Reuters : U.S. court rules Saudi Arabia immune in 9/11 case

U.S. court rules Saudi Arabia immune in 9/11 case

August 14, 2008

NEW YORK (Reuters) - The Kingdom of Saudi Arabia, four princes and other Saudi entities are immune from a lawsuit filed by victims of the September 11 attacks and their families alleging they gave material support to al Qaeda, a federal appeals court ruled on Thursday.

The ruling by the Second Circuit Court of Appeals in Manhattan upheld a 2006 ruling by U.S. District Judge Richard Casey dismissing a claim against Saudi Arabia, a Saudi charity, four princes and a Saudi banker of providing material support to al Qaeda before the September 11 attacks.

The victims and their families argued that because the defendants gave money to Muslim charities that in turn gave money to al Qaeda, they should be held responsible for helping to finance the attacks.

The appeals court found that the defendants are protected under the Foreign Sovereign Immunities Act.

The court also noted that exceptions to the immunity rule do not apply because Saudi Arabia has not been designated a state sponsor of terrorism by the U.S. State Department.

(Reporting by Edith Honan, editing by Vicki Allen)

© Thomson Reuters 2008 All rights reserved

Toronto Star : Perjury: Is it different for cops?

Perjury: Is it different for cops?

Cases show double standard, critics say

Betsy Powell and Peter Small | Staff reporters | August 2, 2008

A Toronto judge acquits two men of firearms charges, finding that police testimony was "unreliable, likely false." In another courtroom, a judge convicts a prominent community activist of perjury, ruling that she deliberately misled the court.

These two recent court cases highlight the rarely prosecuted offence of perjury. For some in the legal community, they also raise questions about double standards, how often police lie on the stand and how infrequently they face charges.

This past week, supporters of activist Valarie Steele, found by a judge to have lied to get her son released from custody, wondered aloud if she should have been charged at all.

Also this week, the province's Special Investigations Unit announced it is probing the case of Shayne Fisher, 24. Fisher and another man were acquitted after Superior Court Justice Brian Trafford ruled in June that the men were "physically abused" by Toronto police drug squad officers during a raid.

"Important parts of the evidence tendered against the defendants, at the preliminary hearing and at trial, have been found by the court to be unreliable, likely false," Trafford wrote.

Defence lawyers point to other examples of judges acquitting people because of unreliable testimony from police. It even has a name: testilying.

A case often cited is that of Kevin Khan, acquitted on drug charges by Justice Anne Molloy in 2004. She found two Toronto police officers, including Det. Glenn Asselin, used racial profiling when they stopped Khan and later "fabricated" evidence.

"I quite simply do not believe the evidence of the officers," she wrote in her judgment.

Asselin was investigated internally and cleared. He remains with the force as a detective.

Then there's the high profile case of the three officers who testified at the 2005 assault trial of Toronto police officer Roy Preston.

Ontario Court Justice Peter Wilkie convicted Preston after finding him to be "neither credible nor reliable."

Wilkie also found the evidence of the three officers who testified on Preston's behalf to be "vague," "contradictory" and "fundamentally unreliable."

Preston went to jail after losing his appeal. He is suspended without pay and faces disciplinary charges and could be fired.

The three officers were investigated and cleared by their superiors.

In the Steele case, police wiretaps caught the activist saying her son, a witness in the Jane Creba murder case, wasn't adhering to his bail conditions on unrelated charges. In court, she had indicated the opposite and was subsequently convicted of perjury.

Supporters argued she was being punished for her son's unwillingness to co-operate.

Academics throughout North America have found the police culture encourages lying.

"When officer self interest, and/or the bond of the `thin blue line is challenged,' as in a disciplinary proceeding, overt lying is widely recognized as a common occurrence," Dianne Martin, the late Osgoode Hall law professor, wrote in a 2001 paper.

Defence Lawyer Edward Sapiano says police knowingly commit perjury because of what he calls "noble-cause perjury."

"Police knowingly give false testimony to facilitate the prosecution and to ensure the conviction of persons the police 'know' are guilty. Because police so easily get away with noble-cause perjury ... police quite reasonably believe they are being encouraged to lie by the administration of justice itself."

An assistant Crown attorney, who spoke on the condition of anonymity, didn't disagree.

