Legal Issues

This political cartoon by Daryle Cagle is a great satire on the debate over Justice Scalias refusal to recuse from Dick Cheney s Energy Task Force closed-door meetings. I believe that there is considerable evidence that the two were more than mere acquaintances. In particular, they have gone duck-hunting and spent an inordinate time alone together.  However, in his memorandum, Justice Scalia emphasized that his impartiality could not be reasonably questioned because of these instances. There was no z-Bottom of Formappearance of a conflict of interest to Justice Scalia. HTML MarkupIn my opinion, it is fairly evident that Justice Scalia should recuse himself from the case in view of the circumstances but both individuals are denying the obvious. It is disappointing that a Supreme Court Justice is not taking responsibility and recusing himself for reasons apparent to all.

The cartoon shows both Cheney and Scalia standing and looking at a large sized duck but Cheney is twisting the fact and calling it a large sized chicken. The real pun is the duck in the center which is named  Conflict of Interest . Scalia, on the other hand, is adamant on shooting the Duck or the conflict of interest. This is drawing upon the fact that Scalia in his memorandum wants to kill the conflict of interest, so that it does not exist in front of the public eye.

Since many criminals and terrorists these days plan ahead very delicately for their criminal act in order to perform it with no or negligible flaws, and make sure that they dont leave behind any evidence that may put them into jail or death therefore, it has become difficult for the prosecutors to identify the real criminal. So, in order to minimize or hide their incapability or inefficiency, the prosecutors file the criminal charges against those people whom they think are guilty even if they dont get sufficient evidence against them. This act is totally unlawful and unethical. A person who might not have committed any crime is put forward to face the punishment, only because of his guilty attitude that he or she shouldnt have.

A prosecutor might have a quality of being skeptical over everyone when there is no evidence found against anyone who has committed the crime. So the margin of error lies with the prosecutor because of his or her natural quality of being skeptical. Secondly, this sort of prosecution is also done when the prosecutor is somehow and to some extent involved with the criminal. It means that the prosecutor might not file the charges against the actual criminal, and hence would go after another person who is not a criminal, but he himself thinks that he is a criminal. It is the duty of prosecutors to uphold the law and the perform a fair trial secondly, they should integrate the criminal justice system third, they should take measures to increase and polish their skills, knowledge, abilities, and qualities that are necessary for the correct and appropriate performance of their jobs and finally, they must also abide by the human rights and norms.

There are nearly 300,000 children below the age of eighteen that are currently involved in armed conflicts in over thirty different countries on practically all continents.  Most of the military soldiers who get and fight into wars are maybe over the age of 15 but they are still considered minors as they are still below the age of 18.   Aside from that there are children soldiers who are as young as seven years old.

In over twenty countries around the world, children are direct participants in war.   Denied a childhood and often subjected to horrific violence, an estimated 200,000 to 300,000 children are serving as soldiers for both rebel groups and government forces in current armed conflicts.  That is the reality according to the Human Rights Watch. The military use of children, which can also be referred to as child sacrifice, involves social abuse of the children in many different ways.  An example would be children being placed in harms way by military actions when the publicized mission is supposed to protect a location or provide propaganda (Briggs 33).  Not to mention the poor children used for child soldiers or saboteurs. An overlooked problem in the issue of military use of children would be about the demobilization and reintegration of these children into the society (Briggs 40).  Most of these children who come home after an armed conflict are harshly traumatized (Jal 133).

History and cultures showcased children extensively used for military campaigns.  Some practices even were supposed to be against cultural mores.  In the ancient times, Spartans train their children in a very young age.  Medieval Europe used young boys as military aides but not for actual combat (Kahn 20).  The famous Childrens Crusade of 1212 featured thousands of children- untrained for combat, used as soldiers under the assumption that the heavens would help them conquer the enemy, even though in reality, none of the children entered combat.

It is said that the sake of children have been sacrificed in military actions now in the modern times.  Some soldiers use children as cover, creating a moral dilemma for the enemy  to shoot or not to shoot. Sacrifice the lives of the children, or take fire themselves  If the enemy chooses to shoot, it can be a great propaganda against them.  Palestinians allegedly use this tactics.  Some parents supposedly train their children for the sole purpose.  Also, a report suggest that unsuspecting US soldiers faced certain danger from Vietnam as children strapped with hand grenades under their clothing would explode at their harm (Wessells 144). Although noted that both of these accusations were (sometimes) decried as false, some consider these stories to justify the atrocities committed by the military against children.

There have been several laws concerning the use of children in military activities.  A lot of organizations from all over the world have also shown their concerns on the military use of children.  According to Article 38 of the United Nations Convention on the Rights of the Child State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.  There have been regular conventions and conferences among the members of the United Nations Security Council to talk about and pass on resolutions concerning these children in armed conflicts.

One of the predefined most terrible form of child labor is the enforced or mandatory recruitment of anybody below the age of 18 for utilization in military affairs (Kahn 39).  It is deemed to be one form of slavery according to the International Labor Organizations Worst Forms of Child Labor Convention in 1999.

