Hamilton County Prosecutor Joe Deters Stages Coup: Republican Intervenes In Elections Case Without Authority



Deters Joins GOP Allies



CINCINNATI (TDB) -- The GOP prosecutor's aides officially intervened in the 6th Circut U.S. Court of Appeals.  The county lawyers are now allied with the Ohio Republican Party and John Williams, a GOP candidate for Juvenile Court Judge in Hamilton County. Joe Deters -- who by law represents the Hamilton County Board of Elections -- committed his office to support Williams' effort to thwart an investigation into 869 provisional ballots.   The provisionals were cast aside as legally defective.  Where it gets dicey: The board of elections never agreed to intervene in the federal appeals case on Williams side.  A 2-2 tie put it officially on the sidelines.  Deters move -- to assign staff lawyers to join the Republican side of a legal dispute -- has the look and feel of pure partisanship, a coup against the board of elections.

How did the board divide 2-2?  Democrats Tim Burke and Caleb Faux said no appeal; Republicans Alex Triantafilou and Chip Gerhardt said yes.  On a tie, the motion to appeal died.   

At the moment, the 6th Circuit is considering whether to set aside U.S. District Judge Susan Dlott's order that forces county elections officials to inspect the provisional ballot for signs of poll worker error.  Tracie Hunter, the Democratic candidate for juvenile judge, trails Williams by 23 votes.  A mandatory recount is coming.  Hunter wants more than a recount -- she believes the discarded provisional ballots will break her way and should be added to the mix.  Hunter and the Ohio Democratic Party launched the court fight last week to have them counted.

To counter the Dems, Deters' office filed what it calls a "response of the Hamilton County Board of Elections to Intervenor John Williams' emergency motion to stay."  That suggests false advertising, because the Hamilton County  Board of Election never authorized such a move.  Deters aide, Assistant Pros. James W. Harper acknowledged as much:  "The nature of the Board's further participation in this matter will be determined by the Ohio Secretary of State as the Board is divided."   Outgoing Ohio Secretary of State Jennifer Brunner, a Democrat who did not seek reelection, is seen as unlikely to authorize an appeal.  Which is why Deters staged what amounts to a coup.

Williams, whose legal team includes Stuart Dornette (an extremely talented attorney who represents the Cincinnati Bengals and handled negotiations that stuck the county with stadium expenses it cannot afford to pay), contends the 869 disputed provisional ballots are not valid.   Meanwhile, Hunter contends a subset of 289 provisional ballots were cast at the right polling location but in the wrong precinct.  Her lawyer, Jennifer Branch, said poll workers created a mess:

"A single polling location often is the site for voting in multiple precincts.  A citizen must not only locate the right polling place (church, fire hall, school) but also the right table inside the polling place.  Poll workers employed by the Hamilton County Board of Elections have a duty to direct the voter to the correct table so the voter can vote in the correct precinct.  On November 2, 2010, poll workers in Hamilton County did not direct 289 voters to the right precinct table,  This is obvious poll worker error . . . All 289 provisional  ballot cast at the right location but in the wrong precinct on Election Day were rejected by the Board of Elections despite the obvious poll worker errors.  It is likely that these 289 ballots may effect the results of this race since only 23 votes separate the two candidates."

Michigan Federal Judge Rejects Health Care Law Challenge: Appeal Likely Headed to Cincinnati

CINCINNATI (TDB) -- The Daily Bellwether has the full text of the 20-page decision available by clicking here. It now looks like the 6th Circuit U.S. Court of Appeals in Cincinnati could be the first to decide whether Obamacare passes constitutional muster. That legal showdown -- and all the high-wattage drama it entails -- appears to have been cemented by a ruling turning down a Commerce Clause challenge.  The Volokh Conspiracy blog analyzes it all in lawyerly detail. The blog is slightly right of center, but it nonetheless offers great insight. It disagrees with the ruling. But that doesn't mean Obamacare won't stand. The decision was made by U.S. District Judge George C. Steeh of Michigan's eastern district.  The 6th Circuit has often made headlines over ideological warfare between the 16 judges who comprise the court. The 6th Circuit's jurisdiction covers Ohio, Michigan, Kentucky and Tennessee. The only judges who can overrule the 6th are the Supremes in Washington, D.C.

