Lawline.com

Two big cases are set to shake up the college admission process.  The first involves the so-called “clout list” at the University of Illinois, which gave hundreds of well-connected students an edge in the admissions process. The story of the “clout list” broke 2 years ago and was a huge scandal, but the Unviersity is still dealing with litigation stemming from the case.  The Chicago Tribune is requesting further data under the Freedom of Information Act (such as the admitted students’ GPAs and ACT scores) but the school is arguing they cannot release these records because the Federal Privacy Laws prohibit it from releasing personal information about students. Media Groups are arguing that the university is abusing FERPA (Family Educational Rights and Privacy Act) because it is not trying to protect admissions records, but trying to prevent investigation into its own wrongdoing. Basically the case comes down to privacy laws versus freedom of information laws, and according to the media advocates, the right of the public to know about this type of corruption far outweighs any privacy rights that might be invoked by persons on the “clout list” who side stepped the merit-based application process. As the case moves through the court system, judges have been ruling against the University and finding that details of the “clout list” should be divulged, putting the University in danger of losing federal financing for violating FERPA.

In addition, The Supreme Court is expected to take on the case of Abigail Fisher, a white student who claims she was denied admission to the University of Texas because of her race. Should the justices hear the case, it could mean a new ruling on the “meaning of diversity”, an overruling of the Grutter v. Bollinger decision, and the end of affirmative action at public schools. In the 2003 Grutter v. Bollinger case the court ruled that public universities are allowed to consider race in admissions decisions if their reason for considering race is the “pursuit of diversity”. However, the makeup of the court has changed since 2003, and it is possible that the case will now be overturned. Should this happen, the case will have repercussions beyond its impact on college admissions (where the proportion of minority students at public institutions would be expected to drop), it might also begin to unravel societal commitment to diversity in private hiring.

Testimony by Steve Anderson, a former undercover officer, revealed the extent of corruption in the New York City Narcotics units.  About 3 years ago, a scandal erupted when it was discovered that officers in Brooklyn were not vouchering (creating an official invoice and properly tracking) all the drugs they seized as evidence. At the time, the officers claimed that the officers were using the “off the book” drugs as rewards for those who provided information, a kind of “noble corruption”, which helped them do their jobs. However, after Anderson’s testimony, it appears that what these untracked drugs were actually used for was nothing that could, in any way, be termed “noble”: they were planted on people when narcotics officers needed to meet their arrest quotas.

As an example, Mr. Anderson cites a time when he bought cocaine from a DJ at a club as part of a buy-and-bust operation, but then gave some of the drugs to a fellow officer who had not met his quotas. The second officer then planted the drugs on two people at the club that had nothing to with the sale; a practice of “attaching bodies” to drugs.

As a result of the scandals, prosecutors in Brooklyn and Queens had to dismiss about 400 criminal cases that were tainted by the involvement of officers named in the scandal. In many of the cases people were able to walk away despite damning evidence, because evidence could no longer be trusted. Lawyers have filed claims for wrongful incarceration on the behalf of those arrested by these officers, and the city is settling the cases for about $1,000 an hour of imprisonment.

Prosecutors who are working on the trials of corrupt officers say that there is a conspiracy in the Police Department to cover up procedural and ethical violations by routinely falsifying records and keeping stashes of narcotics. And if Anderson’s testimony is to be believed, the corruption was indeed wide spread and pervasive, involving everyone from “ supervisors or undercovers [to] investigators”.

An article in the New York Times raises the question of how organized a group has to be before its members can be tried on conspiracy charges.  The article focuses on the case of Jaquan Layne, who is being tried on second-degree conspiracy charges, along with 4 others who are being tried on first-degree conspiracy charges (for which they could potentially receive life in prison). The question that makes this case complicated, is not whether the defendants were selling drugs or being violent (because recordings of their phone conversations show that they certainly were), but whether their organization was structured enough to be considered a “gang”.

Mr. Rothman, the defense lawyer, argues that the group was not a structured drug trafficking operation, but was rather just a few friends” from the block”, and their phone conversations were not conspiracies, but were rather just boastful hot air. On the other hand, prosecutors argue that the a gang is any structured criminal organization, and the group that was led by Layne fits that description as it was a violent, drug-trafficking enterprise that defended what it defined as its “turf”.

