JURIST - Paper Chase: Saturday, January 5, 2013

[JURIST] The National Credit Union Administration (NCUA) [official website] on Friday filed a lawsuit [compliant, PDF; press release] against JPMorgan Chase & Co. [corporate website] for the sale of $2.2 billion of faulty residential mortgage-backed securities (RMBS) to credit unions. The securities were sold by Washington Mutual bank and its subsidiaries which were ultimately acquired by JPMorgan in 2008. The suit alleges that the "the firms made misrepresentations in connection with the underwriting and subsequent sale of" the RMBS products. It further alleges that the firms responsible for originating the mortgages that formed the basis of the securities "systematically disregarded" underwriting guidelines. Finally, the lawsuit states, "The RMBS purchased by the Credit Unions suffered a significant drop in market value. The Credit Unions have sustained significant losses from those RMBS purchased despite the NCUA Board's mitigation efforts."

Major banking firms have faced numerous lawsuits regarding their business practices. In December the NCUA brought a suit [JURIST report] against JPMorgan for similar RMBS products sold by Bear Stearns, which was also subsequently purchased by JPMorgan. In July JPMorgan agreed to a $100 million settlement [JURIST report] in a suit brought by customers claiming unreasonable fees and a three percent increase on monthly minimum payments by credit card holders. In early June the firm was granted [JURIST report] permission to pay $44.6 million to resolve allegations of fraudulent bidding practices for state and local government investment securities at taxpayers' expense. The settlement followed JPMorgan's agreement [JURIST report] last July with the US Department of Justice [official website] to pay $228 million to federal and state authorities. One month earlier JPMorgan again settled [JURIST report] at $153.6 million for fraud charges brought by the SEC for misleading investors during the housing crises. In July 2010 Goldman Sachs [corporate website] agreed to a $550 million settlement [JURIST report] with the SEC to resolve similar charges.

[JURIST] A Nepalese army officer was arrested and charged in the UK on Friday with two counts of torture during his country's civil war in 2005. Colonel Kumar Lama, a 46-year-old officer currently serving in the UN mission in Sudan, was arrested [BBC report] at his East Sussex home by Metropolitan Police [official website] officers on Thursday. Lama appeared [BBC report] before Westminster Magistrates' Court Saturday. District Judge Quentin Purdy ordered Lama to remain in custody until he appears at the Old Bailey in London on January 24. The charges stem from two separate incidents that allegedly occurred between April and May 2005, in the latter years of the war, at the Gorusinghe Army Barracks in Nepal. Police were permitted to arrest Lama under section 134 [text] of the UK's Criminal Justice Act of 1988, which states that a public official may be arrested and charged with torture for intentionally inflicting severe pain or suffering on another regardless if the act was committed in the UK or elsewhere. Nepalese government officials have already expressed opposition to the arrest, claiming violations of international law and jurisdictional sovereignty.

In October the UN Office of the High Commissioner for Human Rights (OHCHR) released a report [text] urging justice for victims of international law violations that occurred during Nepal's civil war, a conflict that resulted in approximately 13,000 deaths [JURIST reports] and 1,500 disappearances. The report cited unlawful killings, enforced disappearances, torture, arbitrary arrest and sexual assault as some of the major offenses to have occurred during that period. In April Human Rights Watch (HRW) and the International Commission of Jurists [advocacy websites] urged Nepal [JURIST report] to reject blanket amnesty [press release] plans for international crimes committed during the country's civil war. In the same month, UN Deputy High Commissioner for Human Rights Kyung-wha Kang [official profile] spoke [JURIST report] to the Constituent Assembly of Nepal [official website] about several human rights issues in the country, including a reluctance to prosecute war crimes and insufficient progress increasing women's rights [texts, PDF]. On several previous occasions, the OHCHR and HRW [JURIST reports] have both appealed to the government of Nepal to investigate human rights violations allegedly committed during the civil war.

[JURIST] The United Nations Children's Fund (UNICEF) [official website] said Friday that it has received "credible reports" of armed groups in the Central African Republic (CAR) [BBC backgrounder; JURIST news archive] recruiting and including children [press release] in the country's conflict. UNICEF reported that both pro-government and rebel forces have utilized children, and called for all groups to immediately stop involving children. They reported that as of December, approximately 2,500 children had been drawn into armed groups. They also reiterated that the recruitment and use of children under the age of 18 by armed groups is prohibited by international law and constitutes a war crime and crime against humanity for children under the age of 15.

