Justice Department 'totally unprepared' for WMD attack, report finds

The department and most of its law enforcement components are not ready to ensure public safety in the aftermath of an attack on the U.S. using weapons of mass destruction, the inspector general reports.

By Ken Dilanian, Tribune Washington Bureau

June 1, 2010

Reporting from Washington —

The Justice Department is not prepared to ensure public safety in the aftermath of an attack using weapons of mass destruction, the agency's inspector general said Tuesday in the latest warning about the government's readiness for a catastrophic terrorist event.

The Justice Department is supposed to coordinate federal law enforcement activities after a nuclear, biological or chemical attack and take over if the incident overwhelms state and local police, the report said. 

"We are totally unprepared," an unidentified Justice Department official is quoted as saying in the report by the inspector general, the agency's internal watchdog. "Right now, being totally effective would never happen. Everybody would be winging it."

The report praised the FBI for meeting planning requirements, but said the Justice Department as a whole and its other component law enforcement agencies had not. That includes the Bureau of Alcohol, Tobacco, Firearms and Explosives, which is supposed to take the lead on public safety after an attack.

In written responses included in the report, Justice Department officials agreed that "the fundamental conclusion of the report is sound" and promised action to address the shortcomings.

The report represents the latest in a series of assessments criticizing the government for inadequate planning for WMD attacks. In January, a bipartisan commission gave the Obama administration and Congress a grade "F" on preparedness for a biological attack. The administration responded with measures to speed up delivery of drugs in the event of an incident.

In 2008, another commission found deficiencies "in all three pillars of the national strategy to combat WMD: prevention, protection and response." That commission added that strategies dating to 2002 had not been fully implemented.

"The presidential requirements have been ignored," said Paul McHale, a former Democratic lawmaker from Pennsylvania who also served as an assistant secretary of Defense under former President George W. Bush. "There is a sense of complacency that has settled in nearly a decade after Sept. 11."

The Department of Homeland Security is supposed to be in charge in the event of a WMD attack, and every major government agency has an assigned role.

Each federal agency is supposed to develop plans to respond to eight scenarios representing the gravest dangers faced by the U.S., including attacks with nuclear, radiological, biological or chemical weapons; a cyber attack; and pandemic influenza.

Tuesday's report concluded that no one at the Justice Department had responsibility for the central oversight or management of WMD incident response, and that the department had not updated its policies to reflect recent national policies for responding to such an incident.

"They just don't see the WMD scenario as most likely," said Randall Larsen, who was executive director of the now-defunct Commission for the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, which gave the government's bioterrorism planning a failing grade in January.

The FBI provides training to its staff on responding to a WMD incident and regularly conducts and participates in response exercises, the report said. But no other Justice Department law enforcement component does so, the report said. 

http://www.latimes.com/news/nationworld/nation/la-na-wmd-report-20100602,0,906228,print.story

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

U.S. announces criminal inquiry in oil spill disaster

Justice Department lawyers are investigating the origins of the rig explosion and whether BP and Transocean Ltd. violated federal statutes. A new plan to stop the flow proceeds.

By James Oliphant, Peter Nicholas and Nicole Santa Cruz

June 2, 2010

Reporting from Washington and New Orleans

Striking an increasingly aggressive posture as the Deepwater Horizon disaster enters its second month, the Obama administration said Tuesday it would launch a criminal investigation into the origins of the Gulf of Mexico rig explosion that killed 11 people and caused the largest oil spill in U.S. history.

"If we find evidence of illegal behavior, we will be extremely forceful in our response," Atty. Gen. Eric H. Holder Jr. said in New Orleans after viewing spill damage, which he described as "heartbreaking to see."

Holder said he thought there was "sufficient evidence" for a criminal investigation into the spill, which has halted fishing in nearly a third of the gulf's federal waters, tainted shorelines and spread across a 200-mile radius of the gulf.

Justice Department lawyers are investigating whether the companies that owned and operated the Deepwater rig, which include BP and Transocean Ltd., violated an array of federal statutes that contain criminal and civil penalties, including the Clean Water Act and the Endangered Species Act.