U.S. Appeals Court In Ohio: Full Text Of No Child Left Behind Ruling Online Here

CINCINNATI (TDB) -- The 6th Circuit U.S. Court of Appeals has issued a 29-page decision that allows local school districts in 3 states and the National Education Association to revive a lawsuit challenging funding shortfalls in the No Child Left Behind Act. The complete text of the ruling is available here on The Daily Bellwether.

The 2-1 ruling by the Cincinnati-based appeals court found that the 2002 law -- a hallmark of President Bush's education reform efforts -- did not give the states and local schools clear notice that the measure would underfund its requirements for improving the academic achievement of U.S. students. In other words, the law made the states accountable, but failed to defray the cost of compliance.

The decision means the case now goes back to Chief U.S. District Judge Bernard Friedmann in Detroit, who tossed it out of court in November 2005.

Federal Appeals Court: U.S.-Funded Projects Exempt From Cleveland Preference Law

CINCINNATI (TDB) -- A federal appeals court says the U.S. Highway Administration had authority to revoke a $696,000 construction grant for Cleveland's Kinsman Road streetscape project. Cleveland's Fannie Lewis Law -- which requires that city residents comprise 20% of the workforce on public works projects -- was at the heart of the dispute. The federal agency said the local hiring-preference law violated U.S. rules requiring competitive bidding and non-discrimination in employment.

The Kinsman Road streetscape was supposed to run from East 130th Street to the city limits, and involved construction of a brick sidewalk, tree planting and installing pedestrian lighting. Its goal was beautification and safety in a depressed neighborhood struggling to shake off urban blight.

The complete text of the 6th Circuit U.S. Court of Appeals 18-page decision is available here. City officials contend the purpose of the Lewis Law -- an ordinance named for a veteran councilwoman and adopted in June 2003 -- is not anti-competitive. They say the goal of the measure is to alleviate unemployment and ensure that Cleveland residents can find jobs on City of Cleveland construction projects. On Kinsman Road, the feds were supposed to put most of the money into the $870,000 total price of the project; the city's share was about $175,000.

The ruling did not strike down the Lewis Law. It said the federal agency had discretion to reject the contract because the 20% Cleveland resident employment was not specifically advertised to prospective bidders. The court said federal law puts state and local governments are "on notice that substantive contract requirements must be specifically advertised to prospective bidders before they can be incorporated into a federally-funded contract."

Moreover, the 6th Circuit said federal agencies have discretion in whether to fund projects and their "decisions may be based upon any lawful factor that the agency deems relevant under its broad power to administer federal programs."

Cleveland Co.'s Sexually Explicit Pix: First Amendment Covers Swinger Mags

CINCINNATI (TDB) -- A federal appeals court today struck down as unconstitutional a U.S. law that required producers of "actually sexually explicit conduct" to keep records showing the images depict adults over age 18. The decision was a legal victory for Connection Distributing Co., a Cleveland firm that publishes a dozen or so magazines and an online portal aimed at swingers. Warning: There are some pretty racy photos accessible by clicking around the company's Web site. Connection challenged the law as a government attempt to censor its business.

The 6th Circuit U.S. Court of Appeals in Cincinnati said the record-keeping requirements of the Child Protection and Obscenity Enforcement Act of 1988 were intended to combat child pornography. But most of the swingers in the magazines are middle-aged and not likely to be mistaken for minors. The three-judge panel declared Justice Department efforts to apply the rules to the publisher of magazines aimed at adults who were seeking partners for sex exceeded the government's authority. The court noted that Connection described swinging as a philosophy entailing "an alternative social and sexual lifestyle comprised mostly of mature adults who believe in sexual freedom and do not believe in sexual monogamy."

