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Legal news from Wednesday, September 21, 2011




Liberia prison conditions condemned by human rights group
Dan Taglioli on September 21, 2011 3:23 PM ET

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[JURIST] The Liberian government must work to improve its generally poor prison conditions, according to an Amnesty International (AI) [advocacy website] assessment [report, PDF; press release] released Wednesday. "Good Intentions Are Not Enough: The Struggle to Reform Liberia's Prisons" describes an otherwise determined government's failure to cope with the needs of its prisoners as it struggles to rebuild a country wracked by a 14-year civil war. In 2010 and 2011 AI delegates visited four of Liberia's 15 prison facilities, some more than once. From these observations AI concluded that prisoner conditions are so poor that they violate basic human rights, and some prisoners suffer permanent physical and/or mental health damage as a result. The cataloged problems listed in the report include severe overcrowding, grossly inadequate health services, inadequate food and drinking water, lack of adequate light, ventilation and time outdoors, poor hygiene and sanitation, and lack of basic necessities such as toiletries and clean bedding. Indeed, in some prisons overcrowding is such a problem that there is not even adequate floor space, let alone bedding, and prisoners must sleep in shifts because they cannot all lie down at the same time. The report notes that many of the identified problems are somewhat representative of conditions across the country's overall population, but that the state needs to provide a certain level of habitability for prisoners:
It is true that some of these resource problems are also experienced by the general population in Liberia. However, prison inmates are under direct state control and completely dependent on the state to meet their most basic needs. Irrespective of resource constraints, the government must put in place a system that ensures the basic human rights of those in its custody. In all circumstances, the government has a clear and binding obligation not to expose prison inmates to conditions that constitute cruel, inhuman and degrading treatment.
The report also notes that most prisoners have not been convicted of any crime and the vast majority are people living in poverty, without access to lawyers and with few financial resources. In July the AI delegates visited Monrovia Central Prison, the country's largest facility with a design capacity of 374 — they found a prisoner population of 839.

Liberia has been elsewhere criticized for its poor human rights record in recent years. UN Secretary-General Ban Ki-Moon [official profile] emphasized [UN News Centre report] in a 2010 progress report [text, PDF] that reconciliation in Liberia [JURIST report] hinges on the development of its national security and its legal institutions. Along with poor prison conditions Liberia struggles [JURIST report] with corruption in its criminal justice system and sexual and gender-based violence, including rape and forced marriage, according to a UN Mission in Liberia [official website] combined quarterly report [text, PDF] released in April 2008. In 2007, the UN independent expert on the promotion and protection of human rights in Liberia urged the country to accelerate its human rights efforts [JURIST report], and in particular called on the Liberian Truth and Reconciliation Commission (TRC) [official website] to begin operations. The TRC held its first public hearings [JURIST report] after several months delay due to lack of funding. The TRC is investigating possible war crimes that occurred during the civil war that ended in 2003, but does not have the authority to try cases.




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Federal judge dismisses state challenge to voting rights law
Dan Taglioli on September 21, 2011 1:17 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] Wednesday dismissed a challenge to election monitoring under the Voting Rights Act of 1965 (VRA) [materials]. In a 151-page decision [opinion, PDF], Judge John Bates rejected the arguments of officials representing Shelby County, Alabama, together with a corps of conservative activists, who claimed it is no longer constitutionally justifiable to subject Alabama and certain other states to Section 5 [DOJ backgrounder] "preclearance" rules under the VRA. These rules require covered jurisdictions to clear changes in voting districts, polling places and other electoral processes with the Department of Justice (DOJ) [official website] or federal courts. Section 5 relies heavily on patterns of past discrimination to determine which state, county and local governments must obtain preclearance for election changes. After reviewing 15,000 pages of records supporting the 25-year extension of the VRA passed by Congress in 2006, Bates concluded that the modern existence of intentional racial discrimination in voting does in fact justify the 2006 reauthorization of the preclearance requirements:
Despite the effectiveness of Section 5 in deterring unconstitutional voting discrimination since 1965, Congress in 2006 found that voting discrimination by covered jurisdictions had continued into the 21st century, and that the protections of Section 5 were still needed to safeguard racial and language minority voters. Understanding the preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation needed to enforce it, and the caution required of the federal courts when undertaking the "grave" and "delicate" responsibility of judging the constitutionality of such legislation—particularly where the right to vote and racial discrimination intersect—this Court declines to overturn Congress's carefully considered judgment.
The VRA was enacted to put an end to the systematic disenfranchisement of minority voters that ran rampant in Southern districts in the 1960s. According to a public DOJ list [materials], currently nine whole states and many individual counties and municipalities are Section 5 Covered Jurisdictions. The Senate extended the act [NYT report] in 2006 by an overwhelming 98-0 vote.