"There are a wide range of possible violations under these statutes, and we will closely examine the actions of those involved with the spill," said Holder, who did not identify the companies targeted by the inquiry and did not speculate about the range of criminal penalties they might face.

BP Chief Operating Officer Doug Suttles later told CNN that the company "will fully cooperate" with the federal inquiry. "Clearly everyone wants this to be fully investigated from every dimension," he said.

As Holder toured the oil-stained Louisiana coast, President Obama at the White House pledged to bring those responsible for the spill to justice.

The president met with members of a commission he formed to recommend steps to prevent a similar disaster. He appeared in the Rose Garden with the panel's co-chairmen, former Sen. Bob Graham (D-Fla.) and William K. Reilly, who headed the Environmental Protection Agency under President George H.W. Bush.

Obama said he expected a report from them in six months.

"We have an obligation to investigate what went wrong and to determine what reforms are needed so that we never have to experience a crisis like this again," Obama said.

After abandoning its "top kill" effort to plug the well, BP moved ahead Tuesday with its next plan to capture the flow of crude, which has been pouring into the gulf at a rate of more than 500,000 gallons a day since the April 20 rig explosion.

In the new effort, underwater robots will saw off the leaking riser pipe that is connected to the failed blowout preventer atop the well head. A containment cap will then be placed over the shorn end to funnel most of the oil flow into a pipe leading to a drilling ship.

"We're not talking about capping the well anymore. We're talking about containing the well," said Coast Guard Adm. Thad Allen, the spill's national incident commander.

The cut-and-cap procedure is expected to take several days and may, while underway, temporarily accelerate the leak flow by as much as 20%. The move comes as oil washes ashore in western Mississippi Sound and more tar balls mar the ecologically sensitive Dauphin Island, Ala.

BP spokesman John Curry said that starting in a couple of weeks, BP also hoped to start drawing oil through the hoses that were feeding drilling mud into the well as part of the top kill procedure.

As a precaution against storm damage in the hurricane season, a flexible riser pipe that can be easily connected and disconnected will also later be attached to the cap system.

Curry said plans to install a second blowout preventer over the damaged one were now on the back burner. And it is not until August, when two relief wells should be finished, that the well may finally be brought under control.

News of the criminal inquiry sent BP stock tumbling again Tuesday. Shares fell almost 15% to $36.52 on the New York Stock Exchange. The company has lost about $67 billion in market value since the explosion, while BP's cleanup costs are nearing $1 billion.

Phil Flynn, an analyst with PFGBest Research in Chicago, said BP's reputation among traders was "dog meat. The market had been hopeful that something they were trying might work, but it hasn't. They are probably looking at the loss of a year's profits on the cleanup costs alone."

Louisiana Gov. Bobby Jindal on Tuesday called for BP to pay for his ambitious plan to build sand berms on the state's barrier islands to protect the coast from the massive slick.

The U.S. Army Corp of Engineers approved a modified permit for the state to go ahead with a test project that entails dredging sand from the gulf and erecting 6-foot barriers.

Allen is expected to reach a decision by Wednesday on whether to approve more expansive construction.

http://www.latimes.com/news/nationworld/nation/la-na-oil-spill-20100602,0,2460677,print.story

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Death of illegal immigrant at San Diego crossing prompts outcry

The death of an illegal immigrant who was shot with a Taser during a struggle with U.S. authorities Friday night has prompted condemnations and calls for an investigation by immigrant rights groups and the Mexican government.

Anastasio Hernandez Rojas, 32, was being removed from the country through the San Diego-Tijuana border crossing when he became combative and was Tasered by a U.S. Customs and Border Protection agent, according to a statement released by the agency. Hernandez died the next day at a hospital in Chula Vista.

San Diego police, who are investigating, said it's unclear what triggered the altercation. The Mexican government called the death a tragedy and demanded an exhaustive investigation, a typical response in immigrant-related shooting deaths.

