Cultivated Compendium

The Wall Street Journal reports that more judges are speaking publicly beyond their opinions and court proceedings, including U.S. District Judge Richard G. Kopf of Nebraska starting a blog. "The old taboo seemed to take a hit this past year. Judges and legal experts point to several reasons judges may be speaking more freely now: A Supreme Court whose justices are frequently in the public eye, a desire among judges to defend themselves against political attacks and correct the record, and increased media interest in their work," The Journal further reports.

Matthew H. Birkhold, a visiting scholar at the Humboldt-Universitat zu Berlin, writes for Bloomberg that it was a double-edged sword for the Annenberg Foundation to purchase 24 sacred American Indian objects that were auctioned off by a Paris auction house. The foundation plans to return the objects to the Hopi and the San Carlos Apache tribes. Even though the foundation denounced the sale of cultural property, it legitimized commerce in cultural property by participating in the auction, Birkhold opines.

The best solution for indigenous peoples to regain their cultural property that is not protected by intellectual property law is to work within the legal system, Birkhold argues: "The best bet for indigenous people to secure their cultural property is through the legal system, where taking a principled stand could pay dividends. A developing legal framework provides the tools to restore cultural artifacts to their rightful owners. In addition to the 1970 United Nations Educational, Scientific and Cultural Organization Convention, the UN Declaration on the Rights of Indigenous Peoples explicitly establishes the rights of indigenous peoples to maintain, control and protect their cultural heritage and obligates signatory states to take effective measures to protect their right to do so. This framework needs to be strengthened. In the meantime indigenous groups can further develop the law while making progress in its shadow."

Navi Pillay, the United Nations human rights chief who has been asked by the international membership organization to prepare a report on protection of the right to privacy, said that international action led to the end of apartheid in South Africa and that it can again lead to the end of massive surveillance of online activity, The Guardian reports. The experience of international action on apartheid "inspires me to go on and address the issue of internet [privacy], which right now is extremely troubling because the revelations of surveillance have implications for human rights … People are really afraid that all their personal details are being used in violation of traditional national protections," Pillay said.

A federal judge in New York has issued a conflicting ruling with that of a federal judge in D.C. over the legality of the National Security Agency's surveillance of nearly every phone call made in America, CNN reports: "In his ruling Friday, U.S. District Judge William Pauley said the NSA's bulk collection of phone records under Section 215 of the Patriot Act was legal. The program was revealed in classified leaks by former NSA contractor Edward Snowden."

Monsignor William Lynn, the first Catholic Church officially to be criminal convicted for the sexual abuse done to youth that he had responsibility for (but did not directly abuse), won his appeal, Zack Needles, my former colleague at The Legal Intelligencer, reports: "Lynn's lawyers had argued following his conviction that the trial judge had refused to address the defense argument that a pre-amended version of Pennsylvania's law criminalizing endangerment of the welfare of children did not apply in the case. President Judge John T. Bender, writing for the court, agreed, saying Lynn was not the direct supervisor of any of the alleged victims, but instead supervised the direct supervisors of the alleged victims. Therefore, he was not covered as a principal under the pre-amended EWOC statute, Bender said."

Bloomberg reports on the plans of Utah governmental officials to ask the U.S. Supreme Court to block same-sex marriages. A federal district court has ruled that Utah's ban on same-sex nuptials violates constitutional rights to equal protection and due process, but the Tenth Circuit ruled against holding the trial court in abeyance while Utah appeals the decision.

ProPublica reports on how the criminal prosecution of Etan Patz's alleged killer might have been jeopardized because police did not tape the interrogation: the "interrogation room, it turns out, was fully equipped to do what a growing body of expert opinion has insisted be done in such moments: a full videotaping of a suspect’s interaction with detectives, from the start of an interrogation through any possible formal confession. Judges, defense lawyers, and even many prosecutors have come to see such comprehensive videotaping as the single most important factor in securing reliable confessions and preventing the wrongful convictions that can stem from false confessions. In New Jersey, where Hernandez was being questioned, taping interrogations in homicide cases has been required by law since 2005. The detectives, however, never turned the cameras on during what would become seven hours of interrogation. They remained off, in fact, until 2:57 that afternoon, when Hernandez was finally ready to formally confess."

ProPublica further reports that the accused killer's defense counsel is going to seek to have the confession ruled to be illegitimate.

The National Law Journal's Zoe Tillman reports on the likely appeal of U.S. District Judge Richard Leon's decision that the National Security Agency's surveillance most likely violates the Fourth Amendment. The D.C. Circuit's makeup could be quite different by the time an appeal is ready to be heard: "Three new judges appointed by President Obama could be sitting on the D.C. Circuit by the time a panel is chosen to review Leon's 68-page ruling, giving the court a new dynamic."

The National Law Journal's Marcia Coyle reports on the U.S. Supreme Court's spring 2014 term: "The term may seem a little blockbuster-light compared with back-to-back historic terms involving health care, immigration, same-sex marriages and voting rights. But there are a number of headline grabbers and the new year brings two possible game changers for the executive branch," including on the issue of whether the president has the power to make appointments during Congressional recesses.