"You would expect ... police witnesses to have a stronger regard for the oath but people lie in court all the time, police officers included."

"There is an attitude that the legal system is just a bunch of bulls--- invented by lawyers and ... the oath doesn't really bind anyone's conscience, in some quarters. I'm not saying every cop is like that but I've certainly had the impression over the years that there are many that do feel that way."

Gary Clewley, a defence lawyer who often represents police officers charged with crimes, says it's "ridiculous" to suggest that judges and Crowns tolerate police perjury because officers perceive it to be a legitimate means to an end.

And just because a judge finds an officer "likely" gave false testimony, doesn't mean he or she lied.

"There's a world of difference between saying `I'm not satisfied sufficiently to deprive somebody of their liberty based on the evidence' and the officers are outright liars."

Sapiano says it's rare police are charged either internally or criminally, "even when sufficient evidence exists, and apparently only ... when a defence lawyer catches them lying and it makes the front page of the newspapers."

Christopher Downer, a former Toronto detective who used to investigate allegations of misconduct against court officers, remembers a case where two police "buddies" of a court officer charged with assault lied on the stand. "I sent a package off to internal affairs: nothing was ever done.

"No one's aggressively going after anyone and at the end of the day nothing happens."

"That's not the case at all," responds George Cowley, director of legal services for the Toronto Police Service. He points to the case of Amar Katoch, a veteran Toronto officer charged with assault, perjury and attempt to obstruct justice by his employer after a videotape of an anti-poverty protest in 2003 showed him punching a protester.

"There's no apathy at all. We're very concerned about comments made by judges," Cowley said.

Katoch was acquitted by a jury last fall. The Crown is appealing.

In the Khan case, Molloy's comments about Asselin were "troubling," Cowley says. "We thoroughly looked into the entire matter and it was determined that there was no evidence to support either criminal or Police Services Act charges."

While the Ministry of the Attorney General failed to respond to questions about the number of perjury charges laid against police, two Ontario police officers facing perjury charges will be in court this fall.

This month, OPP Det. Sgt. John Cavanaugh goes on trial in Toronto. In September, a preliminary hearing is scheduled in the case of Peel Region Const. Sean Osborne.

Despite these cases, the reason so few perjury charges are laid is because "it's only in the most clearest of cases when the evidence is there" that it's worth pursuing, says Avtar Bhangal, the lawyer who represented Sunny Bains, who Osborne is alleged to have assaulted.

"There are lots of cases where people are found to fudge the truth – it's a different standard to actually prove that they intentionally did perjure themselves."

NYT : American Exception: Inmate Count in U.S. Dwarfs Other Nations’

American Exception: Inmate Count in U.S. Dwarfs Other Nations’

By ADAM LIPTAK | April 23, 2008

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King’s College London.

China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison. (That number excludes hundreds of thousands of people held in administrative detention, most of them in China’s extrajudicial system of re-education through labor, which often singles out political activists who have not committed crimes.)

San Marino, with a population of about 30,000, is at the end of the long list of 218 countries compiled by the center. It has a single prisoner.

The United States comes in first, too, on a more meaningful list from the prison studies center, the one ranked in order of the incarceration rates. It has 751 people in prison or jail for every 100,000 in population. (If you count only adults, one in 100 Americans is locked up.)

The only other major industrialized nation that even comes close is Russia, with 627 prisoners for every 100,000 people. The others have much lower rates. England’s rate is 151; Germany’s is 88; and Japan’s is 63.

The median among all nations is about 125, roughly a sixth of the American rate.

There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much.

Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.

Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.

It used to be that Europeans came to the United States to study its prison systems. They came away impressed.

“In no country is criminal justice administered with more mildness than in the United States,” Alexis de Tocqueville, who toured American penitentiaries in 1831, wrote in “Democracy in America.”

No more.

“Far from serving as a model for the world, contemporary America is viewed with horror,” James Q. Whitman, a specialist in comparative law at Yale, wrote last year in Social Research. “Certainly there are no European governments sending delegations to learn from us about how to manage prisons.”

Prison sentences here have become “vastly harsher than in any other country to which the United States would ordinarily be compared,” Michael H. Tonry, a leading authority on crime policy, wrote in “The Handbook of Crime and Punishment.”

