A California
appeals court on Friday reversed a 4-year-old order barring the publication of
a DVD-cracking tool on the Internet, finding the injunction violated the
defendant's free speech rights.
The case was
closely watched as a test of how much protection companies can expect in
California for trade secrets that become widely distributed online.
The plaintiff,
the DVD Copy Control Association, had argued that Andrew Bunner violated its
intellectual property rights by posting on the Internet code known as DeCSS
that can be used to bypass Hollywood's encryption scheme for DVDs. Bunner's
attorneys had countered that the code was no longer a secret by the time he
posted it on his Web site.
On Friday,
California's Sixth Circuit Court of Appeals agreed, reversing a trial judge's
order first issued in 1999.
"The
preliminary injunction...burdens more speech than necessary to protect DVD
CCA's property interest and was an unlawful prior restraint upon Bunner's right
to free speech," the three-judge panel wrote in its decision.
The decision
ends the last strand of Hollywood's legal attack on DeCSS in the United States,
an effort that began when Norwegian programmer Jon Johansen posted DeCSS on the
Internet. A criminal case against Johansen in his home country was thrown out
late last year.
The ruling does
not make it legal in California to post DeCSS online--an action that has been
found illegal by a federal appeals court. But the case does mark a rare victory
for free speech advocates in the United States facing off with Hollywood over
encryption technology that hampers DVD copying and prevents discs from playing
on unauthorized machines.
The motion
picture industry won a key decision last week against DVD-copying software
maker 321 Studios, with a federal judge in San Jose, Calif., ordering the
company to pull its products from stores. That decision came two years after a
federal appeals court in New York found that DeCSS violated U.S. copyright law and
upheld a lower court order prohibiting publisher 2600 from linking to the code
from its Web site.
Those cases
applied a federal law known as the Digital Millennium Copyright Act (DMCA),
which makes it illegal to circumvent copy-protection schemes or traffic in
circumvention tools.
By contrast, the
Bunner case dealt with California state trade secrets law, addressing technical
arguments over what practices constitute trade-secret violations and what steps
companies must take to preserve their claims to secrecy after proprietary
information is made public.
Bunner attorney
Allon Levy of Hopkins & Carley in San Jose, Calif., said the decision
establishes important protections for software programmers who use legal
methods to learn about proprietary products. According to Levy, programmers had
gleaned information used to create DeCSS using widely accepted software
engineering techniques known as reverse engineering. Had the DVD CCA prevailed
in the case, he said, programmers would have faced new uncertainties over
trade-secret claims asserted against legitimately created products.
"The court
found that reverse engineering is presumptively legal, something the plaintiff
had fought tooth and nail against," he said.
The DVD CCA has
long argued that posting DeCSS online is illegal under federal and California
state law. But, in a surprise move earlier this year, the group asked the court
to dismiss the case.
"The DVD
CCA is disappointed by and disagrees with today's decision by the California
Court of Appeals," the group said in a statement. "We are reviewing
the ruling in its entirety to determine our next steps in this case."
01-03-2004
http://news.com.com/2100-1026_3-5166887.html
A judge has
accepted the SCO Group's changes to a lawsuit against IBM that now seeks $5
billion in damages for Big Blue's alleged moving of Unix intellectual property
into Linux.
Because IBM
didn't oppose SCO's motion to amend its claims--a motion that was
"subject to
IBM's right to move against the amended pleadings"--Magistrate Judge
Brooke Wells accepted SCO's new legal attack, she said in a filing Wednesday in
the U.S. District Court in Utah.
The second
amended complaint drops SCO's claim that IBM misappropriated trade secrets, but
adds a charge of copyright infringement. SCO seeks $1 billion in damages for
unfair competition and $1 billion for each of four allegations of breaching various
contracts by which SCO licensed Unix to IBM and a company Big Blue acquired,
Sequent.
When SCO's suit
against IBM began, in March 2003, it sought more than $1 billion in damages. In
April, an amendment to the suit raised the figure to $3 billion.
"The amount
is starting to become breathtaking," said John Ferrell, an
intellectual-property attorney at law firm Carr & Ferrell, referring to the
damages SCO and its attorney, David Boies, are seeking.
Linux is a close
relative to Unix and works identically in many ways, but Linux is open-source
software that may be obtained and modified freely, whereas Unix is closed and
proprietary. SCO argues that IBM illegally moved Unix technology to Linux,
technology it was required to keep secret.
The suit has
galvanized the computing industry, which has embraced Linux warmly. The suit
doesn't appear to have thwarted Linux enthusiasm: revenue from Linux server
sales jumped 63 percent to $960 million in the fourth quarter of 2003,
according to research firm IDC.
The lawsuit is
one of three SCO is fighting over the issue of Unix and Linux. The Lindon,
Utah-based company also sued Novell, a recent Linux convert and a prior owner
of the Unix technology, over Novell's assertions that it still owns Unix
copyrights.
And Red Hat, the
leading seller of the Linux operating system, filed a suit seeking a
declaration that the company didn't violate SCO's copyrights or trade secrets.
More legal
wrangling is expected. SCO said it will sue Linux users as well, though it
missed a mid-February deadline.
01-03-2004
http://news.com.com/2100-7344_3-5166918.html
By Constant
Brand, AP
Belgium's public
enemy Number One and three co-defendants went on trial today for kidnapping,
abusing and killing young girls in a mid-1990s crime spree that shocked the
country - as much for inept police work as for the depravity of the acts.
The first day of
the trial of Marc Dutroux, aged 47, his ex-wife and two others, which opened in
Arlon, was spent selecting 12 jurors amid tight security and intense attention
from Belgian and foreign media.
In a letter to
the VTM television network, Dutroux said he was part of a criminal network with
tentacles in Belgian law enforcement. He called co-defendant Michel Nihoul, a
62-year-old Brussels lawyer, an underworld lynchpin.
The trial
focuses on six girls, two of them only eight years old, who were randomly
kidnapped and abused in the basement in one of Dutroux's homes.
Four died and
two were rescued in a case that showed how shoddy police work let a convicted
child rapist operate unchecked. In 1989, Dutroux was convicted of abducting and
raping young women, including one minor.