The district attorney’s office is interested on prosecuting the men on conspiracy charges rather than just drug dealing or gun possession charges because, although conspiracy charges are difficult to prove, they allow prosecutors to bring down multiple defendants at once and wipe out entire pockets of crime.  To prove the conspiracy charges, the DA’s office must prove that the defendants agreed to commit a crime and took steps to do so. Prosecutors are planning to use recorded conversations between the defendants to show the extent to which their operation was premeditated and structured.

The Supreme Court is struggling to reach a decision in the case of Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which centers on a teacher at a church-run school who claims she was fired because she pursued an employment discrimination claim against the school based on her disability.

The issue here is whether the laws forbidding employment discrimination fully apply to religious groups, and to what extent the government can interfere with religious groups to redress discrimination. For example, women are not allowed to serve as priests in the Roman Catholic Church, can the government declare this illegal and force a change? The Justices were having a difficult time coming up with a solution that would both limit government interference in the operations of religious organizations and protect employees from discrimination. The justices rejected the claim that there was no difference between an employment discrimination case that involves a church and one that involves a labor union, implying the free exercise clause and establishment clauses of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) did not apply.

The lawyer representing the church that runs the school argued that the Supreme Court ought to recognize the “ministerial exception” which forbids the government from interfering in the relationship between religious groups and employees who preform religious duties. However, the Justices were uncomfortable with this approach as well, deeming it too broad in its scope (so that it would affect sexual abuse reporting at religious organizations etc), and problematic in its definition of which employees would be considered “ministers”.

Another option for the Court, suggested by Justice Breyer, was to ignore the First Ammendment issues altogether and limiting the defense to a line from the Americans with Disabilities Act, which allows religious organizations to require that “all employees conform to the religious tenets” of the organization. However the plaintiff’s lawyers contend that this defense does not apply in this case

Lately, the headlines have been filled with stories about capital punishment in America, putting the death sentence on trial by public opinion.

Troy Davis was put to death in Georgia on Wednesday, after the Supreme Court refused to grant him a stay of execution. The case has stirred up a lot of controversy and accusations of injustice. In 1991 Davis was sentenced to death for the murder of a policeman, but doubts about his guilt surfaced after many of the witnesses who testified against Davis retracted their statements (claiming they were coerced by the police to implicate Davis) and doubts were raised about the way his case was handled by prosecutors. Despite the fact that Davis always maintained that another man at the scene was responsible for the shooting and no physical evidence was ever recovered linking Davis to the shooting, his attempts to get a retrial had been persistently rejected by state and federal courts. Finally, after the Supreme Court intervened, he was granted a hearing in front of a federal judge, but that judge ruled that in order to overturn his conviction Davis had not only to show that the evidence proving his guilt was questionable, but provide positive proof of his innocence. Many legal experts took issue with this ruling, claiming it set the bar for a retrial too high.

While the case has provoked a lot of criticism in the US, it is interesting to note the extent of the outrage in drew from Western Europe, which has long denounced the death penalty in the US. The case got continuous coverage in the French and British media, where it was framed as a racial issue: a black man unjustly convicted of killing a white man in a southern state. Hundreds of people gathered outside of US embassies in London and Paris to protest the execution. Many European statesmen called the execution “inhumane” and “barbaric”. According to a French Historian from the Institute of Political Studies in Paris, the French consider the abolition of the death penalty to be “an established norm of modern society”. However it is interesting to note that while France has been critical of what it sees as human rights abuses in the American justice system, a new law passed by France banning the full body veil worn by some Muslim women, has also been drawing heat.

In other capital punishment news, the Supreme Court recently halted the execution of a man in Texas, after his lawyer claimed that race played an improper role in his sentencing. During the man’s trial, a psychologist testified to the effect that black people were more likely to commit violence. While the man’s guilt is not being contested, his lawyers say that the psychologist’s testimony unfairly influenced the jury.

Texas has recently made a change to the way it handles executions, but only in as much as itsprisons will no longer serve a “last meal” to those about to be executed. The decision to do away with the last meal practice came after a lawmaker expressed outrage over the extravagant, 9-course “last meal” ordered by Lawrence Russell Brewer, saying that death row inmates should not be  “treated like celebrities” before they are executed.

