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Legal news from Monday, May 23, 2011




FBI data shows overall decrease in crime from 2009 to 2010
Zach Zagger on May 23, 2011 3:42 PM ET

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[JURIST] Violent crime is down 5.5 percent from 2009 to 2010, according to preliminary data released Monday but the US Federal Bureau of Investigation (FBI) [official website]. The Preliminary Annual Uniform Crime Report, January-December 2010 [text] also showed a decrease in murder by 4.4 percent and in rape by 4.2 percent. The highest drop was the decrease in robbery at 9.5 percent. However, when broken down into four regions, Northeast, Midwest, South, and West, the Northeast saw an increase in murder by 8.3 percent, making it the only region to have a murder increase. The South saw significant decreases in crime with a 7.5 percent drop in both violent crimes and murder and a decrease of 12.6 percent in robberies. Cities voluntarily submit the data to the FBI, and the FBI warns that it might not create accurate city to city comparisons. All the figures are preliminary.

The 5.5 percent decrease was down from the 6.2 percent decrease reported in the 2010 six-month report from January to June [JURIST report], but is still the fourth year in a row that there has been a decrease in violent crime. Also in the FBI's six-month report released last December, murders dropped by 7.1 percent, robberies dropped by 10.7 percent, aggravated assaults dropped by 3.9 percent and forcible rapes dropped 6.2 percent. Last year, the FBI also reported a decrease in the number of hate crimes [JURIST report] and also cited additions to the Matthew Shepard and James Byrd, Jr., Hate Crime Prevention Act [text; JURIST news archive] as positive improvements that will aid FBI investigation of hate crimes.




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Myanmar ethnic violence limiting transition to democracy: UN rights expert
Zach Zagger on May 23, 2011 2:55 PM ET

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[JURIST] Continued ethnic violence in Myanmar presents "serious limitations" to the government's transition to democracy, according to Tomas Ojea Quintana [official profile; JURIST news archive], a UN Special Rapporteur for human rights in Myanmar. Quintana made a statement [text] Monday in conclusion to his mission to Thailand to study the government of Myanmar, where he has not been allowed to visit. He does not believe that the government is doing enough to provide a political solution to the ethnic conflicts in the border areas. Though he did say that the creation of national, state, and regional legislatures was a positive step, that it was alone not sufficient to stop the problem. Quintana said:
the situation of ethnic minority groups in the border areas presents serious limitations to the Government's intention to transition to democracy. Violence continues in many of these areas. Systematic militarization contributes to human rights abuses. These abuses include land confiscation, forced labor, internal displacement, extrajudicial killings and sexual violence. They are widespread, they continue today, and they remain essentially unaddressed by the authorities.
He also concluded that infrastructure projects had resulted in human rights abuses and said private companies should have a duty to no be complicit with such abuses.

Myanmar is struggling to transition to democracy with problems such as detaining political prisoners. Last week, Myanmar began releasing close to 15,000 prisoners, but many human rights groups claim the government is still holding many more political prisoners. Quintana urged Myanmar's military government to release 2,202 political prisoners [JURIST report] last December. Quintana called for the release of the "prisoners of conscience," many of whom, he says, suffer from health problems as a result of the harsh detention conditions. Quintana claims the release is necessary to promote democracy. In March, Myanmar underwent a transfer of power [BBC report] from a military regime to a civil system after holding its first elections in 20 years. However, critics argue that the new regime is merely a sham since it is made up of military generals and with the military party winning 80 percent of the vote.




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Honduras ex-president Zelaya signs agreement allowing return to country
Jaclyn Belczyk on May 23, 2011 2:30 PM ET

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[JURIST] Ousted Honduran president Manuel Zelaya [BBC profile; JURIST news archive] signed an agreement [text, in Spanish] Sunday allowing his return to the country after nearly two years in exile. The agreement, brokered by the Venezuelan and Colombian governments, was signed [Heraldo report, in Spanish] in Cartagena, Colombia, by Zelaya and current President Porfirio Lobo. The move clears the way for Honduras to be readmitted to the Organization of American States (OAS) [official website], which expelled the country after the June 2009 coup [JURIST report] that saw Zelaya's ouster. Earlier this month, a Honduran court dismissed the two remaining conspiracy charges [JURIST report] against Zelaya, clearing the way for his return to the country.