Hernandez, a construction worker and father of five, was a longtime San Diego resident who was deported last week after an unspecified run-in with San Diego police, said Christian Ramirez, the national coordinator of the American Friends Service Committee, who said he has spoken with the family.

Hernandez tried to re-enter the country Friday, but was arrested by U.S. Border Patrol agents, who processed him at a station and then took him to the pedestrian border crossing at the San Ysidro Port of Entry. The deportation area, ringed by tall fencing, is where U.S. agents every day hand over apprehended illegal immigrants to Mexican authorities.

When agents took off the handcuffs, Hernandez became violent, according to San Diego Police Capt. Jim Collins. Efforts to subdue Hernandez with a baton failed, he said, and when he and the agents fell to the ground, an agent shot Hernandez with the stun gun.

The cause of death has yet to be determined, said Ian Nakar of the San Diego County Medical Examiner's Office.

Rights groups question the tactics and say some witnesses suggest that agents' use of force was excessive.

Hernandez, whose five children were born in the U.S., was simply trying to be reunited with his family, said Ramirez. He said Hernandez was 42, not 32 as reported by U.S. authorities, and had lived in the U.S. since he was 14 years old.

“It's a tragedy that could have been prevented,” Ramirez said.

U.S. officials declined to comment aside from a brief statement. “Customs and Border Protection regrets the loss of life and awaits the results of a complete investigation into this incident,” the statement says.

http://latimesblogs.latimes.com/lanow/2010/06/death-of-illegal-immigrant-at-san-diego-crossing-prompts-outcry-.html#more

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Youthful offenders deserve a second chance

A California measure would ensure that juveniles sentenced to life in prison are given at least the possibility of parole.

By Miriam Aroni Krinsky, Ernie Pierce and Jeanne Woodford

June 2, 2010

One of us is a retired police officer who daily put his life on the line to catch criminals. Another is a former Department of Justice attorney who spent years prosecuting violent drug dealers and organized crime organizations. The third, a former warden of San Quentin State Prison and director of the California Department of Corrections and Rehabilitation, spent her career ensuring that those convicted served out their sentences as required by law.

Collectively, we have put or kept a lot of people in prison. Prison is where some people justly belong, many for long periods of time. But it is exactly our experience in law enforcement that causes us to agree with the Supreme Court's recent decision to abolish the sentence of life without parole for teens in nonhomicide cases.

That decision, however, did not finish the reforms needed in juvenile sentencing. There are thousands of lifers in the nation's prisons — about 250 in California alone — who as teenagers participated in crimes involving homicides. They all deserve a second chance, and at least some of them may deserve to be released.

As the high court recently recognized, there are inherent differences between teenage and adult criminals. A teen who commits a crime, even a terrible one such as murder, is not forever defined by that one act. Indeed, in our work, we have witnessed dramatic transformations among young people in our correctional facilities and in our neighborhoods.

Experts confirm that youths have greater potential for reform than adults; in many cases, young people "age out" of the type of behavior that leads to crime. Our laws should recognize that they are capable of redemption and reform.

California is on the threshold of doing just that. The Legislature is considering a bill, SB 399, that would allow those who prove they merit a second chance an opportunity to be considered for parole, but only after serving at least 25 years.

Clearly there are offenders who have committed heinous crimes and are unfit to be released regardless of the age they were when they committed their crime. SB 399 would not allow these people to return to our communities. Instead, it would allow for a thoughtful review to determine whether, years later, individuals sentenced as youths continue to pose a threat to the community.

We know that sentencing youngsters to a life in prison with no possibility for review of their sentence as they mature into adulthood isn't simply excessive; it is contrary to the interests of our state.

Life without parole does not deter criminal behavior among youths. Most kids get caught up in crime without analyzing the consequences of their acts. Indeed, research confirms that teenagers have weak impulse control and reasoning abilities.

Life without parole is also a very costly policy. In the case of young people, these sentences cost California about $2.5 million each. And without SB 399, there is no way to revisit these sentences and account for the adult that teen has become.

