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Legal news from Tuesday, November 23, 2010

Lawyer for Saddam-era deputy PM Aziz seek death sentence pardon
John Paul Putney on November 23, 2010 2:56 PM ET

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[JURIST] A lawyer for former Iraqi foreign minister and deputy prime minister under Saddam Hussein [JURIST news archive], Tariq Aziz [BBC profile; JURIST news archive] filed a petition [text, PDF] Tuesday asking Iraqi President Jalal Talabani [BBC profile; JURIST news archive] to pardon the former leader. Aziz was sentenced to death by hanging [JURIST report] last month by the Iraqi High Criminal Court [ICRC backgrounder, PDF] following a conviction on charges related to the former regime's effort to eliminate Shiite Muslim resistance efforts after the First Gulf War. The petition filed by Giovanni Di Stefano attacks the conviction, citing a failure to prove the crime:
Under normal circumstances and in any other judicial systems operative in a democratic country under the criminal law the basis for a conviction is based upon 'beyond reasonable doubt.' In civil law it is 'on the balance of probabilities.' In Iraq a judge has to be simply 'satisfied' of the evidence and that is by far from any international standards which the Constitution of Iraq requires.
The petition notes that Aziz was convicted under Article 406 of the Iraqi Penal Code which requires that a person "willfully kills" and points to the prosecution's assertion that "Mr Aziz was a member of the ruling party and that he did not object or supported the decision to persecute members of the Da'wa Party and the killing of Mr Al Sadre." The petition concludes that the prosecution did not meet their required burden of proof and asks Talabani to issue a pardon citing Article 73 of the Iraqi Constitution [text, PDF], which gives the president the power to "issue a special pardon on the recommendation of the Prime Minister." The petition argues the power to pardon can be used "unilaterally and without prior motion," however, that proposition is disputed [Arab Monitor report]. Current Iraqi Prime Minister Nouri al-Maliki represents the Shia Da'wa party that Aziz was convicted of persecuting [UKPA report].

The petition follows pressure from the Vatican and various European countries opposed to the death penalty. On Wednesday, Talabani said in an interview [video] that he will not sign the execution order for Aziz, citing his opposition to capital punishment. Talabani also indicated that he felt compassion for Aziz who is a Christian and an old man. Aziz's family has called for his release on health grounds, claiming he has had two heart attacks and suffered a stroke [JURIST report] in January. In August 2009, Aziz was convicted of forcing Kurdish displacement [JURIST report] from northeast Iraq during the late 1980s, and was sentenced to seven years in prison. Prior to his March conviction, Aziz was acquitted of charges [JURIST report] in connection with the 1999 killing of protesters who rioted in Baghdad and Amarah following the alleged assassination of Grand Ayatollah Mohammed Sadiq al-Sadr.

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Alleged Nazi guard accuses Germany judges of bias
Sarah Paulsworth on November 23, 2010 2:15 PM ET

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[JURIST] Alleged Nazi death camp prison guard John Demjanjuk [TIME profile; JURIST news archive] issued a statement on Tuesday accusing the German judges conducting his trial of bias [text] after the they rejected a number of defense petitions. In total, the judges rejected 23 petitions [WP report], including motions regarding whether Demjanjuk, who is Ukranian born but obtained US citizenship after World War II, is fit for trial. His family and physician argue that Demjanjuk, who is 90 years old, is too frail and in too much pain to make it through the trial. "While they silence the prison doctors and deny us the weekly clinical reports - against all Western legal and humanitarian standards - the judges rely on a court appointed medical stooge whose therapy is to shoot my father with various drugs and call him fit," Demanjanjuk's son, John Jr., said in statement appended to his father's. John Demjanjuk Sr. said, "The decision to continue with this trial is a crime of infringement of the law and a deprivation of my liberty. With this statement, I bring a charge against Judges Alt, Lenz and Pfluger for infringement of the law and deprivation of my liberty. I ask that my statement be provided to the authorities who must investigate and decide to take action regarding this serious charge."

In May, a German court refused to dismiss [JURIST report] the charges against Demjanjuk , although his defense lawyers claimed there was a lack of evidence. It is alleged that Demjanjuk volunteered to work at Sobibor [Abendzeitung report, in German] after being captured by German forces while serving as a member of the Soviet army. Multiple appeals were filed in regards to Demjanjuk's health, but he was found fit to stand trial, and his appeals were rejected [JURIST reports] in October 2009. Demjanjuk's trial began [JURIST report] last November, but the hearings have been limited to no more than two-90 minute sessions per day in deference to his health. Demjanjuk was deported to Germany [JURIST report] from the US in May 2009. According to a leaked Department of Justice report [text], the US acted as a safe harbor for Nazis [JURIST report; JURIST commentary] after World War II.

