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Longtime Pentagon Lawyer Stepping Down
Legal Careers News | 2008/02/26 04:57
The Defense Department's longest-serving general counsel, who has been criticized for his role in crafting Bush administration policies for detaining and trying suspected terrorists, is resigning to return to private life next month, the Pentagon said Monday.

William J. Haynes II was confirmed as general counsel by the Senate in May 2001. He had discussed leaving the administration some months ago and has decided to accept an offer to work in the private sector, Pentagon spokeswoman Cynthia O. Smith said.

"I am sorry to see Jim leave the Pentagon," Defense Secretary Robert Gates said in a statement. "I have valued his legal advice and enjoyed working with him."

Daniel J. Dell'Orto, the Defense Department's principal deputy general counsel since June 2000, will serve as acting general counsel, the Pentagon said.

In 2006, President Bush nominated Haynes for a seat on the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. The nomination was withdrawn in January 2007 when it appeared that the Senate's new Democratic majority would not confirm Haynes.

A group of retired military officers opposing Bush's position on the treatment of detainees had urged lawmakers to block Haynes' appointment to the court. They contended that his role in establishing detention and interrogation policies led to abuses at the detention facility at the U.S. naval base at Guantanamo Bay, Cuba, and called into question the military's commitment to the rule of law.

Within months of the terrorist attacks of Sept. 11, 2001, Haynes led a tour of military attorneys to Guantanamo as he worked on plans for military tribunals for prisoners captured in the war in Afghanistan. At the time a Pentagon spokeswoman referred to "charting completely new territory" in deciding how to deal with detainees.

Haynes' replacement, Dell'Orto, has defended the military tribunal system in appearances before Congress, saying the rules governing the tribunals "afford all the judicial guarantees which are recognized as indispensable by civilized people."

In response to allegations that the Bush administration had authorized torture against some prisoners, the White House released in 2004 a series of documents. In a Pentagon memo, dated Nov. 27, 2002, Haynes recommended that then-Defense Secretary Donald H. Rumsfeld approve the use of 14 interrogation techniques on detainees at Guantanamo, such as yelling at a prisoner during questioning and using "stress positions," like standing, for up to four hours.

In a handwritten note, Rumsfeld responded: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours." He later rescinded his approval and ordered a review of issues relating to interrogations of terrorism suspects.

Air Force Col. Morris Davis, the former chief military prosecutor at Guantanamo, who now heads the Air Force judiciary, welcomed Haynes' departure.

"I hope it will open the door for some positive change in the military commissions, but there are a couple of others still standing in the way," said Davis, who resigned as lead prosecutor of the Guantanamo detainees in October over alleged political interference in the U.S. military tribunals. "At least the odds are very good that whoever takes his place will have a more collegial and less contemptuous relationship with the uniformed judge advocates."

Davis last week said he would be a defense witness for Salim Ahmed Hamdan, the driver of terror leader Osama bin Laden. Davis called it "an opportunity to tell the truth."

At Hamdan's April pretrial hearing at Guantanamo, his defense team plans to argue that alleged political interference cited by Davis violates the Military Commissions Act, Hamdan's military lawyer, Navy Lt. Brian Mizer, has said.



Court Rules Against Tobacco Companies
Court Watch | 2008/02/26 03:51
The Supreme Court on Monday rejected a tobacco industry request to intervene in a lawsuit by over a thousand West Virginia smokers.

The justices declined to examine a trial procedure in which a jury first determines whether smokers as a group are entitled to punitive damages before establishing whether any single smoker is entitled to compensation.

Later, a new jury addresses issues unique to each alleged smoking victim who sued.

West Virginia courts are allowing the approach, which has been used in other types of lawsuits, including claims for asbestos exposure.

The second phases of such trials rarely occur, because the two sides usually settle once they know the value of the case.

Tobacco companies oppose use of the legal device, which lawyers call "reverse bifurcation."

The tobacco industry said a jury doesn't know until later in a case whether any smoker was actually harmed or how serious any injury was; which defendants if any were responsible; or the amount of compensatory damages any defendant owes to smokers.

In addition to helping resolve suits over asbestos exposure, reverse bifurcation has been applied to claims against makers of the dangerous diet drug fen-phen.

In asking the justices not to take the case, lawyers for the smokers said further delay would mean that most of their clients would die before their cases could be tried, "thus affording the defendants a free pass" for their alleged misconduct.