The UNICEF declared staggering and frightening figures which consider the recent developments in warfare during the last decade (Wessell 123).  It was taken to account that those developments in warfare have significantly increased the danger and threat to children.  Over 2 million children have been killed, almost 5 million disabled, 12 million left homeless, over 1 million orphaned or separated from their parents, and some 10 million traumatized all due to armed conflicts and military missions.

Every 12th of February, it is tagged as the annual commemoration day against the practice of using children as soldiers in any war and armed conflicts.  It is known as the Red Hand Day. Recently enough, a powerful international movement has been formed to help put an end to this practice.  The Coalition to Stop the Use of Child Soldiers is one of the many groups highly publicized against childrens use in violence.  Jamil Dakwar, the director of the ACLU Human Rights Program, said that the United States has been constantly failing to protect its youth from military recruitment and not to mention the failure to protect the youth of other countries that were forced into armed conflict.  There is a need for immediate action to see through the policies and practices of military recruitment and the treatment which should be internationally accepted of those child soldiers.

Children are still continuously used for military affairs at present.  All countries must work double hard to stop this slavery and abuse of youth.  It is the rights of these children to have a free and bright future and they should not be taken advantage of.

John Grishams A Time To Kill is set in a small town in Mississippi. It begins with the shocking rape and attempted murder of a ten year old African-American girl. The events that ensue reveal the authors perspective that even in 1989 issues of race hinder the achievement of justice.

Analyzing the book from a legal perspective will reveal numerous specific questions of law. It will also raise several larger, theoretical issues. Many of these issues are apparent in some way, shape or form within the actual American legal system today. The book is essentially a courtroom drama, but the issues it raises are important ones to consider.

Specific Legal Issues
Legal issues in the novel begin almost immediately in the novel. Two white men, both with shady pasts, kidnap a young black girl named Tonya. Their choice of victim is somewhat random. Both men are intoxicated at the time. They rape the girl repeatedly, then mull over various ways to get rid of her before ultimately deciding to throw her off a local bridge. She lives, but initially is in no shape to identify her attackers.

There are certain parts of town where crime is rampant. It seems as if the authorities have taken a containment strategy toward crime. In addition to not being fair to the local residents, this strategy also allows criminal behavior to fester. In their search for the rape suspects the police enter bars in one such part of town. Grisham describes the scene this way Both tonks were in violation of numerous laws. There was gambling, drugs, illegal whiskey, minors, they refused to close on time, etc. (Grisham, 1989, 25).  In a containment strategy the surrounding areas are rarely left unaffected.
Ozzie, the first black sheriff in the county, is portrayed as an even-handed and skilled officer of the law. His departments pursuit of the suspects involves some questionable moves that could potentially be exploited by a skilled defense lawyer. First, the sheriff is reliant on an informant who, in fact, is drunk himself. Secondly, the first subject questioned is both mentally-challenged and inebriated. The sheriff provides a Miranda warning, but continues to try to make the suspect talk after he asks for a lawyer. During this part of the interrogation the sheriff turns off his tape recorder, then turns it back on when the suspect begins to talk again.

The sheriff did not investigate the possibility of other suspects. The two main suspects were loosely affiliated with a local Klan group. Were other members of this group involved in the crime Was there a conspiracy

During the preliminary hearing evidence that may not be ultimately heard at trial may presented. The lawyer for the accused grew frustrated at one such instance Tyndale jumped to his feet Your Honor, please, I know hearsay is admissible in a hearing like this, but this is triple hearsay (75). This is something that many people do not understand about preliminary hearings. The prosecutor may not have to reveal much of his case and can rely on evidence that may not have to pass any scrutiny to obtain an indictment. Much depends on what the presiding judge is willing to allow.

This judge runs the courtroom like it is his own mini-fiefdom. He harasses the defense counsel for not having a license in Mississippi even though this is allowed under the law Then you drove down here from Memphis, carefully read my rules, and ignored them. Right (124).

The conduct of their trial becomes a moot point when Carl Lee Hailey shoots the two men on the courthouse steps.

Whatever courthouse security the county had planned obviously was not enough. The limited resources of the town are used, but the high profile nature of the case probably warranted assistance from outside agencies. The lack of courthouse security is an issue we have seen played out in real life in incidents such as the Brian Nichols courthouse shooting in Atlanta a few years ago. In that all too real incident a judge, a court reporter and a deputy were killed and an entire city terrorized until the shooter was recaptured.

In the book, Judge Bullards subsequent conduct of Carl Lees trial is pro-prosecution. Had Carl Lee been convicted there may have been reversible error from a number of sources. At one point in the story the Judge admits that it is impossible to find a fair jury in Mississippi (124). It is a shocking statement, The Judge, who seems to take the shooting personally, refuses to move the trial to another jurisdiction.

