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Legal news from Wednesday, October 12, 2011




Attempted plane bomber pleads guilty to all charges
Dan Taglioli on October 12, 2011 1:54 PM ET

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[JURIST] Nigerian national Umar Farouk Abdulmutallab [BBC profile; JURIST news archive] pleaded guilty Wednesday in the US District Court for the Eastern District of Michigan [official website] to all counts of a criminal indictment charging him for his role in the attempted Christmas Day 2009 bombing of Northwest Airlines flight 253 from Amsterdam to Detroit. Abdulmutallab, 24, admitted to eight felonies [Reuters report], including conspiracy to commit terrorism, attempted murder and attempted use of a weapon of mass destruction. In January 2010 not-guilty pleas [JURIST report] were entered on behalf of Abdulmutallab, who was representing himself in the trial with help from an attorney. As the prosecution this week was preparing to present a mountain of physical evidence against him, Abdulmutallab, who is linked to al Qaeda, suddenly and against the advice of the assisting attorney changed his pleas [Guardian report] in a five-minute statement before the court in which he claimed he was participating in an act of jihad against the US by trying to bring down the civilian airliner, which held almost 300 people. Abdulmutallab intended to blow the plane out of the sky over US soil, but the bomb concealed in his underwear failed to go off. Instead, he suffered severe burns and was subdued by fellow passengers and airline crew. Before accepting his guilty pleas, US District Judge Nancy Edmunds required Abdulmutallab to make a statement acknowledging the factual basis of the charges against him. He will be sentenced on January 12 and faces life in prison.

The trial began only Monday, with jury selection having taken place [JURIST report] last week. In September, the court ruled [JURIST report] that statements made by Abdulmutallab while in the hospital following his bombing attempt were admissible. In December 2010, a federal grand jury charged Abdulmutallab with two new counts of conspiracy and firearm possession, in addition to the six previous charges [JURIST reports] of attempted use of a weapon of mass destruction, attempted murder within the special aircraft jurisdiction of the US, willful attempt to destroy or wreck an aircraft, willfully placing a destructive device on an aircraft, use of a firearm/destructive device during and in relation to a crime of violence, and possession of a firearm/destructive device in furtherance of a crime of violence. Three months earlier, in September, Abdulmutallab fired his lawyers and chose to represent himself [JURIST report]. The use of full body scanners [TSA backgrounder] at airports is largely a response to Abdulmutallab's failed bombing attempt. In July the US Court of Appeals for the District of Columbia Circuit [official website] rejected a constitutional challenge [JURIST report] to the use of the controversial full body scanners by holding that the use of the scanners does not constitute an unreasonable search.




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Alabama defends immigration law in federal appeals court
Andrea Bottorff on October 12, 2011 1:49 PM ET

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[JURIST] Alabama Attorney General Luther Strange [official website] on Tuesday submitted a filing in the US Court of Appeals for the Eleventh Circuit [official website] asking the court not to stay the state's controversial immigration law [text]. The filing was in response to a motion filed last week by the US Department of Justice (DOJ) [official website], which requested that the court halt enforcement [JURIST report] of the state's immigration law [HB 56 text] that expands restrictions on undocumented immigrants, arguing that the state law is preempted by federal immigration law. Strange argued that the law is necessary to address the problem of illegal immigrants "taking jobs away from United States citizens and authorized aliens who desperately want to work in these hard economic times." Strange also argued that an injunction of the law would confuse the public and cause long-lasting harm, while allowing officials to enforce the law as the case proceeds would promote consistency. The law requires school officials to verify the immigration status of children and parents, authorizes police to detain an individual and ask for papers if the officer has "reasonable suspicion" that the driver is in the country illegally, and requires businesses to use the federal E-Verify system [official website] to determine whether potential employees are legal residents.

