JURIST - Paper Chase: Wednesday, January 21, 2009

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Wednesday in two cases. In Corley v. United States [oral arguments transcript, PDF], the Court heard arguments on whether federal statutory [18 U.S.C. § 3501 text] and case [McNabb-Mallory backgrounder] law require suppression of a confession given more than six hours after arrest but before the defendant is presented to a judge if law enforcement authorities unreasonably delay presentment. The US Court of Appeals for the Third Circuit affirmed [opinion, PDF] Corley's convictions for armed bank robbery and conspiracy to commit armed bank robbery, holding that voluntary confessions are admissible, even if there is an unreasonable delay. Counsel for the petitioner argued:

that 3501(c) as it's written by Congress leaves the McNabb-Mallory rule in place outside the six-hour time limitation. And ... the Government's interpretation, under which 3501(c) is merely a voluntariness safe harbor, is unfaithful to the text and the structure of the statute.

Counsel for the government argued that, "the primary source of law that controls ... is subsection (a), which says that voluntary confessions are admissible."

In Kansas v. Ventris [oral argument transcript, PDF], the Court heard arguments on whether a defendant's statement made without a knowing and voluntary waiver of his Sixth Amendment right to counsel may be used to impeach a witness. The Kansas Supreme Court ruled [opinion text] that such statements may not be used for any purposes, including impeachment purposes. Counsel for the state argued that, "permitting the impeachment use of voluntary statements obtained in violation of constitutional standards is necessary to prevent perjury by criminal defendants." Counsel for the respondent argued, "what we are dealing with in the Sixth Amendment case here is a violation of a core enumerated trial right, and this makes it a very different animal from all the other cases that we are talking about."

In Nken v. Mukasey [oral arguments transcript, PDF], the Court heard arguments on what standard governs a stay of deportation request by an alien pending consideration of his petition for review. Jean Marc Nken is a native of Cameroon who fears persecution upon return to his home country. He was denied a stay of a deportation order while he pursued court review of the denial of his asylum claim. His lawyers originally asked the Court for a stay of deportation [application, PDF], but the Court granted full review to resolve the conflict over the proper standard of review. The case turns on whether the standard is governed by 8 U.S.C. § 1252(f)(2) [text] or by the traditional test for stays. Lawyers for Nken argued that, "Congress intended that temporary stays of removal be governed by the normal standards applicable to States." Counsel for the government argued:

The statutory text, context and background of section 1252(f)(2) all demonstrate that that section applies to orders granting a stay of removal pending a court of appeals decision on a petition for review. Indeed, if section 1252(f)(2) does not apply to such an order barring removal, it is difficult to see what function it would serve.

[JURIST] A law [text, PDF, in Romanian] requiring Romanian telecommunications companies to retain information on all telephone calls, text messages, and emails went into effect [Nine O'Clock report] on Tuesday. The law requires that basic information like the phone numbers or email addresses involved in the communications be recorded so that prosecutors can access the information if it relates to an investigation, but the companies are prohibited from keeping information on the content of the messages. The Romanian Chamber of Deputies [official website] passed [EDRI report] the controversial law in November, and its supporters said the records were required to comply with European Union efforts to combat terrorism. More than 5000 Romanians have signed a petition [AP report] protesting the law.

Other countries have also taken controversial measures on the tracking of communications to investigate crime. In August, a US court ruled [opinion, PDF; JURIST report] that the federal government acted appropriately when it compelled a telecommunications company to assist in warrantless surveillance [JURIST news archive] of certain customers. In July, millions of Swedish citizens filed electronic petitions [sample petitions, in Swedish] against the country's electronic wiretapping law [draft text, in Swedish; JURIST report]. In February 2008, a Canadian judge ruled [JURIST report]] that Section 184.4 of the Canadian Criminal Code [text], which allows warrantless wiretapping in some circumstances, is unconstitutional because it violates "the fundamental freedom to be free from unreasonable search and seizure" protected by the Canadian Charter of Rights and Freedoms [text].

[JURIST] Proposed amendments to the Russian Constitution [materials, in Russian] extending term limits for the president and members of parliament officially took effect Wednesday when the text of the updated constitution [text, in Russian] was published in the state newspaper Rossiikaya Gazeata [official website, in Russian]. Under Russian law, constitutional amendments take legal effect the day they are published in the newspaper. The amendments extending presidential terms from four to six years and terms for parliament members from four to five years were signed into law [JURIST report] by Russian President Dmitry Medvedev [official profile; JURIST news archive] in December.