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Iran criticized by UN for crackdown on human rights lawyers
Julia Zebley on November 23, 2010 1:26 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday expressed her concern [text] over Iran's crackdown on human rights defenders. Pillay expressed particular concern for Nasrin Sotoudeh, the human rights lawyer who has been conducting hunger strikes [BBC report] since her imprisonment [JURIST report] in September for allegedly spreading propaganda and colluding against national security. Earlier this year, Amnesty International (AI) [advocacy website; press release, PDF] and the International Campaign for Human Rights in Iran [advocacy website; press release] called on Pillay to pressure Iran to release Sotoudeh. Pillay called for Sotoudeh's release:
As we approach international Human Rights Day on 10 December, the world will be focusing on situations where human rights activists are not free to organize or speak out. I am very concerned that Nasrin Sotoudeh's case is part of a much broader crackdown, and that the situation of human rights defenders in Iran is growing more and more difficult. ... I urge the Iranian authorities to review her case urgently and expedite her release.
Pillay also noted that, "[f]reedom of speech and freedom of assembly are enshrined in international law, most importantly in the International Covenant on Civil and Political Rights [text], which is a binding treaty that Iran has ratified." Next week, the Office of the High Commissioner for Human Rights (OHCHR) [official website] will conduct a judicial colloquium in Tehran to instruct 30 Iranian judges and prosecutors on correct treatment of detainees, as well as how to conduct fair trials.

Pillay previously criticized [JURIST report] Iran's human rights record in March while presenting her annual report. Pillay condemned Iran for the "arbitrary arrest" of, and "harsh sentences, including capital punishment" given to, individuals involved in protests following the June 2009 presidential elections [JURIST news archive]. Iran defended [JURIST report] its human rights record to the UN in February. Sotoudeh worked on several high-profile cases related to the 2009 presidential election. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of mohareb, translated as being "enemies of God." Rahmanipour was executed [JURIST report] in January. Sotoudeh also represented Isa Saharkhiz [IPS profile], a well-known press activist who was sentenced [JURIST report] to four years in prison in 2006 for publishing articles against the constitution and offending the state media. In December 2009, AI labeled [JURIST report] human rights abuses committed by the Iranian government following the election among the worst of the past 20 years. Alleged human rights violations of detainees include sexual assault, beatings and forced confessions [JURIST reports].

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Georgia high court rules non-English speaking defendants have right to interpreter
Sarah Posner on November 23, 2010 12:59 PM ET

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[JURIST] The Supreme Court of Georgia [official website] ruled [opinion, PDF] Monday that defendants with limited English proficiency have a constitutional right to court interpreters in criminal trials. The court's decision overturned the Georgia Court of Appeals [official website] ruling denying the defendant's motion for a new trial. Annie Ling, whose native language is Mandarin Chinese, filed the motion after a jury convicted her of cruelty to children in the first degree. Ling argued that her trial counsel failed to secure an interpreter for trial, instead relying on her husband to help convey a last minute plea agreement offer. The court held that lack of an interpreter can impede a defendant's right to be present at trial in violation of the Sixth Amendment and Fourteenth Amendment Due Process Clause [texts] of the US Constitution. The court held that "when a question is raised in a motion for new trial as to whether a criminal defendant's due process rights have been violated by the absence of a qualified interpreter, the trial court must make and explain its findings on the issue on the record." The court remanded the case to the trial court in order for a finding of fact regarding Ling's claim regarding the trial counsel's failure to convey the prosecution's final plea agreement offer.

Rights groups, including the American Civil Liberties Union (ACLU) [advocacy website] have spoken out in support of court interpreters for defendants with limited English proficiency. The ACLU, which submitted a brief [text, PDF] on behalf of Ling, released a statement [press release] Monday applauding the court's decision. In response to the decision, Azadeh Shahshahani, Director of the National Security/Immigrants' Rights Project at the ACLU of Georgia said, "The constitutional guarantee of due process applies to everyone in this country, not just fluent English-speakers." The ACLU has also opposed [press release] a bill [text] voted on by the Virginia legislature which would require non-English speaking defendants to pay for interpreters at their criminal trials. The bill passed the House but was halted by the Senate's Committee for Courts of Justice.

