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Legal news from Thursday, March 18, 2010

New Jersey same-sex couples sue for equal marriage rights
Zach Zagger on March 18, 2010 4:55 PM ET

[JURIST] New Jersey same-sex couples who previously sued for marriage equality filed suit [motion, PDF] again Thursday seeking to legalize same-sex marriage [JURIST news archive]. The case is being brought [press release] on behalf of six couples and the surviving partner of a seventh by Lambda Legal [advocacy website]. They filed a motion in the Supreme Court of New Jersey [official website] arguing that the decision handed down in 2002 in Lewis v. Harris [decision text], which said same-sex couples should have "full rights and benefits enjoyed by heterosexual married couples," is not being followed adequately with civil unions. The plaintiffs claim that they "and other committed lesbian gay partners in New Jersey live in second-class circumstances, relegated to demonstrably inferior, state-created status of civil unions." They argue that same-sex couples lack workplace benefits and protections, face unequal treatment and lack of recognition in public accommodations and civic life, and that their children are "prejudiced by the unequal and inferior legal and social status" of civil unions.

In January, the New Jersey Senate voted 20-14 to defeat a bill [JURIST report] that would have legalized same-sex marriage in the state. The Senate Judiciary Committee had voted 7-6 in favor of the bill [JURIST report] in December, marking the first time that any body in the state legislature [official website] had approved same-sex marriage legislation. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and Washington DC [JURIST reports]. New Jersey has recognized same-sex civil unions [JURIST report] since 2006.

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Turkish government arrests 20 more in connection with Ergenekon coup plot
Zach Zagger on March 18, 2010 3:27 PM ET

[JURIST] Turkish police detained 20 people Thursday in connection with the alleged Ergenekon [BBC profile, JURIST news archive] conspiracy to overthrow the Islamist-rooted government. Among those arrested [Reuters report] are retired and active military officers, but the identities and ranks of the individuals have not been released. The arrests are part of an ongoing operation to investigate the Ergenekon conspiracy by the ruling Justice Development Party (AKP) [party website, in Turkish], which is currently at odds with the secular-rooted military and judiciary. More than 200 people have been arrested in connection with the Ergenekon conspiracy.

Earlier this month, Turkish prosecutors charged [JURIST report] an army general and a state prosecutor with belonging to Ergenekon. The AKP is also investigating another alleged coup plot, the "Sledgehammer," led by high-ranking military officials. In February, Turkish President Abdullah Gul [official website, in Turkish], Prime Minister Recep Tayyip Erdogan, and the Chief of General Staff Gen. Ilker Basbug [official profile], met in Ankara [JURIST report], to discuss tensions over that alleged coup plot. Hours after that meeting, a Turkish court released three high ranking military officials that had been detained for questioning. Tensions in Turkey between the military and government have harmed Turkey's bid to join the European Union (EU) [official website]. Turkey's secular nationalist establishment, including the Turkish Armed Forces (TAF) [official website, in Turkish], has long been at odds with the AKP.

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Togo court affirms contested election of incumbent president
Sarah Miley on March 18, 2010 3:05 PM ET

[JURIST] The Constitutional Court of Togo [official website, in French] on Wednesday affirmed [Embassy press release, PDF] the election of incumbent President Faure Essozimna Gnassingbe [official profile] despite five suits alleging voter fraud filed by the opposition. The court held [AFP report] that the accusations made by the opposition were unsubstantiated. The final vote totals decided by the court gave Gnassingbe 60.88 percent of the vote, and his main opponent, Jean-Pierre Fabre, 33.93 percent. The final results closely resembled those originally reported after the March 4 election. Fabre has rejected the court's decision and stated that he plans to hold demonstrations against the election.

Last month, the court ruled that presidential candidate Kofi Yamgnane [campaign website, in French] was not eligible to run [JURIST report] in the election due to inconsistent records of his date of birth and conflicting immigration documents. Yamgnane asserted that the decision was a pretext to eliminate the most dangerous candidate to Gnassingbe's ruling Rally of the Togolese People (RTP) [party website, in French] party. Gnassingbe took office [JURIST report] in February 2005 immediately following the death of his father, Gnassingbe Eyadema [BBC obituary], who was president of Togo for 38 years and one of the country's longest serving leaders. Gnassingbe's unconstitutional succession to office [JURIST report] was met with international outcry, and pressure from the Economic Community of West African States (ECOWAS) [official website] member countries led to his resignation [JURIST reports]. Togo's Parliament then named Abass Bonfoh, a member of the ruling party, as acting president. In May 2005, the constitutional court confirmed Gnassingbe as the official winner of the disputed presidential election [JURIST reports].

