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Legal news from Friday, April 6, 2012 |
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Federal judge allows Ohio executions to proceed
Jerry Votava on April 6, 2012 4:15 PM ET

[JURIST] Judge Gregory Frost of the US District Court for the Southern District of Ohio [official website] on Wednesday denied a motion for an injunction to delay the execution of Mark Wiles. Frost, who had previously stayed the executions of two inmates [JURIST report] when he agreed with the argument that Ohio's execution procedures were haphazard, found that the new procedures were successfully rehearsed in late February. At issue has been a set of procedures that were not effectively followed, and subsequently not reported properly back to the court. The deviations in death penalty protocol included switching the official whose job it is to announce the start and finish times of the lethal injection, and failing to properly document that the inmate's medical chart was reviewed. Frost indicated that the current procedures were barely acceptable. Frost noted that while Wiles contended that Ohio's presentation of a "wholly discretionary approach to their written execution protocol and their informal policies" represented an Equal Protection violation, he did not meet the burden of proof required, and thus, the motion for temporary injunction could not be granted.
Ohio's death penalty procedures have been the source or concern and increased judicial scrutiny recently. In early February the US Supreme Court [official website] denied [JURIST report] Ohio's request to put a condemned killer to death, effectively putting the state's executions on hold pending a review of new procedures. Last November, Ohio Supreme Court Chief Justice Maureen O'Connor instructed the state's death panel review committee [JURIST report] that its purpose was to provide "guidance on the current laws on the subject, the practices in other jurisdictions, the date, the costs, and many other aspects associated with the death penalty." O'Connor announced the formation of the committee [JURIST report] last September, declaring that it would be responsible for ensuring that the death penalty law is "administered in the most fair, efficient, and judicious manner possible." In March 2010, the Supreme Court refused to stay the execution of an Ohio inmate [JURIST report] who challenged the state's single-drug lethal injection protocol, which was changed [JURIST report] in November 2009 from the previously used three-drug method. Ohio conducted its first execution [JURIST report] using the new method in December 2009. The change in protocol came after the state reviewed its lethal injection practices [JURIST report] following a failed execution in September 2009.


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Federal judge approves $25 billion mortgage foreclosure settlement
Jerry Votava on April 6, 2012 4:14 PM ET

[JURIST] A judge for the US District Court for the District of Columbia [official website] has approved a $25 billion settlement agreement to address mortgage loan servicing and foreclosure abuses. The settlement [Reuters report] was between US Attorney General Eric Holder, along with Department of Housing and Urban Development Secretary Shaun Donovan [official websites] and 49 state attorneys general and the nation's five largest mortgage servicers. The settlement was approved on Wednesday, and Judge Rosemary Collyer announced the approval on Thursday. The agreement was reached [JURIST report] in February, but required court approval to proceed. This agreement is the largest joint federal-state settlement ever obtained and includes mortgage servicers Bank of America Corporation, JPMorgan Chase & Co., Wells Fargo & Company, Citigroup Inc. and Ally Financial Inc. (formerly GMAC) [corporate websites].
The investigation began [JURIST report] in October 2010 with the forming of a bipartisan group called the Mortgage Foreclosure Multistate Group (MFMG). In June 2010, Countrywide Home Loans, Inc., a subsidiary of Bank of America, reached a $108 million settlement agreement [JURIST report] with the Federal Trade Commission (FTC) [official website] to resolve charges that the subsidiary collected excessive fees from homeowners facing foreclosure. In September 2010, a federal judge refused to dismiss a suit [JURIST report] against American International Group (AIG) [corporate website], and in August, a federal judge rejected a $75 million settlement [JURIST report] between Citigroup and the US Securities Exchange Commission (SEC) [official website] because the two companies misled investors. In 2009, the US Senate [official website] rejected a bill [S 896 materials] that would have aided homeowners in foreclosure [JURIST report] by allowing bankruptcy judges to modify mortgages from lenders that had not already offered better terms to their borrowers.