The Arizona Attorney General [official website] filed a similar suit [JURIST report] in August seeking to enjoin enforcement of the Section 5 rules in that state. In 2009, the US Supreme Court [official website] upheld [opinion, PDF; JURIST report] the Section 5 provisions of the VRA in Northwest Austin Municipal Utility District Number One v. Holder [Cornell LII backgrounder]. The court voted 8-1 in favor of permitting the appellant municipality to "bail out" from the preclearance requirement if it can establish a history of compliance with the VRA, but declined to rule on the constitutionality of the 25-year extension of the act. Writing for the majority, Chief Justice John Roberts opined that "things have changed in the South," observing that "[b]latantly discriminatory evasions of federal decrees are rare." The plaintiff was a municipal utility district in Texas that wanted to be exempted from the requirement and was challenging the most recent extension generally. At their enactment in 1965, the requirements were only supposed to be in place for five years. Section 5 has since been extended several times.




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France prosecutor seeks acquittal in Chirac corruption case
Ashley Hileman on September 21, 2011 10:44 AM ET

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[JURIST] A Paris prosecutor on Tuesday, asked that the corruption charges against former French president Jacques Chirac [BBC news profile; JURIST news archive] be dropped. Additionally, the prosecutor has requested acquittal [BBC report] of the nine other individuals charged with Chirac. The charges against Chirac stem from his time as mayor of the city of Paris and accuse him of using public funds to support his political ambitions. The anti-corruption group Anticor [advocacy website, in French], whose lawyers exposed some of the ways in which the funds were allegedly misused, have highly criticized the prosecutor's request. Earlier this month, Chirac's legal team filed documents with the 11th Criminal Court of Paris claiming Chirac is too ill to face his corruption trial, only days before the trial was slated to continue after being delayed in March [JURIST reports]. However, Judge Dominique Pauthe of the court agreed to continue the proceedings without him [JURIST report]. The trial is set to end on Friday with the judge still having the ability to deny the request and enter a guilty verdict.

While Tuesday's request may result in an end to this trial, it would not be the end of Chirac's legal woes. Last week, the prosecutor's office began an inquiry into allegations [JURIST report] against Chirac and his prime minister Dominique de Villepin over the receipt of millions of dollars from African leaders. The accusations against the two former French officials were made by a lawyer who worked as an aide to Chirac and claims to have participated in the passage of over $20 million in cash [Reuters report] from African leaders to be used as political donations. All of the alleged donations came from leaders of former French colonies. An investigation will also be launched by the Paris Bar into the actions taken by the accuser as his involvement with the passage of these funds is unethical within the legal profession. Villepin, like Chirac, had also been the subject of another trial, which involved accusations that he participated in a smear campaign [AP report] against current President Nicolas Sarkozy [official website, in French], but was recently acquitted.