The
ex-electrician was free on parole for those crimes when he is alleged to have
abducted, raped, killed the girls in the mid-1990s, the case in court now.
A 1997
parliamentary probe found that rivalries between different police units had hindered
the investigation into the missing victims.
Dutroux
allegedly began raping girls as young as 8, helped by his wife, Michelle
Martin, 44, who sometimes drove the kidnap van, and two others, Michel
Lelievre, 32, and Michel Nihoul, 62.
Hundreds of police
deployed in Arlon, a sleepy southern Belgian town where the trial opened in a
new, barricaded courthouse whose defendants box is equipped with bulletproof
glass.
During jury
selection, the four accused sat silently in the dock. At one point Dutroux
seemed to nod off.
"Your
client is going to fall asleep," Judge Goux told Xavier Magnee, one of
Dutroux' three lawyers. M. Goux apologised to the 180 candidate jurors for the
slow selection process. "There are so many of you. This can't be done as
quickly as you like."
Tomorrow, the
prosecution will read out the charges and on Wednesday the defendants will
likely enter their pleas. Some 500 witnesses will be heard. The trial is likely
to run until 20 May.
Dutroux was
arrested 13 August, 1996, on a tip-off.
Two days later,
police found two girls, Sabine Dardenne, 12, and Laetitia Delhez, 14, alive in
his cellar. Again two days later, the bodies of four girls were found in
backyard graves: An Marchal and Eefje Lambrecks - kidnapped on the Belgian
coast in 1996, when they were 17 and 18 respectively - and Julie Lejeune and
Melissa Russo who were 8 when taken in 1995.
Dutroux is
charged with kidnapping these six girls and killing four of them. He is also
charged with killing an accomplice, Bernard Weinstein, whose body was found in
a yard next to one of Dutroux' seven decrepit homes in 1996.
When police
arrested Dutroux, they allegedly found video tapes showing him sexually abusing
girls. Additionally, he is charged with raping 3 Slovak girls, also in the mid-1990s.
Dutroux's
ex-wife, Michelle Martin is accused of conspiracy in the kidnappings. Lelievre
faces various kidnapping, rape and drugs possession charges and Nihoul faces
charges of kidnapping Laetitia Delhez.
The most
wrenching part of the case is the death of Julie Lejeune and Melissa Russo, the
8-year-olds.
Police believe
they starved to death in Dutroux's dungeon when he went to jail for four months
in December 1995, for stealing a car. He told police he asked his wife to feed
the girls but that she had not done so.
Paul Marchal,
the father of An, who has long been unhappy with police work, said outside the
courthouse, "I hope that the trial will bring out more of the truth."
It has never
been established how his daughter and her friend Eefje Lambrecks died. Police
believe they may have been drugged and buried alive.
Public outrage
over the kidnappings, rapes and murders boiled over into massive street
demonstrations across Belgium. In October 1996, some 300,000 people
demonstrated in Brussels to demand better law enforcement.
01-03-2004
http://news.independent.co.uk/europe/story.jsp?story=496867
The Israeli army
is accused of failing to probe many deaths
Human rights
campaigners have welcomed the conviction of an Israeli army officer for the
killing of a Palestinian teenager in the West Bank.
A military court
found Captain Zvi Kurtzky guilty of negligence over the death of Mohammed Zeid
in October 2002.
The boy was
fatally wounded in his home by a bullet fired by Captain Kurtzky.
It is the first
time a soldier has been convicted over the death of a Palestinian since the
start of the current intifada.
The officer was
using live ammunition to disperse youths throwing stones in the West Bank
village of Nazlat Zeid.
Although right
groups welcomed the conviction, the Israeli group B'Tselem says the military
has failed to investigate adequately hundreds of deaths of other Palestinians
killed by the military in unclear circumstances.
According to a
spokesman for the Israeli Defence Forces, every incident in which someone not
involved in terrorism is injured is investigated first by the army.
If suspicious,
the incident is further investigated by military police.
Last month, a
soldier was charged with manslaughter for the Gaza shooting of UK activist Tom
Hurndall.
01-03-2004
http://news.bbc.co.uk/2/hi/middle_east/3522879.stm
WASHINGTON - A
federal judge Thursday denied Republican congressional candidate Robin Ficker's
claim on the domain name "robinficker.com," saying the Web site owner
had a First Amendment right to use the candidate's name.
"By
entering the public arena as a candidate for political office, (Ficker) has
invited comments and critique, which operates in the spirit of healthy
democracy of this country," U.S. District Judge Alexander Williams Jr.
wrote in the four-page ruling.
The Web site,
robinficker.com, includes disparaging stories about Ficker, who is running in
the GOP primary for Maryland's 8th Congressional District. At one point, the
site redirected Web surfers to the official campaign site of one of Ficker's
opponents in the primary, Chuck Floyd.
Ficker sued John
Tuohy, the owner of the domain name robinficker.com. Tuohy is also a paid
political consultant to Floyd, who has paid Tuohy $13,500 for his services,
according to the latest Federal Election Commission records. Floyd has
repeatedly denied that he knew of Tuohy's ownership of the domain name.
With the primary
days away, Ficker said Thursday he does not plan to appeal the case, because he
doubts it will be heard before Tuesday.
"I don't
think there are any legal recourses that are going to be practical at this
point. So, we are just going to live with this decision," Ficker said.
He sued under
the Anti-Cybersquatting Consumer Protection Act, which protects against
unauthorized use of trademarks - and individual names - as domain names.
But Williams
said that Tuohy's First Amendment rights outweighed Ficker's claim. He also
wrote that Ficker, who sought to have the Web site taken down, failed to meet
the burden of proof in the case.
"The
plaintiff (Ficker) has failed to demonstrate the he will suffer irreparable
harm if the court denies the requested relief," the opinion said.
Williams was
also swayed by a disclaimer that appeared at the top of the Web site. It said:
"This is an unofficial site. It is not Robin Ficker for US Congress. Robin
Ficker for Congress can be found here." A link on the word
"here" led browsers to Ficker's official campaign site,
robinficker2004.com.