The magazines contain ads and messages, and the messages often are accompanied by photos of Connection subscribers. Sometimes they are undressed, and sometimes they are in street clothes. But there are times when they are engaged in sex, or showing off all the goods to attract partners.

Senior Circuit Judge Cornelia Kennedy wrote the court's decision and noted that the government's argument that it was trying to curb child abuse was unpersuasive. The case is Connection Distributing Co., et al. v. Kesler and the full-text of the 27-page decision is available here. Kennedy wrote:

"Images, including photographs, are protected by the First Amendment as speech as much as 'words in books' and 'oral utterances.' Even if the government tried to characterize the regulation as aimed at the conduct of pressing the button on a camera or other recording device to create images, that conduct would be so closely tied to the speech produced, and the government's interest here is in the speech produced, that it would be better considered to be a speech regulation. Child abuse, the actual conduct in which the government is interested, is already illegal."

She added:

"Applying the record keeping regulations to all depictions of actual sexually explicit conduct between two adults, however, is not clearly within the statute's plainly legitimate sweep. One of the reasons the government wants to know a depicted individual's age is because the government has a difficult time knowing when to prosecute as well as prosecuting successfully because it is hard to identify the image as that of a child. The government claims that such identification is made difficult because images of individuals 18 and older exist. If these images did not exist, then the only images left would be children, and therefore the proof would be easy. The solution, it is argued, is to require photographs of both adults and children to be kept track of, so that the government will know that a photo it is currently viewing is not of a child, but in fact of an 18-year-old."

Ohio Court To Jewish Postman: No Break For Rain, Sleet, Snow Or Sabbath

CINCINNATI (TDB) -- A federal appeals court has dismissed a religious discrimination lawsuit filed by Messianic Jew who claimed the Postal Service made him deliver mail on Saturdays, his Sabbath. The 6th Circuit U.S. Court of Appeals in Cincinnati said it would not order Postmaster General John E. Potter to accommodate the letter carrier's religious beliefs. Martin Tepper works out of the Chagrin Falls post office in Cleveland's suburbs and had regulary received Saturday off from April 1992 until January 2003.

Coworkers and officials covered for Tepper until staffing cuts and the union decided the practice of allowing him the Sabbath off had to end. The post office spent $8,769 on overtime in 2000 and $7.015.68 in 2001 to cover for Tepper on Saturdays. Tepper contended in his lawsuit that Sunday is a Christian religious holiday and postal services were minimal due to the Christian practice of going to church on Sunday. Circuit Judge R. Guy Cole Jr., who wrote the opinion dismissing the case, said Sunday is not a religious day. He found that it is a non-business day.

"Tepper asserts that he has been treated differently than his coworkers. He asserts that all Full-Time regular letter carriers besides himself are able to avoid work on their Sabbath. However, the record does not show this. There is no evidence that the purpose of the Sunday off is to allow workers to observe their Sabbath. In this case, the Sunday off occurs because only special deliveries are made that day, so the employers needs are minimal on Sunday. Tepper's coworkers are granted Sunday off not so that they may celebrate their Sabbath, but because it fits the need of their employer. Consequently, all employees are treated equally; they are required to work a five-day work week with a rotating day off."

Judge Guy did not address the broader question that Tepper's lawsuit seems to have raised. Why is it that there is no mail delivery on Sunday? Why was that day picked to give employees the day off? Perhaps because Sunday has traditionally been set aside as the day of rest, the Sabbath in Christian cultures. It is the day when most churches are open for services.

Ohio Court To Christian Iraqi Refugee: No Need To Fear Islamists At Home

CINCINNATI (TDB) -- A federal appeals court in Ohio has rejected an asylum plea from an Iraqi Christian who said that members of his faith are persecuted by the Islamic majority. The court agreed with the Bush Administration that Samr Faik Hanona's fears could not be legally recognized.

