[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Thursday rejected [opinion, PDF] former US representative Richard Renzi's (R-AZ) appeal to have an extortion case against him dismissed. Renzi is under indictment for allegedly using his political office to profit from a real estate deal in 2005. He argued that negotiations regarding the deal, entered as evidence to a grand jury, were privileged "legislative acts" under the Speech or Debate Clause of Article I [text] of the US Constitution and therefore the evidence must be excluded and the case dismissed. The Ninth Circuit did not agree:
We recognize, as we must, that the Speech or Debate Clause is a privilege that "has enabled reckless men to slander and even destroy others with impunity." But the Supreme Court has made equally clear that the Speech or Debate Clause does not "make Members of Congress supercitizens, immune from criminal responsibility." Because we cling to "the precise words" of the Court's own Speech or Debate jurisprudence and "the sense of those cases, fairly read," we conclude that Renzi's actions fall beyond the Clause's protections. We therefore deny Renzi the relief he seeks.
The decision also added a racketeering charge that had previously been removed. Renzi's trial date has not yet been scheduled.
[JURIST] A military court in the Democratic Republic of the Congo (DRC) [BBC backgrounder] on Thursday sentenced four policemen to death for killing prominent human rights activist Floribert Chebeya last year. Cherbeya, a member of the activist group Voice of the Voiceless, was found dead in his own car [BBC report] in June 2010. Eight men, all DRC policemen, were accused of being involved in the murder and were subsequently arrested. The trial for five of the men began in November [JURIST report], while three remained at large. The court sentenced [BBC report] one of the eight to life in prison, acquitted three, and sentenced the three at-large individuals to death. The Chief of Police Intelligence at the time of the murder, Colonel Daniel Mukalay, was the highest ranking of the suspects and was sentenced to death for planning the assassination.
The assassination of a prominent rights activist by law enforcement is merely the latest in the ongoing human rights issues facing the DRC. In February, a military court found Lt Col Kibibi Mutware guilty of involvement in mass rapes [JURIST report] that took place on New Year's Day and sentenced him to 20 years imprisonment, dismissing him from the military. In early October, Human Rights Watch called for the DRC government [JURIST report] to arrest general Bosco Ntaganda pursuant to an outstanding warrant for war crimes issued by the International Criminal Court (ICC) [official website]. Earlier that same week French authorities arrested a leader [JURIST report] of the Democratic Force for the Liberation of Rwanda for crimes committed by that group in the DRC. In October, UN peacekeeping forces and the DRC government arrested Mai Mai Cheka [JURIST report] for allegedly leading a rebel group responsible for mass rapes in the country.
[JURIST] The International Criminal Court (ICC) [official website] said Thursday it will decide [press release] whether it will issue arrest warrants for Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] and two high-ranking officials on allegations of war crimes. The Pre-Trial chamber will deliver is decision on the application for warrants against Gaddafi, his son Saif al-Islam, and his brother-in-law Abdullah al-Sanussi in a public hearing Monday in The Hague. Chief Prosecutor Luis Moreno-Ocampo [official websites] said his office has gathered "direct evidence" [CNN report] that the men committed crimes against humanity in connection with efforts to quell the three-month old Libyan revolt. Moreno-Ocampo said the evidence shows Gaddafi personally ordered attacks on civilian protestors and that his forces used live ammunition on crowds, attacked civilians in their homes, used heavy weapons against people in funeral processions and placed snipers to shoot those leaving mosques after prayer services. Libya has said it does not recognize the jurisdiction of the ICC and will ignore the warrants if issued. Moreno-Ocampo announced [JURIST report] last month that his office was pursuing arrest warrants against Gaddafi and the two others in his "inner circle." He said Saif al-Islam was acting as Gaddafi's "defacto Prime Minister" and called al-Sanussi Gaddafi's "right-hand man" and "executioner." At that time, Moreno-Ocampo said his office was almost prepared for trial, having collected quality testimony from some who have fled Libya.
There have been numerous allegations of war crimes and human rights violations over the Libyan revolt which has persisted since February. Last week, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports] earlier this month on its findings. The report said Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack." Also this month, Human Rights Watch (HRW) [advocacy website] expressed concern over the arrests of dozens of civilians by Libyan opposition authorities. HRW called on the National Transitional Council (NTC), the opposition ruling body in Libya with de facto control over eastern Libya, to provide civilian detainees with full due process rights, access to counsel and the ability to challenge their detention before independent judicial authorities.