The US District Court for the Northern District of Alabama [official website] denied two similar motions for injunction last week and last month [JURIST reports]. Alabama state officials have defended the law [JURIST report] and argue that the state law is not preempted by federal immigration law. The state officials point out that the law contains mechanisms safeguarding against unlawful discrimination on the basis of race, color, or national origin and allegations suggesting provisions of the law would deter students from enrolling in school are speculative. The DOJ, joined by several rights groups, appeared before the court in August [JURIST report] to make arguments against the law's enactment, at which point Chief Justice Sharon Lovelace Blackburn issued the temporary injunction to forestall enactment of the challenged provisions while she evaluated their contention with federal statute. From when the legislation was signed into law in June, 16 countries filed briefs [JURIST reports] in the Alabama district court against the controversial law, arguing that it provides unfair treatment to citizens of those countries currently residing in Alabama and sanctions discriminatory treatment based on ethnicity.




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Florida challenges federal voting rights law
Dan Taglioli on October 12, 2011 1:11 PM ET

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[JURIST] Florida submitted a request to the US District Court for the District of Columbia [official website] Tuesday seeking declaratory judgments regarding recently-enacted changes to the state's Election Code [materials, PDF], four sections of which require Section 5 [DOJ backgrounder] "preclearance" under the Voting Rights Act of 1965 (VRA) [materials]. Relying heavily on patterns of past discrimination to determine which state, county and local governments must obtain preclearance for election changes, the Section 5 rules require covered jurisdictions to clear changes in voting districts, polling places and other electoral processes with the Department of Justice (DOJ) [official website] or federal courts before enactment. The four relevant sections of the Florida voting law changes [Miami Herald report] reduce the number of days of early voting from 14 to eight, require voters who move from county-to-county and who update their addresses at the polls to cast provisional ballots, require third-party groups that register voters to submit forms within 48 hours or face penalties and reduce the validity of voters' signatures on initiative petitions from four years to two. Even though the provisions in question have been under review by the DOJ, Florida Secretary of State Kurt Browning [official profile] requested [complaint, PDF] that the federal court either declare those provisions entitled to preclearance under Section 5, or declare the preclearance obligation of Section 5 itself unconstitutional, along with its coverage formula prescribed in Section 4(b) of the VRA, and to issue a permanent injunction enjoining their enforcement. Currently five counties in Florida are covered by Section 5. The VRA was enacted to put an end to the systematic disenfranchisement of minority voters that ran rampant in Southern districts in the 1960s. According to a public DOJ list [materials], currently nine whole states and many individual counties and municipalities are Section 5 Covered Jurisdictions. The US Senate extended the VRA [NYT report] in 2006 by an overwhelming 98-0 vote.

Last month the DC District Court dismissed a similar constitutional challenge [JURIST report] to the Section 5/4(b) preclearance rules. In dismissing the suit brought by officials representing Shelby County, Alabama, and a corps of conservative activists, the court concluded that the modern existence of intentional racial discrimination in voting does in fact justify the 2006 reauthorization of the VRA requirements. The Arizona Attorney General [official website] filed a similar suit [JURIST report] in August seeking to enjoin enforcement of the Section 5 rules in that state. In 2009, the US Supreme Court [official website] upheld [opinion, PDF; JURIST report] the Section 5 provisions of the VRA in Northwest Austin Municipal Utility District Number One v. Holder [Cornell LII backgrounder]. The court voted 8-1 in favor of permitting the appellant municipality to "bail out" from the preclearance requirement if it can establish a history of compliance with the VRA, but declined to rule on the constitutionality of the 25-year extension of the act. Writing for the majority, Chief Justice John Roberts opined that "things have changed in the South," observing that "[b]latantly discriminatory evasions of federal decrees are rare." The plaintiff was a municipal utility district in Texas that wanted to be exempted from the requirement and was challenging the most recent extension generally. At their enactment in 1965, the requirements were only supposed to be in place for five years. Section 5 has since been extended several times.