Medvedev proposed the changes in his first state of the nation [text; JURIST report] address in November. Critics fear the extension of presidential terms is designed to afford a longer third term for former president and current Prime Minister Vladimir Putin [official website, in Russian; JURIST news archive] should Medvedev step aside. Kremlin officials contend the amendments will strengthen the political system.

[JURIST] The Paris prosecutor's office [official website, in French] on Tuesday announced that it has opened an investigation into the French business operations of US financier Bernard Madoff [JURIST news archive], following accusations of abuse of confidence and fraud. The inquiry was sparked by a French citizen's suit against the Swiss firm UBS [corporate website] for fraud and betrayal of trust, after the firm invested and lost her savings in the Luxembourg fund LuxAlpha. On Wednesday, the Association of the Luxembourg Fund Industry [group website] announced that sixteen Luxembourg-based funds connected to Madoff, including LuxAlpha, have stopped investor redemptions [AP report]. Dozens of French citizens are expected to join the LuxAlpha suit or file similar actions, with total damages incurred by French investors in Madoff-connected funds estimated at 500 million euros. The prosecutor's office has discretion to dismiss the case, bring charges, or open a judicial inquiry.

Earlier this month, the UK Serious Fraud Office (SFO) [official website] announced an investigation into Madoff's UK business operations [JURIST report] to determine whether any criminal offenses have been committed in the country. Madoff was charged [JURIST report] last month in the US with securities fraud after he allegedly told two employees that his investment advisory business was "basically, a giant Ponzi scheme." In the week following Madoff's charges, US Securities and Exchange Commission (SEC) [official website] Chairman Christopher Cox said that he would launch an immediate investigation [press release; JURIST report] into how the fraud allegedly perpetrated by Madoff went undetected for so long. During confirmation hearings last week, SEC Chairman-Designate Mary Schapiro expressed her commitment to reinvigorate enforcement at the SEC, and Attorney General nominee Eric Holder confirmed his commitment to investigate and prosecute financial fraud [JURIST reports].

[JURIST] The US Supreme Court [official website; JURIST news archive] issued decisions in five cases Wednesday. The Court ruled [opinion, PDF] unanimously in Pearson v. Callahan [Cornell LII backgrounder; JURIST report] that the test for whether a government official is entitled to qualified immunity, established by the Court in 2001 in Saucier v. Katz [opinion, PDF], is no longer mandatory in every case. Under Saucier, a judge first had to decide whether a government official's action violated the Constitution and only if there was a violation, then whether the constitutional right was "clearly established" at the time of the violation. In this case, police officers entered respondents' home without a warrant and conducted a search that respondents allege was in violation of the Fourth Amendment. In his opinion for the Court, Justice Samuel Alito wrote:

We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional.

The ruling overturns the decision [opinion, PDF] of the US Court of Appeals for the Tenth Circuit, which held that petitioners were not entitled to qualified immunity.

The court ruled [opinion, PDF] unanimously in Fitzgerald v. Barnstable School Committee [Cornell LII backgrounder; JURIST report] that Title IX [text] does not preclude Section 1983 [text] constitutional claims to remedy sex discrimination in educational settings. Alito wrote:

Congress modeled Title IX after Title VI of the Civil Rights Act of 1964 and passed Title IX with the explicit understanding that it would be interpreted as Title VI was. At the time of Title IX’s enactment in 1972, Title VI was routinely interpreted to allow for parallel and concurrent § 1983 claims, and we presume Congress was aware of this when it passed Title IX. In the absence of any contrary evidence, it follows that Congress intended Title IX to be interpreted similarly to allow for parallel and concurrent § 1983 claims. At the least, this indicates that Congress did not affirmatively intend Title IX to preclude such claims. [citations omitted]

This reverses the decision [opinion, PDF] by US Court of Appeals for the First Circuit, which found that parents could not sue for discrimination against their daughter by another student under Section 1983 and that Title IX provided the only remedy.

The Court ruled [opinion, PDF] unanimously in Locke v. Karass [Cornell LII backgrounder; JURIST report] that a state may constitutionally require non-union public employees to pay agency fees to a union acting as an exclusive bargaining unit when part of that money pays for litigation conducted by the union's national affiliate. Delivering the opinion of the Court, Justice Stephen Breyer wrote:

under our precedent the Constitution permits including this element in the local’s charge to nonmembers as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities, and (2) the litigation charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place.