[JURIST] A Danish court on Wednesday sentenced Somali Islamist Muhideen Mohammed Geele to an additional year in prison [Stiftstidende Reuters, in Danish] for his 2010 attack on Kurt Westergaard, illustrator of the controversial 2005 cartoon depicting the Prophet Muhammad [BBC backgrounder; JURIST news archive] as a suicide bomber. Geele had already been sentenced to nine years in prison [JURIST report] for the attack. In Denmark, crimes involving an additional infliction of terror typically attach a 12-year sentence, but the court lowered Geele's sentence to 10 years because he had attacked one individual rather than a group of civilians. Geele was convicted [Copenhagen Post report] on charges of attempted murder and terrorism for breaking into [JURIST report] Westergaard's home and threatening him with an axe and knife.
Westergaard's 2005 picture of the Muhammad was one of a series of caricatures published by a Danish newspaper that infuriated Muslims around the world. Many Muslims consider depictions of Muhammad offensive, and when other newspapers reprinted the caricatures in 2006 it triggered violence in several countries, leading to multiple deaths, the burning of Danish embassy buildings [JURIST reports] and boycotts of Danish goods. In April, a Dutch court acquitted [JURIST report] the Arab European League (AEL) on charges of making discriminatory and defamatory statements against Jews when they posted a cartoon on their website that insinuated that the Holocaust was fabricated. The AEL argued that they posted the cartoon in response to what they saw as a double standard in the distribution of Danish cartoons depicting Muhammad even though they did not actually deny the historical facts of the Holocaust.
[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] officially requested permission from ICC judges Thursday to begin investigation into the Ivory Coast after determining that war crimes and crimes against humanity have been committed in post-election violence [BBC backgrounder; JURIST news archive] since last November. Moreno-Ocampo said that thousands have been killed [ICC press release] and hundreds detained and raped in the months-long struggle between ousted leader Laurent Gbagbo [BBC profile] and rival President Alassane Ouattara [BBC profile] after Gbagbo refused to give up power. If Moreno-Ocampo is allowed to investigate, this would be his seventh inquiry into African conflicts and the first investigation into a state not party to the Rome Statute [official website], which gives the ICC jurisdiction upon referral by the Security Council [official profile]. The Ivory Coast, however, after a lettered appeal [JURIST report] by Ouattara to the ICC to open an investigation, has given the ICC jurisdiction. Moreno-Ocampo will send a security assessment team to the Ivory Coast on Monday and has not yet determined who is at fault for the violence.
The Ivory Coast announced earlier this month it would establish its own commission [JURIST report] to investigate alleged crimes committed as a result of the disputed presidential elections. This investigation may take up to two years [Reuters report]. Also, an official for the UN's International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of Gbagbo earlier this month. In April, Human Rights Watch [advocacy website] urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.
[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Freeman v. United States [Cornell LII backgrounder; JURIST report] that an individual whose sentence is imposed under a plea agreement may be eligible for a reduced sentence if the US Sentencing Commission (USSC) [official website] subsequently alters the sentencing guidelines. The Sentencing Reform Act of 1984 (SRA) [text] allows the USSC to create and amend Federal Sentencing Guidelines [materials], and 18 USC § 3582(c)(2) [text] permits a defendant to move for a sentence reduction if the USSC reduces the sentencing guideline after the defendant was sentenced. The Supreme Court, in a plurality, written by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer, held that this section of the SRA also permits an individual who agreed to a plea bargain to move for a sentence reduction if the sentencing court "based" the sentencing on the guideline recommendations. Petitioner William Freeman was indicted for several crimes, including possession with intent to deliver cocaine base, and agreed to serve eight years and eight months in prison in exchange for his guilty plea. The district court accepted that agreement, and, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) (FRCP) [text, PDF], the sentence followed federal sentencing guidelines and was binding on the court. Three years into Freeman's sentence, the USSC retroactively reduced the sentencing guidelines for crack cocaine possession in order to reduce the disparity between crack and powder cocaine offenses. The US Court of Appeals for the Sixth Circuit held that defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive guideline amendments. In reversing the appeals court's decision, the Supreme Court looked at the SRA, FRCP and sentencing guideline policy statements to conclude that defendants can move to reduce sentences imposed pursuant to a plea bargain. The plurality reasoned that because courts typically accept plea agreements based on an evaluation of the guideline's recommended sentence, the SRA applies to 11(c)(1)(C) agreements. In Freeman's case, the court did in fact rely on the sentencing guidelines, and Freeman is permitted to move for a reduction of his sentence.
