[JURIST] The Supreme Court of Canada [official website] ruled [judgment text] Friday that a convicted marijuana grower should not have to forfeit her house pursuant to a sentence since asset forfeiture may result in unequal treatment of convicted criminals. The court, reviewing a Court of Appeal for British Columbia [official website] ruling [judgment text], rejected the lower court's totality approach that combined terms of imprisonment and property forfeiture on the grounds that the result of such sentencing will unfairly advantage property owners over those who have no property available for forfeiture. Since a totality approach would likely allow those who own property available for forfeiture to trade those assets to avoid some or all of the imposed jail time, the court reasoned that such an approach would be unjust as it would "result in lengthier custodial terms" for those who do not own property available for forfeiture. The court found that asset forfeiture is discrete and distinct from other aspects of sentencing and should be considered separately.

At her trial, Craig pleaded guilty and was conditionally sentenced to 12 months and fined $100,000. Her home in which she maintained the grow operation was valued [CBC report] at $460,000.

[JURIST] A New York state appeals court ruled [opinion text] that a family court does not have jurisdiction over a child support claim against a same-sex partner with no legal or biological ties to the child. In an opinion released Tuesday, the court ruled that a family court of limited jurisdiction has not been specifically authorized to entertain such claims. Although the court cited precedent that recognizes a person who neither fathered nor adopted a child as a parent under an implied contract to support the child and equitable estoppel, the court pointed out that the doctrine of equitable estoppel is only applied in such cases to adjudicate a male as a father of a child and not for determining a child's mother.

State courts have recently struggled to apply traditional family law to cases involving children of same-sex couples. In April, a New York state appeals court ruled [JURIST report] that a same-sex partner lacks standing to assert parental rights over the biological child of her partner unless she has adopted the child. In November, a Florida court ruled [opinion, PDF; JURIST report] that a ban on adopting children for same-sex couples was unconstitutional, allowing a couple to adopt two children. The US Court of Appeals for the Eleventh Circuit [official website] upheld [opinion, PDF] the same Florida statute in 2005 as being rationally related to protecting the interests of children, and the US Supreme Court declined to review [Washington Post report] that decision. In November, Arkansas voters approved [JURIST report] a ballot measure [JURIST report] prohibiting gays, lesbians, and other unmarried cohabiting couples from becoming either foster or adoptive parents.

[JURIST] A prosecutor from the Spanish National Court has asked that arrest warrants be issued for three accused Nazi prison guards [JURIST news archive] currently living in the US. Prosecutor Pedro Martinez Torrijos said [DPA report] that Johann Leprich [DOJ press release; JURIST report], Anton Tittjung [AP report] and Josias Kumpf [DOJ press release, PDF] are accomplices to genocide owing to their roles guarding prisoners at the Mauthausen, Sachsenhausen, and Flossenburg camps during World War II. Torrijos said that Judge Ismael Moreno could hear the case under Spain's universal jurisdiction [AI backgrounder] doctrine, which gives Spain jurisdiction over foreign torture, terrorism, and war crimes only if the case is not subject to the legal system of the country involved. Torrijos did not ask for a warrant for a fourth suspect, John Demjanjuk [JURIST news archive], who is currently awaiting trial as an accessory to murder [JURIST report] in Germany for his involvement at the Sobibor camp [Death Camp backgrounder].

The suit was initiated last June by the rights group Equipo Nizkor [advocacy website], which petitioned Spain's National Court [press release, in Spanish] to press charges against the four accused guards. Demjanjuk, 89, has fought a lengthy legal battle [AP timeline] over his alleged involvement with Nazi death camps during World War II. He was deported to Germany [JURIST report] earlier this month, after the US Supreme Court [official website] denied his stay of deportation [JURIST report].

[JURIST] Defense counsel for Canadian-born media mogul Conrad Black [CBC profile; JURIST news archive] on Thursday submitted [docket] an application for bail [motion, PDF] pending appeal to Justice John Paul Stevens of the US Supreme Court [official website]. The application for bail follows the Supreme Court's recent grant of certiorari [JURIST report] in Black's case, appealing his fraud conviction. The appeal challenges the appellate court's interpretation of the "honest services" clause of 18 USC § 1346 [text], claiming that the clause does not apply where there is no finding that the defendant "reasonably contemplated identifiable economic harm" under mail and wire fraud law [18 USC § 1341 text]. Pursuant to 18 USC § 3143 [text], a defendant is entitled to bail if a judicial officer finds "by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community" if released, if the appeal raises a "substantial question of law or fact" that is likely to result in the defendant's favor and if the request is not for the purposes of delay. In the motion, Black's lawyers stipulate that:

There was no dispute in the district court or the court of appeals that Mr. Black is unlikely to flee, that he poses no danger to the safety of any other person or the community if released on conditions, and that he pursues his appeal for a legitimate reason and not for purposes of delay. The district court found in Mr. Black’s favor on each point, by court of appeals. Accordingly, the sole issue is whether Mr. Black has “raise[d] a substantial question of law or fact” likely to result in at least a new trial should he prevail on that question.

[JURIST] The Securities and Exchange Commission (SEC) [official website] on Thursday charged 10 brokers [complaint, PDF; press release] with fraud for misleading customers into investing in high-risk mortgage securities. According the SEC, brokers from the defunct Brookstreet Securities Corporation held out collateralized mortgage obligations (CMO) [SEC backgrounder], which the SEC says are highly sensitive to interest rate, market, and liquidity risks, "as safe, secure, liquid investments that were suitable for retirees, retirement accounts, and investors with conservative investment goals" in violation of Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act [text]. The SEC alleges that the brokers received $18 million in commission and fees from 750 investors and borrowed heavily to finance CMO purchases, eventually resulting in more than $36 million in losses. The Financial Industry Regulatory Authority [official website] also brought charges [press release] Thursday against six other former Brookstreet brokers alleging that they fraudulently marketed CMOs as being government-backed.

