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Legal news from Sunday, March 13, 2011




Virginia Supreme Court to hear global warming subpoena case
Carrie Schimizzi on March 13, 2011 3:56 PM ET

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[JURIST] The Supreme Court of Virginia [official website] on Friday agreed to hear a case seeking to determine whether Virignia Attorney General Kenneth Cuccinelli [official profile] can subpoena records about a former professor at the University of Virginia [academic website]. Cuccinelli is requesting that the University turn over records about global warming researcher Dr. Michael Mann [official profile], now a professor at Penn State University, in an effort to investigate allegations that Mann received improper public funds for his global warming research. Last year, retired Albemarle County Circuit Court Judge Paul M. Peatross Jr. dismissed the request [opinion, PDF] citing Cuccinelli's failure to establish a reasonable belief that fraud had occurred, but held that the University could be a proper target of a fraud investigation. Cuccinelli has argued that Virginia's 2002 Fraud Against Taxpayers Act [materials], allows him to subpoena any records to help determine whether a civil fraud investigation is needed. The University hopes that court will set limits on what documents the Attorney General can demand in a civil investigation. Critics of the lawsuit have accused Cuccinelli, a global warming skeptic, of targeting Mann because of his research [Washington Post report]. The Virginia Supreme Court will hear the case later this spring.

Cuccinelli is also leading a multi-state effort to overturn the health care reform law [HR 3590 text; JURIST news archive]. In February, Cuccinelli filed [JURIST report] a petition for a writ of certiorari [text, PDF] with the US Supreme Court [official website; JURIST news archive] asking the court to rule on the constitutionality of the health care reform law on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. Cuccinelli based his request [press release; JURIST report] on the far-reaching public policy implications inherent in the implementation of the legislation and the potential cost to the states as uncertainty surrounding the legislation's constitutionality remains.




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Cuba court sentences US contractor to 15 years in prison
Carrie Schimizzi on March 13, 2011 3:08 PM ET

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[JURIST] A court in Cuba on Saturday sentenced [Cubadebate report, in Spanish] US contractor Alan Gross to 15 years in prison for attempting to undermine the communist government of Cuba, according to a state-run website. US National Security spokesman Tommy Vietor immediately denounced the ruling [Washington Post report], calling the 15-year sentence an "injustice." Gross was arrested at the Havana Airport in 2009 for bringing computer equipment into Cuba. He was working as a member of a Development Alternatives Incorporated (DAI) [official website] program distributing computer and satellite phone equipment to Jewish residents in Cuba in an effort to give them Internet access. The sentence has increased the political strain between US and Cuban relations. Earlier this week Secretary of State Hilary Clinton [official profile] called for Gross's immediate release [AP report] and several US officials have stated that relations will not improve until Gross is released. DAI President and Chief Executive Officer James Boomgard urged the Cuban government to immediately release Gross [press release]:
We are profoundly disappointed by today's verdict and sentence. Alan Gross has been accused of doing nothing more than giving peaceful people access to the internet, and for this he has already been unjustly imprisoned for more than a year without the benefit of due process and in violation of international law. In light of the critical medical situation confronting Alan and his family, we urge the Cuban government to release him immediately on humanitarian grounds and quickly return him to his family.
The US hopes that Gross will soon be released on humanitarian grounds.

Until recently, the historically strained relations between the US and Cuba had shown signs of improvement. Earlier this year, President Obama [official profile] ordered [JURIST report] the Departments of State, Treasury, and Homeland Security [official websites] to take steps to ease restrictions on travel and remittances [press release] to Cuba. The new regulations, to be promulgated as modifications of the Cuban Assets Control [31 CFR § 515.101 et seq.] and Customs and Border Protection [19 CFR § 122.151 et seq.] regulations, will allow greater travel from the US to Cuba for religious and educational purposes, the transfer of up to $2000 per year to non-family members in Cuba so long as they are not senior government or Communist Party leaders, and will allow all US international airports to service charter flights between the two countries.