Alito issued a concurring opinion, in which Chief Justice John Roberts and Justice Antonin Scalia joined. Alito wrote, "that our decision, as I understand it, does not reach the question of what 'reciprocity' means." The ruling upholds [opinion text] the decision of the US Court of Appeals for the First Circuit.

The Court ruled [opinion, PDF] 6-3 in Waddington v. Sarausad [Cornell LII backgrounder; JURIST report] that the US Court of Appeals for the Ninth Circuit erred in overturning [opinion, PDF] the murder conviction of a driver in a 1994 Seattle drive-by shooting on the grounds of incorrect jury instructions on accomplice liability. In his majority opinion, Justice Clarence Thomas wrote:

Even if we agreed that the instruction was ambiguous, the Court of Appeals still erred in finding that the instruction was so ambiguous as to cause a federal constitutional violation, as required for us to reverse the state court's determination under [the Antiterrorism and Effective Death Penalty Act]. The Washington courts reasonably applied this Court's precedent when they determined that there was no "reasonable likelihood" that the prosecutor's closing argument caused Sarausad's jury to apply the instruction in a way that relieved the State of its burden to prove every element of the crime beyond a reasonable doubt. [citations omitted]

Justice David Souter issued a dissenting opinion, in which Justices John Paul Stevens and Ruth Bader-Ginsburg joined. Souter wrote that, "The District Court and the Ninth Circuit drew the only conclusion reasonably possible on this record."

Finally, the Court ruled [opinion, PDF] 5-4 in Spears v. United States [docket] that that federal judges may impose lesser sentences for crack cocaine offenses than provided for by federal Sentencing Guidelines. In a per curiam opinion, the Court granted certiorari and reversed the decision of the lower court, holding "that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines." Thomas dissented without issuing an opinion. Roberts issued a dissenting opinion, in which Alito joined. Justice Anthony Kennedy would have granted the petition for certiorari and set the case for oral argument.

[JURIST] Illinois Governor Rod Blagojevich [official website, JURIST news archive] on Tuesday allowed a second deadline to lapse without filing formal answers to his impeachment charges [JURIST report]. The Illinois State Senate [official website] established a January 17 deadline to file an answer and a January 20 deadline to seek dismissal of the charges, with impeachment proceedings set to begin January 26. A spokesperson for Senate President John Cullerton [official profile] said Wednesday that if the Senate does not receive a formal response from Blagojevich, it will enter a not guilty plea on his behalf.

Blagojevich will become the first governor in Illinois history to face an impeachment trial in the State Senate after the Illinois House of Representatives [official website] voted 114-1 to impeach earlier this month. Last week, lawyers for Blagojevich announced that they will boycott those impeachment proceedings [JURIST report] as a protest against Senate procedures they believe will rob Blagojevich of his due process rights. Blagojevich and his chief of staff John Harris were arrested [JURIST report] last month by federal agents on charges of corruption. Both Blagojevich and Harris have been charged [DOJ press release, PDF] with conspiracy to commit mail and wire fraud and solicitation of bribery. They are accused of conspiring to sell or trade the senate seat left vacant by President Barack Obama, obtaining illegal campaign contributions, and threatening to withhold assistance to the Chicago Tribune with the sale of Wrigley Field unless two editorial writers who had been critical of Blagojevich were fired. Harris resigned his position after the arrest, while Blagojevich has continued to report to work.

[JURIST] White House Chief of Staff Rahm Emanuel [official profile] on Tuesday sent a memorandum [text, PDF] to agency and department leaders requesting the review of pending regulations that were advanced late in the administration of former US President George W. Bush [official profile]. The memo, issued just hours into the administration of President Barack Obama [official website], calls for 60-day extensions before the effective dates of regulations that have been published in the Federal Register [official website] but have yet to take effect. This procedure would involve reopening the comment period for such regulations for 30 days. Rules that "raise substantial questions of law or policy" are to be brought to the attention of Office of Management and Budget (OMB) [official website] director Peter Orszag [NYT profile].

Before taking office, Obama selected [JURIST report] Harvard Law School professor Cass Sunstein [professional profile] as administrator of the Office of Information and Regulatory Affairs, a division of OMB that oversees federal regulations requirements. Sunstein will be responsible for governmental regulations and will deal with issues including changes to the financial services industry, the development of universal healthcare, and efforts to control greenhouse gas emissions. Sunstein previously taught at the University of Chicago Law School and served as a clerk for US Supreme Court Justice Thurgood Marshall.

