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Legal news from Thursday, August 25, 2011




Mladic given 6 days to answer ICTY request to split trial
Julia Zebley on August 25, 2011 3:10 PM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Thursday gave former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive] six days to respond to a motion to split his trial [JURIST report]. The ICTY hopes to hold one trial for his conduct during the Srebrenica massacre [JURIST news archive], where approximately 8,000 people were killed, and one for all of his other charges during the Bosnian civil war [JURIST news archive]. Mladic appeared in court and remained silent [AFP report]. Afterward, in a closed session, he discussed his health. Rumors that he has recently undergone surgery were rebutted [press briefing] by the ICTY earlier this week. In a recently released interview from 1995 [RT report], Mladic justified the Srebrenica massacre by claiming Srebrenican Bosnian Muslims were attacking Serbian citizens indiscriminately with arms provided by Iran. He also claimed that no civilians were harmed and that mass graves were a necessity until the dead could be exchanged, but that every casualty received a proper Muslim burial. Mladic also stated in 1995 that he would not recognize a trial by non-Serbians.

Serbian authorities captured Mladic [JURIST report] in May, ending a 16-year manhunt for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina. Mladic made his first appearance [JURIST report] at the ICTY in June, contesting the charges while simultaneously asking for more time to review them, which he was granted. At his second appearance [JURIST report] he refused to enter a plea. Before that, he had lost his final appeal in Serbia to avoid extradition, and was transported to The Hague [JURIST reports]. Mladic faces charges of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages. He is most infamous for allegedly ordering the slaughter of 8,000 Muslim men and boys in the massacre of Srebrenica during the Bosnian civil war, the largest European genocide since the Holocaust.




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El Salvador high court refuses to arrest soldiers accused of murdering priests
Julia Zebley on August 25, 2011 1:12 PM ET

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[JURIST] The Supreme Court of El Salvador [official website, in Spanish] on Wednesday blocked the arrests and extradition of nine former soldiers accused of committing the 1989 "Jesuit Massacre," defying Interpol [official website] red notices for the suspects. The court said that Spain had not presented a formal extradition request in its attempts to prosecute the individuals through universal jurisdiction [JURIST news archive], stating that Interpol's warrant only required the suspects to be located, not detained or extradited for trial elsewhere. However, the court did deny a claim by defendants [El Faro report, in Spanish] that their arrest was arbitrary. The "Jesuit Massacre" occurred during El Salvador's 12-year civil war [PBS backgrounder], when right-wing soldiers murdered six Jesuit priests, their housekeeper and her daughter for allegedly aiding the left-wing Farabundo Marti National Liberation Front (FMLN). Charges that the Jesuits stood with the FMLN were never proven. Although two of the soldiers who committed the massacre were tried and convicted in El Salvador, they were released after a year due to an amnesty pact. Spain indicted [JURIST report] 20 soldiers for the attack in May, as five of the slain priests were Spanish. One of the suspects, former El Salvadoran defense minister Inocente Orlando Montano, was charged earlier this week for immigration fraud [Boston Globe report] in the US District Court of Massachusetts [official website]. It is unknown if the US will extradite him to Spain under the same international indictment.

Around 70,000 people were killed during El Salvador's civil war before a 1992 UN-brokered agreement brought peace to the country. In the past decade, the US has made significant strides in prosecuting those involved in the El Salvadoran civil war. In April, the Obama administration charged [JURIST report] General Eugenio Vides Casanova, former defense minister of El Salvador, for human rights crimes committed during the civil war while he served as the country's top military officer. The US was also seeking to deport [La Pagina report, in Spanish] Vides, who retired in Florida after completing his six-year term as defense minister. In 2006, US Court of Appeals for the Eleventh Circuit [official website] upheld a $55 million verdict [JURIST report] against Vides and his co-defendant Jose Guillermo Garcia for allowing torture and other human rights violations during the war. In 2005, a US federal court reached a verdict against Nicolas Carranza, top commander of El Salvador's security forces during the civil war, for $2 million in compensatory damages [JURIST report]. The case was brought by five Salvadoran citizens who alleged torture or had family killed by Carranza's soldier during the war. In 2000, however, the US lost the battle to seek justice for the murders of four American churchwomen [NYT report] during the civil war when both Vides and Garcia were acquitted. The ruling was grounded in the doctrine that the generals, although responsible for their soldiers, may not have had complete effective power to reign in the abuses of their troops.