New York’s Chief Judge, Jonathan Lippman, has proposed an overhaul in the way New York State deals with 16 and 17-year-old defendants.  Judge Lippman suggested continuing trying 16 and 17-year-olds who have committed serious crimes in criminal courts, but giving family courts jurisdiction over 16 and 17-year-olds who are charged with less serious crimes. Currently, New York State tries all 16 and 17 year-olds as adults in criminal courts, but critics of New York’s severe policy have said that this punitive approach does an injustice to these minors, who are in need of the social services offered in family courts. The juvenile system is more focused on treatment and rehabilitation, and since juvenile court records are sealed, it is easier for youths to acquire jobs after they serve their sentence, which is expected to reduce recidivism rates.

While attempting this change is progressive, it is also complicated. If New York adopts the plan, it would have to funnel even more money into the court system and into social services, at a time when states are facing massive budget deficits. Furthermore, the change would require a complete reorganization of agencies in the criminal justice system, changing the roles of judges, prosecutors, correction officers and others.  Not only would this plan be difficult to implement, but it may prove difficult to pass through the Republican held State Senate.

To drum up support for his proposal, Judge Lippman is speaking to advocacy groups and is planning to establish a pilot program where adolescent defendants are tried within the adult court system, but judges handle their cases as if they are in Family Court, to show that his proposal will work on a larger scale.

Supporters of the measure point to the Supreme Court’s 2005 decision in Roper v. Simmonswhich banned the death penalty for those under 18 years of age, citing differences such as immaturity and susceptibility to peer pressure, as the reasons defendants under 18 years of age should be judged differently  from adults.

What do are you views on the proposal? Should New York change its system? Should 16 and 17-year olds be held responsible for their actions the same way adults are? Should even bigger changes be made to the criminal court system in New York?

A class-action lawsuit was just filed against the Kennedy Krierger Institute,  a prominent medical institute affiliated with Johns Hopkins University, for allegedly exposing black children to lead paint as part of a research project on lead poisoning. According to the lawyers filing the lawsuit, more than 100 children were endangered by lead dust after the Institute assured their families that their homes were “lead safe”.  The institute then periodically measured the lead levels in the children’s blood, but provided them with no medical treatment. According to the lawsuit, this lead exposure caused significant, permanent neurological injuries in some of the children.

The institute defended its actions, saying the lead pain study was done in the “best interests of all the children enrolled”, and that for the most part, the children’s blood lead levels remained constant or went down. The study was meant to determine how well various levels of lead reduction decreased blood lead levels in young children, so that “a practical way to clean up lead” in homes could be found in the absence of regulation. Litigation around this research project has gone on for more than a decade, and has been compared to the Tuskegee Syphilis experiment.

While the parents of the enrolled children signed consent forms, lawyers for the plaintiffs argue that the forms did not provide a complete or clear explanation of what the research entailed. Allegedly, the Kennedy Krieger institute helped some of the families in the project acquire apartments in state-subsidized buildings where lead abatement was only partial (assuring them that the buildings were “lead safe”), and then did not inform parents when their children’s blood levels were elevated, nor did they provide treatment to children whose condition was deteriorating.

On the other hand, the hospital claims that the study was the basis for a 1996 state law that led to a 93 percent drop in lead-paint poisoning in Baltimore. Still, as good as their intentions might have been, investigations must adhere to ethical standards, and if the allegations of the lawsuit are true, the institute failed to follow the guidelines for the right way to conduct research involving human subjects.

Today’s post is on the growing concern with the government’s surveillance transgressions. First, the CIA has opened up an internal inquiry as to whether its cooperation with the NYPD since 9/11 violated the laws prohibiting the agency from gathering intelligence in the US. Critics have labeled the CIA’s counterterrorism projects with law enforcement services as “domestic spying”.  Muslim advocacy groups have decried some of the more controversial counterterrorism projects undertaken by the police department in cooperation with the CIA, such as monitoring mosques and ethnic groups, but a spokeswoman for the Agency maintains that the CIA’s operational focus is still overseas and that the work the CIA has been doing with the NYPD is necessary in the post-9/11 world.

Meanwhile, judges all over the country have been filing rulings against the use of cellphones and satellites to pursue suspects, on the grounds that such practices are endangering the Fourth Amendment’s guarantee to the protection from government invasion of privacy.  Now, the Supreme Court is set to hear an important Fourth Ammendment case and decide whether “changes in technology require changes to existing fourth amendment doctrine”. The issue at the center of the case is whether the police need a warrant to track a suspect’s car for weeks at a time using a GPS. The Supreme Court will have to interpret the application of the ban against “unreasonable searches” in a world where people are continuously being monitored. The Supreme Court will not just address whether GPS tracking requires a warrant, but whether the police are generally allowed to monitor a person’s every move outside their home through technology, or whether this goes “unreasonably” beyond conventional surveillance.

