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Legal news from Monday, March 21, 2011

Supreme Court hears arguments on exclusionary rule
Ann Riley on March 21, 2011 4:50 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF] Monday in Davis v. United States [oral arguments transcript, PDF; JURIST report] on the Fourth Amendment [text] exclusionary rule [Cornell LII backgrounder]. The issue is whether the rule requires the suppression of evidence obtained from a search permitted by the US Court of Appeals for the Eleventh Circuit decision in United States v. Gonzalez [opinion text] after the court overturned Gonzalez in Arizona v. Gant [opinion, PDF; JURIST report]. The Eleventh Circuit refused to apply the exclusionary rule, holding [opinion, PDF] that the search was objectively reasonable when relying on then-binding precedent and that the good faith exception allows the use of evidence obtained under reasonable reliance on well-settled precedent. Counsel for the petitioner argued that the court should reverse the good faith principle, saying:
The Court has to properly construe the Fourth Amendment and the police need to then properly follow the Court's precedents. The Court can't turn away from the role of this Court's precedents in the enforcement of the Fourth Amendment. ... Under the government's proposed rule, defendants would have a limited ability to challenge precedents that construe the Fourth Amendment too narrowly, but of course of government would be free in any case to challenge precedents that the government believes construes the Fourth Amendment too broadly. The concern is that over time that would lead to an asymmetry in the Court's outcomes, not as a result of the measured judgments of this Court, but rather as a result of the incentives on counsel, and the Court should strive to avoid that sort of result.
Counsel for the government argued that the exclusionary rule is not a personal individual right or a constitutional right, but rather a remedy the court has devised after finding a Fourth Amendment violation. "The purpose of the exclusionary rule is to deter future conduct by other counterparts of that police officer or the police officer himself, so that when he confronts the situation in the future he will be more solicitous of Fourth Amendment rights." The government explained that if the court adopted another purpose for the rule, it would depart from its consistent holdings of the rule's purpose and "create pressure for litigants to urge that additional policy interests of the administration of justice would be served."

In Tolentino v. New York [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether the exclusionary rule prohibits police from using a defendant's driving record compiled by the state's Department of Motor Vehicles (DMV) obtained after illegally stopping the defendant. The Court of Appeals of New York held that the exclusionary rule does not bar police from using evidence that a driver had his license suspended 10 previous times after police allegedly illegally stopped the vehicle. Counsel for the petitioner argued that the DMV records were fruit of the poisonous tree, saying:

The problem with the categorical rule, is that it will create a fresh incentive for police officers to make these kind of suspicionless stops, and so it will encourage police to violate the Fourth Amendment. ... [T]his Court has always defined evidentiary fruit as something of evidentiary value which the public authorities have caused an arrested person to yield to them during an illegal detention ... the DMV records would fit that definition of evidentiary fruit. In this case, because it is the classic situation where there's sufficient causal connection between the Fourth Amendment violation and the subsequent discovery of the evidence to justify suppression, there's no reason not to apply the exclusionary rule here, and in fact, it meets all the definition of the sort of case where there would be very high level of deterrence as a result of applying the exclusionary rule.
Counsel for the government argued that the DMV records should not be subject to suppression as they were already in the government's possession and therefore are not fruit of the poisonous tree or the product of any illegal government activity.

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Federal appeals court reinstates wiretapping suit
Erin Bock on March 21, 2011 3:51 PM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [decision, PDF] Monday that the plaintiffs in Amnesty v. Blai [ACLU materials] have standing to sue the US government over the constitutionality of a federal eavesdropping law, reinstating their lawsuit. The plaintiffs, including attorneys, journalists and rights organizations, facially challenged [JURIST report] Section 702 of the Foreign Intelligence Surveillance Act (FISA) [50 USC § 1881(a)], which was added by the FISA Amendments Act of 2008 (FAA) [HR 6304 materials]. The law created procedures to allow electronic government surveillance of individuals living outside of the US for foreign intelligence purposes. The plaintiffs alleged that the law violated the Fourth Amendment, First Amendment and Article III of the Constitution. A 2009 ruling [JURIST report] from the US District Court in Manhattan found that the plaintiffs lacked standing because they did not suffer an injury in fact and dismissed the suit. Plaintiffs appealed and argued that the fear of future government surveillance while performing work-related activities such as conducting interviews with possible targets caused an injury in fact through "economic and professional costs" expended to protect themselves. They also alleged that the law chilled their freedom of speech. The circuit court determined that this did constitute standing because the law directly affects them:
[T]he FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored.
The American Civil Liberties Union (ACLU) [advocacy website], a plaintiff in the case, declared the ruling a victory [press release] and applauded the court's decision to allow the law to be challenged.