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Rwanda tribunal affirms genocide conviction of Hutu singer
Sarah Miley on March 18, 2010 2:00 PM ET

[JURIST] The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] on Thursday affirmed [judgment, PDF; press release] the genocide conviction of popular Rwandan singer-songwriter Simon Bikindi [Trial Watch profile, case materials]. The charge was based on a speech Bikindi gave during the 1994 Rwanda genocide [HRW backgrounder] in which he called on Hutus to rise up and exterminate the Tutsis. Prosecutor Justice Hassan Bubacar Jallow [official profile] appealed the 15-year sentence [judgment, PDF; JURIST report] given to Bikindi in January on the grounds that it was inadequate punishment for "direct and public incitement to commit genocide." Bikindi appealed on the basis that the sentence was disproportionate to the gravity of the offense and that court erred in its evaluation of his association with extremist militia group, Interahamwe. The court rejected both appeals.

The court also reversed [judgment, PDF] several convictions against Rwandan district attorney Simeon Nchamihigo [Trial Watch profile, case materials]. In 2008, Nchamihigo was charged [JURIST report] with four counts of genocide, murder, extermination, and other crimes against humanity and sentenced to life imprisonment. The Appeals Chamber reversed his convictions of murder as a crime against humanity, extermination as a crime against humanity, and three counts of genocide. Nchamihigo's other convictions were affirmed and his sentence was reduced to 40 years. Both Bikindi and Nchamihigo are being held in the UN Detention Facility in Arusha, Tanzania, pending their transfer to the countries where they will serve their sentences.

Bikindi was first indicted and arrested in 2001. At the time of his arrest, Bikindi was living in the Netherlands. He fought extradition for several months but lost and was turned over to the ICTR in March 2002 where he pleaded not guilty [Hirondelle materials] to charges of genocide. His trial began [JURIST report] in September 2006 following numerous delays relating to court ordered amendments to the original indictment [trial minutes, PDF]. Nchamihigo was taken into custody by ICTR security staff in May 2001 when he was recognized while working as an investigator for the legal team defending former Rwandan army officer Samuel Imanishimwe. Nchamihigo was working with false identity papers under the name of Bahati Weza.

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Myanmar authorities release jailed US rights activist
Jonathan Cohen on March 18, 2010 1:21 PM ET

[JURIST] Myanmar authorities on Thursday released [advocacy press release, PDF] jailed democracy activist Nyi Nyi Aung [advocacy profile], ordering him to leave the country. Aung, a US citizen, had been sentenced to three years in prison [JURIST report] after being convicted on fraud and forgery charges [JURIST report] by a Myanmar court last month. Advocacy groups have argued [JURIST comment] that the charges against Aung were filed because of his political advocacy, and a group of 53 members of the US House of Representatives [official website] called for his immediate release [letter, PDF] following his conviction. Aung is expected to return to the US.

Myanmar has recently faced significant criticism of its human rights record. Last week, UN Special Rapporteur on the situation of human rights in Myanmar Tomas Ojea Quintana released a report saying that some of the country's violations may constitute war crimes [JURIST report]. Also last week, Myanmar's junta announced new election laws [JURIST report], one of which bars pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] from participating in the upcoming elections. The move that immediately criticized by UN Secretary-General Ban Ki-moon [official website], who said that the laws do not meet international standards [JURIST reports] for an inclusive political process. In January, a Myanmar government official said that Suu Kyi released from house arrest [JURIST report] in November when her sentence is scheduled to end, likely after the elections.

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China appeals court upholds life sentence for former supreme court judge
Haley Wojdowski on March 18, 2010 12:30 PM ET

[JURIST] The Hebei Province People's High Court in northern China on Wednesday upheld [China Daily report] a life sentence for former vice president of China's Supreme People's Court (SPC) [official website, in Chinese] Huang Songyou. Huang was convicted [JURIST report] in January of bribery and embezzlement, and sentenced to life imprisonment. Huang is the highest-ranking judge to be charged with corruption [China Daily report] since the founding of the People's Republic of China. Between 2005 and 2008, Huang allegedly embezzled 3.9 million yuan (about $574,000 USD) while serving as vice president of the SPC, and he allegedly embezzled 1.2 million yuan (about $175,000 USD) while serving as president of the Intermediate People's Court of Zhanjiang in 1997.

Huang's conviction comes amid initiatives by the Communist Party of China (CPC) [GlobalSecurity backgrounder] to fight corruption in the judicial system in order to restore public confidence. In March, the president of the SPC, Wang Shengjun [official profile, in Chinese], called for increased efforts to fight corruption [JURIST report] in the country's court system. In January, the SPC announced new anti-corruption rules [JURIST report] in an effort to increase public confidence in the rule of law. Chinese courts are under the control of the CPC, which announced plans [JURIST report] earlier that month to increase oversight of the families of government officials to control corruption.