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Federal appeals court reinstates $675,000 damages in music sharing case
Drew Singer on September 21, 2011 10:26 AM ET

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[JURIST] The US Court of Appeals for the First Circuit [official website] on Friday reinstated [opinion] a $675,000 verdict against a Boston University [academic website] student who illegally downloaded 30 songs and then shared them on the Web.The verdict was, at one point, reduced to $67,500, because then-judge Nancy Gertner, who has since retired, found the original penalty "unconstitutionally excessive." Gertner should not have approached the reduction as a constitutional question, the appeals court ruled. A trial judge may reduce the penalty again, however, if the reduction is done in accordance with the common law practice of allowing the winning party to either pay the smaller amount or demand a new trial.

The original 2009 ruling held that Joel Tenenbaum [defense website] is liable for illegally downloading music. Four record companies, including Sony BMG and Warner Brothers [corporate websites], brought suit against Tenenbaum in the US District Court for the District of Massachusetts [official website], accusing him of illegally downloading 30 songs [complaint, PDF] in violation of copyright laws. Tenenbaum admitted to downloading hundreds of songs, and Gertner directed the jury to consider only the amount of damages [Boston Globe report].




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Supreme Court stays Texas execution for third time
Ashley Hileman on September 21, 2011 9:48 AM ET

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[JURIST] US Supreme Court [official website] Justice Antonin Scalia on Tuesday ordered a stay of execution [text, PDF] for Cleve Foster [TDCJ profile; case materials], a former Army recruiter and convicted murderer. The execution, which had been scheduled for Tuesday evening, was stayed for the third time [AP report] and will remain so until the court decides whether to grant certiorari in the case. Foster was convicted of the murder and subsequent attempt to dispose of the body of a young woman in Texas in 2002, but he maintains that he is innocent and argues ineffective counsel resulted in his conviction. Prior to Tuesday's order, his execution was most recently stayed [JURIST report] in January 2011.

This is the second time this month the Supreme Court has blocked a Texas execution, pending a decision on certiorari. Last week, the court ordered a stay of execution [JURIST report] for Duane Buck. Buck's appeal is not arguing his innocence, but rather improper practices during his sentencing hearing. A clinical psychiatrist testified that Buck, a black man, was more likely to commit another crime due to his race, and thus should be given the death penalty. The same psychiatrist had testified similarly in six other sentencing hearings that resulted in the death penalty, all of which have been overturned. The appeal alleges a violation of equal protection created when the prosecution asked leading questions to elicit racially-charged responses and when then-attorney general John Cornyn [official website] guaranteed sentencing rehearings in the seven cases. Under Cornyn's administration, six of the rehearings took place, but his successor, Greg Abbott [official website], has not conducted one for Buck, whose legal team has lost appeals in all courts lower than the Supreme Court as well as an appeal of clemency to the Texas Board of Pardons and Paroles. It is unknown when the court will accept or deny certiorari.




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Federal judge orders release of Proposition 8 trial video
Drew Singer on September 21, 2011 9:46 AM ET

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[JURIST] Chief US District Judge James Ware of the US District Court for the Northern District of California [official website] decided Monday to unseal video recordings [order, PDF] from last year's trial over Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban. Unless a higher court overrules the order, it will take effect [AP report] September 30. In August of this year, Ware held a hearing over whether there was a compelling reason to keep the videos a secret. A group a lawyers, along with the Associated Press [corporate website], argued that the videos should be released. The trial judge had ruled [JURIST report] last year that the trial could be broadcast live to five federal courthouses and posted to the court's YouTube [website] channel, but that decision was later overturned [JURIST report] by the US Supreme Court.

Earlier this month, the California Supreme Court [official website] heard oral arguments on whether intervening advocacy groups can defend Proposition 8 in court, in response to a certified question [JURIST reports] by the US Court of Appeals for the Ninth Circuit [official website]. When Judge Vaughn Walker struck down the same-sex marriage ban [JURIST report] last year, then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law.