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Report: voter ID laws are form of voter suppression
Jaimie Cremeans on April 6, 2012 1:25 PM ET

[JURIST] The Center for American Progress (CAP) [advocacy website] released a report [text] on Wednesday criticizing the tide of recently-passed state voter ID laws as an attempt by conservatives and lobbyists to "return to past practices of voter suppression to preserve their political power." The report details new restrictions on registration in six states and laws in nine states that require voters to show a government-issued photo ID, concluding that these measures are motivated by a desire to prevent the more than 21 million voters who do not have these IDs from participating in elections. Defenders of such regulation say that the laws are bi-partisan and essential to dealing with the issue of voter fraud [Heritage Foundation report]. However the CAP report finds that voter fraud is almost nonexistent in most jurisdictions, implying the perceived chicanery is taking place at the statehouses rather than the polls. Wisconsin, for example, enacted a law requiring the possession of a government-issued photo ID in order to vote, yet in the 2004 election the state had a fraud rate of merely 0.000023 percent. The report also argues that existing criminal sanctions against voter fraud are already sufficiently preventing abuse. The report alleges that Florida, Texas, Tennessee, Wisconsin and Kansas are the five worst states for voting rights.
Debate over these laws has sparked controversy leading up to presidential and congressional elections in November, as well as a number of legal challenges. The Brennan Center for Justice [advocacy website] released a similar report [JURIST report] in October, claiming these laws could have an adverse affect on qualified voters. In Wisconsin, two cases challenging the constitutionality of the state's voter ID law are being sent to the Wisconsin Supreme Court [JURIST report]. That court will rule on whether a temporary injunction against the law will stand, but it is not clear yet whether it will also rule on the constitutionality of the law. In February South Carolina brought a suit [JURIST report] against the US Department of Justice after it blocked the state's enforcement of a voter law requiring a government-issued photo ID. The DOJ has the power to do this pursuant to the Voting Rights Act [Cornell LII backgrounder], which allows the federal government to screen any new voting laws passed by states with a history of voter discrimination. Last year the Georgia Supreme Court upheld the state's law [JURIST report] that requires voters to show one of six government-issued IDs.


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Federal judge sentences notorious arms dealer to 25 years in prison
Matthew Pomy on April 6, 2012 1:02 PM ET

[JURIST] The US District Court for the Southern District of New York [official website] on Thursday sentenced [memorandum, PDF] reputed Russian arms dealer Viktor Bout [BBC profile; JURIST news archive] to 25 years imprisonment. Bout, 45, was convicted in November [JURIST report] on four counts of conspiracy [press release] in relation to his proposed sale of anti-aircraft missiles to drug enforcement informants posing as potential buyers for the guerrilla Revolutionary Armed Forces of Colombia (FARC) [NYT backgrounder], which the US has labeled as a designated foreign terrorist organization. Prosecutors had sought the maximum life sentence, portraying Bout as one of the world's worst criminals, a notorious arms dealer who has profited on war-torn nations since the 1990s. Judge Shira Scheindlin handed down the minimum sentence [Al Jazeera report] of 25 years in prison and ordered a $15 million forfeiture, noting that Bout would not have been convicted except for the US Drug Enforcement Agency (DEA) [official website] sting operation, and that there was no evidence that Bout would have actually committed the crimes to which he conspired. Sentencing was delayed twice [BBC report] to allow additional preparation time for defense counsel, who accused the US government of entrapment and presented Bout, an ex-Soviet officer and current Russian citizen, as a political prisoner. Russia's foreign ministry has rejected the sentence, framing the order as political and agenda-driven. Bout's attorney's have indicated their intent to appeal the conviction.
Bout's trial lasted three weeks, and he was convicted after two days of jury deliberation. Bout pleaded not guilty in November 2010, days after the Thai government extradited him [JURIST reports] to the US to stand trial. A month earlier Bout filed an appeal challenging the Bangkok Criminal Court's decision to dismiss [JURIST reports] money laundering and fraud charges against him, which removed obstacles to his US extradition. According to Bout's lawyer Lak Nitiwatanavichan, the arms dealer was seeking to have these charges reinstated [Bangkok Post report] to avoid extradition to the US. In August of that year an appeals court in Thailand ruled that Bout could be extradited [JURIST report], overturning a decision it issued a year earlier refusing to extradite Bout [JURIST report] on the basis that the accusations made by the US were not cognizable under Thai law. Bout was the subject of the book "Merchant of Death" [Reuters report], which inspired the 2005 movie of the same title, and is suspected of involvement in arms trafficking to conflict zones in Africa, South America and the Middle East.