Ficker noted
after the ruling that the disclaimer did not appear on Tuohy's Web site until
recently. Williams heard arguments in the case by phone Thursday morning and
issued his ruling later in the day. Tuohy could not be reached for comment.
Ficker, Floyd
and a third Republican running in the 8th District primary, Steve Rosen, are
scheduled to appear Friday at 10 a.m. on WTOP's radio call-in show,
"Politics Program."
02-03-2004
http://www.sunherald.com/mld/sunherald/news/politics/8050576.htm
Muslim women
walk past police in Ayodhya, on 16 October 2003
Ayodhya has long
been a focus for Hindu-Muslim tensions
Fifteen men have
been sentenced to life in the Indian state of Rajasthan for a series of train
blasts in 1993.
The men, who are
all Muslim, carried out the bombings to avenge the destruction of the Babri
Mosque in Ayodhya, the prosecution said.
Two people were
killed and 22 injured in the train attacks across India on 6 December 1993 -
exactly a year after Hindus pulled the mosque down.
A defence lawyer
told the BBC the men would appeal against the verdict.
The men were
tried in a special Tada or anti-terrorism court in Ajmer, Rajasthan.
They were
convicted for planting bombs in five trains, one of which failed to go off,
reported Indian news agency PTI.
One of the
accused absconded during the trial and is still at large, the agency said.
History of
violence
The razing of
the mosque in Ayodhya, Uttar Pradesh state, sparked riots between Hindus and
the India's Muslim minority which left 2,000 people dead.
The site
continues to be a focus of Hindu-Muslim confrontation.
In 2002, more
than 50 people died when a train carrying Hindu activists returning to Gujarat
from Ayodhya was set alight by a Muslim mob.
At least 900
Muslims died in the violence that erupted following this attack.
02-03-2004
http://news.bbc.co.uk/2/hi/south_asia/3496638.stm
SAN FRANCISCO,
March 1 -- In what could be a precedent-setting decision, the California
Supreme Court ruled Monday that a Roman Catholic charity must offer
birth-control coverage to its employees even though the church considers
contraception a sin.
The 6 to 1
decision marked the first such ruling by a state's highest court. Experts said
the ruling could affect thousands of workers at Catholic hospitals and other
church-backed institutions in California and prompt other states to fashion
similar laws.
California is
one of 20 states to require that all company-provided health plans include
contraception coverage if the plans have prescription drug benefits.
The high court
said that Catholic Charities is no different from other businesses in
California, where "religious employers" such as churches are exempt
from the requirement. Catholic Charities argued that it, too, should be exempt.
But the Supreme
Court ruled that the charity is not a religious employer because it offers such
secular services as counseling, low-income housing and immigration services to
people of all faiths, without directly preaching Catholic values. Justice
Kathryn Mickle Werdegar wrote that a "significant majority" of the
people served by the charity are not Catholic. The court also noted that the
charity employs workers of differing religions.
Versions of the
law considered in Monday's ruling have been adopted in the 20 states after
lawmakers concluded that private employee prescription plans without
contraceptive benefits discriminated against women.
In addition to
California, the states that require private-sector insurance coverage for
prescription contraceptives are Arizona, Connecticut, Delaware, Iowa, Georgia,
Hawaii, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New
Mexico, New York, North Carolina, Rhode Island, Texas, Vermont and Washington.
02-03-2004
http://www.washingtonpost.com/wp-dyn/articles/A20797-2004Mar1.html
Online
pornography has been around almost as long as the Internet itself, but Congress
and the courts are still tangling over ways to protect Web-surfing children
from smut that adults can legally see and buy.
The Supreme
Court takes its third crack at the difficult issue Tuesday, as justices look at
the free-speech ramifications of Congress' latest attempt to require
antipornography safeguards.
The justices
struck down the first version of a child-protection law passed in 1996, during
the Clinton administration, and refused to sign off on a replacement law passed
two years later. That law has never taken effect, and is now before the
justices for a second time.
"There is a
compelling government interest in protecting minors from the effects of
material that is not obscene by adult standards but that is nonetheless harmful
to minors," the Bush administration's top Supreme Court lawyer argued in a
court filing. "The Web poses a serious threat to that compelling
interest."
Free pornography
is easy to find online, placed there as a hook to lure paying customers, the
Bush administration and its backers argue. Minors can find that free material
as easily as adults, although it would be illegal for a store owner to sell
them a paper copy of a magazine that shows the same images.
"Minors
today can search the Web as easily as they can change television
channels," Solicitor General Theodore Olson wrote. "Thus, in the
seclusion of their homes or those of friends, unsupervised minors can, with the
click of a mouse, visit one pornographic site after another."
Kids can print
those free teasers without paying to enter adult sites, Olson wrote.
Many porn sites
try to limit access to adults, with varying success.
The 1998 Child
Online Protection Act would make it a crime for commercial Web sites to
knowingly place material that is "harmful to minors" within their
unrestricted reach.
COPA could mean
six months in jail and $50,000 in fines for first-time violators and additional
fines for repeat offenders. It is on hold pending court challenges.
The American
Civil Liberties Union claims the law violates the First Amendment guarantee of
free speech. The ACLU challenged the law on behalf of online bookstores,
artists and others, including operators of Web sites that offer explicit how-to
sex advice or health information.
The 3rd U.S.
Circuit Court of Appeals first ruled the law unconstitutional on grounds that
it allowed Internet content to be judged by "contemporary community
standards." Given the widespread availability of the Internet, the
appellate court said, the law would force every site to abide by the most
restrictive community's standards.
In its first
look at COPA, the Supreme Court delivered a partial victory to the government
by ruling that the community standards issue alone did not make the law
unconstitutional.
The justices
then sent the case back for a fuller examination of the other free speech
objections raised by the ACLU.
The
Philadelphia-based federal appeals court then struck down the law a second
time, on much broader grounds.
The law was
unconstitutional censorship when it was passed and is both unconstitutional and
unnecessary now, the ACLU argued in a court filing. It ignores other,
potentially effective tools to protect children, such as filtering software,
the ACLU said.