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Israel legislators pass bill requiring referendum on peace treaties
Maureen Cosgrove on November 23, 2010 12:43 PM ET

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[JURIST] The Israeli Knesset [official website] approved legislation Monday that would require referendums on peace treaties involving ceding land that the country has annexed. In a 65-33 vote, the legislature decided that a referendum would be required [AP report] for any agreement involving the surrender of annexed land that fails to win a two-thirds majority in parliament. The legislation would apply to possible peace deals that include withdrawal from the Golan Heights or East Jerusalem, territories annexed in 1967. Under the new bill, a two-thirds Knesset majority vote would be required to cede land in East Jerusalem to the Palestinians or in the Golan Heights to Syria. Otherwise, either withdrawal would become subject to a national referendum. Tzipi Livni, the head of the opposition Kadima party, and Anat Wilf of the Labour party, opposed the bill [CNN report], which is supported by Prime Minister Benjamin Netanyahu [official website]. The legislation has been criticized [VOA report] by both Palestinian and Syrian officials.

East Jerusalem, along with the West Bank, was under Jordanian control until the 1967 war [NPR backgrounder], when Israel took control over the territory from Jordan and took the Gaza Strip [BBC backgrounder] from Egyptian control. Israel seized the Golan Heights [BBC backgrounder] from Syria during the 1967 war and asserted military control over the territory. Israel continues to construct settlements in East Jerusalem and the Golan Heights in an attempt to alter the ethnic and demographic composition [JURIST op-ed] of the occupied territories. In June, UN Secretary-General Ban Ki-moon [official website] criticized Israeli plans to demolish Palestinian homes [JURIST report] in East Jerusalem, describing them as contrary to international law. In March, Ban called Israeli settlement construction in the West Bank "illegal" [JURIST report].

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Federal appeals court allows ruling against warrantless GPS tracking to stand
Eryn Correa on November 23, 2010 10:50 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday declined [opinion, PDF] to rehear en banc a bid by the US Department of Justice (DOJ) [official website] to overturn a decision that prevents the government from using global positioning systems (GPS) technology to track suspects without a warrant. In a 5-4 vote, the court found that the petition [text, PDF] filed by the US Attorney General [official website] did not overcome the limitations of the automobile exception to the Fourth Amendment [text] warrant requirement. The court further rejected the argument that its previous ruling [JURIST report] frustrated the common practices sustained in visual and photographic surveillance of public places. Rather, the court noted that "this case does not require us to ... decide whether a hypothetical instance of prolonged visual surveillance would be a search subject to the warrant requirement of the Fourth Amendment." Chief Judge David Sentelle dissented, claiming that the court was ignoring precedent established by the US Supreme Court [official website] in United States v. Knotts [opinion, PDF], which allowed for electronic surveillance in public based on a lower expectation of privacy on public roads. The three-judge panel had distinguished the present case because too much personal information is revealed over longer periods of GPS surveillance.

Courts have struggled with how to apply Fourth Amendment protections to modern technology. In September, a three-judge panel for the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] that at times the government might need a warrant to obtain cell phone data [JURIST report] to track a person's location. In June, the US Supreme Court unanimously held [opinion, PDF] that, even if there is a reasonable expectation of privacy in work-issued electronic devices, that an employer's search of private text messages does not violate [JURIST report] the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose. Last year, the Ohio Supreme Court [official website] ruled [opinion, PDF] that police must obtain a warrant before searching data stored in a cell phone [JURIST report].

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HRW urges repeal of Pakistan blasphemy laws
Carrie Schimizzi on November 23, 2010 9:15 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday called for the revocation [press release] of blasphemy laws [text; JURIST news archive] in Pakistan after a Christian woman was sentenced to death for insulting the Prophet Muhammad [JURIST news archive] during an argument with other women in her village last year. Asia Bibi, a mother of four, is the first woman to be sentenced to death under the blasphemy law, and her case has sparked international outrage and demands for her release [AP report]. Pakistani President Asif Ali Zardari [official website] has ordered a review [press release] and may use his constitutional authority to pardon her [BBC report]. Critics of the laws believe they have been used as a means of discrimination and inciting violence. In its statement, HRW called on the Pakistani government to take action against Islamic militant groups who are targeting minority religions:
Legal discrimination against religious minorities and the failure of Pakistan's federal and provincial governments to address religious persecution by Islamist groups effectively enables atrocities against these groups and others who are vulnerable. The government seldom brings charges against those responsible for such violence and discrimination. Research by Human Rights Watch indicates that the police have not apprehended anyone implicated in such activity in the last several years.
The blasphemy laws were introduced in 1986 [AsiaNews report] as a way of protecting Muslim beliefs from insults. In response to the repeated calls for repeal, Pakistani Federal Minister for Minority Affairs Shahbaz Bhatti [official profile] said the laws may be amended [Reuters report] to prevent misuse, but they will not be repealed.

