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Legal news from Monday, March 2, 2009

US Supreme Court to consider copyright infringement jurisdiction
Devin Montgomery on March 2, 2009 3:30 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] in one case on Monday. In Reed Elvesier v. Muchnick [docket; cert. petition, PDF], the Court will consider whether a US code provision on copyright infringement [14 USC § 411(a), text] removes federal court subject matter jurisdiction over settlement agreements between parties in infringement cases. Under § 411(a), only those copyright holders who have registered their works may pursue infringement claims. The US Court of Appeals for the Second Circuit had invalidated [opinion, PDF] a lower court's approval of a settlement in a class action lawsuit on the grounds that the law did not allow federal courts to consider such agreements.

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Supreme Court hears oral arguments in DNA evidence and injured worker cases
Devin Montgomery on March 2, 2009 3:25 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] in two cases on Monday. In District Attorney’s Office v. Osborne [argument transcript, PDF; JURIST report], the Court heard arguments on whether a defendant has the right to obtain post-conviction access to the state’s biological evidence under Section 1983 [text] or the Fourteenth Amendment's Due Process clause. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that Osborne has a right to access the evidence against him on appeal, even though his lawyer made a strategic decision to forgo independent DNA analysis for the trial. The petitioner in the case, the State of Alaska, argued that Osborne does not have a right to the evidence under Section 1983 because the state already allows defendants to access such evidence through a habeas corpus petition if they have made an appeal based on actual innocence, which Osborne has not done.

In Atlantic Sounding v. Townsend [argument transcript, PDF; JURIST report], the Court heard arguments on whether an injured seaman may recover punitive damages for the willful failure of his employer to pay a basic living allowance, wages that he otherwise would have earned, and benefits to cover medical expenses. The US Court of Appeals for the Eleventh Circuit had affirmed [opinion, PDF] a lower court ruling that Townsend could recover the damages. Atlantic Sounding, the petitioner in case, contended that the applicable statutes, the Jones Act [text] and the Death on the High Seas Act [text], do not provide for such expenses.

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UK anti-terrorism reviewer urges judicial inquiry into alleged complicity in US torture
Brian Jackson on March 2, 2009 10:38 AM ET

[JURIST] The UK government's independent reviewer of terror laws on Sunday called for a judicial inquiry into British complicity in US rendition and torture. The reviewer, Lord Carlile of Berriew [Times profile; JURIST news archive], specifically cited the case of Binyam Mohamed [JURIST news archive], the British resident who alleges that he was tortured with the knowledge of MI5 [official website] while held in US custody in Pakistan in 2002. Labour Party Deputy Leader Harriet Harman [official profile] was non-committal, saying only [BBC video; transcript] that, "We'll have to listen to what he [Berriew] says, but at the moment, we've got an investigation by the Attorney General". Asked if she would rule out a judicial inquiry, Harman responded, "We'll just have to see what lies ahead on that."

British media reported Sunday that UN special rapporteur on torture Manfred Nowak has told British ministers that MI5 may have been complicit [JURIST report] in torture committed while detainees including Mohamed were in US custody. Mohamed was returned to the UK [JURIST report] last week following seven years of detention, including five at Guantanamo Bay, where he was held on charges of conspiring to commit terrorism. Those charges were dismissed [JURIST report] in October, however Mohamed remained in custody while US authorities considered filing new charges.

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EU report finds European anti-Semitism incidents up since December
Matt Glenn on March 2, 2009 10:38 AM ET

[JURIST] The EU Agency for Fundamental Rights (FRA) [official website] said in a report [text; PDF] released Monday that incidents of anti-Semitism [JURIST news archive] have increased in the EU since December 2008 after declining in 2007 and 2008. The report found "an increase in anti-Semitic activity between 2001 and 2002, between 2003 and 2004 and again in 2006, but a decrease in 2007 and 2008." The FRA, however, said it lacked sufficient data to establish whether anti-Semitism had increased or decreased between 2001 and 2008. The report compiled trends in anti-Semitism by country and the methods that each country used to track those trends. The report concluded, however, that anti-Semitic incidents are under-reported in Europe and that only France, Sweden, and Germany collect enough data to observe trends within individual nations. FRA head Morten Kjaerum speculated that the situation in the Middle East and the global financial crisis could be responsible for the recent increase, but the FRA report itself cautioned that

...due to the overall paucity of data, only speculative conclusions can be drawn for the European Union, as a whole, as to how different political developments in the Middle East could influence attitudes and behaviour of Arab and Muslim European communities, as well as the rhetoric and activities of the extreme and far- right and to some extend the extreme left.
The FRA said it will closely monitor the situation and issue an update in 2010.

In November, the German parliament passed a resolution [JURIST report] requiring the government to track reports of anti-Semitism in the country and fund education to combat the problem. The Council of Europe released a report [JURIST report] in July emphasizing the need for European countries to examine their human rights records. Monday's report is the fifth update of the FRA's 2004 "Manifestations of anti-Semitism in the EU" [text, PDF].