Indeed, said Vivien Stern, a research fellow at the prison studies center in London, the American incarceration rate has made the United States “a rogue state, a country that has made a decision not to follow what is a normal Western approach.”

The spike in American incarceration rates is quite recent. From 1925 to 1975, the rate remained stable, around 110 people in prison per 100,000 people. It shot up with the movement to get tough on crime in the late 1970s. (These numbers exclude people held in jails, as comprehensive information on prisoners held in state and local jails was not collected until relatively recently.)

The nation’s relatively high violent crime rate, partly driven by the much easier availability of guns here, helps explain the number of people in American prisons.

“The assault rate in New York and London is not that much different,” said Marc Mauer, the executive director of the Sentencing Project, a research and advocacy group. “But if you look at the murder rate, particularly with firearms, it’s much higher.”

Despite the recent decline in the murder rate in the United States, it is still about four times that of many nations in Western Europe.

But that is only a partial explanation. The United States, in fact, has relatively low rates of nonviolent crime. It has lower burglary and robbery rates than Australia, Canada and England.

People who commit nonviolent crimes in the rest of the world are less likely to receive prison time and certainly less likely to receive long sentences. The United States is, for instance, the only advanced country that incarcerates people for minor property crimes like passing bad checks, Mr. Whitman wrote.

Efforts to combat illegal drugs play a major role in explaining long prison sentences in the United States as well. In 1980, there were about 40,000 people in American jails and prisons for drug crimes. These days, there are almost 500,000.

Those figures have drawn contempt from European critics. “The U.S. pursues the war on drugs with an ignorant fanaticism,” said Ms. Stern of King’s College.

Many American prosecutors, on the other hand, say that locking up people involved in the drug trade is imperative, as it helps thwart demand for illegal drugs and drives down other kinds of crime. Attorney General Michael B. Mukasey, for instance, has fought hard to prevent the early release of people in federal prison on crack cocaine offenses, saying that many of them “are among the most serious and violent offenders.”

Still, it is the length of sentences that truly distinguishes American prison policy. Indeed, the mere number of sentences imposed here would not place the United States at the top of the incarceration lists. If lists were compiled based on annual admissions to prison per capita, several European countries would outpace the United States. But American prison stays are much longer, so the total incarceration rate is higher.

Burglars in the United States serve an average of 16 months in prison, according to Mr. Mauer, compared with 5 months in Canada and 7 months in England.

Many specialists dismissed race as an important distinguishing factor in the American prison rate. It is true that blacks are much more likely to be imprisoned than other groups in the United States, but that is not a particularly distinctive phenomenon. Minorities in Canada, Britain and Australia are also disproportionately represented in those nation’s prisons, and the ratios are similar to or larger than those in the United States.

Some scholars have found that English-speaking nations have higher prison rates.

“Although it is not at all clear what it is about Anglo-Saxon culture that makes predominantly English-speaking countries especially punitive, they are,” Mr. Tonry wrote last year in “Crime, Punishment and Politics in Comparative Perspective.”

“It could be related to economies that are more capitalistic and political cultures that are less social democratic than those of most European countries,” Mr. Tonry wrote. “Or it could have something to do with the Protestant religions with strong Calvinist overtones that were long influential.”

The American character — self-reliant, independent, judgmental — also plays a role.

“America is a comparatively tough place, which puts a strong emphasis on individual responsibility,” Mr. Whitman of Yale wrote. “That attitude has shown up in the American criminal justice of the last 30 years.”

French-speaking countries, by contrast, have “comparatively mild penal policies,” Mr. Tonry wrote.

Of course, sentencing policies within the United States are not monolithic, and national comparisons can be misleading.

“Minnesota looks more like Sweden than like Texas,” said Mr. Mauer of the Sentencing Project. (Sweden imprisons about 80 people per 100,000 of population; Minnesota, about 300; and Texas, almost 1,000. Maine has the lowest incarceration rate in the United States, at 273; and Louisiana the highest, at 1,138.)

Whatever the reasons, there is little dispute that America’s exceptional incarceration rate has had an impact on crime.

“As one might expect, a good case can be made that fewer Americans are now being victimized” thanks to the tougher crime policies, Paul G. Cassell, an authority on sentencing and a former federal judge, wrote in The Stanford Law Review.