It is time for California, and our nation as a whole, to take the Supreme Court's decision to its next logical step and join the rest of the world by revisiting inflexible life-without-parole sentences for young offenders. Juvenile offenders are different; our laws and system of justice must acknowledge those differences.

Let us hope that state legislators will see their way through the all-too-common "tough on crime" mantra and find a way, instead, to be smart, just and fair on crime.

Miriam Aroni Krinsky was a federal prosecutor for 15 years, both in Los Angeles and with an organized-crime and drug enforcement task force in the mid-Atlantic region; Ernie Pierce retired after almost 30 years with the San Diego Police Department; Jeanne Woodford is the former warden of San Quentin State Prison and former director of the California Department of Corrections and Rehabilitation.

http://www.latimes.com/news/opinion/commentary/la-oe-krinsky-sentences-20100602,0,6282398,print.story

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

A jurisdiction the International Criminal Court does not need

A push to add international aggression, illegal uses of military force, to the court's jurisdiction risks weakening its broad support and independence.

David Kaye

June 1, 2010

Imagine a global court with the power to prosecute political and military officials who lead their countries into aggressive wars. The post- World War II tribunals at Nuremberg and Tokyo tried senior German and Japanese leaders for their egregious crimes of aggression; why not have a similar forum for the heirs of Hitler, Tojo and their like?

If dozens of governments have their way, the world may soon have just such a court. The 111 governments that are parties to the International Criminal Court — the permanent court at The Hague that now has the power to try cases of genocide, crimes against humanity and war crimes — are meeting this week in Kampala, Uganda, to take stock of the court's progress in the 12 years since its charter was adopted in Rome in 1998. Headlining Kampala will be an attempt to add a new crime to the ICC's jurisdiction, the crime of aggression.

In principle, the case for establishing a forum to check illegal uses of military force is a strong one, but it could spell disaster for the ICC. Tackling aggression would politicize the court, undermine its independence and limit the support from governments that is essential to its work. Worse, in the end, it would be unlikely to deter a single war.

The options for triggering the court's authority to investigate allegations of aggression are all problematic.

If the United Nations Security Council has the sole authority to refer aggression cases, the five permanent members with vetoes — the United States, Britain, France, Russia and China — would be able to assure themselves impunity. They would undoubtedly seek to extend their own protection to their allies, or trade votes to protect one another's spheres of influence, promising a highly political approach to aggression decisions.

It would be no better should the General Assembly have that power. It is already so highly politicized, split along geographic and other lines, that it would be unlikely to make referrals to the court solely on the basis of law. Nor is the U.N.'s International Court of Justice, despite its growth and promise in recent years, a good choice: It lacks the investigative competence to review claims of illegal use of force.

Finally, placing the power to investigate claims of aggression in the hands of the ICC's prosecutor — even with judges' approval — would undermine the court's independence and legitimacy. It would be buffeted by political attacks, adding to the charges of politicization it already fields and distracting from its historic role of bringing the worst criminals in international law to justice.

The court's very existence could be at stake. It if becomes a place for governments to argue about who was responsible for armed conflicts, ICC parties such as France, Britain and Canada may become disillusioned. Those who favor humanitarian intervention — for instance, to stop a genocide or bring assistance to a war-torn region — may back away if there is a chance that their action will be seen as contrary to a new rule against aggression.

And adding aggression to the court's jurisdiction would only strengthen its opponents in the United States, which is not yet a party to the ICC. They fear that a politically motivated prosecutor, without checks on his authority, could try to haul American political and military officials into court.

These may be cynical ways of looking at the issue of adjudicating aggression, but they are realistic. The ICC is a young institution, hardly tested in its core function of trying war criminals and those accused of genocide. It needs time to develop and prove its competence. It needs and deserves broader international support, especially from the United States, and the Obama administration has made it clear that it is willing to cooperate with the court in many areas.

