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Legal news from Wednesday, March 23, 2011

Supreme Court hears argument in Miranda, right to counsel cases
Brian Jackson on March 23, 2011 1:52 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in JDB v. North Carolina [oral arguments transcript, PDF; JURIST report] on whether a court should consider a juvenile's age when determining whether the individual is in custody for purposes of the Miranda warning as set forth in Miranda v. Arizona [opinion text]. In this case, the juvenile student made incriminating statements to two law enforcement officers after being removed from a classroom, and the Supreme Court of North Carolina held [opinion, PDF] that the student was not in custody when he made the statements and therefore not entitled to the protections of Miranda or North Carolina statute 7B-2101(a) [text]. Attorneys for JDB argue [brief, PDF] that age is an objective factor that must be included in the objective test for determining whether an individual would feel free to stop the questioning and leave the area. Among the factors to be considered in this case, according to JDB's attorneys, is that JDB at the time was 13 years old, he had been pulled from class, and he was questioned in a room with two police officers, the principal, and the principal's assistant. Counsel for JDB relied heavily on the Supreme Court's opinions in In re Gault [opinion text], which extended Miranda protections to juveniles, and Gallegos v. Colorado [opinion text], in which the court stated that a 14-year-old child is "unable to know how to protect his own interests or how to get the benefits of his constitutional rights." The state argues [brief, PDF] that the petitioner's argument employs a subjective, rather than objective, test which does not comport with Supreme Court jurisprudence on the Miranda warning. Including age in the evaluation would, in the state's view, complicate the job of police as they question individuals. The state contends in its brief that age is a subjective factor, similar to emotional state or level of intoxication in its effect on whether the individual under questioning would feel free to leave.

In Turner v. Rogers [oral arguments transcript; JURIST report], the court will consider whether an indigent individual has a Sixth and Fourteenth Amendment [text] right to counsel in a civil contempt proceeding, where the result of such proceeding was the defendant's imprisonment. The petitioner, Michael Turner, was found to be in civil contempt for failure to pay court-ordered child support payments. Turner's attorneys argue [brief, PDF] that the court did not inform Turner of his right to counsel, and that any competent attorney would have been able to successfully argue that Turner's indigence, a complete defense to a contempt for failure to pay, would have kept Turner out of jail. The state argues [brief, PDF] that the right to counsel only applies in criminal contempt proceedings, but Turner's attorneys argue that here, where the incarceration is punitive and not merely a coercion to recoup the outstanding support payments, Turner is entitled to counsel. The state's argument involves a significant amount of policy background on the problems facing individuals who cannot recover court-ordered support payments, and that theme was reflected in the opening statements of the custodial parent's counsel. A sizable portion of respondent's argument time, however, devolved into matters of procedure and whether certain matters that were discussed, particularly whether the case implicates procedural Due Process, were within the scope of the question presented.

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Uganda police increasingly using torture, killings: HRW
Alexandra Malatesta on March 23, 2011 1:44 PM ET

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[JURIST] The Ugandan government is responsible for an increase in torture, illegal detention and extrajudicial killing of its citizens, according to a report [text] released Wednesday by Human Rights Watch (HRW) [advocacy website]. An agency known as the Rapid Response Unit (RRU), which serves as Uganda's violent crime police task force, is reported to have falsified confessions and utilized beatings with batons, glass bottles and metal sticks to extract information. The report also raises concerns involving journalistic freedom and violations of privacy and speech. The report's summary describes the type of violence instituted by the RRU:
During more than 13 months of research, Human Rights Watch carried out over 100 interviews in regions where R.R.U is most active. ... Drawing on interviews with victims of abuses, as well as current and former RRU employees, researchers documented serious human rights violations by RRU since its formal establishment in 2007. RRU officers routinely use unlawful force during arrest, including beating suspects and, in one instance that Human Rights Watch documented, shooting a handcuffed suspect. RRU personnel were allegedly responsible for at least six extrajudicial killings in 2010 alone, frequent use of torture during interrogations to extract confessions, and prolonged illegal and sometimes incommunicado detention of suspects at RRU headquarters in Kireka, Kampala, and other locations.
The report urges the government to comply with its own constitution [text, PDF] and international human rights law prohibiting torture, cruel, inhuman and degrading treatment. The new RRU commander has promised reform, installing a telephone line for the purpose of receiving complaints.

In 2009, HRW called on Uganda to end what it said was the use of torture and unlawful arrest [JURIST report] by the country's Joint Anti-Terrorism Task Force (JATT). According to HRW, JATT engaged in 106 documented cases of illegal or prolonged detentions between August 2008 and February 2009 and employed torture methods against both Lord's Resistance Army (LRA) [GlobalSecurity backgrounder] rebels and political opponents of the government. JATT alleges that tactics such as concealing arresting officers' identities and affiliations, disorienting suspects by blindfolding them while in transport, failing to inform detainees of the reason for their arrest, long-term incommunicado detention and interrogations involving torture, were employed in the name of combating terrorism, despite being in violation of international law.