Jake Brigance was sought out for representation by Carl Lees family. In a prior case Jake had defended Cobb, one of the accused rapists of Carl Lees daughter, in a drug case. It is not clear whether there is a conflict of interest issue here. This is an issue many lawyers will face ay one time or another, particularly in small towns where there may not be many lawyers to choose. Apparently it is not an issue of concern for Mr. Brigance.

It is mentioned, almost in passing, that Judge Bullard refused to allow cameras in his courtroom. This has been a controversial issue in the American judicial system for years. Many feel that the presence of cameras unduly affects the participants in the trial. One wonders what would have happened had cameras been allowed in this case. Would parts of Carl Lees crime have been captured on video How would this have affected the jury in his trial Jake was an image conscious lawyer seeking to build a reputation outside of this small town. Would the presence of cameras have affected his conduct of Carl Lees trial

Legal Themes
Larger legal themes also pervade the novel. The question Can a black man get a fair trial in Mississippi is central to the novel. This applies in terms of his murder trial and when his daughter is the victim of two white men. Carl Lee Hailey was primarily motivated by his own anger. The legacy of injustice against African-Americans was also a nagging factor in his mind. Ultimately these two factors pushed Carl Lee into vigilantism.

How do we create a society in which justice is equal and people dont feel the need for vigilantism That is the unspoken question of this novel. It is a legal question, but also is a societal question. In this novel vigilantism is the necessary answer to injustice. In real life, however, vigilantism solves nothing.

A second theme revolves around the question - What is justice Did Carl Lee get a fair trial Did the State of Mississippi get one Brigances defense of Carl Lee is based on an audacious proposition that rarely works in real life. He claims that Carl Lee Hailey is not guilty based on temporary insanity. The basis for temporary insanity is twofold. First, Carl Lees anger and hurt over the rape of his daughter helped give rise to a heat of passion type action. Secondly, Carl Lee had a reasonable expectation that because of a racist legacy in Mississippi, his family would not receive justice.

Brigance challenges the jury on the latter by asking them to imagine the races of the two parties reversed. What, then, would their verdict be It is a clever, but risky, summation that essentially ignores the evidence that a crime has been committed. Even though a temporary insanity defense was being used. Brigance was more or less arguing justifiable homicide which, theoretically, would have an entirely different set of qualifiers.

A third general legal theme of the book is corruption within the legal system. One of the suspects time in a local prison is described. If anything this experience criminalized him more than if he had been in the streets. All of the same illegal activities that happened on the street were also happening in the prison with the full participation of prison staff.

This is true in the real life prison system, although hopefully corruption is not as severe. Nevertheless, rehabilitation opportunities are few. For too many the prison has become a revolving door. Outside the prison the behavior of police and judicial officials is also questionable.

Analysis and Conclusion
Carl Lee Hailey had other choices than murdering the two defendants. Unfortunately, Brigance did not help him in this regard. Carl Lee all but told Jake that he was going to kill the two men (93). After admitting that he would likely do the same thing, Jake did not report Carl Lees threat to authorities. For his part, Brigance was trying to toe a difficult line. He feared that reporting Carl Lee would violate his oath of confidentiality.

This book forces us to ask the question - What is justice Most peoples instant reaction to hearing that a father killed the rapists of his young daughter would be Good Looking at it in the abstract it is easy to go where emotions lead us. Justice requires more than that, however. One could argue that none of the characters in this book is truly interested in justice. Justice and revenge are not the same thing.
After killing the accused rapists, Carl Lee feels no sense of justice, or at least does not speak of it. Before the killings Carl Lee made note of an earlier raping of a black girl by white men in which the men were not convicted. Now he believes that he should get off in this case almost as a recompense for the earlier case. In fact this would not provide an even playing field much less justice.

This book, in many ways, is an illustration of how the American judicial system can go wrong. The answer, however, is not to throw it away. Even with its imperfections it is still the best system in the world because it is capable of changing itself. The author may or may not have been trying to convey this with the acquittal of Carl Lee. In reality Carl Lees actions will make true justice all the more harder to achieve.

In the English law, having an intention to do something that is an offence is tantamount to doing the really thing. If is will be proven, beyond any reasonable doubt, in a court that one had some intentions to cause harm and injury or even death to another person, then the person is considered to have done the murder itself. Kaveny (2008 1) in her quarterly review article observes that there is a difference between intention and foreseeing. In trying to extract some evidence to find out whether someone had the intention of committing a crime, one tries to probe into the suspects mind to establish whether there in any likelihood  of the defendant foreseeing the event happening. The problem comes when trying to determine the amount of foreseeing that can justify the intention of committing the really act.  She argues that there is no degree of foreseeing that can infer the intention of doing something.