[JURIST] Lawyers for the families of 213 Chinese children sickened or killed by melamine-contaminated milk [JURIST news archive] petitioned the Supreme People's Court [official website, in Mandarin], China's highest court, to hear a class action lawsuit against 22 dairy companies involved in the contamination. The petition, mailed last Friday, seeks more than $5 million in compensation [Shanghai Daily report] from the companies, including individual amounts more than double those provided for in a government-sanctioned payout plan [JURIST report]. If accepted, the lawsuit would be the first time the court has heard a case related to the contamination, although lower courts have already dismissed [JURIST report] similar lawsuits, raising concerns that the Supreme People's Court will choose not to hear the case. Lawyers have proceeded with the lawsuit in the midst of pressure [JURIST report] to drop the suit against the dairies. The sentences for 21 defendants facing criminal charges related to the incident are expected to be announced [Xinhua report] on Thursday.

In late December, Chinese dairy company chairwoman Tian Wenhua pleaded guilty [JURIST report] to charges that she allowed her company to sell milk contaminated with the industrial chemical even after she knew of the contamination. One trial of four other suspects began last month, as did the trial of an additional six [JURIST reports]. News of possible milk powder contamination by the chemical melamine first broke in September [Guardian report], following the death of an infant and reports that at least 50 other infants had fallen ill after consuming baby formula, leading to massive recalls [BBC report] of both liquid milk products and milk powders. The Chinese Health Ministry has attributed the deaths of six children to the contamination, and at least 294,000 other children have been affected.

[JURIST] US President Barack Obama [official website] has an obligation to bring charges against former President George W. Bush [official profile; JURIST news archive] and former Defense Secretary Donald Rumsfeld [JURIST news archive] for ordering illegal interrogation methods at Guantanamo Bay [JURIST archive], according to a statement made by UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak [official website; JURIST news archive] in an interview [transcript, PDF, in German; press release, PDF, in German] Tuesday with German television program ZDF Frontal 21 [media website, in German]. Nowak said that such actions constituted a violation of the UN Convention Against Torture [text], to which the US is a party. Nowak noted that although evidence is available to press charges, he does not know whether US law would recognize the interrogation techniques used as forms of torture.

Last week, the chairman of the US House Judiciary Committee [official website] released a report [text, PDF] recommending the Obama administration undertake a criminal investigation [JURIST report] to determine whether any laws were broken by the Bush administration. In an interview [ABC transcript] broadcast last week, Obama said that while he has not ruled out prosecuting officials [JURIST report] for rights abuses during the Bush administration, he wanted to focus on "getting things right in the future." In late December, the US Senate Armed Services Committee [official website] alleged in a report [text, PDF] that high-ranking Bush administration officials, including Rumsfeld, are responsible for the abuses [JURIST report] committed by US interrogators in military detention centers.

[JURIST] US President Barack Obama [official website] on his first day in office Tuesday directed [motion, PDF] military prosecutors to pursue a 120-day continuance in military commission proceedings at Guantanamo Bay [JURIST news archive] against five alleged 9/11 co-conspirators [DOD materials], including Khalid Sheikh Mohammed [BBC profile; JURIST news archive]. The motion cites the new administration's desire to evaluate the detainees' cases and determine the proper forum for future prosecution. Similar motions are expected to be filed [Washington Post report] in all pending military commission cases, presumably including proceedings [JURIST report] set to begin against Omar Khadr [DOD materials], a Canadian who allegedly killed a US soldier in Afghanistan. It was unclear how Obama's order would affect a sanity hearing [Miami Herald report] that was scheduled for Wednesday morning in the trial of Ramzi bin al Shibh [HRW profile], one of the alleged 9/11 co-conspirators.

Advisers to Obama have said he plans to issue an executive order [JURIST report] during his first week in office closing the Guantanamo Bay prison camp. On Saturday, the Department of Defense (DOD) announced it had transferred six detainees [JURIST report] out of Guantanamo Bay. Last week, a judge on the US District Court for the District of Columbia granted habeas [JURIST report] to Chadian detainee Mohammed El Gharani and directed his release. An ongoing hunger strike [JURIST report] at Guantanamo now involves 42 detainees.