Justice Sonia Sotomayor, in her concurring opinion, argued that courts do not necessarily factor in sentencing guidelines when determining whether to implement a plea agreement. However, when a court "expressly" or "evidently" relies on the sentencing guidelines, as in Freeman's case, defendants should be permitted to move for a reduced sentence. Chief Justice John Roberts, along with Justices Antonin Scalia, Samuel Alito, and Clarence Thomas, dissented, agreeing with Stomayor's controlling opinion and suggestion that courts do not accept plea agreements "based on" sentencing guidelines, but disagreed with Sotomayor and the plurality's conclusion that Freeman could petition for a reduced sentence, concluding that "parties entering a Rule 11(c)(1)(C) plea agreement must take the bitter with the sweet."
[JURIST] The US Supreme Court [official website] on Thursday voted 6-3 to affirm [opinion, PDF] the lower court in Sorrell v. IMS Health [Cornell LII backgrounder; JURIST report], finding Vermont's Prescription Confidentiality Law [text] a violation of freedom of speech under the First Amendment [text]. The law attempted to stifle the common practice of drug manufacturers gathering prescription records from pharmacies and using them to target advertisements to doctors. The pharmacies release the information freely and publicly, although any identifying information for patients is redacted. The Vermont law made it illegal for pharmacies to do this without the patient's consent. Justice Anthony Kennedy's majority opinion ruled that this was both a content and speaker based restriction on free speech and does not pass a "heightened" scrutiny standard, primarily because the statute allows records to be used for educational and state purposes, but not marketing.
The capacity of technology to find and publish personal
information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate. If Vermont's statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information's use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.
The Court also rejected arguments that "heightened" scrutiny is inappropriate due to the law being characterized by Vermont as "mere commercial regulation."
Justice Stephen Breyer dissented, writing that "this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise." He rejected the Court's use of "heightened" scrutiny, including a long history of intermediate scrutiny applied when the government directly restricts commercial speech. Breyer cautioned the Court not to return to the era of Lochner v. New York, when the Court judged every individual regulation or State law that could interfere with a business' "liberty." He also characterized the harm in the case as "modest at most."
[JURIST] The US Supreme Court [official website] on Thursday voted 5-4 to reverse [opinion, PDF] the lower court in PLIVA, Inc. v. Mensing [Cornell LII backgrounder; JURIST report], holding that since generic drugs and their warnings are managed by the Food and Drug Administration (FDA) [official website], their federal regulations on warning labels preempt state law on warning labels. Justice Clarence Thomas delivered the opinion of the court, except for Part III-B-2, which only Chief Justice John Roberts, Justice Samuel Alito and Justice Antonin Scalia join. The court found impossibility in meeting both the state's higher standard and the FDA's standard of identical labels between brand name and generic drugs and denied plaintiffs' claim under their respective states' tort laws. Justice Sonia Sotomayor wrote a dissent decrying the broadening of the impossibility standard.
We have traditionally held defendants claiming impossibility to a demanding standard: Until today, the mere possibility of impossibility had not been enough to establish pre-emption. The Food and Drug Administration (FDA) permits—and, the Court assumes, requires—generic-drug manufacturers to propose a label change to the FDA when they believe that their labels are inadequate. If it agrees that the labels are inadequate, the FDA can initiate a change to the brand-name label, triggering a corresponding change to the generic labels. Once that occurs, a generic manufacturer is in full compliance with both federal law and a state-law duty to warn. Although generic manufacturers may be able to show impossibility in some cases, petitioners, generic manufacturers of metoclopramide (Manufacturers), have shown only that they might have been unable to comply with both federal law and their state-law duties to warn respondents Gladys Mensing and Julie Demahy. This, I would hold, is insufficient to sustain their burden.
She went on that the opinion is dangerous and holds a multitude of consequences for current tort law surrounding drugs. Justice Thomas responded in a footnote that the situation is too rare to impact the drug industry significantly.