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Federal court hears arguments on Alabama immigration law
Erin Bock on August 25, 2011 11:22 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website], joined by several rights groups, appeared before a federal judge in the US District Court for the Northern District of Alabama [official website] on Wednesday seeking a temporary injunction of the state's new immigration law [HB 56 text]. The law requires school officials to verify the immigration status of children and parents, authorizes police to detain an individual and ask for papers if the officer has "reasonable suspicion" that the driver is in the country illegally and requires businesses to use the federal E-Verify system [official website] to determine whether potential employees are legal residents. The motion for injunction [text, PDF; JURIST report] was filed last month and alleges that HB 56 violates the First, Fourth and Sixth Amendments and the Supremacy and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution [text]. Rights groups argued [statement] that the law will cause irreparable harm if not enjoined.
Today's hearing highlighted why Alabama's law must be stopped in its tracks. The law makes it impossible for immigrant families to go to school, to make a living, to take care of routine business, and even to drive on a public road without fear of being punished under state law. This discriminatory law aims at undocumented immigrants, but catches lawful immigrants and U.S. citizens in the crossfire.
The DOJ was joined by religious groups and representatives of several rights groups including the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC), the Southern Poverty Law Center (SPLC) and the Mexican American Legal Defense and Educational Fund (MALDEF) [advocacy websites]. The groups contend that HB 56 is "the most extreme" of the five most recent state laws influenced by Arizona SB 1070 [JURIST news archive].

Earlier this month, the Alabama Attorney General's Office [office website] requested that a certified question be answered by the Alabama Supreme Court [official website] prior to the commencement of district court proceedings. The attorney general wanted to ask the court to clarify the meaning of the provisions of HB 56 that void contracts with undocumented aliens and make transporting them a crime in light of the Alabama Constitution's religious freedom amendment [text]. Alabama lawmakers filed a response [JURIST report] to groups seeking a preliminary injunction against the controversial immigration law. Attorneys for Alabama state officials, argue that the state law is not preempted by federal immigration law and that the text reflects a "spirit of cooperation with the federal government." The legislation was signed into law [JURIST report] in June. Since that time, sixteen countries filed briefs [JURIST report] in the Alabama district court against the controversial law, arguing that it provides unfair treatment [Montgomery Advertiser report] to citizens of those countries currently residing in Alabama and sanctions discriminatory treatment based on ethnicity.




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Nigeria anti-corruption agency ineffective: HRW
Julia Zebley on August 25, 2011 10:48 AM ET

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[JURIST] Corruption in the Nigerian government has become endemic [press release], Human Rights Watch (HRW) [advocacy website] reported [materials] Thursday, criticizing the Economic and Financial Crimes Commission (EFCC) [official website] particularly and the administration of President Goodluck Jonathan [BBC profile; JURIST news archive] generally. Although the agency has arraigned 45 different government officials, HRW believes their trials are moving too slowly and is concerned about the small sentences for the four officials who have been convicted. Due to corrupt officials siphoning the profits from Nigeria's vast oil reserves, human rights programs receive little funding and have not advanced in the nation.
The broadest obstacle any effort to tackle corruption in Nigeria faces is this: the country's political system is built to reward corruption, not punish it. Too often, corruption is a prerequisite for success in Nigeria's warped political process. Since 1999, elections have been stolen more often than won, and many politicians owe their illicitly-obtained offices to political sponsors who demand financial "returns" that can only be raised through corruption. Put simply, the day-to-day functioning of Nigeria's political system constantly and directly undermines the EFCC's work.
HRW had a number of recommendations for the nation, including for state governments to modernize their judicial systems and for the government to embrace transparency. The report also endorsed several pieces of legislation: the Evidence Act [AllAfrica report], the Special Courts Establishment Bill [JURIST report] and amending the Code of Conduct Bureau and Tribunal Act [official website].