"Even if Hamona could prove past persecution based on political or religious belief, the government has rebutted the presumption that Hamona has a well-founded fear of future persecution because of changed country conditiions in Iraq -- namely the overthrow of the government that had allegedly persecuted Hamona."

The ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati said Iraq's Christians suffered under Saddam Hussein's dictatorship, but the new government has eliminated discrimination as official policy.

The ruling is based on immigration law, and seems tailored to be out of touch with the wider reality of conditions in Iraq. Last year, America's Catholic bishops said Christians persecution in Iraq "had reached a crisis point" and cited the crucifixion of a teenager in Albasra as among several atrocities. The Baghdad government has not been able to ensure safety in the countryside, and U.S. officials including Gen. David Petraeus, the U.S. commander in Iraq, have testified in Washington about the Al Maliki government's lack of effectiveness and shortcomings in areas of security.

The U.S Bishops and the Vatican have been protesting abuses of Christians in Iraq and said last October in a letter to Secretary of State Condoleeza Rice the attacks by islamists were deliberate. About half of Iraq's 1.2 million Christians have fled to refugee camps since the war began in 2003.

"The growing and deliberate targeting of Christians is an ominous sign of the breakdown in Iraqi society of civil order and interreligious respect and represents a grave violation of human rights and religious liberty," Bishp Thomas G. Wenski of Orlando told Rice.

And just last week, a Vatican representative assigned to Iraq's Chaldean Church said, "Nobody can deny that a real persecution of Christians in Iraq is taking place." Iraq's ambassador to the Vatican in July condemned "atrocities" which he acknowledged have taken place. Albert Edward Ismail Yelda told the SIR news agency that terrorists and extremists were responsible and "groups in collusion with and sustained by those who supported the former regime."

The full-text of the federal appeals court ruling is 10 pages long and is available here. It reads as if the three-judge panel was divorced from the current situation Christians face in Iraq, and brushes off concerns that have been raised around the world about the plight of Iraq's Christian community. Instead, the court said Hamona would have to prove that he was being targeted as an individual.

"To qualify as a refugee, Hanona must establish that he would be singled out for persecution. Countrywide anarchy is not a basis for claiming persecution."

And:

"The evidence supported the conclusion that there was no specific threat of persecution directed towards Hanona personally. There was no evidence the new government is aware of his past association with ADM, or would persecute him if they are aware. Moreover, his predictions of 'persecution' against him are phrased in terms of harassment, being disgraced and being insulted, none of which rise to the level of persecution in the asylum context. The evidence supports the BIAs finding that the violence against Christians stems from the high level of violence in Iraq generally."

Iraqi Claims Job Bias In Ohio: Court Rules He Was Properly Canned

CINCINNATI (TDB) -- A federal appeals court says Campbell Soup Supply Co. was within its rights to can Sarmad Abdulnour, an Iraqi national who worked at the company's NW Ohio plant. Abdulnour contended he was dismissed due to hostility over the war in his homeland. But the 6th Circuit U.S. Court of Appeals said the Iraqi was sacked because he was an incompetent supervisor, and noted Campbell Soup had taken steps to protect him from harassment.

The complete-text of the six-page decision (pdf) is available here. U.S. District Judge Algenon L. Marbley, who sat on the three-judge panel and wrote its decision, noted that Abdulnour filed a complaint with the Ohio Civil Rights Commission. The complaint was rejected. Marbley said there were discussions about the Iraq war at the Campbell Soup plant in Napoleon, which is the company's largest factory.

"Contrary to plaintiff's assertions, the fact that employees discussed the ongoing war in Iraq during their lunch break does not make it more likely than not that Defendants fired him because he is Iraqi. The ongoing war is a common topic of discussion among the citizens of this country. Furthermore, plaintiff stated that he never heard any disparaging comments toward him based on his nationality and, in fact, the record reflects that his supervisors took proactive steps to stop potential harassment."