A, K, and G are minors who are said to be members of a gang. In many occasions, members of a gang are perceived to be involved in evil activities. According to the law, A, K, and G are only suspects and not criminal. Somebody will remain not guilty of a crime until he or she is proven guilty in a court of law. Therefore the mention of the word gang alone is not enough evidence that the juniors are criminals. These groups of workmen, am referring them as workmen since up to this point we have not found them with any wrong doing, are told that another gang is driving through their territory. This make them come up with a plan to attack any other group and damage their property in this case a car, if they try to enter their territory. In trying to analyse the possibility of any crime in these minors we start by looking into their intentions. The planning to attack the other group and destroy their property is an intention in the first place. If the court can be able to take A through a process of close examination for him to acknowledge of the planned crime or take him through a process for him to foresee the other group attacked and their car damaged then A will be guilty of having committed the crime of assault.

Dealing with a minor is sometime trick and it differs from one judge to another or from one police officer to another. The minors who commit a crime end up in a juvenile court. But in this case, A might not be convicted of a very serious offence since he and his team members were only intending to attack. If it could have been an adult, the intention of attacking was to be equated to attacking and so serve a two year imprisonment with a fine paid. The case of the minors will be treated differently. They might be detained and warned against further violation of laws and then set free or they can alternatively be held in custody until his parent or guardian come  for them. In very serious offences, minor remains in custody and the case is referred to a juvenile court. During the process of handling their case, the prosecutor will have to demonstrate that the accused child is capable of the guilty mind that is required to handle the case of the child in a juvenile court otherwise the minor will be allowed to go. (Hinkle et.al 2008).

The next issue that we will be discussing will involve two people whose names are B and C. In a cross examination with B and C we find out that they are informed of a group of people who were preparing to attack them. While in a restaurant where they had received the bad news, the group that was allegedly planning to attack them arrives. No sooner had they arrived in the restaurant, than a fight broke up. B becomes so intoxicated with the bad news he had received earlier point that he hits one of the members of the group so hard to the point that he helplessly collapses to the ground. We are not sure whether the group really wanted to attack B and C, neither are we told who started the fight. In trying to seek legal address to this issue using the information provided, the group will be found not guilt of committing an offence of planned assault because there is no enough evidence provided to support this allegation. The group comprises of members X, Y, and Z. the person that was attacked by the B is X. B took a chair with which he hits him. It causes serious damage to X where he finds himself in a coma and at the hospital with a fracture in his head. This is the evidence that indeed B attacked X. The court will find defendant B guilty of committing a crime of assault on X and according to the law, he will be found guilty of a malicious grievous harming of X which will make him to serve a 2 year term imprisonment with a fine (WikiAnswers). It is a malicious harming of somebody because he had developed some hate to the group, having been told that they were planning to attack them, even though this just an allegation that cannot be substantiated. He then developed hate and rage towards their said enemies caused this kind of assault that can be classified as a grievous one.

During this particular episode, C finds himself surrounded by Y and Z.  He feels so much scared and threatened to the point of mistakenly believing that his enemy Y has a knife with which he could stab him with. He takes a glass with which he smashes Ys arm causing a deep cut and bruising in his arm. This is also an act of violence against another human being which can result to a jail term of not less than two years imprisonment and a fine. This is according to the law. Defendant Cs attack cannot be justified since it is clear that Y had no knife. He only felt nervous and decided to attack him following his misinterpreted instincts. If Y had taken a knife and tried to stab him, and take the glass and hit Y in trying to defend himself, then he will be found not guilty of assault but committing an act of self defence.

The remaining person Z runs away after witnessing what had happened to his friends X and Y. he is pursued by B and C who takes hold of him, beats him up by providing several punches on him and finally kills him. This can be interpreted in the English law as murder or as just manslaughter. In this case this is just manslaughter because there is no initial intention of performing the killing. The killing came just as a result of the attack that was not intended to cause death. When the two criminals are brought before a prosecutor, it will be determined whether it was an intentional manslaughter or just an un-intentional one. Basing the argument in this particular context, we can judge this killing as an unintentional manslaughter since the two men were provoked to attack. In the process of attacking their enemies, death occurred.

Looking it from the other side of the coin it can be argue that there was no provocation. This is because we are not aware whether X, Y, and Z were planning to attack in the first place. But just as events got unveiled, there is a fight that just started from nowhere. There is need to determine who started the fight to be able to make conclusive decisions without fear of any contradiction. If X, Y, and Z could have been found with a deadly weapon or any object that could cause injury or death to a fellow human being, then it can be clear that they were planning to attack, injure and even kill B and C. These are some of the areas that a prosecutor will try to investigate before a ruling is given to who committed the offence. Basing a ruling on the limited information provided above, B and C are guilty of committing an Un-intentional manslaughter that will be punished by serving some years in prison that will be determined by the judge considering that both of them participated in the attack. Although it is not clear who unleashed the fatal blow, both of them can be judged for the offence because of their participation in events that led to the death of Z. The punishment will be even as long as a life imprisonment but the penalty will solely depend on the judges discretion.