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Afghanistan government denies UN torture allegations
Andrea Bottorff on October 12, 2011 12:26 PM ET

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[JURIST] Afghanistan's Ministry of Interior Affairs [official website] and the National Directorate of Security (NDS) on Tuesday denied prisoner torture allegations made earlier this week in a UN report. A spokesperson for the Ministry said at a press conference that there was no basis for the report's findings [Khaama Press report] and that publicizing such information could hurt the people's trust in the police. The UN Assistance Mission in Afghanistan (UNAMA) [official website] on Monday eleased a report alleging that prisoners in some Afghan-run detention facilities have been beaten and tortured [JURIST report]. The prisoners interviewed for the study had been detained by the NDS or Afghan National Police (ANP) forces for national security crimes. Nearly half of the 273 detainees interviewed reported that they had undergone interrogation that amounted to torture. UNAMA also alleged that NDS and ANP officials committed due process violations and arbitrarily detained arrestees but did acknowledge that the abuse was not the result of official government policy.

Afghanistan has received much criticism for its human rights record. Human Rights Watch (HRW) [advocacy website] reported in September that the Afghan Local Police (ALP) force is committing serious abuses [JURIST report], and the Afghan government is doing little to hold the officials accountable. Corruption, abuse of power and a focus on short-term security goals in Afghanistan have intensified the issue of poverty [JURIST report] affecting more than two-thirds of the population, according to a March 2010 report [text, DOC] from the UN's Office of the High Commissioner for Human Rights (OHCHR) [official website]. Earlier that same month, UN High Commissioner for Human Rights Navi Pillay [official profile] delivered a report [JURIST report] to the UN Human Rights Council (UNHRC) [official website] that said Afghanistan's human rights progress has been thwarted by armed conflict, censorship, abuse of power and violence against women.




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UN urged to stop political interference in Cambodia genocide tribunal
Ashley Hileman on October 12, 2011 10:45 AM ET

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[JURIST] Rights groups urged the UN Tuesday to assure that Cambodia will not interfere in a tribunal established by the UN charged with investigating the communist Khmer Rouge regime [JURIST news archive; BBC backgrounder] of the 1970s. The pressure for UN action [AFP report] results from the resignation of Siegfried Blunk [JURIST report], one of the judges for the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website], who blamed political interference for his decision. Blunk alleged statements were made by various Cambodian officials that threatened his "ability to perform his duties independently" and more significantly, "the integrity of the whole proceedings" in the cases currently at issue. Both Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] have emphasized the need for the UN's involvement in the form of an investigation into the existence or extent of political interference at the court.

Blunk's departure is only the latest setback for the court, which has consistently faced allegations of political interference and has completed only one trial [JURIST report] since its inception in 2001. Last week, HRW demanded the resignation [JURIST report] of Blunk and his counterpart You Bunleng of Cambodia, who are responsible for indictments. HRW alleges that the two investigating judges have "egregiously violated their legal and judicial duties ... [by failing] to conduct proper and good-faith investigations [in violation of] their responsibilities to act impartially." The rights group said that the two judges "failed to conduct genuine, impartial, and effective investigations into ECCC cases 003 and 004," and that as a result both of those case will likely be dropped. Both cases deal with allegations of atrocities committed under the Khmer Rouge regime. In April, the judges declared that they had concluded their investigation into Case 003 [materials] and a formal closing order is expected to be issued soon. The judges are also expected to close and dismiss Case 004 [materials]. Should closing orders be issued in either case, the prosecutor can appeal to the pre-trial chamber. The Khmer Rouge have been blamed for the deaths of some 1.7 million people [PPU backgrounder] from starvation, disease, overwork and execution between 1975 and 1979.




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Ecuador president approves new antitrust law
Ashley Hileman on October 12, 2011 10:11 AM ET

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[JURIST] Ecuadorian President Rafael Correa [official website, in Spanish; BBC profile] on Tuesday enacted an antitrust law, provisions of which further his conflict with the country's news media. The new law specifically bars [AP report] news media owners and bankers from holding financial stakes in other industries and generally bars companies from establishing a monopoly in any industry. The law provides until July 2012 for media owners and bankers to divest their interests in other industries with those in violation facing the possibility of a fine based on the amount of their investments. While the law was approved by voters in a May referendum and had little trouble passing through Congress on September 29, it has been criticized by the country's business community. In a radio interview [audio, in Spanish], Correa articulated his support for the new law and cited the success of similar longstanding laws in the US and Chile.