The smokers say the companies secretly agreed not to market a truly safer cigarette while publicly proclaiming the safety of their own particular brands.

The first phase of the trial was scheduled to begin March 18.

The case is Philip Morris USA v. Accord, 07-806.



Photo Tech Complicates Child-Porn Cases
Practice Focuses | 2008/02/26 03:49
Each week, about 100,000 sexually explicit images of children arrive on CDs or portable disk drives at Michelle Collins' office.

They are sent by police and prosecutors who hope Collins and her 11 analysts at the National Center for Missing and Exploited Children can verify that the graphic pictures are real, not computer-generated. When they can't, officials sometimes turn to outside experts.

All this is being done — at an annual cost in the millions of dollars collectively in child-pornography cases alone — as software like Photoshop makes it easier to fake photos and as juries become more skeptical about what they see.

Although challenges to digital photos come in all types of criminal and civil cases, they are especially pronounced in child-pornography cases because of a 2002 U.S. Supreme Court decision striking down a ban on computer-generated child pornography. Defense attorneys are trying to use the ruling to introduce reasonable doubt in jurors' minds about the images' authenticity.

Prosecutors still generally prevail, but "this has certainly created an additional burden," said Thomas Kerle of the Massachusetts State Police. "I can say that unequivocally, it has made the prosecution of these types of cases more difficult. It takes ... resources I think could be better applied to investigating" more cases.

Drew Oosterbaan, who heads the U.S. Department of Justice's Child Exploitation and Obscenity Section, said prosecutors sometimes submit only photos they can easily verify because outside experts can be expensive — with travel, hotels and consulting fees, along with possible delays.

"This can affect the sentence the defendant gets," he said. "Before (the 2002 ruling) we would generally charge all the images."

Oosterbaan added that although defense lawyers have the right — and duty — to challenge evidence, they are doing so without "any shred of evidence there are wholly computer-generated images being generally circulated and passed off as real children out there."

And many law-enforcement officials worry that the time and money needed to withstand any challenges will only grow as technology improves and makes it more difficult to tell a computer-generated image from a real one.

"I feel that pretty much we can tell the difference right now," said Karl Youngblood of the Alabama Bureau of Investigation. "How much longer that's going to last, I don't know with the technology going at the rate it's going."

Of course, there's a cost to defendants as well — sometimes more so because federal law limits where and when the defense may review images to restrict their distribution, meaning experts must often travel with expensive equipment to a police lab in another city.

"If something becomes more difficult for the government to prove, so be it. They have the burden of proof," said First Amendment lawyer Louis Sirkin, lead counsel in the challenge that led to the 2002 Supreme Court ruling.

Child pornography is illegal in the United States, but the Supreme Court in 2002 struck down on free-speech grounds a 1996 federal ban on material that "appears to be" a child in a sexually explicit situation. That ruling covers computer-generated images, though morphing — such as the grafting of a child's school picture onto a naked body — remains illegal.

Collins' Child Victim Identification Program in Alexandria, Va., grew out of that ruling. After officials submit seized photos, the center uses software and visual inspections to look for matches. It can usually verify that children in some or all of the images are known and real.

The program, which costs about $1 million a year to run, now has about 1,300 children in its database, up from 20 in 2002. Staff grew from just Collins then to 11 full-time analysts who now work under her. The program reviewed 5 million images last year, up from about 450,000 in 2003, the program's first full year.

Because of the graphic nature of the images, a psychologist visits each week, and analysts must undergo counseling at least quarterly.

"Not everybody can do it," said Raymond Smith, a longtime investigator who oversees child-exploitation cases at the U.S. Postal Inspection Service. "You have to be able to come to grips with seeing children be victimized and abused. It can tear you up, (but) through your efforts you are identifying the people that hurt these children."

When the center cannot make a match, prosecutors can turn to outside experts. Sometimes, it's a pediatrician who can say a real child has characteristics matching those seen in the photo. Other times it's a computer expert who can talk about how difficult it is to produce images and video of that quality.

Hany Farid, a Dartmouth College professor who has testified for the prosecution in some cases, said he has been getting more inquiries about authenticity — not only for child-pornography cases but also civil lawsuits questioning medical images in malpractice cases or signatures in contract disputes. News organizations have also looking for ways to authenticate photos.