For all these reasons, human rights groups around the world fear the implications aggression has for the ICC. The Open Society Institute, together with about 40 organizations from around the world, urged governments to postpone the discussions, while Human Rights Watch issued a report that, among other things, expressed concerns that pursuing jurisdiction over aggression could "diminish" the role of the court in international justice.

Many of the governments gathered in Kampala may have in mind the values and norms of the Nuremberg and Tokyo tribunals, but they should also ask themselves whether they are prepared to sacrifice the ICC's broad support and independence for the costly crime of aggression.

David Kaye directs the international human rights program at UCLA School of Law.

http://www.latimes.com/news/opinion/commentary/la-oe-kaye-icc-20100601,0,5536243,print.story

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Vaccine refusal is putting everyone in danger

Diseases such as measles and mumps are creeping back as well-meaning parents, wary of an unproven link to autism, refuse vaccines for their children, exposing them and others to a proven risk.

Pamela Nguyen

June 1, 2010

I have been thinking a lot about measles lately. In four years as a medical student and three years as a pediatric resident, I have never seen a case. As a result, all I know about the illness, I learned from textbooks. What scares me is that this soon may change. This spring, Los Angeles County saw it's first confirmed case of measles since 2006.

Measles is a serious public health threat. According to the Centers for Disease Control and Prevention, the disease remains the leading cause of vaccine-preventable deaths in children. In 2007, there were 197,000 measles deaths worldwide, 90% of them in children younger than 5. That is nearly 450 deaths every day.

A study published in the April issue of Pediatrics examined a 2008 measles outbreak in San Diego. The index case was a 7-year-old unvaccinated child who was exposed to the virus while abroad. This case resulted in 839 exposed persons, 11 actual cases (all in unvaccinated children) and the hospitalization of an infant too young to be vaccinated. In total, the outbreak cost the public more than $175,000, which would have covered the costs of measles vaccinations for almost 180,000 children.

And yet, many parents continue not to vaccinate their children. I see such children frequently. Last fall, when I entered an examination room, a 5-year-old patient loudly yelled "Get out!" Her mother apologized, then explained. "Sorry, she's never gotten S-H-O-T-S before."

Confused, I looked down at the chart to confirm that the patient was in for H1N1 and seasonal flu vaccines. Seeing that she was, I seized the opportunity to offer her catch-up vaccines as well, but her mother declined. She explained matter-of-factly that it was because the flu was "going around" whereas the other vaccine-preventable diseases, she said, were no longer a threat.

She went on to tell me that she was a lawyer who had grown up in a country where measles is still endemic. Since moving to the U.S., she had never known anyone to suffer from measles, but she did know several children who had autism. So, while she understood that vaccinations had not been definitively shown to cause autism, she felt that, here in America, the risk of autism was a bigger threat than that of vaccine-preventable diseases.

The parents in the San Diego outbreak also didn't vaccinate their children because they were afraid of autism. But exhaustive study has found no link between autism and vaccines. It's puzzling why well-educated, upper- and middle-income parents worry so much about a connection that doesn't exist while they ignore the very real risks of not vaccinating. Vaccine refusal is creating large reservoirs of susceptibility, primarily in private and charter schools that are generally free from state restrictions. I worry that we will soon see just how real that risk is. In addition to the case of measles, there also have been nine cases of mumps reported in L.A. County this year.

By choosing not to vaccinate, parents put not only their children but other peoples'' children in harm's way. Immuno-compromised children, infants and pregnant women cannot be vaccinated, so they are put at increased risk when those who can be vaccinated are not.

As we saw in the recent H1N1 outbreak, it is often panic rather than education that moves a community to action. Not until parents saw children dying from swine flu did they move to vaccinate their children. Let's hope measles doesn't have to reach pandemic proportions again before we take notice. It is time to change our perspective and make the safety of all children our priority.

The first step is to demand stricter guidelines for personal-belief exemptions. Vaccinations should be mandatory for public school entry in all but the rarest of cases. The next step is to put pressure on private and charter schools to follow these same guidelines. It is selfish for parents who intentionally don't vaccinate to make other children vulnerable. We cannot afford to continue leaving the public's health in the hands of irresponsible parents.