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UN rights chief urges Belarus to release political prisoners
Julia Zebley on September 21, 2011 8:53 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday suggested a need for UN intervention [report text, PDF] in Belarus and demanded the nation free non-violent political prisoners. Although Belarus is an active member of the UN and has ratified many of its human rights policies, Pillay noted a sharp deterioration in human rights since the 2010 disputed re-election of President Alexander Lukashenko [BBC profile; JURIST news archive] who has been in power for 17 years since his 1994 election. Pillay said that citizens have been discouraged from protesting and have not received fair trials, and she referenced the administration enforcing "a policy of harassment against non-governmental organizations (NGOs) and human rights defenders." The report also cited Belarus as the only European nation to still enforce the death penalty. Pillay recommended the immediate release of political prisoners, an end to harassment of human rights and NGOs, an investigation into alleged abuses of the judicial system and the acceptance of an Office of the High Commissioner for Human Rights (OHCHR) [official website] mission to the country. In response, ambassador Mikhail Khvostov for Belarus said his country disagrees on what constitutes a peaceful demonstration [UN News Centre report] and that Belarus is committed to human rights.

Last month, members of the Belarus Parliament introduced a bill that would ban so-called "silent protests" [JURIST report], including those involving large groups of people basically doing nothing. Nonetheless, silent protests continue [RT report], largely in defiance of Lukashenko. Earlier this year, Belarus' Minsk City Court delivered suspended sentences for two former presidential candidates, Uladzimer Nyaklyaeu and Vital Rymasheuski, convicted of organizing protests following the re-election [JURIST reports] of Lukashenko. The two-year suspended sentences were handed down days after former presidential candidate Andrey Sannikau [Free Belarus Now profile] was sentenced to five years [JURIST report]. Hundreds of activists were arrested after protesting Lukashenko's 2006 presidential win, including opposition candidate Alexander Milinkevich [JURIST reports]. While Lukashenko has since sought to improve his country's ties with western nations, the US State Department has historically criticized Belarus' human rights record [JURIST report]. The UN General Assembly Third Committee and the International Helsinki Federation for Human Rights [JURIST reports] have similarly denounced Belarus for human rights abuses.




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Federal appeals court allows damages against Chevron for Ecuador oil spill
Julia Zebley on September 21, 2011 7:27 AM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] on Monday ended an injunction [JURIST report] on damages levied against US oil company Chevron [corporate website; JURIST news archive], making the company potentially liable for $18 billion in damages to Ecuadorian citizens for an oil spill in the 1990s. The award will not be granted immediately, pending appeals in Ecuador [press release] and a decision by the Permanent Court of Arbitration [official website; case materials] in The Hague. The court also issued a stay on a planned hearing in November and rejected the Ecuadorians' motion to recuse Judge Lewis Kaplan for bias. Chevron was unfazed by the ruling, insisting they are the victims of fraud: "There is no legitimate evidence supporting any finding of liability against Chevron because Texaco Petroleum Company cleaned up its share of environmental impacts in Ecuador and the remaining impacts are the responsibility of the government of Ecuador and its state-owned oil company, Petroecuador." Representatives for the Ecuadorians made several statements [El Universo report, in Spanish] praising the decisions, and accusing Chevron of valuing sensationalism over law [San Francisco Chronicle report].

Damages were initially awarded in February [JURIST report] by the Provincial Court of Sucumbios in Ecuador, finding that Texaco, which was acquired by Chevron in 2001, polluted large areas of the country's rain forest. That month, Chevron filed a lawsuit against plaintiffs' lawyers and consultants in the case, claiming that professionals for the plaintiffs were attempting to extort Chevron. The damages were then enjoined in New York in March. In July, the Second Circuit upheld [LAT report] a May ruling [NYT report] by the Southern District of New York ordering filmmaker Joe Berlinger to turn over to Chevron certain outtakes from his 2009 documentary Crude [film website]. Chevron claims the outtakes show plaintiffs' lawyers discussing illegal and unethical tactics, including ghost-writing a court appointed expert's report, intimidating a judge and colluding with government officials. Chevron claims that a 1995 cleanup agreement between Ecuador and Texaco, completed in 1998 at a cost of $40 million, absolves Chevron of all liability.




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