Children exposed to hostilities and other extreme situations where they are held to adult standards may experience potentially long-term negative impacts on their health and well-being. In August UNICEF said it had received reports [JURIST report] that armed groups in Mali had recruited children for use in conflict zones. Children's Rights Researcher Alice Farmer [profile] at Human Rights Watch [advocacy website] wrote that in many cases of asylum, children are presumed to be adults and are detained as such in countries such as Malta, despite UNICEF endorsements [JURIST comment] of standards stating that migrants who enter age determination proceedings should be presumed children until shown otherwise. In June UN Secretary-General Ban Ki-moon [official website] issued a report detailing the violations committed against children in conflict zones [JURIST report]. The report discussed conflicts in the CAR, Afghanistan [BBC backgrounder; JURIST news archive], Chad [BBC backgrounder; JURIST news archive], Sudan [BBC backgrounder; JURIST news archive], South Sudan [BBC backgrounder; JURIST news archive], Democratic Republic of Congo [BBC backgrounder; JURIST news archive] and Syria [BBC backgrounder; JURIST news archive], and the situation of children in each country.

[JURIST] The US Supreme Court [official website] granted certiorari in three cases [order list, PDF] on Friday. In Adoptive Couple v. Baby Girl [docket; cert. petition, PDF] the court will consider whether the Indian Child Welfare Act (ICWA) [materials] allows a non-custodial parent to block an adoption by their non-Indian partner. In this case, a woman put her baby, who was fathered by an American Indian, up for adoption. A South Carolina couple adopted the child, but once the American Indian father was notified about the adoption proceedings, he attempted to revoke the adoption and gain custody of the child. The South Carolina Supreme Court ruled for the biological father [opinion], stating that the federal ICWA, which seeks to keep American Indian children in their ethnic communities, supersedes South Carolina law. The court will examine not only whether the ICWA allows an American Indian parent to stop a non-American Indian parent from putting a child up for adoption, but also if the father's absenteeism when the mother gave birth and chose adoption gives him the rights of a parent under the ICWA.

The court granted US v. Davila [docket; cert. petition, PDF] and will consider what degree of error is required to vacate a guilty plea under Federal Rule of Criminal Procedure (FRCP) 11(c)(1) [text]. Anthony Davila pleaded guilty to conspiring to file fraudulent tax returns under the advice of his court-appointed lawyer. However, he requested different counsel early in the proceedings, because his lawyer offered no defense other than pleading guilty. In an ex parte hearing, a magistrate judge told Davila that he would not accept his request for change of counsel, because he also believed there was no option but to plead guilty: "[T]he only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you've got to go to the cross. You've got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance." The US Court of Appeals for the Eleventh Circuit ruled [opinion] that this violated FRCP 11(c)(1) due to the "[t]he court" involving itself in plea discussions and vacated the plea.

The court will also hear Tarrant Regional Water District v. Herrmann [docket; cert. petition, PDF] and will consider to what extent a state can go into another state's territory to utilize a river that flows through both states. The dispute in this case is between Texas using water from the portion of the Red River [backgrounder] that runs in Oklahoma, analyzed under the Red River Compact [materials]. The US Court of Appeals for the Tenth Circuit found [opinion] for Oklahoma in the dispute, stating that: "[T]he Red River Compact insulates Oklahoma water statutes from dormant Commerce Clause challenge insofar as they apply to surface water subject to the Compact."

[JURIST] A judge for the Provincial Court of British Columbia [official website] on Friday ruled that the federal government's mandatory-minimum sentence for the possession of a loaded and prohibited firearm is arbitrary and fundamentally unjust. Judge James Bahen ruled [CBC report] in the case of Glenn Harley Tetsuji Sheck, a 29-year-old male with no prior criminal record who was arrested by police and found with a loaded Glock 9-millimeter semi-automatic handgun outside a Surrey restaurant in November 2010. The Canadian Criminal Code stipulates [§ 95(1)] that any party found guilty of possessing a loaded handgun shall be sentenced to a minimum imprisonment of three years. Sheck's defense lawyer argued that the mandatory sentence amounted to cruel and unusual punishment prohibited by the Canadian Charter of Rights and Freedoms [text], and Bahen agreed [Globe and Mail report].

In the previous two years the Ontario Superior Court has handed down separate rulings, R. v. Smickle and R. v. Nur [opinions], in which similar sentences were upheld [JURIST report]. Such cases present a significant challenge to Canada's current mandatory minimum sentence requirements. According to a spokesman for British Columbia's criminal justice branch, the Canadian Crown [official website] will be reviewing the decision to assess the appropriate next steps. Under section 1 of the Charter, the Crown may allow laws which restrict Charter rights as long as they can be "demonstrably justified in a free and democratic society."