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Arab League calls for UN no-fly zone over Libya
Drew Singer on March 13, 2011 11:44 AM ET

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[JURIST] The League of Arab States [official website, in Arabic] on Saturday adopted a resolution calling for the United Nations Security Council [official website] to impose a no-fly zone over Libya. The Arab League declared that Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] has been using aircraft to combat civilian protesting, and it is the UN's responsibility [Ahram Online report] to stabilize the situation. In addition to requesting help from the UN, the resolution called on Arab and other international organizations to give humanitarian aid to the Libyan people and to help those trying to leave Libya. The resolution marks a shift in action for the Arab League, which has not responded to the Darfur genocide [JURIST news archive], among other high-profile international issues. The current UN response has been to suspend Libya from the Human Rights Council and to refer the situation [JURIST reports] to the International Criminal Court (ICC) [official website], which some scholars argue is hypocritical [JURIST op-ed] and shows the need for a more uniform application of international law.

The UN on Wednesday appointed a team of special prosecutors [JURIST report] to investigate allegations that Gaddafi has ordered forces to torture and abduct opponents. Although a probe was launched [JURIST report] earlier in March by the ICC, special rapporteur for torture Juan Mendez [UN profile] clarified [AP Report] that this probe is different because he and his fellow investigators are "independent experts" focusing on accusations that Gaddafi has ordered hospital patients' executions, fired on crowds of protesters and used other extreme tactics against his opponents. Protests in Libya began in February following those that have occurred throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform.




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Ninth Circuit overturns corruption conviction of Alaska lawmaker
Drew Singer on March 13, 2011 10:57 AM ET

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[JURIST] The US Ninth Circuit Court of Appeals [officials website] on Friday overturned [opinion, PDF] the corruption conviction of Vic Kohring, a former Republican member of the Alaska State Legislature [official website]. Kohring was caught on tape accepting cash from Bill Allen, an executive for Alaskan oil services and engineering company VECO Corp. [official website]. The court held that Kohring was unfairly denied access to evidence which would have helped his defense, including information which casts doubt on Allen's credibility:
[E]vidence of Allen's sexual misconduct with a minor would have shed light on the magnitude of Allen's incentive to cooperate with authorities and would have revealed that he had much more at stake than was already known to the jury. Beyond facing serious criminal charges, the newly-disclosed information shows Allen was very distressed at the prospect of his alleged sexual misconduct becoming public ... The newly-disclosed information also illustrates Allen's difficulty with remembering key facts, as well as Allen's and Smith's differing (and sometimes changing) recollections as to how much money they paid Kohring. Setting aside for a moment the question of the information's admissibility, the information is exculpatory and has impeachment value.
The court found that Kohring's Sixth Amendment [text] Confrontation Clause rights were violated, ruling that knowledge of Allen's sexual misconduct, as well as the newly-revealed information about Allen's memory regarding the financial exchange, would have helped Kohring challenge his credibility as a witness and allow the jury to more fairly evaluate how heavily it would weight his testimony.

Kohring was convicted [NYT report] in November 2007 and sentenced to 42 months in federal prison on extortion, bribery and conspiracy charges, based largely on FBI video surveillance [ADN video archive] evidence. But in 2009, the US Department of Justice (DOJ) [official website] asked the court to remand the case of two convicted Alaska lawmakers [press release], including Kohring, to district court and to release the prisoners on their own recognizance, admitting that DOJ prosecutors did not disclose all necessary information [JURIST report]. Several other Alaska lawmakers, as well as VECO's CEO Bill Allen and Vice President Rick Smith, prominent lawyer Jim Clark, and several high profile lobbyists, were also indicted, convicted, or pleaded guilty [ADN backgrounder] to corruption-related charges. In April 2009, the DOJ dropped the charges against former Alaska senator Ted Stevens [US Congress backgrounder] when similar errors were discovered [JURIST report].




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