PLIVA, Inc. v. Mensing was a consolidated case with Actavis Elizabeth, LLC v. Mensing and Actavis v. Demahy. In all the cases, petitioners were prescribed a brand name drug and instead received the generic version. The drugs, created to treat digestive tract disorder, sometimes caused a severe nervous system disorder with continued use. At the time, in 2001, this did not appear on the brand name label, and thus, due to FDA regulations that require generic drugs to match the brand name, did not appear on the generic label. The manufacturers claims this prevented them from creating more accurate warnings. Petitioners took the generic drug manufacturers to court, citing a higher standard in their state laws.
[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Bullcoming v. New Mexico that the Confrontation Clause [Cornell LII backgrounders] does not allow laboratory reports containing testimonial certification to be entered into evidence against a defendant without the testimony of the analyst who personally observed the test and certified the report. Donald Bullcoming was arrested for Driving While Intoxicated (DWI). A forensic laboratory report of a machine-generated blood test showed his blood alcohol content (BAC) was above the legal limit. The court reversed the Supreme Court of New Mexico [official website] which allowed the laboratory report, despite holding that it was "testimonial," because another analyst familiar with the testing device and procedures used, but had neither participated in nor observed the testing, was called to validate the report. The state never asserted that the analyst who conducted the tests was unavailable, but the record showed he was placed on unpaid leave for an undisclosed reason. The majority opinion by Justice Ruth Bader Ginsburg held that the laboratory report depended on live in-court testimony as to its veracity. The other analyst did not satisfy this requirement because he did not take part in the actual testing. The court also noted that this prevented the defense from cross-examining the testing analyst as to why he was placed on unpaid leave. The court also rejected the state's argument that the laboratory report was not testimonial because it was was merely the results of a machine-generated test. Ginsburg's opinion held the laboratory report was testimonial under the Court's holding in Melendez-Diaz v. Massachusetts [JURIST report] because of the certification formalities attending the report. However, Justice Anthony Kennedy argued in the dissenting opinion that the majority makes the "misstep" of extending the holding from Melendez-Diaz, in which there was no one present to testify at trial, to this situation where "a knowledgeable representative of the laboratory was present to testify and to explain the lab's processes and the details of the report." He said:
The procedures followed here, but now invalidated by the Court, make live testimony rather than the solemnity of a document the primary reason to credit the laboratory's scientific results. Unlike Melendez-Diaz, where the jury was asked to credit a laboratory's findings based solely on documents that were quite plainly affidavits, here the signature, heading, or legend on the document were routine authentication elements for a report that would be assessed and explained by in-court testimony subject to full cross-examination. The only sworn statement at issue was that of the witness who was pre-sent and who testified.
Justice Sonia Sotomayor, with whom Justice Elena Kagan joined, filed a concurring opinion disagreeing with Ginsburg's holding that lab report was testimonial because of its formalities and because applying the Confrontation Clause to forensic evidence is not an undue burden on the State. Sotomayor argued instead that laboratory reports are testimonial when in addition to formality, they are created with the purpose of use at trial against the defendant.
During oral arguments [transcript, PDF; JURIST report] last March, the justices repeatedly questioned counsel for New Mexico regarding their assertion that there is a difference between an affidavit offered by an analyst, as in Melendez-Diaz, and a purely machine-produced report. Justice Sonia Sotomayor, focusing on the certification of both documents, pressed counsel as to how they could be considered distinguishable, saying, "I'm sorry, could you tell me what that means? Why is it different than the affidavit? It's certified, and my understanding of the dictionary meaning of certification is that that's an attestation as to the truth of the statements contained therein. That's the common definition." Justice Antonin Scalia, focusing on the fact that the analyst had been placed on leave without pay during the trial, stated perhaps the most important reason why the defendant should have been permitted to cross examine the analyst, "Does the defense know why it was leave without pay? Could the defense have found out in cross-examination that the reason he was leave without pay because he was—had shown himself to be incompetent, and they were in the process of firing him? I don't know whether that's true, but wouldn't that be important to the defense?"