Marbley ruled the fired Iraqi supervisor had failed to put forth any evidence that he was dismissed for a reason other than poor job performance.

Ohio-Based U.S. Appeals Court: Tells D.C. Supremes We're Not Changing Death Case Ruling

CINCINNATI (TDB) -- The death row conviction of Kenneth Richey, a Scot who has been locked up awaiting execution in Ohio for 20 years, has long stirred a row in Europe and Britain. Officials on the other side of the Atlantic view capital punishment as barbaric, and it has been outlawed within the European Union.

Today, the 6th Circuit U.S. Court of Appeals in Cincinnati refused to back off a Jan. 25, 2005 ruling that ordered a new trial for Richey on grounds his original defense lawyer was ineffective. In December 2005, the Supreme Court reversed the 6th Circuit's holding that Richey had been deprived of constitutionally effective representation. Now a 2-1 majority of the 6th Circuit has responded by saying "the record supports our original conclusion granting Richey habeas relief because his trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments."

The full text of the 19-page decision is available here. It includes a dissent by U.S. Circuit Judge Eugene E. Siler Jr., of London, Ky., who voted to uphold the conviction.

Amnesty International says Richey has "one of the most compelling cases of innocence it has seen" and the British government of Tony Blair intervened legally on behalf of the former Edinburgh, Scotland resident. The British government has also consulted with Richey's legal team.

He was convicted of setting an arson fire that killed Cynthia Collins, a 2-year-old, after a night of partying, drinking and smoking marijuana in Columbus Grove, a small town in northwest Ohio. According to prosecutors, the fire was intended as revenge at Richey's girfriend, who had recently broken up with him and wanted to begin a romantic relationship with another man. Richey was described as acting in a jealous rage.

The appeals court said Richey's trial lawyer declined to present expert testimony that could have disputed arson as the cause of the fire. There is some evidence that the apartment blaze was not set, but came from cigarette left smoldering in the cushions of a couch. The appeals court said:

"There can be little doubt that Richey was prejudiced by his counsel's deficient performance. There is a reasonable probability that had counsel mounted the available defense that the fire was caused by an accident, and was not the result of arson at all, the outcome of the guilt or the penalty phase would have been different. Although the circumstantial evidence alone might have led to a conviction, the question before us is not the sufficiency of the evidence, but of undermining our confidence in the reliability of the result. Confronted with evidence debunking the state's scientific conclusions, the trial court might have had a reasonable doubt about Richey's guilt, especially where the prosecution's case depended on a cast of witnesses whose lives revolved around drinking and partying and some of whom might have had their own motives for implicating Richey."

U.S. Circuit Judge R. Guy Cole Jr. of Columbus wrote the decision.

Ohio Glassmaker Cleared: Accused of Wrecking South Africa's Wine Industry

CINCINNATI (TDB) -- A federal appeals court in Ohio has ruled that South Africa's second-oldest winery waited too long to sue Ohio-based Owens-Illinois Inc. The dispute was over defective bottles blamed for ruining the nation's sparkling wine production in the mid-1990s. The 6th Circuit U.S. Court of Appeals acknowledged there appeared to be flaws in the bottles that made wine go bad, but said the statute of limitations for seeking damages had expired.

The winery is the second oldest in South Africa. Its owners also argued that their winery's value was diminished because it had been linked to production of an unpalatable vintage.

Twee Jonge Gezellen Ltd. is a winery located near Capetown. It was founded in the 1700s, and the name in Dutch means two bachelor brothers. It claimed Owens-Illinois, a multi-national in the Toledo suburb of Perrysburg, gave faulty scientific research to another glassmaker, Consol, under an agreement to provide technical information.

The advice: Switch from Freon 152a to Freon 134a to produce wine bottles, a move that would cut down manufacturing costs. But the 134a Freon disrupted the wine's fermentation process, which led to allegations of wrongful conduct against Owens-Illinois in the U.S.