"Because so many people get photographic fakes in their (electronic) mailboxes, to the average juror it resonates," he said.

The challenges can be costly, even if a case never goes to trial — the majority end in plea agreements.

Farid said he charges up to $25,000 a year for software he produced to look for signs of tampering, such as inconsistencies in shadows. He also charges as much as tens of thousands of dollars to work on a case.

Even when there is a match and an expert isn't needed, a prosecutor must seek out the detective who initially identified a child for the center. That detective must often be flown in and be ready to testify if the defense raises a challenge. In one case in Portland, Maine, a Russian detective couldn't be reached, so the prosecutor had to spend $5,000 on an expert anyway. Trials get postponed if a key witness has a scheduling conflict.

Sam Guiberson, a defense attorney who specializes in technology and digital evidence, said challenges to evidence are to be expected, digital or not.

"Every good trial lawyer is always going to subject every part of his adversary's exhibits to that sort of scrutiny," Guiberson said.

Kebin Haller, deputy director of the Wyoming Division of Criminal Investigation, said that in most cases, a large quantity of images are seized such that enough hold up.

How much proof a prosecutor needs in child-pornography cases can vary from region to region and even from judge to judge. Recent federal appellate rulings have eased the burden on prosecutors, essentially saying that in lieu of definitive evidence, they can let jurors make up their own minds about whether an image is real or computer-generated.

Many prosecutors, though, don't want to take that chance and would rather submit proof.

"It's difficult to prove these are real children," said Mary Leary, a Catholic University law professor who previously worked on child-abuse and child-pornography cases. "Is the defense exploiting this? Absolutely they are."



Supreme Court Takes Indian Land Case
Breaking Legal News | 2008/02/25 08:33
The Supreme Court agreed Monday to resolve a dispute over the federal government's ability to take land into trust for American Indian tribes. Indian rights groups fear that the case involving the Narragansett Tribe in Rhode Island could undermine tribal land across the country. The justices will hear the case in the fall.

The state argued that a 1934 federal law prevents the government from taking land into trust for tribes recognized after the law took effect, unless Congress specifically authorized it. The Narragansetts became a federally recognized tribe in 1983.

The 1st U.S. Circuit Court of Appeals in Boston rejected the state's claim.

At issue is whether a 31-acre lot in Charlestown purchased by the Narragansetts should be subject to Rhode Island law, including a prohibition on casino gambling, or whether the parcel should be governed by tribal and federal law.

The dispute dates to 1991, when the Narragansetts purchased the land to build an elderly housing complex, which remains incomplete.

The state objected when the tribe asked the U.S. Department of the Interior to take the land into federal trust, which would place it largely under tribal and federal control.



Visa IPO Could Be Largest in US History
Securities | 2008/02/25 08:32
Visa Inc. said Monday its initial public offering could raise up to $19 billion — making it the largest in U.S. history — even though the credit card processor is entering the market at a difficult time.

The San Francisco-based credit card processor expects to see high demand for its stock, despite the housing-led credit squeeze that is threatening consumers' spending and their ability to keep up with debt payments.

But Visa, like its public rival MasterCard Inc., is a card processor, not a lender, and has a strong presence in other countries where many people are just starting to use plastic instead of cash. And Visa is the largest U.S. card company by market share — its transactions, in number and dollar amount, in 2006 outpaced those at MasterCard and American Express Co.

Visa said in a Securities and Exchange Commission filing it will offer 406 million shares at $37 to $42 per share. There will be an option for underwriters to buy an extra 40.6 million shares to cover any excess demand.

The Visa IPO, even if it prices at the low end of the estimated range, would surpass the $10.6 billion AT&T Wireless raised in 2000 when it went public. And if demand is strong enough, it could be almost as big as the two largest past deals combined — AT&T's offering and Kraft Foods' $8.7 billion offer in 2001.

Visa would follow MasterCard from being a privately held interest to a publicly traded company. MasterCard raised $2.39 billion in its IPO nearly two years ago.

At a midpoint price, Visa could raise about $15.6 billion, or more than $17 billion if underwriters exercise their option to buy the entire lot of 40.6 million shares. Even at the low-end price of $37 a share, Visa would raise about $15 billion.

Shares of MasterCard have risen fivefold since going public and are now trading at more than $203 each. But Visa's offer comes at a time of ebbing appetite for new shares. MasterCard shares have fallen more than 5.5 percent since the beginning of the month.

