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Court: Judges Need All Detainee Evidence
Legal Career News | 2007/07/20 18:02

When Guantanamo Bay detainees challenge their status as "enemy combatants," judges must review all the evidence, not just what the military chooses, a federal appeals court ruled Friday. The U.S. Court of Appeals for the District of Columbia Circuit rejected the Bush administration's plan to limit what judges and the detainees' attorneys can review when considering whether the Combatant Status Review Tribunals acted appropriately.

"Counsel for a detainee has a 'need to know' the classified information relating to his client's case," the appeals court ruled. "The government may withhold from counsel, but not from the court, certain highly sensitive information."

The appeals court decision is likely to be considered by the Supreme Court as it decides whether detainees should have greater access to U.S. civilian courts.

When detainees are brought before military CSRTs, they are not allowed to have lawyers with them and the Pentagon decides what evidence to put forward. Unlike in criminal trials, there is no obligation for the government to turn over evidence that the defendant might be innocent. If the military reviewers determine a prisoner is an enemy combatant, he can challenge that designation in the U.S. Circuit Court of Appeals for the District of Columbia.

During that appeal, government attorneys argued, federal judges have the authority only to review the evidence the Pentagon had chosen to put forward during the CSRT hearing.

Without all the information, the appeals court said, deciding whether the military reviewers acted appropriately would be like trying to figure out the value of a fraction without knowing both numbers.

"The court has resoundingly rejected the government's effort to control the record and to limit an investigation into the truth," said attorney Sabin Willett, who argued the case.

Washington, D.C., attorney David Remes said, however, that the court's decision "will turn out to be a prescription for endless litigation in these cases."

"The court said that its review goes beyond the information presented to the Combatant Status Review Tribunals, but the court never explains how it can determine what that information might be," said Remes, who represents 17 Guantanamo Bay detainees.

Remes also said that "it's clear from the decision that the review under the Detainee Treatment Act falls short of constitutionally required habeas corpus review." The Supreme Court will soon consider whether detainees have the right to challenge their detention in federal courts. That right was stripped away by the most recent terrorism law.

Remes said the ruling contains restrictions that "will seriously cripple the lawyer-client relationship." Under the decision, detainees and their lawyers must limit communications to events leading up to a detainee's capture and the conduct of CSRT proceedings relating to the detainee.

Jonathan Hafetz, an attorney involved in other detainee cases, said Friday's court ruling is only a minor improvement in a seriously flawed process.

"It's definitely better than what the government had proposed but it still doesn't provide for a meaningful process," Hafetz said.

The Justice Department argues that the detainees are being afforded more rights than required by law. The government argues that it cannot bring the detainee cases in civilian courts without jeopardizing national security.

Friday's unanimous decision was issued by Judges Douglas Ginsburg, Judith Rogers and Karen Lecraft Henderson. Rogers is a Clinton appointee. Ginsburg, the chief judge of the appeals court, is a Reagan appointee. Henderon was appointed by President Bush's father, George H.W. Bush.



Ga. Supreme Court Hears Teen Sex Case
Court Feed News | 2007/07/20 18:01

The Georgia Supreme Court heard arguments Friday morning on a pair of appeals in the closely watched Genarlow Wilson case, though no ruling was expected immediately. The courtroom was packed for the hearing, and arguments were broadcast live over the Internet. The hearing came after justices decided earlier this month to speed up the process in the case of Wilson, the Douglas County man imprisoned for receiving oral sex from a 15-year-old girl when he was 17. Wilson's attorneys arguing his 10-year prison sentence is cruel and unusual punishment.

The justices are considering two appeals in the case.

Georgia Attorney General Thurbert Baker is appealing a Monroe County Superior Court judge's decision to reduce Wilson's felony conviction to a misdemeanor and free him from prison. Baker said the judge overstepped his authority when he granted Wilson's motion last month.

Following the Monroe County judge's decision, Wilson's attorneys requested he be released on bond pending Baker's appeal, but on June 27, the trial court in Douglas County denied the request. Wilson's attorneys have appealed that decision.