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UN torture investigator warns UK over MI5 interrogation conduct
Benjamin Hackman on March 2, 2009 9:24 AM ET

[JURIST] UN special rapporteur on torture Manfred Nowak [official website] has told the British government that the United Kingdom may have acquiesced [Guardian report] in the mistreatment of terror suspect detainees and thereby violated the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text]. The Guardian reported Sunday that, according to Nowak, Britain's MI5 [official website] security service may have been complicit in mistreating detainees in US custody. Nowak said the privilege of state secrecy should not impede probes into torture allegations and that he is looking to organize a fact-finding mission to Pakistan to investigate the mistreatment claims. Britain's Foreign and Commonwealth Office [official website] has said it investigates all claims of mistreatment involving British officials.

Nowak's criticism came as the government faces mounting pressure [Guardian report] to investigate claims British residents were tortured at Guantanamo. Zachary Katznelson [advocacy website], lawyer for Guantanamo detainee Shaker Aamer, said Sunday that British officers were present when Aamer was beaten [AP report] in US custody in Afghanistan. Ex-Guantanamo detainee and British resident Binyam Mohamed [BBC profile; JURIST report] has also said [MWC report] he was tortured while in US custody.

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Cambodia war crimes court unable to pay employees due to donation shortfall
Jay Carmella on March 2, 2009 8:08 AM ET

[JURIST] A judge from the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] announced on Monday that the ECCC's Cambodian employees will not be paid in March. The UN-backed tribunal is staffed by both local and international workers, and the funding shortage is expected to cause some employees to stop working [AP report]. The ECCC has seen a reduction in funding following questioning of its credibility and allegations of corruption [JURIST reports]. An ECCC employee has alleged that the court's kickback system [Phnom Penh Post report] required workers to remit 70 percent of their salaries for the first four months of employment, and 10 percent thereafter. The UN stopped funding the Cambodian side of the ECCC last July due to the corruption allegations, forcing the court to rely on international donations. The ECCC judges have denied participation [JURIST report] in any of the alleged corruption.

Last week, UN assistant secretary general for legal affairs Peter Taksoe-Jensen met with [JURIST report] Cambodian Deputy Prime Minister Sok An [official profile] to discuss the allegations of wrongdoing in the ECCC, including a possible anti-corruption mechanism for the court. Fears of the ECCC's bankruptcy come despite a pledge from Japan [JURIST report] to donate an additional $21 million. The ECCC, which was created in 2006 to try former Khmer Rouge [BBC backgrounder, JURIST news archive] leaders, announced last June that it planned to end its operations [JURIST report] a year early because of limited funding.

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UN SG urges support for Rwanda genocide tribunal
Tere Miller-Sporrer on March 2, 2009 8:07 AM ET

[JURIST] UN Secretary General Ban Ki-Moon [official profile; JURIST news archive] on Friday pledged his ongoing support [press release] for the International Criminal Tribunal for Rwanda (ICTR) [JURIST news archive] and stressed that the international community must continue to combat genocide. Ban also asked for help [The New Times report] in the search for thirteen people suspected of involvement in the 1994 Rwandan genocide. It is suspected that the fugitives have been able to avoid capture by hiding in neighboring states. Felicien Kabuga [advocacy website], who allegedly financed the genocide campaign, is among those sought and is believed to be living in Nairobi. In the speech, Ban also urged the ICTR to accelerate work on its major tasks in order to meet the 2010 deadline set by the UN Security Council [Resolution 1503, PDF; JURIST report].

The ICTR has made significant progress toward completing its mandate, prompting the US State Department to praise [JURIST report] the court's work in its most recent human rights report, released on Thursday. On Friday, the ICTR sentenced [JURIST report] former priest and military chaplain Emmanuel Rukundo [case materials] to 25 years imprisonment after convicting [press release] him of genocide, crimes against humanity, and sexual assault. The contempt trial for a former ICTR defense investigator began earlier this month, and in January a former justice official was sentenced [JURIST reports] to life in prison for his role in the 1994 genocide.

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Israel Attorney General to prosecute outgoing PM Olmert on corruption charges
Eszter Bardi on March 2, 2009 7:59 AM ET

[JURIST] Israeli Attorney General Meni Mazuz [official profile] informed outgoing Prime Minister Ehmud Olmert [official profile; JURIST news archive] Sunday that he intends to file an indictment against him in the District Court of Jerusalem for receiving illicit funds. Charges stemming from Olmert's alleged acceptance of cash contributions from Jewish-American businessman Morris Talansky [JURIST report] could possibly include fraud, violation of public confidence, and the receipt of illicit perquisites. Should an indictment be filed [AP report], it would be based on Talansky’s statements obtained during a series of pre-trial depositions and cross-examinations conducted in May and July 2008, in which Talansky stated that Olmert had asked him for approximately $150,000 [Ha'aretz report] over a fifteen-year period. If proven, receipt of the funds would constitute abuse of Olmert's public position in violation of the 1973 Party Financing Law [text]. Olmert, who has denied the allegations against him, will be given a final pre-trial hearing to dissuade Mazuz from filing charges. Although Talansky denies receiving any favors in return for his contributions, may yet face charges [NYT report] of his own in a US court.

In addition to the currently pending indictment, the Israel Ministry of Justice is also considering filing indictments for Olmert’s other alleged corruption offense, including the double billing [JURIST report] of the state and charitable donors for travel expenses in 2002-2006. The preliminary testimony obtained from Talansky in May 2008 led to Olmert’s resignation from his post as PM last September. Olmert remains acting PM until recently-elected successor Benjamin Netanyahu formally takes office.

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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