The other case that we will look at and try to analyse the crimes committed is of a person whose name is D. he recently separated from his girlfriend. The girl entered into a new relationship with P. because of the enmity with the new boyfriend who warn him to stay away from his now girlfriend N, D starts threatening his former girlfriend through anonymous hate letters sneaked into her room thought the window at night. These actions are accompanied by silent phone calls made to her. All these are acts of harassments (Minnesota department of public safety). To harass somebody is criminal since you will be disturbing that persons peace. Evidence can be provided against D. Such evidences are the anonymous threatening letters that he has been sending to N and even the silent phone calls made to her. However, in some case, these allegations can be so difficult to determine the source of the threatening massages and phone calls. This will require the intervention of the security and in this case the police. The telephone company owners will also be called upon to assist to track the source of these calls or give advice on the issue. But considering the case that we are discussing, D is very much guilty of harassing his former girl friend N. in the event of being found guilty of the offence of harassment, N will be subjected to civil remedies that will enable her be compensated. Such compensations will include the nominal damage that is paid by the harasser for acknowledging that he has violated your right N also can claim punitive damages. Apart from compensating N, D will also be punished by law. (Minnesota department of public safety)

D buy a gun that he plans to use in his attempt to shoot P. according to the law, it is criminal to possess a gun. To make matters worse the firearm is intended to be used in committing a murder. In interpreting this two events according to law, it is an offence to possess a gun in the first place, secondly, the intention of trying to commit a murder is criminal in itself. He attempts to use the gun by way-laying him to enter his car and then jumps into the passenger seat points the gun at him and tries to shoot, luckily enough P manages to snatch the gun from him and takes refuge in her girlfriends place where he calls the police for help in bringing D to justice. This, in itself, is evidence that D attempted to murder him. If the court can be able to proof that D was the one in possession of the gun and attempted to murder his rival, then he will be guilty of attempted murder which will make him serve a life sentence in prison. The loophole here is that it is not clear whether D touched the trigger when pointing the gun at P. this could have provided more evidence of the attempted murder, but judging from the information given of harassments of the now girlfriend of P, and the rivalry between the two, D is guilty of the crime. This implies that D will be convicted of committing two crimes, one on harassment of his former girl friend and the other is that of attempted murder where he tried to kill P.

Another defendant by the name E is a drug user. He agrees to help his drug-supplier to attack another drug user T who owes him some money. This decision is not voluntary but it is a decision that is made out of fear of being attacked if he cannot provide a helping hand to his friend. Even at the event of attacking T, it is Q who stabs T. from this information E is not guilty of any wrong doing.

From the analysis of event above and arguments based on the law, it can be concluded that A being a minor is not guilty of any wrong doing. He has not matured enough to make his or her own decision so he can be warned of further mischievous behaviour or punished with the help of a cane or counselling from the parent or guardian. For the case of B and C, both of them are guilty of assaulting the other group to the point where one of them dies. Each of them will be judged individually with a crime of assault and then collectively with manslaughter. D is also found guilty of harassment and attempted murder while E is found not guilty of any crime.

ISSUES
I. Has a discovery request submitted by a company to U.S. District Court of the Southern District of New York under statute 28 U.S.C.  1782 to compel discovery of documents related to previous lawsuits in U.S. courts, from a company that resides in the same district as the court where the application was submitted, met the statutory requirements of the statute when the discovery is to be used for a private foreign tribunal proceeding involving both parties

II. If the companys discovery request fulfills the mandatory statutory requirements of 28 U.S.C.  1782, may the district court use its authority to entertain the discovery request when considering the factors surrounding the private foreign tribunal proceedings between the two parties

BRIEF ANSWER
I. Yes, the discovery request submitted by the company to the U.S. District Court of the Southern District of New York under 28 U.S.C.  1782 to compel discovery of documents from a company that resides in the same district as the court where the application was submitted, so that the documents can be utilized in a private foreign tribunal proceeding meets the requirements of the statute.

II. Yes, the district court may use its authority to entertain the discovery request under 28 U.S.C.  1782 since the requirements under the statute have been met and when considering the factors surrounding the private foreign tribunal proceedings between the two companies.

FACTS
Wal-Co is a U.S. company that is incorporated and has headquarters in New York. Wal-Co is a manufacturer of a synthetic material called SyntheWal, which is commonly used in building construction. SyntheWal costs considerably less than similar products. Due to its low cost, Wal-Co sells SyntheWal to construction companies around the world, including to Expert Builders, Inc., a company located in a small European country named Northden.

Two years ago, Expert Builders signed a contract with Wal-Co for ninety tons of SyntheWal. Prior to signing the contract with Wal-Co, Expert Builders used a natural material produced by a competitor of Wal-Co. In an effort to save money, Expert Builders decided to try out SyntheWal. Unfortunately, shortly after Expert Builders started to use SyntheWal, it became apparent that SyntheWal could not withstand the cold winters in Northden, and the buildings with the SyntheWal product began to crack and collapse.