B.J. Bernstein, Wilson's attorney, addressed the bond issue first at Friday's hearing, arguing for 10 minutes that her client should be granted bond while his case is under appeal.

"Every day that a defendant spends in jail is a precious day in their life," Bernstein told the justices. Bernstein said that in the past 10 days, "two clients of mine died in prison."

Bernstein argued that the trial court, in refusing bond, improperly applied the criminal appeal bond statute when it should have applied the habeas bond statute, since the Monroe County judge had ruled on a writ of habeas corpus, determining that Wilson had the right to make a claim of cruel and unusual punishment.

However, Douglas County District Attorney David McDade, the original prosecutor on Wilson's case, countered in his time before the justices that state law is clear that "no appeal bond shall be granted to any person who is convicted of a list of crimes, and aggravated child molestation is included in that list."

"It's not vague. It's not gray. It's not subject to interpretation," McDade said. "It is the plain letter of the law that applies in this case."

In its appeal of the reduction of the felony conviction to a misdemeanor, the state has argued that the ruling could open the door for many other sexual criminals to have their sentences reduced.

Wilson's attorneys argued that such fears are invalid and do not justify maintaining such a harsh sentence for consensual teen sex.

Video cameras and still photographers lined the walls well before the arguments began. Outside, satellite trucks and Georgia State Patrol cars were parked all along the street, and security was high. Officers were posted all around the building and on the floor where the Supreme Court meets.

Former state Rep. Matthew Towery, the author of the 1995 law Wilson was charged with violating, submitted a friend of the court brief supporting his release.

"The General Assembly never intended for the Child Protection Act's harsh felony sentences designed to punish adults who prey on children to be used to punish consensual sexual acts between teenagers close in age," Towery's brief said.

The state Legislature in 2006 changed the law, making oral sex between teens close in age a misdemeanor. The state Court of Appeals ruled that the new law could not be applied retroactively and the state Supreme Court upheld that ruling.

Bernstein argued in her legal brief that the move by state lawmakers to change the law marked a "tectonic shift in how Georgia views voluntary consensual teen sex and its punishment."

"The new reality is that teen sexual experimentation is commonplace in an era where the media bombards teens with sexual imagery," she wrote.

Bernstein said it is extremely rare in Georgia for lawmakers to pass legislation softening punishment, especially for an emotionally charged crime like child molestation.

But the state countered that it is well established that criminals are subject to the penalty that is in place when they violate the law. To begin to apply legislative changes retroactively would invite chaos and have a far-reaching effect throughout the criminal justice system, Baker argued.



Court demands care for Agent Orange victims
Headline News | 2007/07/20 16:02
The U.S. Department of Veterans Affairs was wrong to deny retroactive benefits to certain Vietnam veterans suffering from Agent Orange-related leukemia, the 9th U.S. Circuit Court of Appeals ruled Thursday in a class-action lawsuit filed in the Bay Area. In 2003, the VA issued a regulation finding chronic lymphocytic leukemia to be a disease associated with dioxin, a toxic substance in the Agent Orange chemical defoliant that U.S. forces used in the jungles of Vietnam. But the VA didn't reconsider prior claims of Vietnam veterans suffering from that disease, nor did it pay them retroactive benefits.

A 1991 law and court consent decree ordered that those suffering from diseases that are newly considered to be service-related could have their cases reconsidered and their back benefits paid. The VA, however, contended this didn't apply to diseases deemed service-related after the law's 2002 original sunset date.

U.S. District Judge Thelton Henderson of San Francisco disagreed in 2005, and the appeals court affirmed his judgment Thursday with some harsh words for the VA.

"Three different Congresses in three different decades have enacted legislation signed by three different presidents, designed to ensure the payment of such benefits to veterans afflicted with Agent Orange-related ailments," Circuit Judge Stephen Reinhardt wrote for himself and circuit judges John Noonan and Milan Smith. "What is difficult for us to comprehend is why the Department of Veterans Affairs, having entered into a settlement agreement and agreed to a consent order some 16 years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to Vietnam War veterans who fought for their country and suffered grievous injury as a result of our government's own conduct."