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Illinois Supreme Court allows challenge to assault weapon ban
Matthew Pomy on April 6, 2012 11:44 AM ET

[JURIST] The Supreme Court of Illinois [official website] ruled [text, PDF] Thursday that a challenge to a ban on assault weapons can continue, reversing two lower court rulings dismissing the challenge. The Cook County ordinance [text] in question prohibits the possession and sale of "assault weapons." The ordinance bans high-capacity, rapid-fire rifles and pistols and was amended in 2006 to include assault weapons with large magazines. The bill's supporters claim that such weapons should be banned because "there is no legitimate sporting purpose for the military style assault weapons now being used on our streets," and "assault weapons are twenty times more likely to be used in the commission of a crime than other kinds of weapons." Opponents of the ban claim they need these weapons for self-defense and sporting purposes. While the lower trial and appeals courts ruled that the ban was constitutional without proceeding through a full trial, the Supreme Court of Illinois ruled that the issue should be investigated further and the bill's challengers should be permitted to present evidence that guns with legitimate purposes are encompassed by the ban:Plaintiffs seek to present evidence to support their allegation that this particular Ordinance encompasses a myriad of weapons that are typically possessed by law-abiding citizens for lawful purposes and fall outside the scope of the dangers sought to be protected under the Ordinance. Without a national uniform definition of assault weapons from which to judge these weapons, it cannot be ascertained at this stage of the proceedings whether these arms with these particular attributes as defined in this Ordinance are well suited for self-defense or sport or would be outweighed completely by the collateral damage resulting from their use, making them "dangerous and unusual" as articulated in Heller. The case will be remanded to trial court in order to hear evidence from both sides as to whether the ban is constitutional.
The ruling is the latest in the continuing gun control controversy. In March, a federal judge in Maryland ruled a portion of a gun permit law unconstitutional [JURIST report]. Illinois citizens challenged [JURIST report] the Cook County ordinance in July 2010, just weeks after the US Supreme Court [official website] ruled that the Second Amendment applies to states and municipalities [JURIST report] in addition to the federal government, citing the holding in District of Columbia v. Heller [Cornell LII backgrounder; JURIST report]. In Heller the Supreme Court held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.


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Federal appeals court reinstates Viacom copyright infringement case against YouTube
Michael Haggerson on April 6, 2012 10:07 AM ET