In September, the SEC filed similar charges [JURIST report] against two former brokers for Credit-Suisse [corporate website; JURIST news archive] with defrauding clients of $1 billion by selling subprime securities that they represented as being backed by government-guaranteed student loans. The SEC has also charged former NASDAQ [official website] chairman Bernard Madoff [JURIST news archive] and financier Allen Stanford [JURIST report] with defrauding investors of $50 billion and $8 billion, respectively.

[JURIST] The US Department of Justice (DOJ) [official website] Thursday requested [motion, PDF] the US Court of Appeals for the Second Circuit [official website] to recall an earlier mandate requiring the government to release photos of alleged detainee abuse. The motion asks the court to recall their April ruling [JURIST report] because "the Solicitor General has determined that the government will file a petition for a writ of certiorari in this case, absent intervening legislation." Pursuant to Federal Rule of Appellate Procedure 41 [text], such a motion is allowed if it shows that the petition for certiorari to the US Supreme Court [official website] presents a substantial question and good cause for stay. If the Supreme Court denies the petition, the federal rule requires the court of appeals to reissue the mandate immediately. The motion also points out that Congress is considering legislation [S 1100 materials] that would exempt the disclosure of certain photographs under the Freedom of Information Act (FOIA) [text] in cases where the Secretary of Defense certifies that such disclosure would endanger US personnel. The proposed amendment to the FOIA, already agreed to [Senate record, PDF] by the Senate as an amendment to the Supplemental Appropriations Act [S 1054 materials, PDF], would apply to any photograph taken between September 11, 2001 and January 22, 2009 that involve the treatment of those "engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." In its motion, the government cites Second Circuit precedent to argue that:

[r]ecall of the mandate is warranted because the Solicitor General has determined that, if the aforementioned bill does not become law by the deadline for seeking Supreme Court review, the United States will file a petition for a writ of certiorari. As noted, the time for filing a petition for certiorari has not yet expired. Thus, the primary justification for the sparing use of the power to recall a mandate...is not implicated here.

[JURIST] A federal court on Thursday upheld the constitutionality [opinion, PDF] of mandatory DNA collection for all persons arrested or detained under federal authority. Judge Gregory Hollows of the US District Court for the Eastern District of California [official website] found that although the collection of DNA from those arrested on federal felony, sexual abuse, or violent crime charges does constitute a "search" within the meaning of the Fourth Amendment [text], a person arrested based on probable cause "has a diminished expectation of privacy in his own identity." Likening the use of DNA to fingerprinting and photographing, Hollows held that

after a judicial or grand jury determination of probable cause has been made for felony criminal charges against a defendant, no Fourth Amendment or other Constitutional violation is caused by a universal requirement that a charged defendant undergo a “swab test,” or blood test when necessary, for the purposes of DNA analysis to be used solely for criminal law enforcement, identification purposes.

[JURIST] The US has failed to adequately prevent and prosecute war crimes and other abuses during its operations in Iraq and Afghanistan, UN Special Rapporteur on extrajudicial, summary or arbitrary executions [official website] Philip Alston [oficial profile, DOC] said in a report [text, PDF] released Thursday. The report found, "Some aspects of the rule of law have been taken seriously during U.S. operations." Alston also warned, however, that:

there have been chronic and deplorable accountability failures with respect to policies, practices and conduct that resulted in alleged unlawful killings – including possible war crimes – in the United States’ international operations. The Government has failed to effectively investigate and punish lower-ranking soldiers for such deaths, and has not held senior officers responsible under the doctrine of command responsibility. Worse, it has effectively created a zone of impunity for private contractors and civilian intelligence agents by failing to investigate and prosecute them.

[JURIST] Canada's Supreme Court [official website] agreed [docket] Thursday to review an Ontario court decision upholding media restrictions on the Toronto 18 [Toronto Star backgrounder] terrorism case. Under Canada's criminal code [text] the media may attend pre-trial hearings but in some instances may not report on them to prevent biasing potential jurors. The plaintiffs, which include the Canadian Broadcasting Corporation, CTV, the Toronto Star, and the Associated Press [media websites], argue that the law violates Canada's Charter on Human Rights and Freedoms [text]. The Ontario Court of Appeals [official website] ruled [judgment, PDF; JURIST report] that while the statute is overbroad, it was properly applied in this case. The Court previously agreed to review [docket] a challenge to the same law after an Edmonton court released on bail a man accused of murdering his pregnant wife. The Court will hear both cases in November.

The Toronto 18 [JURIST op-ed], a group of adults and minors arrested in a 2006 anti-terrorism raid, have provoked intense reactions from detractors and supporters alike. Mosques were vandalized [NYT report] and the debate about Canadian security intensified in the wake of the group's arrest. Others contest the lawfulness [advocacy website] of the group's detention, and, despite the ban on press coverage, a 2008 documentary, Unfair Dealing [materials], was highly sympathetic to the accused. Last week one man was sentenced to time served and probation [JURIST report] and released. In September, a judge of the Ontario Superior Court of Justice [official website] convicted [JURIST report] one of the Toronto 18 terrorism suspects for participating in a group that allegedly plotted to behead Prime Minister Stephen Harper [official website] while attacking parliament. The conviction was the first under Section 83 [Canadian DOJ backgrounder] of the Canadian Anti-Terrorism Act [text], passed in 2001 in the wake of the 9/11 attacks on the US.