The still-suffering veterans deserve better care than they're getting, he added. "We would hope that this litigation will now end, that our government will now respect the legal obligations it undertook in the Consent Decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled."

VA spokeswoman Laurie Tranter said the department won't comment until it more fully reviews the ruling.

Vietnam Veterans of America was one of the plaintiffs, and Rick Weidman, the group's executive director for policy and government affairs, called Thursday's ruling "a great victory for veterans."

"The court ... clearly is as incredulous as we are at the breathtaking attitude on the part of the VA in continuing to refuse to carry out the consent decree that they agreed to," Weidman said. "It's time for the VA to move forward and carry out the consent decree tout de suite, as soon as possible, with no further delay, no further nonsense."

If it doesn't, he said, the courts should hold individual VA officials in contempt of court and punish them with fines or jail time.



Pakistan court reinstates top judge
Legal World News | 2007/07/20 10:41
The Supreme Court on Friday ruled that President Pervez Musharraf had no authority to suspend Pakistan's top judge and ordered him reinstated, a major blow to the standing of the general who has been a key U.S. ally against terrorism. The ruling reinstating Chief Justice Iftikhar Mohammed Chaudhry is the sharpest legal challenge to Musharraf's dominance since he seized power in a coup in 1999. It could further complicate his bid to win a new five-year presidential term this fall and comes at a time when Islamic militants are mounting a terrorist offensive against his forces.

Lawyers celebrated outside the court, chanting "Go, Musharraf, go!" The decision also prompted celebrations by hundreds of lawyers in major cities, including Karachi, Multan, Faisalabad, Quetta, Peshawar and Rawalpindi.

"Thank God, we got justice," said Ahsan Bhund, president of the Lahore High Court Bar Association, as he marched with 500 other lawyers.

The court also quashed charges of misconduct against Chaudhry that Musharraf had sent to a separate judicial tribunal. The decision was a surprise — many had expected the court to reinstate the judge while letting the investigation continue.

In a brief statement, a spokesman for Musharraf said he accepted the ruling by presiding Justice Khalil-ur-Rehman Ramday that the president's order suspending Chaudhry was "set aside as being illegal."

"The president respects the decision of the Supreme Court," Musharraf's spokesman, Rashid Qureshi, was quoted as saying by state-run Associated Press of Pakistan. "The president has stated earlier that any judgment the Supreme Court arrives at will be honored, respected and adhered to."

Exiled former Prime Minister Benazir Bhutto declared it to be one of the most remarkable judgments in the history of Pakistan's judiciary.

The movement in support of Chaudhry had "turned into struggle against dictatorship, (for the) restoration of the Constitution and for supremacy of the Parliament," she said in a statement.

At the State Department, deputy spokesman Tom Casey said the reinistatement was in keeping with constitutional procedures and "respects the rule of law."



Court Gags Broadway Beast Actor's Lawyer
Lawyer Blog News | 2007/07/20 08:04

A lawyer for a Broadway actor accused of having sexual contact with a 15-year-old girl may not publicize the teen's name in an effort to learn whether she has falsely accused anyone of molesting her, an appeals court ruled Thursday. The appeals court rejected the attempt by lawyer Ronald P. Fischetti to lift the limited gag order imposed on him by the judge who is overseeing the sex abuse case of actor James Barbour, who played the beast in Disney's "Beauty and the Beast."

Fischetti told a lower court judge the district attorney's office set up a telephone hot line to receive calls about Barbour and he wanted to do something similar.

"I want to put up a hot line with her (the victim's) name on it (and place it) in the newspapers," Fischetti said. "We believe that this alleged victim has made these false allegations before."