Earlier this month, the Nigerian Ebonyi State Commissioner of Justice and Attorney General, Ben Igwenyi, called for the establishment of a special court to hear corruption cases [JURIST report]. He argued that corruption cases in the regular courts take too long to process, causing people to forget about them and perpetuating the appearance of corruption in the government. He proposed merging the Independent Corrupt Practices and other Related Offences Commission (ICPC), which investigates corruption, and the EFCC to form an anti-corruption court. Corruption remains a problem in Nigeria as the EFCC arrested [JURIST report] outgoing speaker of the House of Representatives Dimeji Bankole in June on allegations of fraud. He is believed to have secured a USD $ 66 million loan on top of his normal salary. In March, HRW and the Nigerian Bar Association [association website] called for Nigeria's National Assembly to pass legislation creating a special electoral offenses commission [statement; JURIST report] tasked with investigating and prosecuting election-related abuses, including violence. In 2006, then Nigerian vice president Atiku Abubakar [official profile; official website] was charged with more than a dozen counts of corruption [JURIST report] in the Code of Conduct Tribunal, a special corruption court that has the power to strip elected officials of immunity. The charges were related to the alleged diversion of $125 million dollars of public money to private interests, as well as allegations of receiving more than $4.6 million dollars in bribes.




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New Jersey high court creates new guidelines for eyewitness evidence
Julia Zebley on August 25, 2011 9:33 AM ET

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[JURIST] The New Jersey Supreme Court [official website] on Wednesday ruled [text] that eyewitness-based evidence should be treated more cautiously by New Jersey courts, issuing new guidelines for judges. The court instructed that judges in future cases should hold pretrial hearings to determine all possible variables to the eyewitness testimony as well as administering jury instructions, sometimes mid-way through trial, that explain possible variables specific to the case that could have eroded a witness' memory of the incident. The unanimous opinion relied largely on several scientific studies that have discredited eyewitness testimony:
We find that the scientific evidence presented is both reliable and useful. Despite arguments to the contrary, we agree with the Special Master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications. The research presented on remand is not only extensive, but as Dr. Monahan testified, it represents the "gold standard in terms of the applicability of social science research to the law." Experimental methods and findings have been tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and replicated at times in real-world settings. As reflected above, consensus exists among the experts who testified on remand and within the broader research community.
The ruling also gave suggestions for police officers to reform how they conduct lineups. The Innocence Project [advocacy website], which filed an amicus brief, was pleased [press release] with the decision, saying it will ultimately affect every court in the nation and calling on the US Supreme Court [official website] to make similar findings.

In May, the US Supreme Court granted certiorari [order list, PDF] in a case over a suspect identification [JURIST report]. The court will hear Perry v. New Hampshire [docket], in which Barion Perry is challenging his conviction [AP report] for breaking into a car based on a witness identifying him as the perpetrator while he was in handcuffs under police custody. The witness claims she saw Perry break into the car and steal things but later could neither pick him out of a photo line-up nor describe his appearance. Perry argues that the identification was suggestive since he was in handcuffs, making him look like a criminal. In 2008, a UK study suggested that an eyewitness' ability to recall specific details of an incident decreases dramatically in high-stress situations [JURIST report]. The study, conducted by Tin Valentine and Jan Mesout of Goldsmiths [academic website], part of the University of London, measured participants' ability to recall details about an actor instructed to jump out at visitors as they moved through a "fun-house" maze. The study found that participants who reported being more stressed during the visit consistently failed to correctly identify specific details about the actor afterwards.




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