Correa's problems with the Ecuadorian news media stem both from his belief that they are corrupt and from a criminal libel suit he initiated earlier this year. In July, Correa won his criminal libel claim [JURIST report] against the owners and a columnist of newspaper El Universo, resulting in fines of USD $40 million and a three-year sentence for the offending journalist and editors. Emilio Palacio [Twitter account], Nicholas Perez, Cesar Perez and Carlos Perez, the owners of El Universo, were personally fined $30 million in addition to their sentences, while the newspaper itself was fined $10 million for printing the article. Palacio's editorial, "No to the Lies!" was published in February 2011 and referenced an incident in September 2010 when protesting police officers fired tear gas at Correa, surrounded the hospital at which he was being treated and trapped him there for 12 hours. Palacio's editorial criticized Correa for pardoning the criminals and suggested he was doing so because the "attempted coup" was staged to increase his political power [JURIST report]. In a statement [El Ciudadano, in Spanish], Correa called the suit one of his greatest legacies, and that now the Ecuadoran "corrupt press" know they cannot "damage the honor of a person."




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Supreme Court hears arguments on workers compensation, arbitration
Julia Zebley on October 12, 2011 8:04 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in three cases on Tuesday. In Pacific Operators Offshore LLP v. Valladolid [transcript, PDF; JURIST report], the court considered when an outer continental shelf worker, injured on land, is eligible for compensation under the Outer Continental Shelf Lands Act (OCSLA) [43 USC §§ 1331-1356 text]. The OCSLA governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries, and workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." Juan Valladolid worked for Pacific Operations Offshore, stationed primarily on an offshore drilling platform, but was killed on the grounds of Pacific Operations' onshore oil processing facility when he was crushed by a forklift. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] in favor of Valladolid's estate, explaining that the OCSLA workers' compensation provision ... applies to any injury resulting from operations on the outer continental shelf, regardless of the location of the injury. An injury is 'the result of' outer continental shelf operations if there is a substantial nexus between the injury and the operations." Pacific Operators Offshore argued that the OCSLA has no remedy for an injury that occurred on dry land, but rather Valladolid should have sought relief through state workers compensation law. The federal government argued that the OCSLA covers injuries or death on dry land explicitly, but not under the "nexus" reasoning the Ninth Circuit utilized. Valladolid's attorney argued that, pursuant to similar treatment in the Jones Act [text], his client's estate should be compensated for his death that occurred on land. Justice Samuel Alito noted that although the death arrived out of the work, all three parties only wanted to focus on the location: "The curious thing about this case is that the statutory language seems to me to speak quite clearly to some theory of causation. Maybe it's but-for, maybe it's proximate, but it's some—some species of causation. Any injury occurring as a result of operations conducted on the outer continental shelf, that's—that's causation. And yet nobody wants this really to be—neither you nor your adversary nor the government wants this to be a—to be based on causation. Everyone wants to smuggle something else into—into here—into this."

In CompuCredit Corp. v. Greenwood [transcript, PDF; JURIST report], the court heard arguments on whether claims arising under the Credit Repair Organizations Act [15 USC § 1679 et seq.] are subject to arbitration pursuant to a valid arbitration agreement. The case arises from a dispute between consumers and companies that issue low-rate credit cards to people with bad credit. The consumers filed a lawsuit over credit card fees, and the US Court of Appeals for the Ninth Circuit ruled that they had a right to sue in federal court rather than face arbitration. The attorney for CompuCredit argued that strong federal policy in favor of arbitration overrides any differing laws that discourage waivers of rights to sue. Respondents argued that the Credit Repair Organizations Act explicitly bans any suggestion of waiving the right to sue, and that credit card companies should be fined for even asking applicants to sign an arbitration waiver.