In March, the Center for Constitutional Rights [advocacy website] filed a complaint [text, PDF] to compel the release of documents related to the coup [JURIST report]. The complaint names the US Department of Defense and Central Intelligence Agency [official websites] as defendants, alleging the agencies withheld documents regarding if and how the US government and its interests affected the coup. In November, International Criminal Court [official website] chief prosecutor Luis Moreno-Ocampo [official profile] opened a preliminary investigation [JURIST report] into the coup. Last July, a Honduran court dismissed abuse of power charges against Zelaya because his successor granted amnesty [JURIST reports] to Zelaya and those involved in his removal. In June 2010, Amnesty International [advocacy website] accused the Honduran government [JURIST report] of failing to address human rights violations stemming from the coup. AI contends that hundreds of people opposed to the coup were beaten and detained.




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UN rights expert: 300 died during Tunisia uprising
Zach Zagger on May 23, 2011 1:33 PM ET

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[JURIST] As many as 300 people died and 700 were injured during the month-long uprising in Tunisia earlier this year, UN Special Rapporteur on Torture Juan Mendez said Saturday. The death toll is much higher than originally thought. Mendez is in Tunisia to assess the transition [LAT report] of the interim government and investigate the acts of violence. Some Tunisian human rights groups claim that there were continued acts [AFP report] of rape and torture even after the fall of former president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive]. Mendez has called for a full investigation of all claims of rape and torture by security forces. Ben Ali left the presidency and fled the country in January after he declared a state of emergency [JURIST report] amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders. The current interim government is led by the former leader of the lower house of parliament, Foued Mebezza, who assumed power as interim president [JURIST report] and will remain in power until elections are held.

There have been numerous reports of violence and torture against protesters by security forces during and after the revolution. In April, the government charged [JURIST report] former president Ben Ali with 18 offenses ranging from murder and conspiracy to trafficking and drug use. The charges stem mostly from allegations that Ben Ali authorized the use of force against protesters during the Tunisian revolution, resulting in the deaths of more than 200 protesters. The charges come after advocacy groups Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] called for the Tunisian transitional government to investigate incidents of police violence against protesters and end police brutality [JURIST reports].




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Supreme Court rules on breach of contract suit involving state secrets
Zach Zagger on May 23, 2011 11:56 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] Monday in General Dynamics Corp v. United States [Cornell LII backgrounder] that when the court dismisses a valid prima facie affirmative defense to the government's breach of contract claim under the state secrets privilege [JURIST news archive], the proper remedy is to leave the parties in the same position as they were in before the contract. The case is a consolidated case where General Dynamics and Boeing [corporate websites] contracted with the Navy [official website] to develop a new carrier-based stealth fighter plane, but failed to meet the terms of the agreement, prompting the government to end the contract. The companies claimed that they could not complete the work because the Navy refused to release access to secret technology about the "stealth" fighter under the state secrets doctrine. General Dynamics wanted the judgment against the Navy for $1.2 million in damages to be reinstated, while the Navy wanted General Dynamics to return $1.35 billion in progress payments for work it never approved. The court held in a unanimous opinion by Justice Antonin Scalia that the nature of the contract dealing with secret technology created a bar to judicial review of contract disputes of which the parties reasonably should have been aware. The court said, "Both parties—the Government no less than petitioners—must have assumed the risk that state secrets would prevent the adjudication of claims of inadequate performance."

The Supreme Court heard oral arguments [JURIST report] in this case in January. At oral arguments, counsel for the government argued that the "state-secrets privilege will be used to bar a claim at most only when the party that is relying on secret information is trying to use the Federal court to alter the legal status quo." Counsel for General Dynamics argued that the government is unable to prove that the contractor defaulted on the contract, meaning that the government terminated the contract for convenience and the company should keep the money paid for the partially performed services. The US Court of Appeals for the Federal Circuit [official website] held [opinion, PDF] that the Navy was justified in canceling the contract because the companies were not fulfilling their contractual obligations.