Pamela Nguyen is a resident physician in pediatrics at UCLA's Mattel Children's Hospital.

http://www.latimes.com/news/opinion/commentary/la-oe-nguyen-measles-20100601,0,2088093,print.story

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From the New York Times

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Mere Silence Doesn't Invoke Miranda, Justices Say

WASHINGTON — Criminal suspects seeking to protect their right to remain silent must speak up to invoke it, the Supreme Court ruled on Tuesday, refining the court's landmark 1966 ruling in Miranda v. Arizona .

Justice Anthony M. Kennedy , writing for the majority in a 5-to-4 decision that split along familiar ideological lines, did not disturb Miranda's requirement that suspects be told they have the right to remain silent. But he said courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.

Justice Sonia Sotomayor , in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

Monday's decision followed two in February that also narrowed and clarified the scope of the Miranda decision. One allowed police officers to vary the wording of the warning; the other allowed a second round of questioning of suspects who had invoked their rights so long as two weeks had passed since their release from custody.

The latest case concerned Van Chester Thompkins, a Michigan man accused of shooting another man to death in 2000 outside a mall. Arrested a year later, Mr. Thompkins was read his Miranda rights but refused to sign a form acknowledging that he understood them.

Mr. Thompkins then remained almost entirely silent in the face of three hours of interrogation, though he did say that his chair was hard and that he did not want a peppermint.

After two hours and 45 minutes of questioning, Mr. Thompkins said yes in response to each of three questions: “Do you believe in God?” “Do you pray to God?” And, crucially, “Do you pray to God to forgive you for shooting that boy down?”

His affirmative response to the last question was used against him at trial, and he was convicted of first-degree murder. The federal appeals court in Cincinnati ruled in 2008 that his statement should have been excluded because prosecutors could not prove that Mr. Thompkins had knowingly and voluntarily waived his right to remain silent.

Justice Kennedy acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”

Indeed, the Miranda decision said that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” It added that the government faced “a heavy burden” in trying to prove that a suspect's waiver was knowing and intelligent.

Justice Kennedy said that decisions since Miranda had undercut its language and that a more sensible rule put the burden on suspects to invoke their rights.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia , Clarence Thomas and Samuel A. Alito Jr. joined Justice Kennedy's opinion.

In her dissent, Justice Sotomayor said the majority had created a kind of paradox. “A suspect who wishes to guard his right to remain silent,” she wrote, “must, counterintuitively, speak.”

Justice Kennedy said that people who knew their rights and acted “in a manner inconsistent with their exercise” might be presumed to have waived their rights, meaning that responding to police questioning is itself an implied waiver of the right to remain silent.

Justice Sotomayor, in her dissent, said “these principles flatly contradict” earlier decisions from the court.

“At best, the court today creates an unworkable and conflicting set of presumptions,” she wrote. “At worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

The better practice in the face of ambiguous responses from a suspect, Justice Sotomayor wrote, would be for the police to ask follow-up questions like, “Do you want to talk to us?”

Justices John Paul Stevens , Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Sotomayor's dissent.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims' rights group, said Monday's decision, Berghuis v. Thompkins, No. 08-1470, was a sensible accommodation.

“The Supreme Court recognized the practical realities that the police face in dealing with suspects,” Mr. Scheidegger said. “They don't always answer the waiver question clearly. When they do not, the bright-line rule of Miranda should not apply, and the statement should be admissible as long as it is not compelled.”

The court also issued decisions in cases involving torture victims and people convicted of sex crimes.

In Samantar v. Yousuf , No. 08-1555, the court unanimously removed one possible legal roadblock to a suit against Mohamed Ali Samantar, who served as Somalia's minister of defense and prime minister and now lives in Virginia. The plaintiffs in the case said Mr. Samantar had directed a campaign of torture and killings against them and their families.

Mr. Samantar, who has called those accusations baseless, argued that the Foreign Sovereign Immunities Act of 1976 provided him with immunity from suit.