A three-judge panel of the 6th Circuit in Cincinnati said South African winemaker Nicky Krone should have brought the case sooner.

"By the summer of 1998. Nicky Krone concluded Consol's misuse of Freon 134a probably caused Twee's wine fermantation problems. By 199, he learned that Owens recommended that Consol use Freon, provided Freon 134a to Consol, had a business relationship with Concol, and together with Consol, had researched his complaints about the bottles. Based on those facts, Krone, and thefore Twee, had enough information reasonably to suspect that Owens's wrongful conduct was a cause of Twee's injury."

Gary Mason, a lawyer who represented the winery, said when the suit was filed that bad manufacturing advice from Owens-Illinois caused substantial economic damage in South Africa. "As a result of flaws in the bottles, numerous South African manufacturers of 'Cap Classique' champagnes were unable to bring their product to market in the mdi-1990s. The crisis significantly impacted the development of the South African champaign industry, the effects of which are still being felt today."

Ohio Death Sentence Thrown Out: Convict's 'Mental Defect' Was Bullet To Head

CINCINNATI (TDB) -- A federal appeals court overturned the death sentence of an Ohio convict because his defense lawyers failed to present evidence of a potential mental defect as mitigation -- that he had once shot himself in the head with a .38-caliber pistol. The court said the injury caused serious head trauma.

The 2-1 ruling by the 6th Circuit U.S. Court of Appeals says Abdul Haliym, also known as Wayne Frazier, must have a new sentencing hearing within six months or be set free. The court's majority said it was possible the showing of a functional brain impairment could have spared Haliym from a death sentence when his case went to trial in 1987 before a three-judge panel in Cuyahoga County. The appeals court questioned how thoroughly Frazier's defense team dug into his background.

"Perhaps most importantly, a more thorough investigation would have led to some evidence that petitioner (Haliym) had a mental defect. Petitioner's attorneys were on notice that petitioner had shot himself in the left temple, which should have strongly suggested the need to investigate whether petitioner had a mental defect. Instead of conducting this investigation, petitioner's attorneys put before the trial court Dr. (.XXX) 's testimony that none of the mental disorders with which petitioner was diagnosed could be considered a mental disease or defect, at least for psychiatric purposes."

The appeals court majority said there was "serious head trauma sustained" by the gunshot during the suicide attempt.

Abdul Saliym has been on Death Row for a March 27, 1987 stabbing at the apartment of Marcellus Williams and Joann Richard, who both died from their wounds. The apartment was located at 49th and Central in Cleveland. The appeals court said there was no question that Haliym committed murder and was guilty. The full-text of the decision is 35 pages long (pdf), including the dissent.

War On Terror: Full Text Of President Bush's Win On Warrantless Wiretapping

CINCINNATI (TDB) -- The complete text of the ruling by the Ohio-based 6th Circuit U.S. Court of Appeals allowing the Bush administration's warrantless surveillance program is 65-pages long.

It offers a comprehensive legal review about presidential powers and national security. It is definitely worth reading -- no matter which side you are on, pro-administration or not.

The appeals court split 2-1, with two Republican appointed judges backing President Bush. Julia Smith Gibbons of Tennessee and Alice Marie Batchelder of Medina County in Ohio were in the majority. Judge Ronald Lee Gilman, a Democrat and Memphis law school prof put on the bench by Bill Clinton, wrote the dissent. It starts on page 46 of the ruling.

Does it seem that our federal legal system is divided along party lines? Are their too many one-vote margins deciding major constitutional issues? And how much of this narrow outlook can be traced back to the Supreme Court's 5-4 ruling after the disputed November 2000 presidential election; the election that Al Gore won by popular vote but lost by a sole vote in the legal system.