"COPA was
passed in 1998, when the Internet was still relatively new and less
understood," ACLU lawyers argued. "COPA's bludgeon suppresses an
enormous amount of speech protected for adults and is unnecessary and
ill-tailored to address the government's interest in protecting children from
sexually explicit content."
02-03-2004
http://www.washingtonpost.com/wp-dyn/articles/A21935-2004Mar2.html
Rebiya Kadeer
had been a prominent ethnic leader in China
A Uighur
millionaire jailed by China for allegedly endangering national security has had
her sentence reduced, a US-based rights group said.
Rebiya Kadeer is
now due to be released in August 2006, one year early, the Dui Hua Foundation
said in a statement.
The move comes a
week after the US State Department said China was "backsliding" on
human rights, and ahead of the Chinese parliament's congress.
Rights groups
and the US say Kadeer was sentenced on insufficient evidence.
The Uighur
businesswoman, a prominent member of the Uighur ethnic minority in China's
north-west Xinjiang province, was charged in 2000 with passing information to
foreigners, separatism and attempting to overthrow the state, and sentenced to
eight years in jail.
Transcripts of
her trial centred on local newspaper reports on the treatment of Muslim Uighurs
in Xinjiang that Rebiya had sent to her husband in the US.
John Kamm, director
of the Dui Hua Foundation, said that Kadeer would now be released in August
2006, or even earlier if she "continues to demonstrate 'genuine repentance
and willingness to reform'".
Rights groups
believe that Kadeer's prosecution was connected to her husband's political
activism.
Sidik Rouzi, a
former political prisoner who fled to the US in 1996, has publicly condemned
China for its treatment of the Uighurs, who make up more than half the mainly
Muslim population of Xinjiang.
Kadeer was also
politically active. At the time of her arrest, she was on her way to meet a
visiting delegation from the United States Congressional Research Service to
complain about political prisoners in the province.
Before her
arrest, Kadeer ran the 1,000 Families Mothers' Project, which helped Uighur
women start businesses.
She was also a
member of the Chinese Government's top advisory group and attended a UN women's
conference in Beijing in 1995.
US officials
have repeatedly raised the matter of Kadeer's arrest with the Chinese
authorities.
The Chinese
authorities have blamed Uighur separatists for a series of bombings and riots,
which have led to hundreds of executions and arbitrary detentions over the
years.
03-03-2004
http://news.bbc.co.uk/2/hi/asia-pacific/3528535.stm
Appeals Court
Decision Disputes Government-Set Rates for Competitors Leasing Networks
A U.S. appeals
court yesterday struck down key elements of a Federal Communications Commission
rule governing local telephone competition, handing a major legal victory to
the regional telecom giants as they attempt to ward off insurgent rivals.
If implemented,
both sides in the debate said, the decision would put in jeopardy an
eight-year-old system that allows competitors to lease phone networks owned by
large local carriers such as Verizon Communications Inc. at government-mandated
rates.
In a 3-0 ruling
by the D.C. Circuit Court of Appeals, the judges wrote that the FCC lacks the
authority to delegate responsibility for setting those rates to the states. The
court also ruled the FCC had failed to prove that competitors in the local
phone market are "impaired" without government-regulated access to
critical parts of the phone network controlled by the regional giants.
The ruling,
scheduled to take effect in 60 days, represents the latest chapter in a
long-running debate over what kind of government safeguards are needed to
ensure consumers have a choice in their phone service. The matter has now been
kicked back and forth between the courts and the FCC several times.
In their written
opinion, the judges lashed out at the FCC for its "failure, after eight
years, to develop lawful . . . rules, and its apparent unwillingness to adhere
to prior judicial rulings."
But a majority
of FCC commissioners, the panel's two Democrats along with Republican Kevin J.
Martin, issued a statement declaring they will ask for a stay to delay the
decision, and will appeal to the U.S. Supreme Court to have it overturned.
"Today over
50 million Americans benefit from the new local and long distance one-rate
plans offered by both incumbents and competitors that are a result of our
rules," said the statement, which was also signed by commissioners Michael
J. Copps and Jonathan S. Adelstein.
Meanwhile, the
United States Telecom Association, a trade group for the regional phone giants
that had challenged the FCC's rules in court, trumpeted the decision as a win
for "real competition" as opposed to "government-managed
competition."
"This is a
decisive victory for consumers, for innovation and for free markets," USTA
President Walter B. McCormick Jr. said in a statement. The USTA represents the
regional phone companies once known as Baby Bells, because they were created
following the 1984 breakup of AT&T Corp., then known as Ma Bell.
While the court
rejected rules governing basic phone lines, it upheld an FCC ruling that would
allow broadband providers to build their high-speed networks without being
forced to share them with competitors.
A trade group
representing telephone equipment makers cheered that choice, saying it will
give carriers more incentive to invest in new networks.
"Once
again, it just proves that the broadband rules are correct," said Grant
Seiffert, vice president of external affairs and global policy for the
Telecommunications Industry Association. "If you're going to take the risk
to invest, you're going to get a return on your investment now."
The regional
phone companies, which have expressed reluctance to spend on broadband until
their existing voice networks are freed from regulation, indicated yesterday
that they'll be more willing to spend now in light of the ruling.
"It's given
us the green light to go forward," said James C. Smith, senior vice
president of SBC Communications Inc., though he added that some rules still
merit changing in order to "create the best environment for
broadband."
The regional
companies have argued that government regulation of the local phone networks is
not needed because there already is plenty of competition from wireless and
cable firms and from companies selling phone service over the Internet.
Smith of SBC
said that even without regulation, the regional companies will continue to give
competitors access to their networks -- but at rates set by the market, not by
the government.
The regional
companies say that the government rates are too low and that they give rivals
an unfair advantage. Competitors such as AT&T Corp. and MCI say that
without the regulated rates, they would have to get out of the local phone
business in many markets because the regional companies' rates would be too
high.