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Supreme Court upholds order to reduce California prison population
Zach Zagger on May 23, 2011 10:31 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] in Brown v. Plata [Cornell LII backgrounder; JURIST report] to uphold the order requiring California to release up to 46,000 prisoners to remedy the state's overcrowded prisons [JURIST news archive]. In the 5-4 decision written by Justice Anthony Kennedy, the court concluded that the extreme overcrowding of the California prison system is causing inmates to receive inadequate medical care in violation of the Eighth Amendment [text]. In August 2009, a special panel of federal judges ordered [opinion, PDF; JURIST report] California to reduce its prison population by about 46,000 inmates or construct more facilities to handle the prisoners. It is apparent that California is unable to build the prisons and will have to release the prisoners. The court found the inability of the prison system to provide the "basic sustenance" of medical care is an Eighth Amendment violation that the courts must remedy: "A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society." Kennedy also attached photographs depicting prisoners being forced to live in bunk-beds lined up in an open room and depicting small telephone-booth sized holding cells for prisoners waiting for a mental health crisis bed. The court said that the California prison system is operating at nearly 200 percent capacity. Three justices joined Justice Antonin Scalia in dissent, saying "the Court affirms what is perhaps the most radical injunction issued by a court in our Nation's history." He argued that the system-wide problems did not establish any actual individual Eighth Amendment violations and, even if there were, the injunction forcing the state to release prisoners is beyond the court's authority.

The court heard oral arguments [day call, PDF] last November in this case, previously known as Schwarzenegger v. Plata [oral arguments transcript, PDF], over the order to release prisoners by the three-judge panel. The panel approved [order, PDF; JURIST report] a revised prison reduction plan [text, PDF] in January 2010, but action on the plan has been delayed, pending this Supreme Court appeal. Counsel for the state of California argued that the "extraordinary and unprecedented order ... requiring the release of between 36,000 and 45,000 inmates ... is extraordinarily premature." Counsel for the prisoners argued that the court must allow the lower court to provide a remedy for 20 years of overcrowding that has violated inmates' constitutional rights.




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Supreme Court to hear immigrant removal case
Jaclyn Belczyk on May 23, 2011 10:23 AM ET

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[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] Monday in Kawashima v. Holder [docket; cert. petition, PDF] to clarify what counts as an aggravated felony for purposes of removing an immigrant from the country. Petitioners Akio and Fusako Kawashima are natives and citizens of Japan who were living in California as lawful permanent residents. Petitioners were charged with, and pleaded guilty to, filing, and aiding and abetting in filing, a false statement on a corporate tax return. An immigration judge concluded that the convictions were "aggravated felonies" within the meaning of 8 USC § 1101(a)(43)(M)(i) [text], ordering petitioners to be removed. The Board of Immigration Appeals affirmed the decision, and it was later upheld [opinion, PDF] by the US Court of Appeals for the Ninth Circuit. The US Court of Appeals for the Third Circuit has reached the opposite conclusion.

Also Monday, the court denied certiorari in Khadr v. Obama [docket], in which Guantanamo [JURIST news archive] detainees sought 30 days notice of transfer to countries where they fear torture. Justices Stephen Breyer and Sonia Sotomayor would have granted certiorari, but four votes are required for the court to take a case. Justice Elena Kagan recused herself without explanation. The case originally included Canadian detainee Omar Khadr [JURIST news archive], but he has since pleaded guilty to terrorism charges [JURIST report].