Finally, in Greene v. Fisher [transcript, PDF; JURIST report], the court heard arguments surrounding the "clearly established federal law" standard under 28 USC § 2254(d) [text], as amended by the Antiterrorism and Effective Death Penalty Act of 1996. Petitioner Eric Greene was convicted and sentenced to life imprisonment for involvement in a robbery of a convenience store in which the store's owner was shot and killed. At the trial, Greene objected to the admission of confessions of his conspirators and co-defendants on Confrontation Clause [Sixth Amendment text] grounds. The court allowed the confessions with Greene's name redacted. He renewed this objection on appeal, arguing on the grounds of the Supreme Court's decision in Gray v. Maryland [text], where a similarly redacted confession was deemed inadmissible. Gray was decided before Greene's conviction became final but after the state court's last decision on the merits. The Third Circuit held that an opinion issued after a decision on the merits in state court is not "clearly established federal Law." Greene's attorney argued that it was a bedrock rule that prisoners should benefit from any ruling made before "finality." The attorney for Pennsylvania argued that Greene asking for law that had been decided after "finality" was asking for new facts to be applied, and thus inapplicable: "For the proposition that our case has emphasized that review under 2254(d)1 focuses on what a State court knew and did. State court decisions are measured against this Court's precedent as of the time the State court renders its decision. The jumping off point, so to speak, for the Court's extension of the principle the effect that we are debating today to the area of new facts. And I don't think there is any way to reconcile that holding with the Petitioner's argument or with the language of the statute."




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Ukraine ex-PM Tymoshenko sentenced to 7 years
Julia Zebley on October 12, 2011 7:01 AM ET

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[JURIST] Former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] was sentenced to seven years in prison [press release] on Tuesday on charges of abuse of power and corruption. Judge Rodion Kireyev also barred Tymoshenko from serving public office for three years and ruled in favor of a 1.5 billion hryvnias judgment against her. Despite the conviction, international support for Tymoshenko remains strong, with many calling for her release. Amnesty International (AI) [advocacy website] called the trial politically motivated on charges that are not internationally recognizable offenses [press release]. The European Union (EU) [official website] announced that the treatment of Tymoshenko will have repercussions for Ukraine's EU accession [press release]:
The EU urges the competent Ukrainian authorities to ensure a fair, transparent and impartial process in any appeal in the case of Ms. Tymoshenko and in the other trials related to members of the former Government. The right of appeal should not be compromised by imposing limitations on the defendants' ability to stand in future elections in Ukraine, including the parliamentary elections scheduled for next year. The EU will reflect on its policies towards Ukraine. The way the Ukrainian authorities will generally respect universal values and rule of law, and specifically how they will handle these cases, risks having profound implications for the EU-Ukraine bilateral relationship, including for the conclusion of the Association Agreement, our political dialogue and our co-operation more broadly.
Tymoshenko repeated her hope [press release] that the European Court of Human Rights (ECHR) [official website] would overturn the verdict and stated her intention to appeal [press release]. In June, Tymoshenko filed a complaint [JURIST report] with the ECHR alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argued that the charges against Tymoshenko are politically engineered by current Ukrainian President Viktor Yanukovych [official website, in Ukrainian], Tymoshenko's political rival.

Last week, the Ukrainian parliament [official website] rejected four amendments to the country's Criminal Code [materials] that sought to decriminalize Article 365, which stipulates jail time for abuse of office [JURIST report]. Tymoshenko's trial resumed at the end of September after a two-week recess [JURIST reports]. In August, Yushchenko testified against [JURIST report] Tymoshenko, his former prime minister. That same month, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Also in August, Kireyev rejected a request [JURIST report] from Tymoshenko to release her from prison. In July, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into United Energy Systems of Ukraine (UESU), an energy company at one time headed by Tymoshenko. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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