"The right
of all Americans to choose their local telephone service provider is at stake,
and the advancement of competitive broadband services is at risk,"
AT&T General Counsel James W. Cicconi said in a statement. "Consumers
across the nation should be outraged at the prospect of being unplugged and
underserved if the D.C. Circuit decision is left unchallenged."
The FCC itself
has been deeply divided over the issue. Last February, Chairman Michael K.
Powell lost a key vote on the matter when Republican Martin sided with the
Democrats.
Powell indicated
yesterday that he is not interested in appealing the circuit court's decision,
and would rather take another shot at rewriting the rules in a way that
satisfies the court's criticisms.
03-03-2004
http://www.washingtonpost.com/wp-dyn/articles/A24725-2004Mar2_2.html
A defense
attorney was dismissed Wednesday after a judge ruled the lawyer made himself a
witness in a case against a father accused of raping and sodomizing his
11-year-old daughter just hours before she was found dead.
Defense attorney
Raymond Dague injected himself into the case against his client, Timothy Lucie,
by the way he questioned a prosecution witness during a hearing last month on
whether to suppress an alleged confession by Lucie, Onondaga County Judge
William Walsh said.
"To me it's
not a question of whether you could be a witness, but whether you should be a
witness. My feeling is you should," the judge said.
Dague was
stunned by the decision, even telling Walsh, "I'm at a loss for
words." Outside the courtroom, Dague criticized the judge and prosecution.
"This is
extremely prejudicial to the defense, to remove the attorney right at the
end," Dague said, noting he's spent 4 1/2 months preparing for the case.
He said
prosecutors were resorting to "legal tricks" to remove him because of
his effective defense of Lucie.
"I am
committed to the family. I know he didn't do it, and I know I can show a jury
that," Dague said.
Walsh said Lucie
could pick a new attorney, or the court would assign him one.
Appeals are
typically not heard until a case is concluded, but Dague said he would review
the law to see if his removal could be appealed immediately.
Lucie, 46, who
ran a furniture business from his house, was indicted in November on charges of
felony first-degree rape and felony first-degree sodomy.
Police allege he
raped and sodomized his daughter Valerie in their home Sept. 30. Valerie Lucie
was found hanging in her bedroom later that day. Lucie was charged after an
autopsy revealed that Valerie had been sexually abused before her death, which
police labeled a suicide.
Police
questioned Lucie for six hours on Oct. 13, at which time they said he failed a
polygraph test. At the end of that session, Lucie allegedly gave police a
two-page statement saying he raped the girl in the shower after threatening to
cut her hair unless she did what she was told.
But Lucie
recanted his admission as police prepared to put it on videotape. He said
police threatened to take his four younger sons away unless he confessed.
Although Walsh
ruled the confession can be used at trial, Dague argued the statement was given
to police by his client after he was hired to represent him.
To support his
claim, Dague questioned Sgt. Tom Connellan, the case supervisor, about the
timing of a phone call the lawyer made to police headquarters and the timing of
Lucie's statement to investigators.
Walsh noted
Dague phrased his questions, asking "didn't you tell me" and
"didn't I ask you."
"You made
yourself an unsworn witness. You made yourself a participant in this
case," Walsh said.
The judge said
if Lucie testified in his own defense about being coerced to confess, Dague's
testimony would become relevant to support Lucie's allegations.
Assistant
District Attorney Christine Garvey told Walsh if Dague became a witness she
would be unable to cross-examine him because of his privileged status as
Lucie's defense lawyer. She also argued Dague could prejudice his own case if
he were unable to pursue certain questions because his participation posed a
conflict of interest.
Garvey left
court without comment following the ruling.
Lucie is free on
bond awaiting trial. If convicted, he could face up to 25 years in state
prison.
03-03-2004
http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20040303/APN/403030820
Scott Peterson's
defense received a blow when a judge decided to allow jurors in his murder
trial to hear some details gathered by scent-sniffing police dogs and phone calls
intercepted to his first attorney.
Experts have
said the dog-tracking evidence could be the most damaging to the defense
assertion that Laci Peterson was at home the morning of Dec. 24, 2002, before
she vanished later that day -- when Scott Peterson claims he was fishing alone
on San Francisco Bay.
Prosecutors said
the police dogs picked up Laci Peterson's scent in several places in the days
after her disappearance, including the Berkeley Marina where Peterson told
investigators he launched his fishing boat.
Calling the
details "iffy, at best," Judge Alfred A. Delucchi tossed out
prosecution claims that the dogs had detected a broken trail of scents leading
from Laci Peterson's home to the warehouse where Scott Peterson kept his boat
and along the boat's rim.
Jurors will only
hear evidence that dogs picked up Laci Peterson's scent in the marina parking
lot and followed it along a pier and out to a pylon at the water's edge. The
slain woman's family has said that she was unaware her husband had purchased a
boat.
Court precedent
requires corroboration of any dog-tracking evidence, Delucchi said in
explaining his ruling. He said the marina evidence is admissible because Scott
Peterson has admitted going to the marina, and the bodies of his wife and unborn
son washed ashore in April along San Francisco Bay just 2 miles from there.
Delucchi also
ruled Tuesday that jurors will hear wiretapped phone conversations of Peterson
collected by investigators. Defense lawyers had argued that investigators
violated Peterson's attorney-client privilege when they listened to bits of
conversations with his first attorney, Kirk McAllister.
During the first
few months of 2003, investigators monitored about 3,000 of Peterson's calls,
including 76 between the former fertilizer salesman and his first attorney.
Delucchi said
investigators followed proper procedures when monitoring the calls and any
privileged information they heard was "so minimal to be of no
consequence."
With both sides
bound by a gag order, it's unclear exactly what evidence prosecutors plan to
use from the wiretaps. As for the dog-tracking details, prosecutors felt they
were crucial to their claim that Peterson, 31, murdered his pregnant wife in
their Modesto home then dumped her overboard.
Defense attorneys
have said the dog details were unreliable. Some experts have debunked the
prosecution theory, saying if the dogs did pick up Laci Peterson's scent, it
could have easily come from any of Scott Peterson's clothing, given that the
couple lived together.