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ECJ legal adviser finds ban on genetically modified crops illegal
Daniel Makosky on March 23, 2011 1:01 PM ET

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[JURIST] European Court of Justice (ECJ) [official website] Advocate General Paolo Mengozzi on Tuesday issued an opinion [text, in French] declaring that a French ban on cultivating genetically modified (GM) crops is illegal. In 2008, France sought to prohibit production within its borders of MON 810, a GM strain of maize developed by US-based Monsanto [corporate website], by citing a safeguard clause adopted by the EU in 2004. The clause is designed to allow EU member states to restrict previously approved products in the event that new evidence emerges indicating that the product in question is harmful to either humans or the environment. MON 810 was approved for use by the EU in 1998, and Mengozzi disagrees with applying the clause on the grounds that France imposed its ban without proper European Commission [official website] consultation. Though such opinions are not binding, courts typically adopt the stance set forth by advocates general.

Courts and legislatures around the world have struggled with the increasingly prevalent issue of GM crops. A US judge in December ordered the destruction of a crop [JURIST report] of Monsanto-produced GM sugar beets because of the potentially harmful effect the plants may have on surrounding flora, marking the first time such an order was issued in the US. A week earlier, Germany's Federal Constitutional Court [official website, in German] upheld restrictions on GM crops [JURIST report], including "buffer zones" between GM and conventional crops, after finding that the legislature had acted in the public interest when passing them. The US Supreme Court [official website] ruled [JURIST report] in June in Monsanto Company v. Geerston Seed Farms [Cornell LII backgrounder] that a trial court abused its discretion when it issued a nationwide injunction against a GM alfalfa seed, finding that the order did not satisfy the standard four-factor test to determine the availability of injunctive relief.

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Federal judge rejects Google Books settlement
Dan Taglioli on March 23, 2011 11:59 AM ET

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[JURIST] The US District Court for the Southern District of New York [official website] on Tuesday rejected [opinion, PDF] the amended class action settlement agreement [text, PDF] between Google [corporate website] and groups of authors and publishers who brought a copyright suit [case materials] in 2005 against the internet giant over its book-scanning initiative [Google Book Search website]. The settlement was reached after over two years of negotiations between Google and the Authors Guild [advocacy website], a group seeking to preserve copyright protection for authors, and other plaintiffs including the Association of American Publishers (AAP) [association website], McGraw-Hill, Penguin Group, and Simon & Schuster [corporate websites]. Under the terms of the original settlement agreement, Google would pay $125 million to authors and publishers of copyrighted works. In return, Google would be allowed to display online up to 20 percent of the total pages of a copyrighted book, and would offer users an opportunity to purchase the remainder of any viewed book, regardless of whether Google actually had rights to the material. Judge Denny Chin [biographical materials] wrote in his opinion:
While the digitization of books and the creation of a universal digital library would benefit many, the ASA (Amended Settlement Agreement) would simply go too far. It would permit this class action - which was brought against defendant Google Inc. to challenge its scanning of books and display of "snippets"; for on-line searching - to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.
Judge Chin is currently a circuit Judge for the US Court of Appeals for the Second Circuit [official website], but issued his ruling as a district judge, as he had presided over the case before he was elevated to the circuit court.

The original settlement agreement was reached [JURIST report] in October 2008, and arguments on the ASA were heard in February 2010, after which Judge Chin announced [JURIST report] that he would delay ruling on the proposed settlement. Earlier that month the US Department of Justice (DOJ) [official website] filed a statement of interest [JURIST report] urging the court to reject the settlement due to copyright and antitrust concerns, and stating that the agreement would provide Google with "anticompetitive advantages" with potentially monopolistic effects. The DOJ's statement of interest was filed after an official inquiry, which was announced [JURIST report] six months after the original settlement agreement was reached. Meanwhile, concerns had been raised in the European Union and elsewhere that Google's book-scanning initiative violated national copyright laws, especially in France where a Parisian court fined Google [JURIST report] €300,000 euros (USD $430,000) for digitizing books and making excerpts available on the web.

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Yemen parliament approves emergency laws
Matt Glenn on March 23, 2011 9:11 AM ET

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[JURIST] The Yemeni Parliament enacted several emergency measures Wednesday at the request of President Ali Abdullah Saleh [official website, in Arabic] in an effort to end anti-government protests. The new laws give the government greater power [AP report] to arrest and detain protesters and to censor the media. The new laws follow Saleh's declaration last Friday of a 30-day state of emergency [JURIST report]. The measure passed easily as many minority party members of the 301-seat parliament did not attend the session. Saleh warned Tuesday that Yemen could face a civil war after opposition leaders rejected his offer to step down by the end of this year. The emergency laws expire in 30 days.