Expert Builders demanded that Wal-Co give them a refund for the cost of the SyntheWal and allow them to return the remaining SyntheWal product. Wal-Co refused to comply with Expert Builderss demands. As stipulated in the arbitration clause signed by both parties, Expert Builders filed a complaint with the International Chamber of Commerce (ICC) in Paris, seeking to resolve the dispute with Wal-Co.

Expert Builderss lawyers learned that Wal-Co has been sued many times in the past in U.S. courts and they want to review information from Wal-Cos prior lawsuits to gain a better understanding of Wal-Cos manufacturing process, product, and sales contracts. The lawyers learned that U.S. statute, 28 U.S.C.  1782, may assist them in obtaining company documents from Wal-Co. Under this statute, Expert Builders has filed a request with the U.S. District Court for the Southern District of New York to obtain all documents related to previous lawsuits against Wal-Co regarding the SyntheWal product, including any communication between Wal-Co and their attorneys with advice regarding potential problems with the sales contract terms. The documents would be submitted to Expert Builders and the ICC for consideration. The ICC has not opposed Expert Builderss discovery request in the U.S. district court. Additionally, the ICC rules on evidence are broad, and the ICC arbitral panel may request additional materials from either party at any time during the proceedings. There are no specific limitations as to what types of evidentiary materials may be requested by the arbitral panel.

The U.S. District Court judge for the Southern District of New York wants an assessment of whether Expert Builderss request for discovery documents meets the statutory requirements of 28 U.S.C.  1782 and if it may be entertained by the Court.

DISCUSSION
I. Expert Builderss Discovery Request to Obtain Wal-Cos Company Documents Meets the Statutory Requirements of 28 U.S.C.  1782.

According to 28 U.S.C.  1782, assistance may be provided to foreign or international tribunals if (1) discovery is sought from a person who resides in or is found in same district as court to which application is made (2) discovery is for use in proceeding before foreign tribunal and (3) applicant is foreign or international tribunal or interested person. In re Application of Babcock Borsig Ag for Assistance Before a Foreign Tribunal, 583 F.Supp.2d 233, 237, 238 (2d Cir. 2008).

A. Wal-Co has Headquarters in New York, Therefore it is Found in the Same District as the Court to Which the Application was Made

One of the statutory requirements that must be met under 28 U.S.C.  1782 is that the person from whom discovery is sought resides in or is found in the same district as the court to which application is made. Id. at 237, 238. Wal-Co is the party from whom discovery is sought based on the discovery request submitted to the District Court of the Southern District of New York by Expert Builders.  According to the facts of the case, neither party is disputing that Wal-Co is headquartered and incorporated in the same district as the court where the application was made.

B. Discovery is for Use in an Arbitration Case filed with the International Chamber of Commerce (ICC) located in Paris, Which Constitutes a Foreign Tribunal

In order for a discovery request to meet the statutory requirements, the discovery must be used for a proceeding in a foreign or international tribunal, as stated in 28 U.S.C.  1782. In National Broadcasting Company, Inc. v. Bear Stearns  Co., Inc., 165 F.3d 184 (3d. Dist. 1999), the Court held that the ICC does not constitute a foreign or international tribunal since it is a private commercial arbitration under the auspices of a non-governmental organization. Id. at 186. NBC entered into an agreement with Azteca, a Mexican television broadcasting company, which stipulated that NBC could purchase up to 10 of Aztecas shares before May 1997 at a preset pricing formula. When NBC sought to purchase 1 of Aztecas shares, Azteca alleged that NBC did not perform under the agreement, and initiated arbitration with ICC, as stipulated in the contract. Id. at 186. NBC submitted a discovery request pursuant to 28 U.S.C.  1782 for authorization to subpoena third-party financial institutions engaged with Azteca. Id. at 186. The appellate court affirmed the lower courts decision to deny NBCs motion to compel discovery. Id. at 186. When referring to the language used in 28 U.S.C.  1782, the Court stated, the absence of any reference to private dispute resolution proceedings such as arbitration strongly suggests Congress did not consider them in drafting the statute. Id. at 189.

Even though the NBC case held that arbitration is not applicable to discovery requests under 28 U.S.C.  1782 due to that Courts interpretation of legislative intent, the Supreme Court in Intel Corporation v. Advanced Micro Devices, Inc., 542 U.S. 241, referenced their interpretation of the legislative intent. According to the Supreme Court, the Senate Report explains that Congress introduced the word tribunal, to ensure that district court assistance extendsto administrative and quasi-judicial proceedings. Id. at 249. In Intel, AMD filed an anti-trust complaint against Intel for violation of European competition law, with the DG-Competition of the European Commission, the European Unions antitrust law enforcer. Id. at 250. The Court held that since the European Commission proceeding would lead to a dispositive ruling i.e. a final administrative action both responsive to the complainant and reviewable in court, it fits within the definition of foreign or international tribunal referenced in 28 U.S.C.  1782. Id. at 255. The ICCs decision in the Expert Builders and Wal-Co case would also lead to a dispositive ruling that would be responsive to the complainant. The ICC is regarded as a legitimate source for dispute resolution among many businesses. The purpose of the statute is to assist foreign judicial and administrative proceedings with discovery in order to expedite the dispute resolution process. The ICC would be an administrative body that is included within the purpose behind the enactment of 28 U.S.C.  1782.

