U.S. Court of Appeals for the Second Circuit Case Summaries:

Daily Record (Rochester, NY), Sep 24, 2008

U.S. Court of Appeals for the Second Circuit

Freedom of Information

ACLU v. Department of Defense

06-3140-cv

Appealed from the Southern District of New York

Background: The U.S. Department of Defense and the Department of the Army appeal from orders of the district court directing their release of 21 photographs depicting abusive treatment of detainees by U.S. soldiers in Iraq and Afghanistan. Appellants claim the photographs are exempt from disclosure under the Freedom of Information Act. The defendants contend the exemption for law enforcement records that reasonably could be expected to endanger any individual applies because the release of the photographs will endanger U.S. troops, other Coalition forces and civilians now in Iraq and Afghanistan. After filing requests pursuant to FOIA and receiving no records in response, the plaintiffs filed the complaint alleging the government agencies failed to comply with the law.

Ruling: The court holds that FOIA exemption 7(F) does not apply. The redactions ordered by the district court render the privacy exemptions unavailable to the defendants. The district court's order is affirmed.

Michael J. Garcia, U.S. Attorney, for the appellants, and Amrit Singh, American Civil Liberties Union Foundation, for the appellees

Jury Trial

'Batson' Challenge

Brown v. Alexander

07-1780-pr

Appealed from the Southern District of New York

Background: The appeal is from a district court order denying Tarkisha Brown's petition for a writ of habeas corpus. She was charged with selling drugs on school grounds and asserts the New York State courts unreasonably applied Batson v. Kentucky in concluding she did not present a prima facie case of race discrimination with respect to jury selection at her criminal trial. The challenge, based on the prosecutor's striking of African- American jurors, was advanced early in voir dire and the trial judge refused to require the prosecutor to justify some of the peremptory strikes. The judge invited defense counsel to raise the issue later in the process, but it was never brought up again by the defense.

Ruling: Ordinarily it is reasonable for a state court to conclude a petitioner has not made out a prima facie case when he or she raises a Batson challenge before jury selection is completed, and even before the facts are fully established on the record. The district court's judgment is affirmed.

Jeffrey J. Resetarits of Shearman Sterling LLP for the appellant, and Rafael A. Curbelo, assistant district attorney, for the appellee.