[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in CSX Transportation v. McBride [Cornell LII backgrounder; JURIST report] that a Federal Employers' Liability Act (FELA) [text] railroad negligence claim does not require proof of proximate cause. Respondent Robert McBride worked as a railroad engineer for petitioner CSX Transportation [corporate website]. McBride initiated a FELA claim, alleging that CSX negligently required him to use unsafe switching equipment and failed to train him to operate that equipment, both of which, he claims, led to a debilitating hand injury he sustained while on the job. At trial, the jury was not instructed on "proximate cause" because FELA renders railroads liable for employees' injuries or deaths "resulting in whole or in part from [carrier] negligence." CSX appealed after the jury found in favor of McBride. The US Court of Appeals for the Seventh Circuit affirmed the district court decision, declining to hold [opinion, PDF] that common-law proximate causation is required to establish liability under FELA. The Supreme Court affirmed the appeals court decision. Justice Ruth Bader Ginsburg, writing for the majority, noted that its decision in Rogers v. Missouri Pacific R. Co. [text] could not have been read to implement a "proximate cause" standard of causation in FELA lawsuits. Rather, the Rogers court announced the "any part" test, which asks whether "negligence of the employer played any part at all" in bringing about the injury:
[T]he understanding of Rogers we here affirm "has been accepted as settled law for several decades." ... Countless judges have instructed countless juries in language drawn from Rogers. To discard or restrict the Rogers instruction now would ill serve the goals of "stability" and "predictability" that the doctrine of statutory stare decisis aims to ensure.
The court also looked at the statutory history of FELA and other precedential cases interpreting FELA's language to reach its conclusion.
Chief Justice Roberts, joined by Justices Antonin Scalia, Anthony Kennedy and Samuel Alito, argued in his dissent that the majority creates a limitless standard of causation for FELA claims and that the standard adopted by the majority is akin to a "but-for" test. Roberts pointed out that the Supreme Court has previously explained that in FELA cases, "[a]bsent express language to the contrary, the elements of a FELA claim are determined by reference to the common law." Because recovery for common law negligence has always required a showing of proximate cause, the same standard should apply to FELA claims. Furthermore, the dissent contends that the majority misinterpreted the Rogers decision, which, according to Roberts, was limited to cases of contributory negligence.
[JURIST] Three human rights groups released a joint statement [text, in French] Wednesday in support of the sentencing of former Tunisian president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] but also criticizing his trial as unfair. The International Federation of Human Rights [advocacy website], the Tunisian League of Human Rights and the National Council for Freedoms in Tunisia expressed approval [AFP report] of the 35-year jail sentences and $65.6 million fine handed down earlier this week [JURIST report] but also criticized the trial proceedings for not including Ben Ali and his wife, who are currently in exile in Saudi Arabia, for not including victims involved in the case, and for the unusually brief deliberations. The groups ultimately advocated reforms for "greater respect of the rights of the defense." "The opening of the trial of the former dictator," the groups stated, "conforms with the aspirations of the Tunisian people to justice, but the importance of this trial demanded that all conditions for a right to a fair trial should have been met first." The sentences will take effect despite the couple's exile and even though Saudi Arabia has ignored demands for extradition.
Ben Ali and his wife were also charged [JURIST report] with illegal possession of drugs and weapons, but the verdict for those charges will not be announced until June 30. Ben Ali fled Tunisia to Saudi Arabia in January during protests against his 23-year autocratic rule in which his family amassed substantial wealth [Reuters report] that many Tunisians say was at their expense. Ben Ali has denied the charges against him [JURIST report] which stem mostly from allegations that he authorized the use of force against protesters during the Tunisian revolution, resulting in more than 200 deaths. The uprisings in Tunisia and ousting of Ben Ali were the beginning of similar uprisings across the Middle East also resulting in the ousting of former Egypt president Hosni Mubarak [Al Jazeera profile; JURIST news archive].
[JURIST] The US Supreme Court [official website] on Thursday voted 5-4 to affirm [opinion, PDF] the lower court in Stern v. Marshall [Cornell LII backgrounder; JURIST report], agreeing that the bankruptcy court did not have jurisdiction in this instance. The opinion, delivered by Chief Justice John Roberts, explained that the bankruptcy court judge has a limited role beyond bankruptcy's core proceedings, even as defined in 28 USC § 157(b)(2)(C) [text], and found the core proceeding listed in this case unconstitutional. Although one of the core proceedings is counterclaims, and the court found there was a statutory basis for the decision, they found that portion of the statute unconstitutional under Article III [text]. Since bankruptcy judges do not enjoy the tenure or salary stated under Article III, the Court ruled they cannot go beyond bankruptcy proceedings.