The case resumes
Thursday when jury selection is scheduled to begin.
Peterson could
face the death penalty if convicted.
03-03-2004
www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2004/03/03/national0529EST0502.DTL
HAMBURG, Germany
-- A German appeals court has ordered a retrial of the only person convicted in
connection with the September 11, 2001 attacks in the United States.
The Federal
Criminal Court ruled Thursday that the case involving Mounir el Motassadeq must
be sent back to a lower court in Hamburg "for a new trial and
decision," Presiding Judge Klaus Tolksdorf said.
But the judge
added: "The defendant el Motassadeq is certainly far removed from being
clear of suspicion."
Lawyers for the
29-year-old Moroccan argued that he was denied a fair trial because the U.S.
refused to provide access to a key witness.
El Motassadeq,
an electrical engineering student, is serving a 15-year prison sentence after a
Hamburg court found him guilty in February 2003 of being an accessory to more
than 3,000 murders in New York and Washington and being a member of a terrorist
organization.
The court ruled
that he provided logistical support to the Hamburg-based al Qaida cell that
included September 11 suicide hijackers Mohamed Atta, Marwan al-Shehhi and Ziad
Jarrah.
El Motassadeq's
lawyers have asked the appeals court for acquittal or a retrial, alleging their
client was wrongly convicted because the U.S. refused to allow court testimony
by Ramzi Binalshibh, thought to be the Hamburg cell's key contact with al
Qaeda.
Binalshibh was
captured in Pakistan on the first anniversary of the September 11 attacks and
is in U.S. custody.
If el
Motassadeq's conviction is overturned, it would be a new setback for German
prosecutors after the Hamburg court last month acquitted his friend Abdelghani
Mzoudi of identical charges -- more than 3,000 counts of accessory to murder
and membership in a terrorist organization -- for lack of evidence.
The 15-year
sentence is the maximum the court could impose under German law for being an
accomplice to murder -- even if those murdered are numbered in the thousands.
In addition to
the 3,000-plus counts of accessory to murder, he was convicted of five counts
of attempted murder and bodily injury.
Prosecutors
alleged he provided logistical support for the Hamburg al Qaeda cell that
included lead hijacker Mohamed Atta, who piloted one of the two airliners that
crashed into the World Trade Center.
Motassadeq consistently denied the
charges during his three-and-a-half-month trial and his lawyers were seeking an
acquittal from the five-judge panel.
04-03-2004
http://edition.cnn.com/2004/WORLD/europe/03/04/germany.appeal/index.html
By Simon Baker
and James Tapsfield, PA News
A 49-year-old
railway worker was today found guilty of a series of rapes during a year-long
campaign of terrorising women in the Home Counties.
Antoni Imiela,
of Appledore, near Ashford, Kent, who attacked seven women and girls aged from
10 to 52 in a campaign of rapes in Kent, Surrey, London and Hertfordshire
between November 2001 and October 2002, received seven life sentences
He then
kidnapped a 10-year-old girl at knifepoint on the streets of Birmingham and
subjected her to a five-hour sex ordeal "in a final act of defiance"
just days before his arrest. He was found guilty of indecent assault,
kidnapping and attempted rape, relating to this incident.
The jury was
later discharged after failing to reach verdicts on two charges that Imiela
raped an 18-year-old woman in Woking, Surrey, in July 2002.
The judge said
he should not be considered for release for at least 18 years.
Imiela claimed
during the seven-week trial at Maidstone Crown Court that he had been
"fitted up" by police and said fingerprint evidence against him had
been fabricated.
His legal team
even suggested that a 10-year-old girl raped in Ashford, Kent, may have picked
up his DNA by coincidence.
But a jury of
seven men and five women dismissed his lies and found him guilty.
Imiela snatched
a 10-year-old girl as she took down posters outside a police-run youth club in
Ashford, Kent, and dragged her down a muddy path and through stinging nettles.
Despite her
pleas that she was only 10, he indecently assaulted her and raped her before
leaving her to stumble half-naked to a nearby house for help.
A huge police
hunt followed the horrific attack but despite nearly 3,000 men giving DNA
samples in the following months, Imiela never entered the frame.
Then, after a
gap of eight months, he struck twice in one day in July 2002, first in
Earlswood, Surrey - a place he was familiar with through his work on the
railways - and then in Putney, South-west London.
The 30-year-old
woman in Surrey was left with 56 separate injuries after she was repeatedly
punched by Imiela, who had grabbed her as she jogged along a riverside path
before tying and raping her.
Just six hours
later he pounced again, this time on a 26-year-old woman walking across Putney
Heath in an almost "carbon copy" of the previous attack in words and
actions.
But not content
with just raping the woman, callous Imiela stole his victim's mobile phone and,
as he walked away, used it to taunt her mother and sister about the rape.
The next two
months saw him continue to stalk Surrey and South-west London, carrying out
further attacks on women and a brave 13-year-old girl who tried to argue with
Imiela during her ordeal.
By September
2002, a huge manhunt was under way involving at least three police forces.
Imiela travelled
further afield and in October 2002 he raped a 14-year-old girl in Stevenage,
Hertfordshire, as she walked near woodland.
A month after
the Hertfordshire attack - as the net closed in and scientists tested a DNA
sample he had voluntarily given to police - he drove to Birmingham and kidnapped
a 10-year-old girl from the street.
In a five-hour
ordeal which she recounted in detail to police, the girl was driven around the
West Midlands and forced into indecent acts with Imiela, who tried but failed
to rape her.
Giving evidence
in his defence, Imiela insisted he was a homosexual and although admitted he
had led a "secret life" by regularly using prostitutes and cruising
gay bars, insisted that only "a beast" could have carried out the
callous attacks.
His lies were
made to look preposterous by a wealth of DNA and other forensic evidence
linking him to the rapes, some of which was overwhelming.
It included a
one in one billion chance that DNA found in a sample taken from a 10-year-old
girl raped in Ashford, Kent, was not from Imiela and a one in 114 million
chance that someone else left DNA on a 30-year-old victim.