Visa made its initial IPO filing in June with the SEC. The shares will be listed with the New York Stock Exchange under the ticker V.

Visa will be the last of the major U.S. card companies to go public. Discover Financial Services LLC became publicly traded last July, and since then has seen its shares tumble. But Discover, like American Express, is a true card lender. The responsibility for Visa and MasterCard cardholders' debt, in contrast, is held by the banks that issue them.

For their most recent quarters, MasterCard posted a huge increase in profit while AmEx reported a 10 percent drop in earnings and Discover posted a loss.

A successful Visa IPO would be a boon for member banks including Citigroup Inc., Bank of America Corp. and JPMorgan Chase & Co., which have suffered big credit losses and are gearing up for more as consumer credit deteriorates.

More than $10 billion of the IPO's proceeds will go to the member banks. The rest will go toward Visa's legal costs and general corporate purposes.

Visa boasts the world's biggest retail electronic payments network. According to its filing, as of Sept. 30, banks and other customers said they had issued 1.5 billion Visa cards — which since 2006 have been advertised through the slogan, "Life Takes Visa."

The latest Nilson Report on card companies said that in 2006, Visa had 44 percent of the U.S. market share in cards and 48 percent of the U.S. market share in debit cards.

Visa said it intends to pay shareholders an annual dividend of 42 cents a share.



Court Rules Against Tobacco Companies
Court Watch | 2008/02/25 07:33
The Supreme Court on Monday rejected a tobacco industry request to intervene in a lawsuit by over a thousand West Virginia smokers.

The justices declined to examine a trial procedure in which a jury first determines whether smokers as a group are entitled to punitive damages before establishing whether any single smoker is entitled to compensation.

Later, a new jury addresses issues unique to each alleged smoking victim who sued.

West Virginia courts are allowing the approach, which has been used in other types of lawsuits, including claims for asbestos exposure.

The second phases of such trials rarely occur, because the two sides usually settle once they know the value of the case.

Tobacco companies oppose use of the legal device, which lawyers call "reverse bifurcation."

The tobacco industry said a jury doesn't know until later in a case whether any smoker was actually harmed or how serious any injury was; which defendants if any were responsible; or the amount of compensatory damages any defendant owes to smokers.

In addition to helping resolve suits over asbestos exposure, reverse bifurcation has been applied to claims against makers of the dangerous diet drug fen-phen.

In asking the justices not to take the case, lawyers for the smokers said further delay would mean that most of their clients would die before their cases could be tried, "thus affording the defendants a free pass" for their alleged misconduct.

The smokers say the companies secretly agreed not to market a truly safer cigarette while publicly proclaiming the safety of their own particular brands.

The first phase of the trial was scheduled to begin March 18.



Lawyer: Japan Should Avoid Slay Case
Criminal Law | 2008/02/25 06:34
The lawyer for a Japanese businessman arrested on suspicion of fatally shooting his wife here in 1981 said Monday he would formally urge the Japanese government not to cooperate with American investigators.

The businessman, Kazuyoshi Miura, was arrested Friday in the U.S. territory of Saipan as he tried to pass through immigration control at the airport to take a flight home. Miura, 60, was convicted in Japan in 1994 of killing his wife, Kazumi Miura, but the verdict was overturned 10 years ago.

"Given that this case has been closed in Japan, the Justice Ministry and Japanese police should no longer have to respond to requests from the police for evidence or to cooperate with the investigation," said Miuri's lawyer, Shinichiro Hironaka.

Miura and his wife were visiting Los Angeles on Nov. 18, 1981, when they were shot in a parking lot. Miura was hit in the right leg, while his 28-year-old wife was shot in the head. The shooting caused an international uproar, in part because he blamed the attack on robbers, reinforcing Japanese perceptions of America as violent.

The arrest came after cold-case detectives from the Los Angeles Police Department worked with authorities in Saipan and in Guam, police said in a statement. Police did not make details on the arrest available.

At a bail hearing Monday in Saipan, Miura told the court the killing "took place several decades ago, and it is unlikely that I will destroy evidence or run away," according to the Kyodo News Agency.

The court, however, denied him bail. A preliminary hearing was set for March 5, said Rosie Ada, deputy clerk at Superior Court. An arraignment was also slated for March 10, she said.



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