Pro-Life Protest: Court Says Cincy Cops Wrongly Interfered

CINCINNATI (TDB) -- Joseph Michael Logsdon stages peaceful demonstrations outside abortion clinics in Southwest Ohio, and Cincinnati police violated the anti-abortion protester's rights when they arrested him in 2003 and 2004. The 6th Circuit U.S. Court of Appeals said he was a regular presence outside the Cincinnati Women's Services clinic and was charged with criminal trespass and disorderly conduct.

In the first incident, Logsdon said he went to retrieve a sign on the clinic's grounds that was taken by a clinic official. The sign was aimed at patients and said, "God has a plan for your baby."

The second incident was in June 2004, when he went into a public park adjacent to the clinic and spoke to a patient through a chain link fence. An officer took him into custody.

A three-judge appellate panel today reinstated the lawsuit Logsdon filed against the three police officers who halted his protests. He contends his First Amendment right to free speech and Fourth Amendment right against unlawful detention were violated. The original case was dismissed by U.S. District Judge S. Arthur Spiegel earlier this decade. In reinstating the pro-life protester's case, the 6th Circuit said:

"Reading plaintiff's complaint in the light most favorable to him, defendants failed to reasonably determine whether they had probable cause. In the course of initially assessing whether probable cause to arrest existed, defendants respectively 'turned a blind eye" to potentially exculpatory evidence when they refused to listed to witnesses at the scene.

"A prudent officer must draw reasonable conclusions from the facts and evidence known to him as supported by 'reasonably trustworthy information.' It appears that defendants deliberately excluded from a totality of known facts and circumstance information that might bear on the accuracy, reliability, or trustworthiness of the report that plaintiff has trespassed on CWS's (Cincinnati Women's Clinic) property."

Pope's Lawyers In Ohio: Thou Shalt Not Sue The Holy See

COLUMBUS (TDB) -- A federal appeals court wants lawyers representing the Holy See to file legal briefs next month explaining why the tiny nation headed by Pope Benedict XVI is immune from U.S. lawsuits.

As an independent nation, the the Vatican contends it should not have to defend itself against litigation asserting Roman Catholic clergy molested children. The Holy See says it is beyond the jurisdiction of U.S. courts.

The briefs are due April 19 in the 6th Circuit U.S. Court of Appeals in Cincinnati. The case is unique because a federal judge in Louisville ruled two months ago that the Vatican could potentially be held accountable for abuse if there were "violations of the customary international law of human rights." Huge amounts of money are at stake. The Vatican has priceless art collectons. And who knows what else? There are rumors of vast wealth accumulated over the centuries.

Lawyers suing the Holy See in a class-action for the sex abuse victims say the church-state violated its international law obligations under the Universal Declaration of Human Rights, a charter document of the United Nations, and the Convention on the Rights of the Child. They also say it breached duties to provide safe care, custody and control over children entrusted to Roman Catholic oficials, and it withheld information about known and suspected perpetrators of child sexual abuse.

U.S. District Judge John Heyburn of Lousiville, who said the Vatican is not immune, found that the Foreign Sovereign Immunity Act (FSIA) conferred jurisdiction.

"For most of our nation's history, it was our national policy to grant foreign states complete immunity from civil suits in United States courts. Beginning in 1952, this view began to change. Gradually, a view evolved that one could sue foreign states in United States courts under certain limited exceptions. the specific determinations were generally left to the State Department until 1976 when Congress enacted FSIA, which sought to codify the existing exceptions," Heyburn said.

He said he would allow claims to go forward for fail to report abuse, failure to warn, outrage and emotional distress and human rights violations under international law. The Pope's lawyers appealed even though Heyburn says he might be persuaded to change his mind if fresh evidence was placed before him.

"The court is open to reconsidering its decision that the United States-based bishops, archbishops, and other clergy of the Roman Catholic Church are employees of the Holy See for purposes of FSIA if further contrary evidence emerges during the litigation," he said.

Now, the appeals court will decide if the Pope is ultimately responsible for the scandal in the U.S. church.