An appeals court in DC, found that the government and police are using surveillance equipment to obtain too much information, and that by tracking a person over a period of time, they are gaining too much information about his life. A court in San Fransisco, however, decided that the police use of GPS is the same at an officer’s tailing of a car, but more efficient.

Another question the Supreme Court will have to decide on is whether surveillance violates the Fourth Amendment only in cases of general public surveillance where there is no individual suspicion, or whether tracking a suspect over a period of time was also “unreasonable” in terms of the Fourth Amendment rights.

Here in New York City, the evidence that the 10^thanniversary of 9/11 is approaching is subtle but undeniable: the increased police presence in major subway stations and the full page spreads on the front pages of free newspapers handed out on the street give it away. But how have things changed in the last 10 years? Some things, like air travel and the Ney York Skyline, will never be the same, but interestingly,according to Adam  Liptak of the New York Times, Civil Rights have remained largely intact; despite what might be expected in response to such a crisis, this area of law has  remained largely unchanged.

Liptak argues that the legal response to 9/11 did not dramatically curtail civil rights in the name of security; in fact, the law itself changed little, the only thing that really changed was the enforcement of the law. According to law professor Kent Roach, even the Patriot Act, which has become a sort of shorthand in some circles for the abuse of government power under the cover of 9/11, was  pretty “mundane and mild”, and did not make preventive detention or limitations on speech commonplace. All in all, even though the new law enforcement paradigm focused on preventing terrorist attacks (which meant arresting people considered dangerous before they committed a crime by increased surveillance of religious and dissident groups and inserting informants into Muslim communities which might have impinged on First Amendment rights in some cases), the contraction of domestic liberties since 9/11 has been minor.

The major difference, according to law professor Robert M. Chesney, is that laws that already existed are being used in these preventive strategies. For example, when persons of interest are arrested before they have committed any serious crime, they are charged with something broad that requires little substantiation (like “conspiracy” or “material support” of terrorist groups).  Another tactic often used involved detaining those suspected of having ties to terrorist organizations for immigration offenses.

One area of the law where big changes have occurred is in the legality of surveillance, the Justice Department was granted the broad ability to use wiretapping, which unleashed a large amount of surveillance with little judicial review.

While there have definitely been instances where civil rights have been curtailed in the name of fighting terrorism, the fact that these instances are known to the public is itself evidence that 1^stAmendment rights, like free speech and free press, are still very much in tact in America; much more so than they have been during any other war or crisis in our nation’s history.

New Jersey’s anti-bullying law, inspired by Tyler Clementi’s suicide last year, went into effect last week. As the nation’s toughest anti-bullying measure, it is already drawing fire from critics who say the law’s provisions are too burdensome for teachers and will lead to too many lawsuits. In a recent New York Times article, many school administrators complained that they are being expected to comply with the extensive demands of the law without being given any additional resources. There was also concern that making schools legally responsible for bullying would lead to lawsuits from students and parents who are dissatisfied with the results of school investigations. Another concern that has been expressed about the new law is that it contains ambiguous language that will need to be interpreted in court. For example, the way the law defines “bullying” as anything that creates a hostile educational environment, but does not clarify what behaviors “cross the line” into bullying, and which are simply mean, but insignificant.  The other legal issue at stake here has to do with students’ free speech rights; federal court rulings have upheld the rights of students to self-expression, while New Jersey’s anti-bullying law requires schools to monitor certain kinds of speech made by students.

Adam Cohen of Time magazine, however, believes that New Jersey’s Anti-Bullying Bill of Rights is a good idea, and wants to see other states adopt similar measures that send an equally strong message to bullies that the law is firmly on the side of the victim. Under the new law, New Jersey schools are required to provide staff and students with antibullying training, appoint “safety teams” and investigate every allegation of bullying within one day. According to Adam Cohen, the important aspects of New Jersey’s new law, and those which set it apart from the statutes that are in place in the 47 other states that have anti-bullying laws, are the rigorous oversight and quick response mechanisms that are being set up in New Jersey. According to Cohen, as imperfect as the law may be, it is an important step in the right direction: bullying is a big problem that often has devastating consequences and must be addressed.