Amici Curiae: The Chief Turns 10, Distorted Confessions and Nut-Free Zones Edition

A proud, happy Chief turns 10
Beverley McLachlin marks her 10th anniversary as chief justice of the Supreme Court of Canada this week. Speaking to The Globe and Mail, McLachlin observed that the impacts of the court’s judgements continue to weigh heavily on her. “They are all really, really important issues at this level,” McLachlin told justice reporter Kirk Makin. “One does ponder them, and go back and forth agonizing about them. I must say, it is a preoccupying thing.” That said, the chief is not down on herself or the court: “I think people regard the Supreme Court of Canada and the justice system with some pride, and they should,” McLachlin said in an interview with the National Post. “I am happy with my impression of how the court is perceived.” The chief also remarked that the Court in the early years after the Charter “did a huge amount of very good work” and that much of the work done by the current Court involves “fine-tuning or recalibrating decisions as new situations arise and require further consideration.” Should McLachlin serve three more years on the bench, she will be the longest-serving chief justice in the Supreme Court’s 135-year history.

Confession and its Distortions
It seems doubtful that the work of The Innocence Project will ever be done. In The Observer, online organ of the Assocation for Psychological Science, Ian Herbert writes of the remarkably corruptive effects that confessions, irrespective of their truth, have on the criminal trial process. Herbert leaves aside the question as to the “why” of the phenomenon of false confession, instead focussing on studies demonstrating that knowledge of the simple availability of a “confession” has a determinative influence on juries, witnesses, and evidence. For instance, Herbert refers to studies showing that juries are more likely to convict “even when jurors see confessions as coerced and even when they say that the confession played no role in their judgment.” More disturbing, perhaps, is research showing the effect of “confession” on evidence, on expert judgment and witness memory. When informed that a confession has been obtained, alibi witnesses will recant their testimony, as in one study where 60% of police lineup witnesses “changed their identification when told that someone else had confessed … and 44% of the people who originally determined that none of the suspects in the lineup committed the crime changed their mind when told that someone had confessed.” Most troublingly, though, Herbert cites the research of University College London psychologist Itiel Dror, who found that fingerprint experts were prone to changing their conclusions upon being informed that a confession had been obtained from one of the suspects whose fingerprints had been submitted for their analysis. Says Dror, that evidence is “not considered malleable. And yet there was some degree of malleability and one of the ways to influence it was to provide information about the confession.”

U.S. Courts’ Selective Deference
At Opionio Juris (cross-posted at Balkinization), Deborah Pearlstein is unsettled by a recent District of Columbia Circuit Court decision dismissing the appeal of Guantanamo detainee (and Taliban chef) Ghaleb Nassar Al-Bihani’s petition for a writ of habeas corpus. In her decision, Judge Janice Brown asserts that the court “aim[s] to narrow the legal uncertainty that clouds military detention” as determined by the 2001 Authorization for the Use of Military Force (AUMF). Pearlstein, however, sees another source of uncertainty in the judgement, particularly in its statement that “the international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” Taking this to mean that the court has interpreted the Geneva Conventions and the AUMF such that the AUMF “is not constrained or apparently informed by the international law of war,” Pearlstein notes the apparent reversal in the direction of “judicial deference to executive interpretations of international law,” which certainly seemed to flow the other way under President Obama’s predecessor. Pearlstein savages the decision as “poorly done” and “rich fodder for appeal”, saying that the court’s negation of the domestic authority of international law is little more than a brusque “waving aside [of] the Geneva Conventions — and any other source of international law — in their entirety.”

Tribunal mandates nut-free zones aboard Air Canada
Severe peanut allergies constitute a disability and should be accommodated with the creation of nut-free “buffer zones” aboard commercial flights, a three-member panel of the Canadian Transportation Agency ruled this week. “It is clear from the evidence that there is a need for a formal policy to accommodate persons with disabilities due to their allergy to peanuts or nuts,” the panel observed. “An exclusion or buffer zone where passengers within that zone will be advised that they can only eat foods that are peanut-free or nut-free and that they will only be offered peanut-free or nut-free foods as part of Air Canada’s onboard snack or meal will also address the risk of other passengers eating peanuts or nuts.” The CTA panel relied primarily on Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, where the Supreme Court held that Part V of the Canada Transportation Act, S.C. 1996, c. 10, is human rights legislation. Accordingly, once the claimant establishes a disability, the defendant must show reasonable accommodation. The application was sought by two plaintiffs, one of whom once spent 40 minutes in the washroom during a flight while snacks were being served and who was, on another flight, told by the captain to sign a waiver before boarding. (HT: The Globe and Mail.)