Fibres which
matched those found on Imiela's clothes were also discovered by scientists on
garments worn by victims while telephone and bank card records placed him in
the same area as the attacks.
His fingerprint
was even found on a bag carried by one of his teenage victims which he had
forced her to use as a pillow as he raped her in woodland.
04-03-2004
http://news.independent.co.uk/uk/crime/story.jsp?story=497761
The state
Appellate Division gave a qualified approval Thursday of the state
Legislature's $2.5 billion bailout of New York City for its 1970s debt.
The state
bonding would provide New York City with $500 million in budget relief.
Officials for
Gov. George Pataki and legislative leaders were reviewing the complex decision
and didn't immediately comment.
"On the
face, we view this as a decision that will allow the city to proceed with the
bond sale," said Kate O'Brien Ahlers of the city Law Department. The
department, however, is continuing to review the lengthy decisions involving
several lower-court rulings.
The appeals
panel approved $170 million annual payments as approved by the Legislature a
year ago, but its constitutionality was challenged by the state Local
Government Assistance Corp. controlled by Gov. George Pataki and state
Comptroller Alan Hevesi.
The LGAC board
argued it was unconstitutional to make state taxpayers take over New York
City's debt from 30 years ago and to extend the payments and increase interest
costs.
In September,
state Supreme Court Judge Louis Benza's decision supported the city's case that
the Pataki administration, which controls the LGAC, improperly blocked what
legislative leaders and New York City Mayor Michael Bloomberg insists is a
legally valid refinancing plan for Municipal Assistance Corp. bonds.
Bloomberg hopes
to sell the bonds before the city's fiscal year starts in June, avoiding a $500
million debt payment essential to balance the city's budget. He said losing the
bailout approved by the state Legislature over Pataki's veto would force the
city to make additional, unspecified cost-cutting measures.
Pataki opposed
the city refinancing plan which would transfer $2.5 billion of city debt to
state taxpayers and up the ultimate cost to more than $5 billion. The bailout
calls for converting five years of $500 million annual city debt to 30-year
bonds that would be paid off by state taxpayers at the rate of $170 million a
year.
The three-member
LGAC board, which includes state Comptroller Alan Hevesi, a Democrat and former
city comptroller, and two Pataki appointees, voted unanimously Aug. 6 not to
approve the bailout.
04-03-2004
http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20040304/APN/403040800
The Ohio Supreme
Court on Wednesday rejected a lawyer's right to invoke attorney-client
privilege in refusing to say if a now-dead client knew anything about the
disappearance of a 9-year-old girl.
The court ruled
7-0 that the spouse of the deceased client has the right to waive
confidentiality.
Two lower courts
had ordered Beth Lewis to disclose whether her client, Jan Franks, had
information about Erica Baker, who vanished in 1999 while walking her dog near
her home in a Dayton suburb.
Franks died of a
drug overdose in 2001. Her husband, Shane Franks, granted Lewis permission to
testify, but Lewis argued that state law gave her the choice to refuse if it is
in her client's interest.
Writing for the
court, Chief Justice Thomas Moyer rejected that interpretation, saying:
"The attorney-client privilege belongs solely to the client -- not the
attorney."
No one has been
charged in the Erica's disappearance. According to an appeals court, police
received information that Jan Franks and other people may have been in a van
that struck and killed the girl.
04-03-2004
www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2004/03/03/national0944EST0546.DTL
SYDNEY -- The
makers of Kazaa, the peer-to-peer file sharing software, failed to quash a
court order Thursday that allowed the music industry to raid its Sydney-based
offices, prompting a furious response from its chief executive.
In February, the
music industry was granted an Anton Piller order, which grants copyright
holders the rights of search and seizure, allowing it to raid 12 sites across
Australia to seize documents and data. Sites raided included the offices of
Sharman Networks, the home of its chief executive, several universities and
other companies that were believed to be holding
Following the
raids, Sharman cried foul. It made an application to have the order invalidated
by Australia's federal court, arguing the music industry did not disclose all
material facts to the judge when the order was obtained.
Similar actions
had been brought against Sharman in the Netherlands and the United States, the
company said; that was a material fact and was not appropriately disclosed to
the court at the time the Anton Piller application was made, Sharman claimed.
The company also argued the Anton Piller order was overkill.
Anton Piller
orders are usually granted when there is a significant chance that the evidence
sought would be destroyed if subpoenaed, and are granted without the prior
knowledge of the party being raided. Sharman claimed it always complied when
asked to provide documents to courts during similar proceedings in other
jurisdictions and was therefore unlikely to destroy any evidence.
On Thursday
afternoon Sharman's application to have the order set aside was denied.
"Although
the detail of the U.S. proceedings was not disclosed to me on 5 February 2004,
I have reached the conclusion that the non-disclosure was not material,"
Justice Murray Wilcox's judgment read. "The non-disclosed material would
not have affected my decision to make the Anton Piller orders."
"It would
be desirable for the parties to consult together about the material taken on 6
February 2004 ... (and) for the parties to agree on a regime for custody,
inspection and analysis of the material that was authorized to be taken."
Sharman's chief
executive, Nikki Hemming, expressed her dismay over the ruling. "We remain
outraged at the heavy-handed tactics that have been used by the record industry
to obtain information that we would have provided through the normal, appropriate
court process," she said in a statement. "In his ruling, Justice
Wilcox acknowledged that Sharman has complied with legal proceedings in the
past and that the company would conduct itself in the same manner in
Australia."
Hemming argues
the record companies are shopping around for an appropriate jurisdiction in
which to sue Sharman "as they continue to lose their cases overseas".
Lawyers acting
for Sharman played down the significance of the ruling.
"In
practical terms, this ruling is not a clear win for either side," lawyers
for Sharman Networks were quoted as saying in a statement issued after the
ruling. "It effectively means that material seized will not be handed over
to the record industry plaintiffs, rather both parties will discuss a regime of
access. In reality, this is a way of converting the 'shock-and-awe' tactics
employed by the plaintiffs by using the Anton Piller order, into a more formal,
appropriate legal process akin to discovery."