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US state prison population dropped in 2009: report
Bhargav Katikaneni on March 18, 2010 9:32 AM ET

[JURIST] The number of inmates in US state prisons has dropped for the first time in 40 years, according to a report [text] released Wednesday by the Pew Center on the States [advocacy website]. Led by California and Michigan, the state prison population decreased by 0.4 percent during 2009. Because of a slight increase in the federal system, the total number of prisoners in US prisons increased slightly between in 2009. According to the report, the decline is due to fewer prisoners entering the prison system, while the number of people leaving state prison in 2008 was an all-time high. The report said that even before facing financial difficulties, many states had already started reducing total admissions in 2007, and others had cut back on parole revocations. Director of the Pew Center's Public Safety Performance Project [advocacy website] Adam Gelb said [press release] that another important reason for the decline "is that states began to realize there are research-based ways they can cut their prison populations while continuing to protect public safety."

Last year, the Pew center reported [JURIST report] that one in 31 US adults is in prison, or on parole. The report found that men are five times as likely as women to be in prison and that black adults are four times as more likely as white adults. According to the Bureau of Justice Statistics (BJS) [official website], 7.3 million people were under some form of correctional supervision [BJS statistics] in 2008. According to the International Center for Prison Studies [official website], the US has the most prisoners per capita [text, PDF] in the world.

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Senate passes bill to reduce cocaine sentencing disparity
Bhargav Katikaneni on March 18, 2010 8:32 AM ET

[JURIST] The US Senate [official website] unanimously passed legislation [S 1789 materials] Wednesday to reduce sentencing disparities for powder and crack cocaine [JURIST news archive] offenses. The Fair Sentencing Act, introduced by Senator Dick Durbin (D-IL) [official website], would amend existing law to reduce the sentencing disparity between crack cocaine and powder cocaine convictions from 100:1 to 18:1. Durbin, who originally voted for the sentencing disparity, said that he would have preferred a 1:1 sentencing ratio [AP report] but was happy with the compromise. The American Civil Liberties Union (ACLU) [advocacy website] praised the bill but said it does not go far enough and that the proposed sentencing disparities would still disproportionately affect African-Americans. Director of the ACLU Washington Legislative Office Laura Murphy said [press release]:

The Fair Sentencing Act is an encouraging step toward eliminating the sentencing disparity between crack and powder cocaine but still allows for a needlessly unfair sentencing framework. The unanimous passage of this bill speaks to the understanding across the political spectrum that this disparity is unjust and in need of reform. Years of research has yielded no evidence of any appreciable difference between crack and powder cocaine and yet we continue to inflict this disparity on Americans.

For over two decades, this sentencing disparity has been a stain on our justice system. Though this bill's passage is long overdue, it does not go far enough. Without a simple and fair 1-1 sentencing ratio for crack and powder cocaine, we cannot say that these sentencing laws meet constitutional muster.
The proposed law would also eliminate the five-year mandatory sentence for first-time possession of crack cocaine and would increase monetary penalties for drug trafficking. An identical version of the bill is expected to be passed by the House and signed into law by President Barack Obama.

The bill was approved [JURIST report] by the Senate Judiciary Committee [official website] earlier this month. In July, the House Judiciary Committee [official website] voted to completely eliminate [JURIST report] the sentencing disparity. US Attorney General Eric Holder and other officials [JURIST reports] have also spoken publicly in favor of sentencing reform. In 2008, more than 3000 inmates convicted of crack cocaine offenses had their sentences reduced [JURIST report] under an amendment to the Federal Sentencing Guidelines.

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Idaho governor first to sign law barring federal health insurance mandate
Andrea Bottorff on March 18, 2010 8:11 AM ET

[JURIST] Idaho Governor CL "Butch" Otter (R) [official website] on Wednesday became the first governor to sign a bill [H 391 text] into state law banning any federal mandate for individuals to have health insurance. The Idaho Health Freedom Act orders the state attorney general to file a lawsuit against the national government over any law making health insurance mandatory. The bill highlights efforts the state has made in local health care reform and stresses the state government's determination to oppose federal health care legislation [press release]. State Senate minority leader Kate Kelly (D) [official website] criticized the price tag on the new bill and accused Otter of fiscal irresponsibility [AP report]. The legislation will face legal challenges under the Supremacy Clause of the US Constitution [Senate backgrounder], which gives federal law precedence over state law.