From 1981 to 1996, according to Justice Department statistics, the risk of punishment rose in the United States and fell in England. The crime rates predictably moved in the opposite directions, falling in the United States and rising in England.

“These figures,” Mr. Cassell wrote, “should give one pause before too quickly concluding that European sentences are appropriate.”

Other commentators were more definitive. “The simple truth is that imprisonment works,” wrote Kent Scheidegger and Michael Rushford of the Criminal Justice Legal Foundation in The Stanford Law and Policy Review. “Locking up criminals for longer periods reduces the level of crime. The benefits of doing so far offset the costs.”

There is a counterexample, however, to the north. “Rises and falls in Canada’s crime rate have closely paralleled America’s for 40 years,” Mr. Tonry wrote last year. “But its imprisonment rate has remained stable.”

Several specialists here and abroad pointed to a surprising explanation for the high incarceration rate in the United States: democracy.

Most state court judges and prosecutors in the United States are elected and are therefore sensitive to a public that is, according to opinion polls, generally in favor of tough crime policies. In the rest of the world, criminal justice professionals tend to be civil servants who are insulated from popular demands for tough sentencing.

Mr. Whitman, who has studied Tocqueville’s work on American penitentiaries, was asked what accounted for America’s booming prison population.

“Unfortunately, a lot of the answer is democracy — just what Tocqueville was talking about,” he said. “We have a highly politicized criminal justice system.”

IHT : Serving life for providing car to killers

Serving life for providing car to killers

By Adam Liptak | December 4, 2007

CRAWFORDVILLE, Florida: Early in the morning of March 10, 2003, after a raucous party that lasted into the small hours, a groggy and hungover 20-year-old named Ryan Holle lent his Chevrolet Metro to a friend. That decision, prosecutors later said, was tantamount to murder.

The friend used the car to drive three men to the Pensacola home of a marijuana dealer, aiming to steal a safe. The burglary turned violent, and one of the men killed the dealer's 18-year-old daughter by beating her head in with a shotgun he found in the home.

Holle was a mile and a half away, but that did not matter.

He was convicted of murder under a distinctively American legal doctrine that makes accomplices as liable as the actual killer for murders committed during felonies like burglaries, rapes and robberies.

Holle, who had given the police a series of statements in which he seemed to admit knowing about the burglary, was convicted of first-degree murder. He is serving a sentence of life without the possibility of parole at the Wakulla Correctional Institution here, 20 miles southwest of Tallahassee.

A prosecutor explained the theory to the jury at Holle's trial in Pensacola in 2004. "No car, no crime," said the prosecutor, David Rimmer. "No car, no consequences. No car, no murder."

Most scholars trace the doctrine, which is an aspect of the felony murder rule, to English common law, but Parliament abolished it in 1957. The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule. So is, as Holle learned, a killing by an accomplice.

India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated "the principle that punishment must be proportionate to the moral blameworthiness of the offender."

Countries outside the common law tradition agree. "The view in Europe," said James Whitman, a professor of comparative law at Yale, "is that we hold people responsible for their own acts and not the acts of others."

But prosecutors and victims' rights groups in the United States say that punishing accomplices as though they had been the actual killers is perfectly appropriate.

"The felony murder rule serves important interests," said Rimmer, the prosecutor in the Holle case, "because it holds all persons responsible for the actions of each other if they are all participating in the same crime."

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims' rights group, said "all perpetrators of the underlying felony, not just the one who pulls the trigger" should be held accountable for murder.

"A person who has chosen to commit armed robbery, rape or kidnapping has chosen to do something with a strong possibility of causing the death of an innocent person," Scheidegger said. "That choice makes it morally justified to convict the person of murder when that possibility happens."

About 16 percent of homicides in 2006 occurred during felonies, according to the Federal Bureau of Investigation. Statistics concerning how many of those killings led to the murder prosecutions of accomplices are not available, but legal experts say such prosecutions are relatively common in the more than 30 states that allow them. About 80 people have been sentenced to death in the last three decades for participating in a felony that led to a murder though they did not kill anyone.

Terry Snyder, whose daughter Jessica was the victim in Holle's case, said Holle's conduct was as blameworthy as that of the man who shattered her skull.