The Court for La Comision Ejecutiva Hidro-Elecctrica del Rio Lempa v. El Paso Corporation, 617 F.Supp.2d 481 (2d Cir., 2008), disagreed with the Supreme Court ruling in Intel by ruling that the discretion to order discovery on behalf of foreign and international tribunals under 28 U.S.C.  1782 does not extend to arbitral tribunals. Id. at 483. La Comision Ejecutiva Hidroelectrica del Rio Lempa (CEL) filed a motion to compel discovery from El Paso so that El Paso could submit documents that would be used in a foreign arbitration between CEL and Nejapa Power Company, L.L.C. (NPC). Id. at 482, 483. The Court stated that the Supreme Court in Intel did not directly address the application of  1782 to arbitral tribunals. Id. at 485. The Court in El Paso applied a narrow interpretation of the Intel decision by stating that the Supreme Court only extended  1782 to include the Directorate-General for Competition of the Commission of the European Communities. Id. at 485. The El Paso Court stated the fact that the D-G Commission acted as a quasi-adjudicative proceeding before review by true judiciary powers makes it an animal of a very different stripe from an arbitral tribunal. Id. at 485.

Even though the Supreme Court did not directly address whether private arbitral tribunals constitute a foreign or international tribunal as designated in 28 U.S.C.  1782, Babcock Borsig Ag for Assistance Before a Foreign Tribunal, 583 F.Supp.2d 233 (2d Cir. 2008), states that the Supreme Court in Intel, strongly indicate that adjudicative bodies also fall within the statute. Id. at 238. In Intel, the Supreme Court referred to the European Commission as a first-instance decisionmaker that conducts proceedings which lead to a dispositive ruling. Id. at 255, 542 U.S. 241. The ICC, which is the arbitrational body that will preside over the Expert Builders and Wal-Co case, is also a first-instance decisionmaker that will make a dispositive ruling. Babcock stated where a body makes adjudicative decisions responsive to a complainant and reviewable in court, it falls within the widely accepted definition of tribunal, regardless of whether the body is governmental or private. Id. at 239. Based on this rationale, the ICC constitutes a foreign or international tribunal for which the statute would be applicable.

C. Expert Builders as the Applicant for the Discovery Request is an Interested Person
In Intel, the Supreme Court states that an interested person, such as a complainant who triggers a European Commission investigation has a significant role in the process. The complainant also prompts the investigation and has the right to submit information for the DG-Competitions consideration. Id. at 256. The Court stated, given these participation rights, a complainant possesses a reasonable interest in obtaining judicial assistance. Id. at 256.

Expert Builders would be considered an interested person under 28 U.S.C.  1782 because Expert Builders is a party to the foreign arbitral tribunal proceeding for which the discovery request would be utilized. As stated in the facts of the case, Expert Builders wants to obtain all documents related to previous lawsuits against Wal-Co regarding the SyntheWal product. Expert Builders would use the documents to possibly assist them in the arbitration. Copies of any documents would also be forwarded to the ICC to consider. Expert Builders has the right to submit documents to the ICC to help their case and can also exercise the right to compel discovery. ICCs non-objection to Expert Builderss discovery request to the U.S. court and the ICCs consideration of the documents implies these rights are endowed to Expert Builders.

II. The Discovery Request May be Entertained by the District Court Based on Consideration of the Discretionary Factors Related to the Instant Case
If a discovery request meets all of the statutory requirements of 28 U.S.C.  1782, the court still can exercise discretion regarding whether it will entertain the request based on a set of discretionary factors. As stated in Intel, a district court is not required to grant a  1782 discovery application simply because it has the authority to do so. Id. at 264. Factors the court should consider include (1) whether the person from whom discovery is sought is a participant in the foreign proceeding (2) the receptivity of the foreign government, court, or agency to federal-court judicial assistance (3) whether the statute request conceals at attempt to circumvent foreign proof-gathering limits. In re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf, 2006 WL 3844464 (S.D.N.Y.), 4.

A. Wal-Co is a Participant in the Foreign Proceedings
Since Wal-Co is a participant in the foreign proceedings, and it agreed to resolve disputes with Expert Builders via arbitration, as stipulated in the contract, Wal-Co is directly invested in the discovery requests. The ICC did not submit a motion to compel discovery to the U.S. courts in order to obtain documents from Wal-Co. It could be assumed that the ICC may not be able to compel discovery of the documents needed based on their own administrative or legal limitations, so Expert Builders was required to submit the request.