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Dutch court rejects bias claim in hate speech case, orders trial to continue
Zach Zagger on May 23, 2011 9:39 AM ET

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[JURIST] An Amsterdam court on Monday rejected claims by Dutch politician Geert Wilders [personal website; JURIST news archive] that the hate speech charges [prosecution materials, in Dutch] against him should be dropped over claims of bias. Wilder, a right-wing politician, is on trial for making anti-Islamic statements. The charges against Wilders were dismissed in 2008, but an appeals court reversed that decision. Wilders claims that one of the judges had tried to convince [AFP report] the defense's expert witness to support the claims at a 2010 dinner party. He argues that the charges should be dropped because this shows bias and that it is no longer possible for him to have a fair trial. But the court found that there was not enough evidence to conclude that the judge ever tried to influence the witness. Wilders is alleged to have made inflammatory remarks against Islam. In one statement, he purportedly called the religion "fascist" and compared the Koran to Hitler's book Mein Kampf. While the court will allow prosecution to continue for any statements Wilders made likening Islam to Nazism, it dropped a complaint against him for referring to the Koran itself as "fascist," holding that prosecutors were precluded from including statements comparing Islam to fascism alone. Wilders maintains that his remarks were made as part of a legitimate political debate and are protected by his right to free speech. He faces up to one year in prison, but it is more likely that he will be fined if found guilty.

In March, an Amsterdam court rejected Wilders' claims of improper venue, ruling that the Amsterdam court has the authority to judge the case, given that the alleged statements were committed within its jurisdiction. In February, the court granted Wilders the right to set out the objections [BBC report] he had made during the initial trial, which was postponed following the dismissal of the original panel of judges [JURIST report] amidst allegations of bias. Prior to their dismissal, the original panel members heard the prosecution's case, which culminated in a request that Wilders be acquitted on all charges [JURIST report]. The prosecutors based their request on determinations that the politician's statements were directed at Islam and not Muslims themselves and additionally, that the evidence failed to establish that he intended to incite violence. The presentment of the prosecution's case followed an order from a panel of Dutch judges to resume the trial after initially rejecting claims of judicial bias [JURIST report]. The trial had previously been suspended [JURIST report] after a lawyer representing Wilders accused one of the judges of making a statement which cast him in an unfavorable light to the jury.




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Four accused Somali pirates go on trial in South Korea
Zach Zagger on May 23, 2011 8:55 AM ET

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[JURIST] Four alleged Somali pirates [JURIST news archive] captured from a hijacked ship are being put on trial in South Korea, but lawyers for the pirates argue the court does not have jurisdiction to try them. South Korean forces captured five alleged pirates in a raid on a hijacked South Korean chemical freighter, the Samho Jewelry, in January in the Arabian Sea. The five alleged pirates were transferred back to South Korea where they were indicted. One pleaded guilty with the other four standing trial [Yonhap News report] in the Busan District Court, which has jurisdiction over the area in which the shipping company is located. But lawyers for the alleged pirates argue that the South Korean court does not have jurisdiction to try them since they never should have been transferred back to South Korea. They argue under the UN Convention on Law of the Sea [text] and other treaties that South Korea has the authority to arrest pirates but not transfer them. The pirates will be tried by a 12-member jury which can recommend a verdict to the judges. The trial has been delayed due to translation issues but is set to last five days with the verdict on Friday. The court will also rule on the jurisdiction issue when it gives its final verdict Friday. This is the first attempt by South Korea to punish pirates. Some of the alleged pirates on trial are believed to have been a part of a group [AFP report] that South Korea paid a $9 million ransom to retrieve another one of its ships.

The US is also putting alleged pirates on trial in attempt to control a wave of international maritime piracy. Last week, a Somali man pleaded guilty [JURIST report] to charges of piracy and hostage taking in the US District Court for the Eastern District of Virginia [official website] for overtaking a yacht containing four American citizens. The Americans, taken as hostages, were later killed by the pirates, the first US citizens to die due to the recent wave of piracy. Last month, a US district court sentenced a Somali pirate to 25 years in prison [JURIST report] for his role in attacking a Danish ship, as well as the US Navy's USS Ashland. In November, a federal jury in Virginia convicted [JURIST report] five Somali men on charges of piracy for their roles in an April attack on the USS Nichols. In August, piracy charges against six defendants were dismissed [JURIST report] when federal Judge Raymond Jackson ruled that piracy, as defined by the law of nations, does not include violence or aggression committed on the high seas, and rejected the government's argument for an expanded reading of the statute. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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