We recognize that there may be instances in which the distinction between public and private rights—at least as framed by some of our recent cases—fails to provide concrete guidance as to whether, for example, a particular agency can adjudicate legal issues under a substantive regulatory scheme. Given the extent to which this case is so markedly distinct from the agency cases discussing the public rights exception in the context of such a regime, however, we do not in this opinion express any view on how the doctrine might apply in that different context. What is plain here is that this case involves the most prototypical exercise of judicial power: the entry of a final, binding judgment by a court with broad substantive jurisdiction, on a common law cause of action, when the action
neither derives from nor depends upon any agency regulatory regime. If such an exercise of judicial power may nonetheless be taken from the Article III Judiciary simply by deeming it part of some amorphous "public right," then Article III would be transformed from the guardian of individual liberty and separation of powers we have long recognized into mere wishful thinking.
Justice Antonin Scalia concurred in the opinion, stating that he believes "an Article III judge is required in all federal adjudications, unless there is a firmly established historical practice to the contrary," rather than the "public right" analysis Roberts utilized. Justice Stephen Breyer dissented, stating he believed the statute was constitutional.
The case involved deceased model Anna Nicole Smith's (Vickie Lynn Marshall) bankruptcy proceedings. The beneficiary of her late husband's estate, Pierce Marshall, attempted to collect as a creditor in her bankruptcy, claiming defamation. She filed a counterclaim for tortious interference in the gift her late husband, J. Howard Marshall, had attempted to bequeath her, to try and recover the $88 million that had been denied to her in prior estate proceedings. The US Court of the Appeals for the Ninth Circuit held [opinion, PDF] that the bankruptcy court exceeded its jurisdiction in ruling on the case. The case had returned to the Ninth Circuit after the Supreme Court's 2006 ruling in Marshall v. Marshall [Duke Law backgrounder; JURIST report] that federal courts can in some cases decide disputes which involve state probate laws.
[JURIST] The New Hampshire legislature voted Wednesday to override the governor's veto and approve
legislation [HB 0329 text] requiring healthcare providers to notify parents or a judge 48 hours before performing an abortion [JURIST news archive] on a minor. Governor John Lynch [official website] vetoed the bill last week [press release], but it was passed [AP report] by a vote of 266-102 in the House of Representatives and 17-7 in the Senate [official websites]. While the bill includes an exception in the case of a "medical emergency," Lynch said he was "troubled by the lack of an exception for the victims of rape, incest and abuse."
The bill, to take effect January 1, passes just days after an Illinois appeals court ordered a lower court [JURIST report] to determine whether a similar law requiring a girl's guardians to be notified before she has an abortion should be enforced. The New Hampshire bill is the latest in a variety of abortion-related legislation this year. Last month, Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] challenging a South Dakota law requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. Earlier that week, Minnesota Governor Mark Dayton vetoed a pair of bills [JURIST report] that restricted state funding for abortions and banned them altogether after 20 weeks. Also in May, Texas Governor Rick Perry signed a bill that requires women seeking an abortion to first get a sonogram [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Iowa, Kansas and Idaho [JURIST reports].
[JURIST] A special court in Afghanistan on Thursday overturned the election results of nearly 25 percent of the assembly seats due to poll fraud in last September's parliamentary elections [IEC backgrounder]. Head of the special court Sediqullah Haqiq announced the ruling [Reuters report] that 62 out of the 249 legislators in the Wolesi Jirga [official website] elected last year have to vacate their seats and be replaced, sending the government into turmoil just as the US announced a major troop withdrawal. Afghan President Hamid Karzai [official profile, JURIST news archive] set up the special court by decree, which critics claim was to invalidate election gains made by his political opponents. Karzai's ethnic group and the base of the Taliban was underrepresented in the elections. Furthermore, the constitutional authority for the special court is in question, and it is unclear whether there can be any appeal. Haqiq announced the ruling as "final" but ousted legislators are submitting letters to the country's Supreme Court. Enforcement of the ruling is also unclear as it orders the Independent Election Commission (IEC) [official website] to disqualify the legislators whose elections it deems invalid, but the IEC does not recognize the legitimacy [AFP report] of the special court. Last September's election was marred by widespread allegations of fraud, as was the 2009 presidential election [JURIST news archive] in which Karzai came to power.