Last month, the ACLU chided the Senate's decision to extend surveillance provisions of the USA Patriot Act [JURIST report]. The measures were set to expire on February 28, and the vote was seen as a delay tactic to allow for further debate about the provisions, which include roving wiretaps, "lone wolf" terrorism suspects and the government's ability to seize "any tangible items" in the course of surveillance. The Obama administration released a statement of administration policy [text, PDF] earlier in February calling for a three-year renewal of the provisions. The provisions were previously extended in February 2010 at the request [JURIST reports] of the Obama administration.

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Wisconsin AG asks court to block order halting union bargaining law
Jennie Ryan on March 21, 2011 2:58 PM ET

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[JURIST] Wisconsin Attorney General JB Van Hollen (R) [official website] asked the state's Court of Appeals [official website] on Monday to block [motion, PDF] an order issued last week temporarily halting a legislative measure designed to curb the collective bargaining power of unions. Van Hollen's office filed the motion seeking temporary relief from a Dane County Circuit Court [official website] order [text; JURIST report] enjoining Wisconsin Secretary of State Douglas La Follette [official website] from publishing the Budget Repair Bill [SB 11 text, PDF], thus giving it the effect of law. He also asked for leave to appeal the order and for relief consisting of an order to stay the circuit court's ruling. Van Hollen argues that the Dane County Circuit Court did not have jurisdiction to hear the case because the four named defendants, who are all state legislators, enjoy legislative immunity during the regular legislative term. He also argued that the circuit court did not have jurisdiction to enjoin the publishing of the law:
Contrary to established case law, the trial court injected itself into the legislative process and enjoined a legislative act. There is absolutely no authority for the broad, over reaching step taken. In the interests of the administration of justice, it is necessary—nay, it is imperative—that this Court step forward and undo this inappropriate act. ... It is only after the ministerial, non-discretionary act of publication—that is after the law is in force—that a trial court my visit the issue of constitutionality of the law.
The next hearing in the case is scheduled to begin March 29.

The lawsuit [JURIST report], filed last week by Dane County District Attorney Ismael Ozanne (D) [official website], alleges that Republican legislators did not follow the state's open meetings law [text], a rule requiring 24 hours notice—or two hours if there is an emergency—before a public meeting. Ozanne's suit was the second such challenge by a state official, following a similar suit [complaint] filed by Dane County Executive Kathleen Falk (D) [official profile]. The provisions of the Budget Repair Bill limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since mid-February, when the bill was introduced. The bill was signed [JURIST report] into law by Governor Scott Walker (R) [official website] on March 11.

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Federal judge declines to rule on Blagojevich 'cancel trial' request
LaToya Sawyer on March 21, 2011 2:36 PM ET

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[JURIST] A federal judge on Monday declined to formally rule on the request by former Illinois governor Rod Blagojevich [JURIST news archive] to cancel his retrial [JURIST report], claiming that the motion was neither serious, nor did it raise a legal question. Earlier this month, Blagojevich's lawyers submitted a motion [text] to cancel the ex-governor's retrial and sentence him only on the single charge on which he was originally convicted. Blagojevich was found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on 23 additional charges. His attorneys, who had worked without pay, argued that a retrial was an economic hardship and an unnecessary drain on taxpayer funds. Beyond suggesting that the request was made primarily to arouse public attention, the judge clarified the motion was improperly presented and, therefore, could not be ruled upon. Blagojevich's defense team was granted additional time to file a proper motion, even though the court predicts the issue will dissipate with time. If convicted of making false statements to the FBI, Blagojevich faces a maximum five-year prison sentence.

Last month, a judge for the US District Court for the Northern District of Illinois [official website] granted federal prosecutors' motion to dismiss three charges [JURIST report] against Blagojevich in an apparent effort to simply their case before the April 20 retrial. In Blagojevich's first trial, the jury deliberated for 14 days after the 11-week trial but was unable to reach a consensus on all but one of the charges. In September, lawyers for Blagojevich asked the judge to throw out the sole conviction, stating that the government failed to meet its required burden of proof, but the judge refused [JURIST reports]. In January 2009, the Illinois State Senate voted unanimously to convict Blagojevich of abuse of power and remove him from office [JURIST report].