Federal Appeals Court: Ohio's Lethal Injections OK For Now

CINCINNATI (TDB) -- An Ohio death row inmate's claim that lethal injection is a "cruel and unusual punishment" banned by the Constitution was rejected today by a federal appeals court in Cincinnati. A three-judge panel ruled 2-1 that convicted murderer Richard Wade Cooey II waited too long to file his legal challenge and found the statute of limitations had expired.

The decision by the 6th Circuit U.S. Court of Appeals avoided addressing the core issue of Cooey's claim -- the drugs administered when Ohio prisoners are put to death cause intense pain. As part of the procedure, inmates are paralyzed and cannot scream or reveal possible suffering. Ohio uses a combination of three drugs to execute convicts: Sodium thiopental, pancurionium bromide and potassium chloride. The sodium thiopental anesthetizes the prisoner; the pancurionium paralyzes but does not interrupt the ability to feel pain, and the potassium chloride causes cardiac arrest.

Besides attacking the protocol used to cause death, Cooey and another inmate, Adremy Dennis, contended that state prison personnel attending executions and inadequately trained. The appeals court majority said the two-year statute of limitations had expired on Cooey barred him from further challenges. Dennis has already been executed.

Circuit Judge Ronald Lee Gilman dissented from the majority and said he would have considered the appeal. He said Cooey was not challenging his death sentence, but the method of execution. "Ensuring that executions comply with the Constitution of the United States is a paramount duty for the courts, despite the human and financial costs of protracted postconviction litigation," Gilman said.

Ohio made changes to its lethal injection process last year after Joseph Clark's execution was halted on May 2, 2006. His vein collapsed and the drugs could not be administered. Clark was able to speak and told officials the process was not working as he was strapped to a gurney in the death chamber. They stopped, found a new site in his vein, and finished putting him to death.

Today's ruling is HERE. Cooey originally was scheduled for execution on July 24, 2004. It was stayed by the 6th Circuit pending the appeal.

U.S. Appeals Court In Ohio Reopens Iraqi Christian's Asylum Plea

CINCINNATI (TDB) -- A federal appeals court in Ohio says the Bush administration ignored evidence that Iraqi Christians face persecution in the overwhelmingly Muslim nation. It ordered immigration officials to reconsider plans to deport a watchmaker who fled Baghdad seeking religious freedom in America. The government wanted to boot Tony Dawood out of the United States, and authorities dismissed reports of persecution as "completely incredible" when they rejected his petition for refugee status.

Now, a three-judge panel of the 6th Circuit U.S. Court of Appeals in Cincinnati unanimously says the government's contention there was no religious persecution of Christians in Iraq appears at odds with reality. It said there was evidence of bombings, killings and destruction of churches and ordered the government to reconsider the decision that turned down Dawood's plea for refugee status.

The 6th Circuit ruling could be seen as an embarrassment for the administration of President George W. Bush, whose Justice Department last week said it was moving to beef up its protection of the civil rights of Americans who believe they have suffered from religious discrimination at home.

That announcement was designed to put the government squarely on the side of Christians. However, its treatment of Dawood was questioned by the three-judge panel, who said the Justice Department filed briefs to deport the Iraqi Christian.

"We also note that both the government in its brief and the administrative agency have asserted that there is no reason to believe that Chaldean Christians have a reasonable basis to fear persecution in Iraq today. On remand, the Board should review and reconsider this argument based on current conditions in light of the conditions described in the Department of State country report on Iraq in 2004. The report states in part:

"'There were numerous incidents of violence against the Christian community this year, ranging from individual killings to intimidation. The number of Christians leaving the country rose, after bombings of 14 churches in Baghdad and Mosul and the Chaldean Bishop's palace in Mosul from August through December. The bombings left 14 dead and 340 injured as well as damaging the churches.'"

The court went on to point out there are numerous press reports of attacks on Christians in Iraq. It wondered "whether the government continues to support the position" that there is no documentation Christians have a well-founded fear of persecution on account of religion. The full-text of the ruling is HERE.