalf, and the proceedings will continue as they would if Blagojevich were present.

Blagojevich is the first governor in Illinois history to face an impeachment trial in the State Senate after the Illinois House of Representatives [official website] voted 114-1 to impeach [JURIST report] earlier this month. Blagojevich and his chief of staff John Harris were arrested [JURIST report] last month by federal agents on charges of corruption. Both Blagojevich and Harris have been charged [DOJ press release, PDF] with conspiracy to commit mail and wire fraud and solicitation of bribery. They are accused of conspiring to sell or trade the senate seat left vacant by President Barack Obama, obtaining illegal campaign contributions, and threatening to withhold assistance to the Chicago Tribune with the sale of Wrigley Field unless two editorial writers who had been critical of Blagojevich were fired. Harris resigned his position after the arrest, while Blagojevich has continued to report to work.

[JURIST] Bolivian voters on Sunday approved a new constitution [text, PDF, in Spanish] that places more power in the hands of the country's indigenous majority. The leftist constitution, which passed by a 59 percent majority, is said by President Evo Morales [official website, BBC profile] himself a member of the indigenous majority, to be the start of the new Bolivia [El Deber report, in Spanish]. The constitution serves to remove traditional colonial elites from power, and to challenge US influence. It also redistributes land [JURIST report], and creates seats in Congress for minority indigenous groups. The new constitution was strongly opposed in the conservative eastern lowlands, a stronghold of European descendants. The residents there complain that it focuses too strongly upon reinstating power to the indigenous majority, and does not address the capitalism of the eastern plains' cattle and soy industries. The adoption of the constitution does not resolve this divide, and opposition leaders indicated they will continue to oppose it [Financial Times report].

In October 2008, the Bolivian National Congress ratified [JURIST report] the proposed reforms [JURIST news archive] after Morales agreed not to run for re-election in 2014, setting up the national referendum. In August 2008, Morales won a referendum to continue his presidency, which he personally proposed [JURIST reports] in a bid to legitimize his campaign for the constitutional changes.

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] Monday in three cases. In McDaniel v. Brown [docket; cert. petition, PDF], the Court will consider whether the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under the Court's 1979 decision in Jackson v. Virginia [opinion text] on federal habeas review. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] in favor of the defendant, supplementing the record with other evidence to determine the reliability of testimony and evidence given at trial.

In Mohawk Industries v. Carpenter [docket; cert. petition, PDF], the Court will consider whether a party may immediately appeal a discovery order to disclose materials that party believes are covered by the attorney-client privilege. The US Court of Appeals for the Eleventh Circuit ruled [opinion, PDF] that there is no such right to an immediate appeal. The Court granted certiorari to resolve a circuit split on the issue.

In Maryland v. Shatzer [docket; cert. petition, PDF], the Court will consider whether the Edwards v. Arizona [opinion text] prohibition against interrogation of a suspect who has invoked the Fifth Amendment right to counsel is inapplicable if, after the suspect asks for counsel, there is a break of more than two years before commencing reinterrogation. The Court of Appeals of Maryland ruled [opinion, PDF] that there was no break in custody and that the Edwards prohibition against interrogation was still applicable.

[JURIST] Former Congolese militia leader Thomas Lubanga [ICC materials; JURIST news archive] pleaded not guilty on Monday in the historic first trial of the International Criminal Court (ICC) [official website]. Lubanga, founder of the militant Union of Patriotic Congolese [GlobalSecurity backgrounder], is charged [JURIST report] with enlisting child soldiers under 15 years old and using them to facilitate violence and human rights abuses in the Ituri district [HRW backgrounder] between September 2002 and August 2003. The trial is anticipated to last several months [ICC press release] and will include 34 witnesses on behalf of the prosecution, many of whom are former child soldiers. Also present at the trial are 93 victims that can apply for reparations.

The trial was scheduled to begin in June 2008, but the ICC imposed an indefinite stay [JURIST report] out of fear that prosecutorial misconduct could deny Lubanga a fair trial. The court accused the prosecution of using confidentiality agreements to withhold possible exonerating evidence. In November 2008, the ICC lifted the suspension [JURIST report] after prosecutors in the case agreed to share the undisclosed evidence with the court. Lubanga became the first war crimes defendant to appear before the ICC after he was taken into custody [JURIST reports] in March 2006. Lubanga's long-delayed trial [JURIST report] is scheduled to be the ICC's first since its creation in 2002.

[JURIST] Venezuela will renew its request that the US extradite anti-Castro militant Luis Posada Carriles [BBC profile; JURIST news archive], an official announced on Friday. Venezuela is hopeful that the new Obama administration will be more receptive to the request [El Universal report, in Spanish]. Venezuela and Cuba contend that the US is legally obligated to extradite Posada because it is bound by international treaties, including the International Convention for the Suppression of Terrorist Bombings and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation [texts]. In August 2008, the US Court of Appeals for the Fifth Circuit ruled [text, PDF; JURIST report] that Posada will stand trial in the US for alleged immigration violations. Until his trial concludes, extradition will be effectively blocked.

Posada is wanted by both Venezuela and Cuba for his alleged involvement in the 1976 bombing of a Cuban airline [ASN backgrounder]. He is suspected of involvement with narcoterrorism and a series of Cuban bombings in 1997 [Washington Post report]. He was convicted in Panama for the attempted assassination of Fidel Castro but was pardoned [Miami Herald report]. Citing the UN Convention Against Torture [text], the US has refused to extradite Posada in the past [JURIST report], saying that he cannot be sent to either Venezuela or Cuba because he is likely to be tortured if extradited to either country. Citing Abu Ghraib and Guantanamo Bay [JURIST news archives], Cuba countered that claim during a November 2008 UN Security Council meeting [press release], saying that while the likelihood of torture in Cuba is speculative, the likelihood of torture in the US is not.