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Supreme Court allows Federal Reserve data release order to stand
Ashley Hileman on March 21, 2011 1:07 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday denied certiorari [order list, PDF] in Clearing House Association LLC v. Bloomberg LP [docket], leaving in place a ruling [JURIST report] requiring the Federal Reserve [official website] to release information regarding loans it made to various banks during April and May 2008, a key time in the financial crisis. While the Federal Reserve did not choose to appeal the decision of the US Court of Appeals for the Second Circuit to the Supreme Court, it was appealed by the Clearing House Association [association website], which consists of a group of banks. Following the court's decision, the Federal Reserve Board reported that it will release the emergency-lending data [Bloomberg report, video]. According to the court's order, it has five days to do so. The data will include information about the specific banks that were in financial trouble and as a result, asked for assistance from the Federal Reserve. The Supreme Court also denied certiorari in a companion case brought by Fox News, requiring the Federal Reserve to disclose loan information from the period between August 2007 and November 2008.

Bloomberg originally sued the Federal Reserve under the Freedom of Information Act (FOIA) [text, PDF], and both the court of appeals and the trial court rejected the latter's argument that the records sought fell within FOIA exceptions. Now the Federal Reserve has an even greater duty to release the information under the Dodd-Frank Wall Street Reform and Consumer Protection Act [text, PDF]. The Act was signed into law [JURIST report] by President Barack Obama in July 2010 and created a new regulatory council, the US Financial Stability Oversight Council (FSOC) [official website], to monitor financial institutions in order to prevent companies from becoming "too big to fail." The FSOC convened for the first time [JURIST report] in October 2010. In addition to creating the FSOC, this legislation also gives the Federal Reserve new oversight over the largest financial institutions, creates a bureau of consumer protection, introduces multitudes of new regulations on derivatives and other financial instruments and limits the amount of capital banks can invest in hedge funds.

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France commission fines Google for violating data privacy laws
Michael Haggerson on March 21, 2011 12:55 PM ET

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[JURIST] The French National Commission of Information Technology and Liberty (CNIL) [official website, in French] fined Google [corporate website] 100,000 euros (USD $141,300) on Monday for violating French data privacy laws [press release, in French] by capturing personal data through Google Street View cars, used for its Google Maps service. CNIL stated that Google was not responding to requests in a timely manner and has not stopped using the seized data. Google admitted [blog post] to the collection of e-mails, passwords and other data over unsecured WiFi networks, but maintained that it was a mistake and that it did not intend to include the code which captured payload data from unsecured WiFi networks. In response to the controversy, Google grounded its Street View cars. The company claims that it is currently seeking assistance in deleting the data, but CNIL found that the data collection was continuing through Google's geolocation service Latitude.

In November, the UK Information Commissioner's Office [official website] found that Google had committed a "significant breach" [JURIST report] of the Data Protection Act [text] and required that Google delete the payload data it collected in the UK and implement employee training on privacy principles, security awareness and the Data Protection Act. Other countries, including Canada, Australia and Spain [JURIST reports], have launched similar investigations into the privacy breach. The US Federal Trade Commission (FTC) [official website] ended its inquiry [JURIST report] into Google's data collection through Street View cars after Google assured the FTC that it did not use any of the collected data and announced that it was committed to compliance with privacy laws [text], instituting new training on privacy principles and appointing a new director of privacy.

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Supreme Court to examine whether death penalty appeal can continue despite missed deadline
Zach Zagger on March 21, 2011 11:11 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] will determine whether an appeal of a capital murder conviction can continue despite the prisoner's lawyers failing to meet a paperwork deadline, in one of two cases in which the court granted certiorari [order list, PDF] Monday. In Maples v. Allen [docket; cert. petition, PDF], the court will review a decision by the US Court of Appeals for the Eleventh Circuit that held [opinion, PDF] the state of Alabama may execute Cory Maples without federal habeas review of his constitutional claims due to a missed appeal deadline that was no fault of the prisoner's. The Alabama trial court had dismissed Maples' petition for post-conviction relief and sent notice of this ruling to the prisoner's attorneys, but the notice was returned to the court unopened and stamped returned to sender because the attorneys had left that firm. The court did nothing with this, and the deadline to appeal the ruling passed. Maples was convicted of capital murder for killing two people after a night of drinking. He had argued his counsel was ineffective because it failed to present evidence of his intoxication and his drug history, which he believed would have mitigated his sentence. He also argued the trial court failed to give proper jury instructions by not including the lesser offense of manslaughter by voluntary intoxication under Alabama law.