In May, the Pakistan Telecommunications Authority [official website] ordered [JURIST report] Internet service providers to block [press release] social networking site Facebook [website] in response to a competition created by a group of the website's members entitled "Draw Muhammad Day." The PTA issued the order following a decision by the Lahore High Court (LHC) [JURIST news archive] to block the website indefinitely. Depicting the Prophet Muhammad is considered blasphemous by Muslims, and has been a source of international controversy since 2005 when a Danish newspaper published caricatures of the Prophet Muhammad in a series of cartoons [JURIST news archive]. In February, Shahbaz Bhatti told the Agence France-Presse that he has been speaking to various political parties [JURIST report] in Pakistan and that his government is committed to doing away with laws [AP report] that are discriminatory to minorities. Bhatti made the comments at an interview with the AFP in Washington, DC, where he met with various lawmakers and officials during the National Prayer Breakfast. Bhatti discussed a proposed change in the law that would force judges to investigate blasphemy cases before they are docketed.

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Federal judge extends order blocking Oklahoma Islamic law ban
Zach Zagger on November 23, 2010 8:04 AM ET

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[JURIST] A judge for the US District Court for the Western District of Oklahoma [official website] on Monday extended [text, PDF] a temporary restraining order blocking the controversial Oklahoma constitutional amendment [SQ 755 text, PDF] banning the courts from considering foreign or Islamic law. Judge Vicki Miles-LeGrange said she needed more time [KOCO report] to deal with this issue, which pits the will of the voters against the First Amendment's Establishment Clause. Still, she is expected to rule by the end of the month. The case was brought [JURIST report] by Muneer Awad, executive director of Council on American-Islamic Relations (CAIR) [advocacy website] in Oklahoma, claiming the law is a violation of the First Amendment because it disfavors and stigmatizes his religion. Oklahoma voters overwhelmingly approved the measure [JURIST report] in the November 2 mid-term elections with 70 percent of the vote.

Miles-LeGrange issued the temporary restraining order [JURIST report] just six days after the election, stopping the Oklahoma Board of Elections [official website] from certifying the results. SQ 755 would prevent Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures," requiring them only to look to legal precedents of other states for guidance, provided that state does not use Islamic law. It was sponsored by state Representative Rex Duncan (R) [official website], who described it as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma. Duncan defended SQ 755 as necessary to protect Oklahoma [MSNBC report, video] from an attack on the fundamental Judeo-Christian principles on which he says the US is founded. On the other hand, Haroon Moghul [profile] Executive Director of the Maydan Institute [advocacy website] has argued [JURIST comment] that the passage of SQ 755 was done simply out of the "flawed logic" of a fear of everything Muslim.

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Judge denies immunity claim in Virginia Tech wrongful death lawsuit
Zach Zagger on November 23, 2010 7:21 AM ET

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[JURIST] A Virginia circuit court judge ruled Monday that a lawsuit by two families whose children were killed in the 2007 Virginia Tech shooting [JURIST news archive] can proceed against school administrators, despite their claims of sovereign immunity. The judge ruled [AP report] that defendants Charles Steger and former executive vice president James Hyatt are not protected by sovereign immunity because of their status as administrators of a state-funded higher education institution. Visiting judge William Alexander found that, though the positions are partially funded by the state, they do not qualify for sovereign immunity protection as high-ranking government officials, echoing a similar ruling [JURIST report] made in January. The lawsuit [JURIST report], seeking $10 million in damages, accuses the administrators of gross negligence for failing to warn students of the shootings immediately after the first shooting at 7:15 AM. It is being brought by families of victims Julia Pryde and Erin Petersen who opted out of an $11 million dollar settlement [JURIST report] to which 24 of the 32 victims' families agreed in June 2008. The trial is set for next September.

The settlement with the other victims' families gave each family $100,000 plus medical expenses and provided for meetings with Virginia Governor Tim Kaine and Virginia Tech administration and police officials. Many of the families in the settlement had considered wrongful death and personal injury lawsuits against the state of Virginia after an independent state panel reported that different school policies could have avoided some of the deaths, but the settlement terms required the families to release their claims. In December 2007, Congress passed by voice vote an act that closes a loophole [JURIST report] that allowed Virginia Tech shooter Seung-Hui Cho to purchase firearms despite a court order mandating psychiatric treatment. The Virginia Tech shootings left 33 people dead and 25 wounded in the deadliest shooting incident in US history [WP backgrounder].

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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