"It never would have happened unless Ryan Holle had lent the car," Snyder said. "It was as good as if he was there."

Prosecutors sometimes also justify the doctrine on the ground that it deters murders. Criminals who know they will face harsh punishment if someone dies in the course of a felony, supporters of the felony murder rule say, may plan their crimes with more care, may leave deadly weapons at home and may decide not to commit the underlying felony at all.

But the evidence of a deterrent effect is thin. An unpublished analysis of FBI crime data from 1970 to 1998 by Anup Malani, a law professor at the University of Chicago, found that the presence of the felony murder rule had a relatively small effect on criminal behavior, reducing the number of deaths during burglaries and car thefts slightly, not affecting deaths during rapes and, perversely, increasing the number of deaths during robberies. That last finding, the study said, "is hard to explain" and "warrants further exploration."

The felony murder rule's defenders acknowledge that it can be counterintuitive.

"It may not make any sense to you," Rimmer, the prosecutor in Holle's case, told the jury. "He has to be treated just as if he had done all the things the other four people did."

Prosecutors sought the death penalty for Charles Miller Jr., the man who actually killed Jessica Snyder, but he was sentenced to life without parole. So were the men who entered the Snyders' home with him, Donnie Williams and Jermond Thomas. So was William Allen Jr., who drove the car. So was Holle.

Holle had no criminal record. He had lent his car to Allen, a housemate, countless times before.

"All he did was go say, 'Use the car,' " Allen said of Holle in a pretrial deposition. "I mean, nobody really knew that girl was going to get killed. It was not in the plans to go kill somebody, you know."

But Holle did testify that he had been told it might be necessary to "knock out" Jessica Snyder. Holle is 25 now, a tall, lean and lively man with a rueful sense of humor, alert brown eyes and an unusually deep voice. In a spare office at the prison here, he said that he had not taken the talk of a burglary seriously.

"I honestly thought they were going to get food," he said of the men who used his car, all of whom had attended the nightlong party at Holle's house, as had Jessica Snyder.

"When they actually mentioned what was going on, I thought it was a joke," Holle added, referring to the plan to steal the Snyders' safe. "I thought they were just playing around. I was just very naïve. Plus from being drinking that night, I just didn't understand what was going on."

Holle's trial lawyer, Sharon Wilson, said the statements he had given to the police were the key to the case, given the felony murder rule.

"It's just draconian," Wilson said. "The worst thing he was guilty of was partying too much and not being discriminating enough in who he was partying with."

Holle's trial took one day. "It was done, probably, by 5 o'clock," Holle said. "That's with the deliberations and the verdict and the sentence."

Witnesses described the horror of the crime. Christine Snyder, for instance, recalled finding her daughter, her head bashed in and her teeth knocked out.

"Then what did you do?" the prosecutor asked her.

"I went screaming out of the home saying they blew my baby's face off," Snyder said.

The safe had belonged to Christine Snyder. The police found a pound of marijuana in it, and, after her daughter's funeral, she was sentenced to three years in prison for possessing it.

Not every state's version of the felony murder rule is as strict as Florida's, and a few states, including Hawaii, Kentucky and Michigan, have abolished it entirely.

"The felony-murder rule completely ignores the concept of determination of guilt on the basis of individual misconduct," the Michigan Supreme Court wrote in 1980.

The vast majority of states retain it in various forms, but courts and officials have taken occasional steps to limit its harshest applications.

In August, for instance, Governor Rick Perry of Texas commuted the death sentence of Kenneth Foster, the driver of a getaway car in a robbery spree that ended in a murder.

Holle was the only one of the five men charged with murdering Jessica Snyder who was offered a plea bargain, one that might have led to 10 years in prison.

"I did so because he was not as culpable as the others," said Rimmer, the prosecutor.

Holle, who rejected the deal, has spent some time thinking about the felony murder rule.

"The laws that they use to convict people are just — they have to revise them," he said. "Just because I lent these guys my car, why should I be convicted the same as these people that actually went to the scene of the crime and actually committed the crime?"

Rimmer sounded ambivalent on this point.

"Whether or not the felony murder rule can result in disproportionate justice is a matter of opinion," Rimmer said. "The father of Jessica Snyder does not think so."