In Rehberg v. Paulk [docket; cert. petition, PDF], the court will examine a circuit court split over whether government officials who act as "complaining witnesses" to initiate a prosecution by providing false testimony are are immune to civil suits. The petitioner Charles Rehberg is asking the court to clarify the application of two conflicting Supreme Court precedents in Briscoe v. Lahue and Malley v. Briggs [opinions]. In Briscoe, the court held that a police officer who allegedly committed perjury was immune from civil liability. However, in Malley, the court allowed a suit against a police officer for wrongfully causing an arrest warrant to be issued, reasoning that the officer was acting as a "complaining witness." The circuit courts are split over which precedent to apply when a government official provides testimony as a complaining witness. Rehberg argues that Dougherty County District Attorney's office in Georgia falsely accused him of various crimes after he publicized unethical billing practices of a local hospital to which the district attorney allegedly had political connections.

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Benin court confirms presidential election results amid fraud allegations
Dwyer Arce on March 21, 2011 10:45 AM ET

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[JURIST] The Constitutional Court of Benin on Monday confirmed provisional election results in the country's March presidential election, securing the reelection of President Thomas Boni Yayi [official websites, in French]. Yayi secured 53 percent of the vote, allowing him to avoid a runoff [L'araignee report, in French] in his campaign for another five-year term in office. His closest competitors, Me Adrien Houngbedji and Abdoulaye Bio Tchane secured only 35 and 6.4 percent of the vote, respectively. Despite being judged as a free and fair election by the Economic Community of West African States (ECOWAS) and the African Union (AU), both Houngbedji and Tchane alleged fraud and irregularities in the vote [Bloomberg report]. The court's action comes after partial results were released [AFP report] Friday by the National Autonomous Electoral Commission (CENA), indicating the same result. Earlier this month, Constitutional Court approved a second postponement [JURIST report] of presidential elections following complaints that over one million people were not registered to vote. The court delayed the date of the presidential election from March 6 to March 13, holding that the electoral commission would not otherwise have enough time to implement measures to ensure a credible election.

Benin's presidential election was initially scheduled for February 27. The Beninese Constitution [text] requires that the first round of presidential voting be held 30 days prior to the end of the current president's term, which is on April 6. The National Assembly [official website, in French], Benin's parliamentary body, approved a law that overruled the constitutional provision and would allow the election postponement. Benin, a small country bordering Nigeria, is considered to be one of the most stable democracies in the region [BBC backgrounder], with a vibrant party system and civil society. However, the country remains underdeveloped and plagued by corruption.

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Rights group urges India to reform Kashmir detention law
Sarah Paulsworth on March 21, 2011 9:05 AM ET

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[JURIST] Hundreds of people are being held without charge or trial in India's northernmost state Kashmir and Jammu, according to a report [text, PDF] released by Amnesty International (AI) [advocacy website] on Monday. AI reports that India's Public Safety Act (PSA) [text] is being used to detain people despite the absence of sufficient evidence for a trial. Over the last decade, between 8,000 and 20,000 people have been detained through the PSA, including 322 between January and September 2010. The PSA only applies to Kashmir and Jammu, a state that has been rife with unrest since it became part of India in the middle of the 20th century. People detained under the PSA can be held for up to two years, but AI notes that the successive orders are often issued, resulted in detentions that exceed two years. In addition, AI claims that the detainees do not have effective legal recourse to challenge their detention and are sometimes subjected to ill-treatment and torture. AI's Asia-Pacific Director Sam Zarifi said:
The use of administrative detention does not conform to international human rights legal obligations and agreements that the Indian government is a party to. The Indian government must ensure that Jammu and Kashmir authorities repeal the PSA and end the odious system of administration detention once and for all.
AI is calling on India's government and the local government in Kashmir and Jammu to carry out an independent, impartial and comprehensive investigation into allegations of abuses against detainees and their families, including allegations of torture and other ill-treatment, denial of visits and medical care, making its findings public and holding those responsible to account.

Kashmir and Jammu, which is officially part of India, has been disputed [BBC backgrounder] between Pakistan and India since 1947. Claims by both Pakistan and India to the territory have resulted in several conflicts in the region, particularly the Indo-Pakistan wars of 1947-1948 and 1965. In addition, there was a large show of military force by both nations in the region in 2002 that caused international alarm because both nations have nuclear weapons. India has sought to stifle unrest and a burgeoning separatist movement in the region by detaining human rights and political activists.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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