[JURIST] The US Court of Appeals for the Second Circuit [official website] on Thursday overturned [opinion, PDF] an order dismissing a $1 billion copyright infringement suit against Google, by Viacom [corporate websites], for Google's YouTube [media website; JURIST news archive] service. The lower court initially dismissed [JURIST report] Viacom's suit in June 2010 finding that the Digital Millennium Copyright Act (DMCA) [text, PDF] protected Google because it provided a "safe harbor" period for the removal of copyrighted content after notice is given and that Google never disputed any requests from Viacom to remove material. The court further held that the DMCA required Google to have more than a "general awareness" that videos might be posted illegally in order to be found liable. The court of appeals reversed the lower court, however, "because a reasonable jury could conclude that YouTube had knowledge or awareness." Specifically, the court of appeals cited a number of e-mails between Google officials recognizing the presence of copyrighted material on the website, including clips of English Premier League soccer and CNN footage of a shuttle launch, and choosing not to take the material down until a cease and desist letter was received. The court ruled that a reasonable jury could find that Google had knowledge or awareness of specific instances of infringement or that the company was willfully blind to the infringement. Both parties stated that they were pleased with the ruling [NYT report]. Google stated that the court rejected Viacom's interpretation of the DMCA and all that Viacom has left is a "dispute over a tiny percentage of videos long ago removed." Viacom was pleased that the suit was reinstated and that "intentionally ignoring theft is not protected by the law."
Google is also facing both international and national criticism over its privacy policy. Last month, a Japanese court ordered Google to remove certain search terms [JURIST report] that a Japanese man claimed violated his privacy, by suggesting his name in connection with crimes he did not commit. Also last month, the Commission Nationales de l'Informatque (CNIL) [official website], France's data protection regulator, gave Google three weeks to answer questions [JURIST report] about its new privacy policy [text] as part of a Europe-wide investigation on behalf of all European data protection regulators. The new policy, which took effect earlier in March, may violate European law [JURIST report] according to the EU's Justice Commissioner Vice-President Viviane Reding [official website]. In February, a judge for the US District Court for the District of Columbia dismissed [JURIST report] a suit from the Electronic Privacy Information Center (EPIC) [advocacy website], a consumer privacy group, asking the Federal Trade Commission (FTC) [official website] to block Google's proposed privacy policy changes. The new policy allows a user's information to be shared among different Google products, including YouTube, Gmail, and Google Maps.


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DOJ responds to judge's order to explain Obama statements on health care rulings
Michael Haggerson on April 6, 2012 9:13 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] responded [letter, PDF] to a request by the US Court of Appeals for the Fifth Circuit [official website] to explain whether federal courts could overturn laws passed by Congress. The federal court made the request [JURIST report] on Tuesday in response to comments last week from US President Barack Obama [official website] urging "unelected" courts not to make the "unprecedented" [CNN report] move of overturning a "duly constituted and passed law." The court demanded an explanation of whether the Obama administration and the DOJ thought it was "inappropriate" for federal courts to overturn congressional laws and whether they recognized the power of federal courts to overturn such laws. The DOJ responded that congressional acts have a presumption of constitutionality, but that federal courts have had the power of judicial review since Marbury v. Madison:The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation. After the hearing on Tuesday, Obama clarified his statements, stating that the Supreme Court absolutely has the final say on the constitutionality of the country's laws, but that it had also traditionally been very deferential to the elected legislature, especially in the area of economic laws. JURIST Guest Columnist Craig Jackson of Texas Southern University Thurgood Marshall School of Law says that the criticism of Obama's comments has been unduly harsh [JURIST op-ed].
Debate over the law has been ongoing since Congress passed [JURIST report] comprehensive health care reform in March 2010. The US Supreme Court [official website] heard oral arguments in the case of United States Department of Health and Human Services v. Florida over the course of an unprecedented three days last month. On day one of oral arguments [JURIST report], the court heard arguments on the issue of whether the PPACA is is barred by the Anti-Injunction Act of 1867 (AIA) [text]. On day two [JURIST report], the court heard arguments focused specifically on the constitutionality of the "individual mandate" provision [text], which requires every person, with some exceptions for religious and other reasons, to purchase some form of health insurance by January 1, 2014, or be subject to a penalty. On the final day [JURIST report], the court heard arguments on the issue of whether the "individual mandate" can be severed from the rest of the PPACA. The Supreme Court agreed to rule on [JURIST report] the health care law case in November of last year on appeal from US Court of Appeals for the Eleventh Circuit [official website], which ruled in August that the individual mandate is unconstitutional but severable [JURIST report], upholding the rest of the law.


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