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Legal news from Saturday, September 1, 2012 |
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Brazil judge agrees to first war crimes trial for members of dictatorship
Jaimie Cremeans on September 1, 2012 3:42 PM ET

[JURIST] A Brazilian federal judge in Para on Friday agreed to conduct the first trial against members of its former dictatorship for alleged crimes during the military's rule from 1964-1985. The defendants [AP report] are two retired army reserve members, Colonel Sebastiao de Moura and Major Licio Maciel, accused of kidnappings during suppression of the Araguaia guerilla movement between 1972 and 1975. The judge agreed with prosecutors that Brazil's 1979 amnesty law [GLIN summary], which provides amnesty for members of the government and military who allegedly committed political crimes between 1961 and 1975, does not apply because bodies of the alleged kidnapping victims were never found, so the cases are still open.
In June the Brazilian government issued an official apology [JURIST report] to more than 120 former political prisoners of the military regime. In May a freedom of information law took effect in the country to increase government transparency on the same day that President Dilma Rousseff swore in a truth commission [JURIST reports] to investigate war crimes during the military regime's era. Rights groups, including Amnesty International [advocacy website] have encouraged the country to revoke the amnesty law [JURIST report], and the Inter-American Court of Human Rights [official website, in Spanish] found it to be invalid [JURIST report] in 2010. This, however, was after the Brazil Supreme Court ruled to reject a motion [NYT report] by the Brazilian Bar Association to modify the law to allow trial for officials accused of human rights abuses, stating that the law should not be modified by the court because it was originally passed by the whole country.


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Supreme Court adds 2 cases to next term
Jaimie Cremeans on September 1, 2012 2:32 PM ET

[JURIST] The US Supreme Court [official website] on Friday added two new cases [order list, PDF] to its docket for next term. The first case, The Standard Fire Insurance Co. v. Knowles [docket; cert. petition, PDF], involves the procedural issue of whether a class action can be removed to federal court when there is dispute over whether the amount in controversy is over $5 million. The issue the court will be deciding in this case is whether a pleading by the named parties in a class bringing the suit that claims the amount in controversy is less than $5 million is binding on all of its members and prevents removal to federal court. The issue stems from the court's ruling [JURIST report] last year in Smith v. Bayer Corp. [opinion, PDF], in which it ruled that unless a court officially creates a class, a person attempting to create a class action does not represent interests of all potential members of that class.
The second case, Descamps v. US [docket; cert. petition, PDF], is a challenge to the US Court of Appeals for the Ninth Circuit's use of Matthew Descamps' state burglary conviction to convict him of burglary under federal law. Descamp is challenging the federal court's use of his burglary conviction in sentencing because the California statute under which he was convicted does not include one element of "generic burglary," but the federal court read that element into the state statute saying the statute was actually broader than generic burglary. There have been conflicting lower court rulings on whether a federal court can supply an element of a crime that is not written into it through a "modified categorical approach." Using this approach, the court only looks at a limited number of documents to determine whether the defendant was convicted of the elements of the generic crime even though the state statute is broad and overinclusive. These cases will likely be heard in the Court's November-December sitting which begins on November 26.


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