Last week, the Virginia legislature passed a similar bill that would ban federal mandates on health insurance [JURIST report], which the state's governor has pledged to sign. At least 37 other states have plans to introduce similar legislation, according to the American Legislative Council (ALEC) [official website], which published a model bill [press release] on which the initiatives are based. Last month, President Barack Obama released his own health care proposal [JURIST report] that seeks to reconcile versions of the bill passed by the House and Senate [JURIST reports] last year. Obama has argued that the legislation would overhaul private health insurance and provide affordable care for millions of Americans while Republicans have said they would block the bill [NYT report] because it was too expensive and would compel people to buy health insurance.

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UK cites increasing demand for human rights in 2009 annual report
Matt Glenn on March 18, 2010 7:59 AM ET

[JURIST] The UK Foreign and Commonwealth Office (FCO) [official website] released its Annual Report on Human Rights 2009 [text, PDF] Wednesday, noting the increasing demand for human rights by citizens throughout the world. The report also cited the contrasting argument by some governments that human rights are merely a Western construct that are unnecessary or inappropriate in certain countries. Introducing the report, UK Foreign Secretary David Miliband [official profile] said [press release] that several steps must be taken to uphold human rights around the world:

First, we must support the struggle for civil rights. When courageous protestors make their voices heard on the streets of Iran for example, we, making clear their desire for democracy, human rights and fundamental freedoms; and when their Government responds with brutality, then we're right to speak up.

Second, we should provide practical help that meets individual countries' specific needs, working with civil society rather than lecturing Government. ...

Thirdly, we need to recognise that new technologies transform the ability of individuals to organise in the face of authoritarianism.
The report mentioned 22 countries of concern, including Myanmar for its detention of political prisoners including opposition leader Aung San Suu Kyi [JURIST news archives]. Despite improved commitments to human rights in Israel and the Occupied Palestinian Territories [JURIST news archives], the report expressed concerns with Israeli actions in East Jerusalem and restrictions on the Gaza Strip as well as the Palestinian Authority's failure to condemn violence. The report indicated that human rights have decreased in Iran and Pakistan [JURIST news archives] since 2008. Sri Lanka [JURIST news archive] was the only new country added to the list.

Last week, the US State Department released its annual reports [JURIST report] on human rights conditions in almost 200 countries. Last year's FCO report focused on terrorism and global warming [JURIST report] as key issues. The UK also voiced concern [JURIST report] over the rights situations in many of the same countries in its 2007 report.

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Federal appeals court rules against child pornography charges in texting case
Matt Glenn on March 18, 2010 6:42 AM ET

[JURIST] The US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] Wednesday that a Pennsylvania prosecutor cannot file child pornography charges against a teenage girl whose topless photo was found on a number of her schoolmates' cell phones, upholding a preliminary injunction. Wyoming County prosecutor George Skumanick threatened to bring felony charges against several students who possessed or appeared in nude and semi-nude pictures of underage girls found on cell phones of students in the Tunkahannock, Pennsylvania, School District if the students did not attend a program on sexual violence and gender identity. Three girls refused to attend the class and sought a temporary injunction prohibiting prosecution, which the US District Court for the Middle District of Pennsylvania [official website] issued [JURIST report] last March. Skumanick's successor promised not to prosecute two of the girls, leaving only one plaintiff on appeal. The appellate court held that the district court properly issued the injunction since it appeared that the state threatened to prosecute the girl in retaliation for exercising her First Amendment right not to write certain essays that would have been part of the program and for her parents exercising their Fourteenth Amendment right to control their child's education. The court also found that it was unlikely that the prosecution could be successful since there was no evidence that the girl manufactured or distributed the photo. The court stated:

At this preliminary stage we conclude that plaintiffs have shown a likelihood of success on their claims that any prosecution would not be based on probable cause that Doe committed a crime, but instead in retaliation for Doe's exercise of her constitutional rights not to attend the education program. Therefore, we affirm the grant of a preliminary injunction and remand for further proceedings.

The lawyer for Skumanick said that while he was disappointed with the ruling [Philadelphia Inquirer report], he was pleased that the court declined to rule that the photos themselves were protected by the First Amendment.

The plaintiffs were represented by the American Civil Liberties Union of Pennsylvania (ACLUPA) [advocacy website] and filed suit [complaint, PDF; case materials] against Skumanick last year. ACLUPA lawyer Witold Walczak contends [press release] that the photos are protected by the First Amendment and that requiring the girls to attend a re-education program interferes with the parents' rights to raise their daughters as they wish. According to the complaint, 20 percent of teens nationwide [survey results, PDF] have participated in the distribution of similar pictures, a phenomenon known as "sexting." This is the first circuit court ruling on the issue.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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