Yemen is not the first country to declare a state of emergency in the midst of anti-government protests in recent weeks. Earlier this month, Bahraini lawmakers called on King Hamad bin Isa Al Khalifa [official website] to declare a state of emergency [JURIST report] and invoke martial law after 5,000 protesters marched to demand an end to the monarchy. Bahrain officially declared martial law [JURIST report] last week. Yemeni authorities have previously been criticized for their counter-terror methods. In August, Amnesty International [advocacy website] criticized methods used by the government [JURIST report] as violations of human rights. These methods included arbitrary arrests, torture, extrajudicial killings and forced disappearances, among other actions taken by security forces.

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South Dakota approves 3-day abortion waiting period
Julia Zebley on March 23, 2011 8:28 AM ET

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[JURIST] South Dakota Governor Dennis Daugaard [official website] signed [press release, PDF] HB 1217 [legislative materials] into law on Tuesday, requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion [JURIST news archive]. The law [text], which passed through the Senate [JURIST report] earlier this month, contains the longest waiting period in the country and provides specifically that counseling must be sought at a "pregnancy help center ... which ... routinely consults with women for the purpose of helping them keep their relationship with their unborn children." The American Civil Liberties Union of South Dakota (ACLUSD) and Planned Parenthood Federation of Minnesota, North Dakota, and South Dakota [advocacy websites] plan to challenge [ACLU press release; Planned Parenthood press release] the law. Daugaard has said he is prepared for the state attorney to defend the law [CNN report] and alluded to a private donor willing to finance the endeavor.

Several state legislatures have acted recently to place restrictions abortions. Last week, the Missouri House of Representatives voted in favor of legislation restricting late-term abortions [JURIST report] and imposing penalties on doctors who fail to comply with the new restrictions. The Oklahoma House of Representatives approved a similar bill [JURIST report] that would ban abortion after 20 weeks of gestation. Last month, the Kansas House of Representatives also approved several new restrictions on abortion [JURIST report]. If the bills are approved by the Senate, Kansas residents will not be able to obtain an abortion after the 20-week mark, when some studies suggest a fetus can begin feeling pain. Other restrictions include a stringent parental consent and notification system for a minor's abortion and "clear and convincing" evidence for a judicial bypass of parental consent; the ability to bring a civil suit against abortion providers if they violate Kansas law; the right for criminal prosecution of abortion providers if they violate Kansas law; and for abortion providers to inform patients that the fetus is a "whole, separate, unique, living human being." South Dakota unsuccessfully tried to ban abortions [JURIST report] in 2007.

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UN rights office concerned over violence in Bahrain, Syria, Yemen
Julia Zebley on March 23, 2011 7:31 AM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday expressed concern [UN News Centre report] over violence against protesters in Bahrain, Syria and Yemen [BBC backgrounders]. Rupert Colville, spokesperson for the OHCHR, held a press briefing [text] detailing human rights violations in the three nations. Speaking on Bahrain, but summarizing the UN's feelings on alleged abuses in all three nations, he said:
It is vital that the authorities scrupulously abide by international standards. People should not be arbitrarily arrested and should not be detained without clear evidence that they have committed a recognized crime. We stress again that demonstrating peacefully is not a crime. Giving an interview to a journalist is not by any stretch of the imagination a crime, nor is reporting human rights abuses.
The OHCHR voiced similar concerns [UN News Centre report] last week toward all three nations. The UN has received reports in Bahrain of arbitrary arrests of political activists, human rights defenders, doctors and nurses; 50–100 people missing; and allegations that protesters are orchestrating such events to smear the government. A report [text] was also released stating that UN human rights experts question the Bahraini government's commitment to human rights. In Syria, reports revolve around security forces responding aggressively and in some cases killing protesters. The UN's concerns in Yemen surround the same issues, with the addition of the deportation of two Al Jazeera [media website] reporters. Also on Tuesday, Yemeni President Ali Abdullah Saleh [official website] offered to resign from office [Al Jazeera report] by the end of the year.

There have been varied protests and government reactions in all three nations throughout March. Opposition leaders were arrested in Bahrain [JURIST report] after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website], violently dispersed protesters in the capital of Manana last week. Days before, Bahraini King Hamad bin Isa Al Khalifa [official website] declared [JURIST report] a three-month state of emergency [decree text, in Arabic] in response to growing unrest in the island nation. The state of emergency came just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called on the King to impose martial law under articles 36 and 123 of the Bahraini Constitution [text, PDF]. A military court in Syria [JURIST report] sentenced a human rights activist accused of harming the country's relations with Iran to 18 months in prison. Ali Abdullah's sentence was based on allegations that he made critical comments against Iran [AP report], thereby harming Syria's relations with a foreign country. In an interview last month, Syrian President Bashar Al-Assad indicated he would push for political reforms including municipal elections and a new media law [Guardian report]. Saleh recently declared [JURIST report] a state of emergency [text, in Arabic] in Yemen. The state of emergency will last 30 days and gives security forces greater powers to maintain order and also includes a ban on citizens carrying arms in public. This followed a promise the week before to create a new constitution [JURIST report] guaranteeing parliamentary and judiciary freedoms. Protests, largely organized by the Joint Meeting Party (JMP), have been ongoing in Yemen since February, calling for Saleh to step down.

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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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