The court upheld the judge's decision not to allow it, saying that Fischetti had shown no good faith basis for suggesting the girl had a history of falsely accusing anyone. It said that without such a showing, the policy interest of having sex crimes victims come forward without fear of exposure "outweighs what would amount to a fishing expedition."

Barbour, 40, pleaded not guilty in December to charges of sexual abuse and criminal sex act against the girl, a fan and aspiring actress, in 2001.

Barbour was starring in "Jane Eyre," and a high school drama teacher arranged for the girl and her parents to see the musical. The girl, now 20, went backstage alone after the show, and Barbour began touching her sexually, prosecutors said.



'Mortal Kombat' Developer Faces Class Action Suit
Court Feed News | 2007/07/19 17:04

Investors are suing Chicago-based Midway Games, Inc., alleging insider trading and misleading stockholders about prospects for the company's shares between August 2005 and May 2006.  Midway Games, Inc., known for its successful Mortal Kombat videogame franchise, is a Chicago-based videogame developer for platforms like Microsoft's Xbox 360, Sony's Playstation 3, and Nintendo’s Wii.

The class action lawsuit hinges on shareholder complaints concerning upper-management communications between August, 2005 and May, 2006 and insider trades made in December, 2005 and January, 2006.

The plaintiff in the case, Stephan Dennis, alleges that top executives at Midway knew of a primary investor’s intentions to relenquish ownership of the company and sold out before the stock price took a hit.

Dennis and other shareholders are joining with at least nine other law firms around the country in response to the millions of dollars lost by investors as Midway’s stock plummeted 75 percent to $6 per share recently.  Stock prices were around $22 per share at the time of the alleged insider trading.

Media tycoon Sumner Redstone, the beneficial owner of more than 89 percent of Midway Games, Inc, turned over majority control and almost 33 million shares of the company to his daughter, Shari Redstone, on December 28, 2005.

“Insiders knew [Mr. Redstone’s involvement] was the only thing propping up the stock,” said Kenneth Vianale, a lawyer with Florida-based Vianale & Vianale LLP. Vianale’s firm joined the class action suit on Monday.

The case against the videogame company alleges that insiders knew Redstone was planning to give control over to National Amusements Inc., a Massachusetts-based movie theater company controlled by his daughter.

Ms. Redstone is the president of both National Amusements, Inc. and Sumco, Inc. Together, these two companies control almost 75 percent of Midway.

But less than two weeks before Mr. Redstone relinquished his direct control, the President and CEO of Midway Games, David Zucker, began to unload 550,000 of his own Midway shares.  At the time, Midway stock was trading at a six year high, reaching a peak of $23.26 per share in mid-December.  By January 6, he had pocketed more than $9 million before taxes.  Zucker had never before sold Midway stock.

Mr. Zucker was not alone. Thomas Powell, Executive Vice President and CFO of Midway, sold 40,500 shares on December 20, just eight days before Redstone’s deal. The same day, Miguel Iribarren, Midway’s vice president of finance sold 15,000 shares.  Assistant Treasurer James Boyle sold 15,000 shares the next day.  Chief Marketing Officer Steven Allison sold 21,250 the day after that.  These five men are the defendants in the class action suit.

Two months after the Redstone deal went into effect, stock prices for Midway had dropped more than 50 percent to $9.91 per share.

In order to be successful, attorneys for the plaintiffs will have to prove Midway executives intentionally withheld knowledge of the Redstone deal and knew that executing trades on that knowledge was illegal, said Mitch Herr, a former chief trial council for the southeast region of the U.S. for the SEC.

Plaintiffs must also show that withholding information about the Redstone deal constituted an omission or misrepresentation of the company's financial prospects, and that they have been damaged. 

At this time there is no reason to believe the Redstone family was a part of the allegedly illegal activity, Vianale says.

A spokesperson for Midway Games, Inc. was not available for comment.

Shares of Midway Games, Inc. were up 7 cents to $6.07 per share in afternoon trading Wednesday.  Midway shares are down nearly 29 percent from a year ago.



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