John Yoo, Letting His Hair Down
If another were needed, Deborah Solomon’s recent and weirdly glib interview with John Yoo in The New York Times Magazine acts as one more refutation of Scott Fitzgerald’s axiom about second acts and American lives. Still, the turnaround time seems a bit short in the case of Yoo, who was assistant attorney general in the Office of Legal Counsel under George W. Bush and co-author of the so-called “torture memos.” Bearing in mind the usual sobriety of the forum as well as the fact that Yoo’s ethical and legal status is hardly settled, the interview can be a disorienting read, as in the following exchange:

Q: I see various groups are protesting a decision by a California government lawyer to teach a course with you that starts on Jan. 12, claiming he is legitimizing your unethical behavior.
A: At Berkeley, protesting is an everyday activity. I am used to it. I remind myself of West Berlin — West Berlin surrounded by East Germany during the Cold War.
Q: Are you saying the citizens of Berkeley are Communists, reminiscent of those on the dark side of the Iron Curtain?
A: There are probably more Communists in Berkeley than any other town in America, but I think of them more as lovers of Birkenstocks than Marx.
Q: When, exactly, did you become a conservative?
A: I’ve been one since I was a kid! I was 9 when Jimmy Carter took office! I can remember him giving a speech in a funny sweater and asking people to turn down thermostats! And then there was the malaise speech! I thought they meant mayonnaise! [Exclamation marks added for appropriate Tiger Beat effect]

The Empire Strikes Out
An “obsessed” and self-aggrandizing Englishman, not a plucky and ill-complected young rebel, has taken out the Death Star of copyright protection that is George Lucas (and his corporate personae). Julius Melnitzer, at the National Post’s legal blog, reports that the Court of Appeal for England and Wales has dismissed LucasFilm’s lawsuit against Andrew Ainsworth, who in 1976 created the moulds for the helmets and armour worn by Star Wars’ Imperial stormtroopers. Ainsworth has since been selling his self-described “ludicrously collectible” creations, “made using the original 1976 movie moulds!” over the Internet; LucasFilm duly sued and a default judgement awarding it USD 10 million was handed down in a California court, a judgement whose UK enforcement was nixed in the English court decision. As a matter of substantive law, the decision has had the effect of clarifying some previously indistinct distinctions in English copyright law, specifically those dealing with the legal difference between “sculpture” and “merchandising article” and what protections should be afforded to their designers and/or manufacturers. The Court of Appeal held that the Stormtrooper helmets and armour were not sculptures, that they were created with functional purpose; that is, they were manufactured by Ainsworth as props furthering the director’s intent to create characters, albeit characters with terrible laser-aim, and therefore could not enjoy the extended copyright protection afforded to “sculptures”. This is not to say, however, that any future Lucas need fear for his merchandising hegemony, as Ron Moscona of Dorsey & Whitney LLP attests: “Designs can be protected by registration, either as UK or as [European] Community designs. The latter provide protection throughout the European Community. The external features of almost any article can be registered as a design (except designs dictated purely by their function).” Now, if there were only some way of asserting the claims of Mahler, the Wehrmacht, Casteneda, Shogunate Japan, Stepin Fetchit, et al against LucasFilm …

Military veterans and the question of sentencing leniency
Should military veterans get a break when they are sentenced for crimes? As more U.S. veterans return home from combat and are implicated in criminal activity, a growing number of American state and federal judges say they should, the WSJ Law Blog reports. Judges are handing out sentences of probation coupled with psychological treatment for crimes that would normally land defendants in prison. “We dump all kinds of money to get soldiers over there and train them to kill, but we don’t do anything to reintegrate them into our society,” John L. Kane, a federal judge in Denver, concluded in U.S. v. Brownfield, a case where an ex-soldier pleaded guilty to illegally selling tobacco to prison inmates when he worked as a correctional officer. Kane sentenced the GI to probation despite the fact that the soldier’s lawyer and the prosecution initially recommended that he receive a year in prison. The WSJ cites one legal expert who argues that the apparent recognition by judges that prisons aren’t well-equipped to rehabilitate veterans, many of whom return home from war zones with behavioural and psychological problems that can lead to crimes, risks creating a two-tier system of justice. “Because you happen to be a veteran should be insufficient grounds” for automatic leniency, Dan Markel, a law professor at Florida State University, told the blog.

Airport security and child pornography
In the aftermath of the Christmas Day attempted Qaeda attack aboard a Detroit-bound Northwest Airlines jet, airport security officials have spoken of the introduction of so-called “full body scanners.” But the rapid introduction of the devices in British airports threatens to breach child pornography laws there which ban the creation of indecent images of children, the Guardian reported this week. Privacy advocates have claimed the images created by the machines are so graphic they amount to “virtual strip-searching” and have called for safeguards to protect the privacy of passengers involved, regardless of age. But in the case of those under 18’s, the government has had to exempt minors from the scans or risk a conflict with its own child protection laws. Meanwhile, across the pond, Law is Cool has a post about how Canadians seem to be getting mixed messages about the use of body scanners in Canada.

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