The court, in an opinion by Justice Stevens, said that law applied to foreign states and the entities they controlled. It does not, Justice Stevens wrote, “include foreign officials.”

But Justice Stevens went on to say that Mr. Samantar may nonetheless be immune from suit under other legal principles, emphasizing that the court had decided a narrow question.

“Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him,” Justice Stevens wrote, “are matters to be addressed in the first instance” by the trial court.

In Carr v. United States , No. 08-1301, the court considered a 2006 federal law that made it a crime for sex offenders to fail to register with the authorities after traveling to another state. The question in the case was whether that travel could take place before the law became effective.

Justice Sotomayor, writing for the majority in the 6-to-3 decision, said the law applied to post-enactment travel. She relied largely on the law's use of the present tense in its use of the word “travels.”

In dissent, Justice Alito, writing for himself and Justices Thomas and Ginsburg, said that interpretation, made at some length, ignored other more plausible readings of the law.

“A bad argument,” Justice Alito said of Justice Sotomayor's reasoning, “does not improve with repetition.”

http://www.nytimes.com/2010/06/02/us/02scotus.html?ref=us&pagewanted=print

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Study Finds Blacks Blocked From Southern Juries

In late April in a courthouse in Madison County, Ala., a prosecutor was asked to explain why he had struck 11 of 14 black potential jurors in a capital murder case.

The district attorney, Robert Broussard, said one had seemed “arrogant” and “pretty vocal.” In another woman, he said he “detected hostility.”

Mr. Broussard also questioned the “sophistication” of a former Army sergeant, a forklift operator with three years of college, a cafeteria manager, an assembly-line worker and a retired Department of Defense program analyst.

The analyst, he said, “did not appear to be sophisticated to us in her questionnaire, in that she spelled Wal-Mart, as one of her previous employers, as Wal-marts.”

Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative , a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.

In the Madison County case, the defendant, Jason M. Sharp, a white man, was sentenced to death after a trial by a jury of 11 whites and one black. The April hearing was the result of a challenge by defense lawyers who argued that jury selection was tainted by racial discrimination — a claim that is difficult to prove because prosecutors can claim any race-neutral reason, no matter how implausible, for dismissing a juror.

While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.

An analysis of Jefferson Parish, La., by the Louisiana Capital Assistance Center found that from 1999 to 2007, blacks were struck from juries at more than three times the rate of whites.

In North Carolina, at least 26 current death row defendants were sentenced by all-white juries. In South Carolina, a prosecutor said he struck a black potential juror because he “shucked and jived” when he walked.

Studies have shown that racially diverse juries deliberate longer, consider a wider variety of perspectives and make fewer factual errors than all-white juries, and that predominantly black juries are less likely to impose the death penalty.

Excluding jurors based on race has been illegal since 1875, but after Reconstruction, all-white juries remained the norm in the South.

“It really made lynching and the Ku Klux Klan possible,” said Christopher Waldrep, a historian at San Francisco State University and the author of a forthcoming book about a lawyer who was able, in a rare case, to prove jury discrimination in Mississippi in 1906. “If you'd had a lot of black grand jurors investigating crimes, it would have made lynching impossible.”

Back then, judges and prosecutors often argued that blacks lacked the intelligence or education to serve. That such claims persist is evidence, said Bryan A. Stevenson, the executive director of the Equal Justice Initiative, that jury selection remains largely unscrutinized.

“There's just this tolerance, there's indifference to excluding people on the basis of race, and prosecutors are doing it with impunity,” Mr. Stevenson said. “Unless you're in the courtroom, unless you're a lawyer working on these issues, you're not going to know whether your local prosecutor consistently bars people of color.”

In jury selection, potential jurors are first dismissed for cause — reasons like scheduling conflicts or opposition to the death penalty. Then, both sides can ask questions and take turns dismissing jurors using what are called peremptory strikes (the number of strikes varies by state, but it is often enough for one side to eliminate all qualified minorities).