B. The ICC Appears to be Receptive to the Receipt of the Documents and Foreign Assistance
Based on the facts of the instant case, the ICC did not oppose Expert Builderss discovery request to the U.S. District Court of the Southern District of New York and the ICC will also consider the documents if they are received. This implies that the ICC is receptive to the discovery request and the possibility of reviewing the documents. The evidence rules for ICC are broad and there are no specific limitations as to the types of evidentiary materials the arbitral panel may request.

C. Based on the Preliminary Facts Presented in this Case, There Does Not Appear to be any Attempts to Conceal or Circumvent Foreign Proof-Gathering Limits
In Babcock, the Court decided to deny the motion to compel discovery since the litigation between the parties had been highly contentious. There were claims of misconduct and accusations that the discovery request was being used to circumvent evidentiary restrictions. Id. at 242. Unlike Babcock, there have been no claims of misconduct or allegations of attempts to circumvent any type of evidentiary or proof-gathering limits.

CONCLUSION
The instant case meets the statutory requirements of 28 U.S.C.  1782. Wal-Co resides in New York where the request was submitted, the discovery will be used in a foreign tribunal, and the applicant, Expert Builders, is an interested person in the proceeding. Based on the discretionary factors involved in this case, the district court could entertain the discovery request.

The National Incident-Based Reporting System
The National Incident-Based Reporting System (NIBRS) is a new program that is aimed at helping law enforcement agencies to be in a better position to information that pertains to incident level clearance. This is as a result of a failure in the current Supplementary Homicide Report (SHR) that is under the Uniform Crime Reporting Program to specify whether a murder offence has been cleared (Addington, 2006). Clearance in this case refers to solving of a murder case where the offender could both be arrested and charged in a court of law or could either die or extradition is denied.

Under the National Incident-Based Reporting System, there are two proxies that are used in analyzing clearance. The first proxy is the unknown offender measure while the second is the unknown offender demographics measure (Addington, 2006). Of interest here is the second proxy which identifies cleared and uncleared cases on the basis of a number of clearance predictors that include demographic data of the offender as well as other predictors such as the weapon used in the murder. According to the findings of Addington, clearance of murder cases was based on age of the victim, weapon used, location of the murder, and number of victims.

The murders of young victims were more probable to be cleared than those that were involving older victims (Addington, 2006). It was also found that cases in which a knife or contact weapon was used were more probable to be cleared than those cases which involved the use of a firearm.

The findings also established that cases that involved more than one victim were more likely to be cleared as compared to cases involving only one victim (Addington, 2006). The rest of the paper will look at whether murders committed in the San Antonio area from 2007 to 2009 were cleared on the basis of demographics (age, race and sex), weapon, and more than one victim.

Results for 2007
In 2007, a total of 135 homicides were recorded with 75 of these cases being cleared. A total of 122 homicides were cleared though most of them adhered only to the age clearance predictor. The other predictors of weapon and the number of victim did not match with the findings. Most of the cleared murders involved victims who were young with most of them being born after 1970 as opposed to those that were not cleared that had most of the victims being born before 1970.

Race and sex were not found to be clearance predictors though most of the cleared cases involved male victims though race was equally varied. Most of the cleared cases involved the use of a firearm which is contrary to the findings that established the use of a knife or contact weapon as he clearance predictor. Only a small number of the cleared cases involved the use of a knife or bodily force. All of the cleared cases involved only one victim which also differed with the findings that found more than one victim as a clearance predictor.

Results for 2008
In 2008, a total of 137 homicides were committed with 118 homicides out of the total number being cleared. This resulted in a 77 clearance rate which was 2 higher than that recorded in the previous year. Most of the cleared cases involved victims who were young being born after 1970 with the youngest victim being only 7 months old. Though race and sex were not part of the clearance predictors in the findings, most of the cleared cases involved male victims as compared to those involving female victims while Hispanics led with the largest number of victims followed by Blacks then Whites.

Similar to the previous year, most of the cleared cases involved the use of a firearm as opposed to the use of a knife or contact weapon which differed with the findings with the handgun being the most used type of firearm. Only a small number of the cleared cases involved the use of a knife or contact weapon with some of the cases involving bodily force. Also, the cleared cases involved only one victim differing with the findings that found more than one victim as a clearance predictor.

Results for 2009
In 2009, a total of 114 homicides were committed with 102 homicides being cleared with an additional 16 past homicides being cleared. This represented 83 of the total committed homicides. Similar to the two previous years, most of the cleared homicides involved young victims correlating with the findings. Most of the victims in the cleared cases were males while Hispanics constituted the largest race of victims similar to the previous year. Whites and Blacks had almost an equal number of victims with Latinos registering the least number of victims in the cleared cases.

Similar to the two previous years, most of the cleared cases involved the use of a firearm as opposed to the findings that established the use of a knife or contact weapon as a predictor for clearance. The handgun still remained to be the most used type of firearm compared to others types. The number of victims also differed with the findings as the cleared cases involved only one victim whereas the findings established more than one victim as the predictor for clearance.