With the US withdrawing troops, ongoing disputes over irregularities in last September's parliamentary elections have raised doubts about the stability of the Afghan government. Last January, Karzai postponed the seating [JURIST report] of Parliament following a request by the special court for more time to look into allegations of fraud surrounding the elections. Karzai had promised [JURIST report] to have the special court review the election results in time to seat the election by the original January deadline. But the IEC claims that the special does not have legal authority to question the results that it certifies because the law says it has the final say in determining the elections results. In November, the Afghanistan Electoral Complaints Commission (ECC) [official website] disqualified 21 candidates [JURST report] for electoral fraud after finding widespread voting irregularities in 12 provinces. Of the disqualified candidates, 19 had either won or were leading in their districts, seven of which were incumbents, and two were second place finishers in districts where the first place finisher was also disqualified. In October, the IEC invalidated 1.3 million votes [JURIST report], nearly a quarter of the 5.6 million votes cast nationwide, due to findings of fraud. The IEC found that the 2,543 polling stations where the votes had been cast did not follow IEC procedures.
[JURIST] A judge for the Court of Appeal for Ontario stayed an April 11 ruling [text] that the country's marijuana laws are unconstitutional. Justice David Taliano of Ontario's Superior Court of Justice [official website] invalidated [JURIST report] the Marihuana Medical Access Regulations (MMAR) [text] in April, finding that the program's mechanisms for licensing patients to access medical marijuana [JURIST news archive] are insufficient. These inadequate licensing procedures led Taliano to strike down portions of the Controlled Drugs and Substances Act [text] that criminalize marijuana growth and possession. The Crown appealed [Montreal Gazette report] the Superior Court decision and the appeals court is currently waiting to hear that appeal. Taliano had ordered that Ottawa fix the medical marijuana program within 90 days or face the possible legalization of medical marijuana. The suspension of the lower court ruling effectively prevents these results from going into effect until the appeal court rules on the matter, which will likely take place in the fall [Toronto Sun report].
US Courts have also been forced to interpret medical marijuana statutes in recent years. In January 2010, the California Supreme Court [official website] overturned [JURIST report] a 2003 law limiting the amount of marijuana that may be possessed under the state's Medical Marijuana Program (MMP) [materials]. Earlier that month, New Jersey became the fourteenth US state [JURIST report] to legalize medical marijuana. In November, voters in Maine approved [JURIST report] an expansion of the state's existing medical marijuana laws, making Maine the fifth state to allow dispensaries, following California, Colorado, Rhode Island and New Mexico. California's Fourth District Court of Appeal ruled in 2008 that the MMP is not in conflict with the Supremacy Clause [JURIST report] and does not violate the Controlled Substances Act (CSA) [text].
[JURIST] Dutch politician Geert Wilders [personal website; JURIST news archive] was acquitted of all charges [judgment text, in Dutch] on Thursday, the court finding his anti-Islam statements were not hate speech or discriminatory. Wilders has made several "anti-Islam" comments as a political official, including: several comments similar to "I don't hate Muslims, I hate Islam"; comparing the Koran to Mein Campf and calling for it to be banned; proposing a tax on wearing a hijab, or burqa; proposing a halt to Muslim immigration to the Netherlands; and creating the film Fitna [IMDB backgrounder], where terrorist attack images are juxtaposed with quotations from the Koran. The court's judgment stated that in the larger context of the immigration debate, statements against Islam were permissible, especially since his statements were not made against individuals or even groups of people, but the religion itself.
[S]uspect, as a politician, made the remarks that through his eyes, there are evil aspects of Islam and the Koran. When the alleged statements ... are viewed, both the wording and in conjunction with other statements, most of these statements that can only be seen as on Islam and the Koran. The suspect in these statements directed them against the faith and not against people (Muslims) and it can not be proven legally and convincingly that he incites hatred with these statements and/or discrimination against Muslims, as he was charged with. Regarding several statements, the court considers that these statements also include criticism of individuals, especially politicians, who in the opinion of the accused, do not recognize evil aspects of Islam. These (parts of) the statements can not therefore also be brought under incitement to hatred or discrimination against people because of their religion.
In May, the court rejected claims by Wilders [JURIST report] that the hate speech charges [prosecution materials, in Dutch] against him should be dropped over claims of bias. Wilders claimed 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. While the court allowed 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. 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.