In a 1986 case, Batson v. Kentucky , the Supreme Court ruled that if a pattern of discrimination emerged during peremptory strikes, lawyers must provide nonracial reasons for their strikes. The reason does not have to be “persuasive, or even plausible,” the Supreme Court ruled in a later case in which a prosecutor said he dismissed one black juror because he had long hair, and another because he had a goatee, saying, “I don't like the way they looked.” It is up to the judge to decide if there was deliberate discrimination.

That is a high bar, defense lawyers say — so high that in Tennessee and North Carolina, there has never been a successful reversal based on Batson.

“Anybody with any sense at all can think up any race-neutral reason and get away with it,” said Stephen B. Bright, a capital defense lawyer in Atlanta.

Prosecutors have claimed to strike jurors because they live in high-crime neighborhoods, are unemployed or are single parents. In one Louisiana case, a judge allowed a black juror to be dismissed because the prosecutor said he “looked like a drug dealer.”

Often, a defense lawyer's challenge is based on showing that white jurors who answered questions the same way or had the same characteristics were not struck. For example, in the Sharp case, Mr. Broussard said that because one juror was studying to be a minister, she “was not the kind of juror we were looking for.” But a white man who was a minister was allowed to serve.

Mr. Broussard did not respond to requests for comment, but Stephen Wimberly, the first assistant district attorney in Jefferson Parish, said that of more than 2,000 jury trials since 1997, only two had been reversed because of discrimination. “The legal standard is not representation of any race or gender, but the fairness and impartiality of each respective juror,” Mr. Wimberly said.

In one Mississippi case, a black man, Curtis Flowers, was sentenced to death in 2004 for killing four furniture store employees. The jury was made up of 11 whites and one black after prosecutors used all 15 of their peremptory strikes on black jurors. Montgomery County, where the crime occurred, is 45 percent black. The Mississippi Supreme Court reversed the case, noting that “racially motivated jury selection is still prevalent 20 years after Batson.”

At a retrial, in which prosecutors did not seek the death penalty, the jury of seven whites and five blacks was split along racial lines, resulting in a hung jury. At the second retrial, prosecutors sought the death penalty, which eliminated more blacks from the pool of qualified jurors. The jury, nine whites and three blacks, hung again when one black member declined to convict, said Andre De Gruy, the director of the state's Office of Capital Defense Counsel.

The Equal Justice Initiative study argues that jury diversity “is especially critical because the other decision-making roles in the criminal justice system are held mostly by people who are white.” In the eight Southern states the study examined, more than 93 percent of the district attorneys are white. In Arkansas and Tennessee, all of them are white.

http://www.nytimes.com/2010/06/02/us/02jury.html?ref=us&pagewanted=print

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The Continuing Pain of 9/11

Too many years after the attacks of Sept. 11, 2001, the House is ready to consider proper health care and compensation for thousands of emergency responders and residents of New York City who developed grave illnesses from the clouds of dust and toxins at ground zero.

A patchwork system of local health care has been tending year to year to the needs of up to 60,000 people stricken with lung cancer and other diseases.

The two-part measure, which extends similar help to responders at the Pentagon and Pennsylvania attack sites, would provide $5.1 billion across the next decade for continuing health care. New York City would pay 10 percent of the local health costs.

Compensation for job and economic losses also would be extended by reopening the Sept. 11 Victim Compensation Fund with a $8.4 billion cap. The fund would wisely restrict attorneys' fees to about 10 percent and bar any victim who accepts separate compensation under the city lawsuit (now under appeal) for 10,000 rescue and cleanup workers. The warning by critics of creating an open-ended entitlement program is a red herring; compensation is limited to the victims' damaged life spans.

The nation swears it will never forget the victims of Sept 11. The badly needed legislation, led by Representative Carolyn Maloney, Democrat of New York, is a chance to make good on that vow. The measure easily moved through committees in a bipartisan display of resolve.

The House and Senate should approve the bill before another painful anniversary passes.

http://www.nytimes.com/2010/06/02/opinion/02wed3.html?ref=opinion&pagewanted=print

.