That claim was
rejected outright by the company spearheading the investigation into Kazaa,
Music Industry Piracy Investigations, which is attached to the Australian
Recording Industry Association.
"I
completely reject that -- they should read the decision. This court said the
application is dismissed, it can't be any plainer than that," MIPI general
manager Michael Speck told Wired News. "It's now time for Kazaa to stop
relying on delay tactics and face the music."
Speck claims
Sharman is trying to "at all costs avoiding the evidence being exposed to
the harsh light of day."
"We hope
that they accept what the judge said today," he said.
A specialist in
Anton Piller orders, Ben Fitzmaurice of Australia's Abbott Stillman and Wilson
Barristers and Solicitors, told Wired News he believes the judgment could not
be seen as anything but a victory for the music industry.
"(Sharman)
is trying to put a positive spin on it," he said.
In many cases
parties will not seek to gain custody of material seized in an Anton Piller
raid, Fitzmaurice said. Therefore it is of little consequence that the
recording companies failed to obtain custody of the seized material.
"A sensible
party will leave the material in the custody of the supervising solicitor, or,
if you want to be ultra-careful you direct the supervising solicitor to place
the material in the custody of the court," he explained.
The material seized in the raids was
sought as evidence in a copyright infringement suit the record companies plan
to launch against Sharman.
05-03-2004
http://www.wired.com/news/digiwood/0,1412,62532,00.html
US Supreme Court
The issue of
abortion has proved challenging for the Supreme Court
A US Supreme
Court judge who helped pass the nation's landmark abortion ruling was unaware
the issue was so controversial, new documents show.
Justice Harry A
Blackmun's papers were unveiled by the US Library of Congress after he
permitted their release five years after his death.
The judge, who
wrote the ruling, admits in his notes on the Roe v Wade case he did not
appreciate its impact.
The 1973
decision ruled 7-2 that women had the right to opt for an abortion.
It said the
constitutional right to privacy guaranteed women the absolute right to choose
abortion in the first three months of their pregnancy and proffers more limited
rights in the second and third trimesters of a woman's pregnancy.
"I never
thought that I would be standing against the combined might of the Roman
Catholic Church and the Mormon Church and 1600 Pennsylvania Avenue [The White
House]," he admits in an excerpt quoted by the Washington Post newspaper.
"I suspect
I've been called every possible epithetical name, Hitler, Butcher of Dachau,
Pontius Pilate, Herod, murderer, madman."
His written
judgement on the Roe v Wade case reportedly led to him receiving more than
60,000 angry letters and suffering threats on his life.
But analysts say
the ruling - and the often hostile response it created for him - seemed to
galvanise Justice Blackmun into adopting more liberal attitudes towards women
and others seeking equal rights through the courts.
'Welcome news'
Roe v Wade
remains one of America's most contentious legal decisions and has formed the
backdrop of a battle between pro- and anti-abortion activists.
Justice
Blackmun's papers also reveal how close the ruling came to being overturned in
1992.
The Supreme
Court seemed about to vote in favour of upholding restrictive abortion laws in
Pennsylvania in the Planned Parenthood v Casey case.
Five justices
were prepared to vote in favour of the case, but a handwritten note to Justice
Blackmun reveals that one of them had decided, at the last minute, to change
his mind.
"I need to
see you as soon as you have a few free moments... I want to tell you about some
developments... and at least part of what I say should come as welcome
news," the note, from Justice Anthony M Kennedy, says.
Justice
Kennedy's U-turn meant that, although some restrictions were introduced, Roe v
Wade was generally upheld.
05-03-2004
http://news.bbc.co.uk/2/hi/americas/3534257.stm
An appeals court
downgraded a man's kidnapping conviction for taking a 6-year-old girl from her
front yard, saying the child's emotional problems stemming from the abduction
didn't merit a first-degree charge.
First-degree
kidnapping requires the prosecution to show the victim was knowingly harmed;
otherwise the crime drops to second-degree.
The court's
ruling Thursday could reduce Barry Sherman's 22-year prison term by up to 12
years. Prosecutors said they would appeal at the request of the victim's
family.
Prosecutors said
Sherman chose 6-year-old Anna Cardelfe at random and pulled her into a car Nov.
8, 2001, as she played in her front yard in Spring Lake, a seaside town about
60 miles south of New York.
He demanded
$175,000 from her parents, but the ransom was never paid and the girl was found
unharmed the next day at a mall 10 miles away. Sherman was arrested four days
later.
Anna's father,
Michael Cardelfe, said he was "disgusted" by the ruling, which also
vacated Sherman's seven-year sentence for endangering the welfare of a child.
Sherman, 39,
pleaded guilty to the kidnapping and child endangerment charges in 2002, even
though his attorneys planned to appeal.
If the ruling
stands, Sherman can be sentenced to a maximum of 10 years and would have to
serve at least 81/2 years. He already has served more than two years.
05-03-2004
www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2004/03/05/national0820EST0497.DTL
LUBBOCK, Texas
(AP) — A judge has ruled that a group of gay high school students cannot meet
on campus, saying parents and school officials should determine what subject
matter is allowed at school.
The Lubbock Gay
Straight Alliance claimed in a July lawsuit that the school district violated
students' constitutional rights and federal law by refusing the group's
requests to meet at a high school in 2002.
Judge Sam R.
Cummings said his ruling is "an assertion of a school's right not to
surrender control of the public school system to students and erode a
community's standard of what subject matter is considered obscene and
inappropriate."
He said the
district's policy banning discussion of sex or sex acts differentiated it from
six similar cases in Utah, California, Indiana and Kentucky that sided with
similar groups.
Brian Chase, an
attorney with Lambda Legal, a national gay civil rights organization that filed
the lawsuit on behalf of the group, disagreed and said no decision has been
made on an appeal.
"I'm
disappointed that the court didn't choose to follow the six other federal
decisions allowing the students to meet and discuss issues of importance to gay
and lesbian citizens," he said.
Lubbock school
board president Mark Griffin said the decision "accurately reflects the
community perspective as a whole."
05-03-2004
http://www.usatoday.com/news/education/2004-03-04-gay-students_x.htm