[JURIST] Turkish authorities on Wednesday arrested two military officials alleged to have been involved in the Balyoz Security Operation Plan ("Sledgehammer" plot) [Taraf report, in Turkish; JURIST news archive], a military plot to overthrow the Islamic-rooted government. Lieutenant General Ziya Guler and officer Bulent Akalin were arrested after appearing in court [UPI report] to testify about documents related to the coup that were discovered last year. The Taraf [media website] newspaper revealed last year that the plot included plans to bomb Istanbul mosques and provoke Greece into shooting down a Turkish plane in order to undermine the government.
[JURIST] A three-judge panel of the US Court of Appeals for the Third Circuit [official website] heard arguments on Wednesday regarding the constitutionality of the new Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST news archive], specifically the individual mandate provision that penalizes all citizens who fail to purchase health insurance. New Jersey Physicians, Inc. [advocacy website], a nonprofit physician organization, filed the complaint [text, PDF] last year, arguing that PPACA goes beyond Congress's enumerated powers in the US Constitution by penalizing individuals who choose not to buy health insurance and preventing doctors from receiving payments directly from patients. The organization filed an appeal after a judge for the US District Court for the District of New Jersey [official website] dismissed the lawsuit [JURIST report] in December, ruling that the health care reform law does not cause the alleged harms and does not violate the Constitution. Wednesday's arguments [AP report] focused primarily on whether or not the plaintiffs had standing to sue since the law is not being implemented until 2014 and, therefore, the plaintiffs have not yet suffered economic harm.
[JURIST] A judge for the US District Court for the Southern District of Florida [official website] ruled [opinion, PDF] Wednesday that Florida's procedure for imposing the death penalty is unconstitutional. Florida's death penalty statute [Fla Stat Ann § 921.141 text] provides that the jury in a capital case is to make an "advisory sentence" to the court based on whether certain aggravating factors exist that would warrant a sentence of either life imprisonment or death. These aggravating factors include whether the offense was for pecuniary gain, especially heinous or cruel, or whether the homicide was cold, calculated, and premeditated. The court either accepts or rejects this recommendation and then makes findings of its own regarding the existence of sufficient aggravating circumstances. In a 94-page decision, Judge Jose Martinez found that the method by which a death sentence is imposed in Florida violates the Sixth Amendment right to a jury trial because the jury should be making these findings, not the judge, due to the risk that the judge will base his decision on factors that were not even considered by the jury. To support his decision, Martinez cited Ring v. Arizona [opinion text], a 2002 Supreme Court case ruling that a similar scheme in Arizona was unconstitutional. The American Civil Liberties Union of Florida (ACLUFL) applauded the decision [press release]:
This is yet another sign of the systematic injustices that make up Florida's death penalty systemwhich is already plagued by wrongful convictions, racial inequities, the highest rate of exonerations and inadequate legal representation. ... It is past time to end state-sponsored executions and replace the unfair, unjust, and unconstitutional death penalty system with mandatory life in prison.
The case at issue is a 1991 murder-for-hire case involving Paul Evans, who was convicted of killing a woman's spouse in exchange for a camcorder, stereo and insurance money. After trial proceedings had concluded, the jury recommended 9-3 that Evans be sentenced to death and the court accepted the recommendation.
The death penalty remains a controversial issue worldwide. In March, Illinois Governor Pat Quinn [official website] signed Senate Bill 3539 [text] into law, which abolished the death penalty [JURIST report] in the state. The law is set to take effect on July 1. According to an Amnesty International (AI) [advocacy website] report [text, PDF; JURIST report], the number of countries using the death penalty dropped in 2009, but more than 700 people were executed in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia and the US. Last August, the US District Court for the Southern District of Georgia [official website] heard a habeas petition from Troy Davis, who was convicted and sentenced to death for murdering an off-duty Savannah, Georgia police officer. In a rare move, the federal court heard the habeas petition after Davis had exhausted his state remedies under the Antiterrorism and Effective Death Penalty Act [text], but the court sided against Davis saying that he failed to prove his innocence. Law Offices of the Southern Center for Human Rights [official website] Executive Director Sarah Totonchi argues [JURIST commentary] said that "Troy Davis' case illustrates that US courts simply cannot provide the certainty necessary to impose an irreversible punishment; therefore the death penalty must be abolished."
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