This week the International Criminal Court (ICC) began its first trial. Congolese warlord Thomas Lubanga Dilyo is charged with the use of child soldiers in the recent civil war in The Congo.

According to Human Rights Watch Lubanga, the former leader of the Union of Congolese Patriots (UPC) is one of four Congolese leaders charged by the ICC with the use of child soldiers. Also in custody are Germain Katanga of the Ituri Patriotic Resistance Forces (FRPI), a Ngiti-based group, and Mathieu Ngudjolo, of the Nationalist and Integrationist Front (FNI), a Lendu-based militia. Bosco Ntaganda, a former comrade of Lubanga in the UPC is reportedly cooperating with the Congolese government and has not been arrest even though the Congo a signer of the Rome Statute which formed the ICC is duty bound to arrest him.

Lubanga is not the first person put on trial for human rights violations involving child soldiers.has charged nine people and convicted four of them for similar human rights violations involving child soldiers under the age of 15. The use of child soldiers disrupts families, causes long term psychological damage to the kids and destroys their childhood.

The trial of Lubanga is the result of events that occurred between September 2002 and August 2003 in Ituri, a part of the Democratic Republic of the Congo. During that period according to the United Nations and the Coalition to Stop the Use of Child Soldiers their were approximately 30,000 child soldiers in the Congo.

The trial of Lubanga not only spotlights the dangers of the recruitment and use of child soldiers, it leads the way to future prosecution of others involved in the recruitment of child soldiers. But perhaps more importantly it indicates that in the future the ICC is going to be a force in the prosecution of human rights violations.

In Boston a Federal judge is threatening to sanction the U. S Attorney’s office after an assistant U. S Attorney (AUSA) failed to provide exonerating evidence to the defense, according to an article in by Altman and Altman in the Boston Criminal Lawyer Blog. The AUSA failed to tell the defense that a peace officer who was an important witness in a drug case had repeatedly contradicted the police report in conversations he had with the AUSA Federal discovery law are much stricter than those of many states but the Supreme Court in Brady v. Maryland ruled that that exonerating evidence must be turned over to the defendant or his/her counsel. And this only makes sense. Certainly a defendant ought to have access to any evidence that can help him/her. But under the Federal regulations defendants sometimes only receive the evidence at the last moment. Therefore it is all the more important that the AUSA give the exonerating evidence to the defense. But according to Chief Federal District Judge Mark L. Wolf the Boston office of the US Attorney has repeatedly failed to turn over significant exonerating evidence and he is threatening to sanction the office or AUSA Suzanne Sullivan for her failure to inform the defense of her conversations with the officer.

At the same time Houston Texas has a new District Attorney, former judge, Pat Lykos. According to another blogger, Matthew Skillern in Greater Houston Defense Law Blog, as one of her first acts in office she announced an open file policy. While the details have not been worked out it is expected that she will allow defense attorney to view and hopefully copy everything in her files. This will allow the District Attorney and the defense to try cases on an open playing field,

Which is more likely to reach a fair decision on guilt or innocence the Boston system in which the cards are stacked against the defendant or the Houston system in which each side starts on a fair playing field.

The police department of Buena Park, California obtained a search warrant for the residence, automobile and person of Anthony Andrew Galland based upon information from a confidential informant. In order to protect the identity of the informant, the police department requested that part of the affidavit supporting the warrant be sealed (See People v. Hobbs (1994) 7 Cal.4th 948,30 Cal’rptr.2nd 651; 873 P.2nd 1246) and that the sealed portion of the affidavit be released to the custody of the police department. The magistrate agreed. The defendant made a motion to suppress the seized evidence alleging that the affidavit did not comply with the Fourth Amendment. The sealed portion of the affidavit was brought to the courtroom. The judge reviewed the entire affidavit and denied the motion and the sealed portion of the affidavit was returned to the police department.

The defendant appealed the denial of the motion and the fun began. Prior to the appeal, the police department purged its files and the sealed portion of the affidavit was lost. The Court of Appeal held that there was no authority to give the sealed portion of the affidavit to the police department in the first place. Further it ruled that without the entire affidavit it was unable to rule on the appeal and it reversed the lower court denial of the defendant’s motion to suppress evidence, even thought the district Attorney found a five page unsigned version of the affidavit.

The California Supreme Court in People v. Galland, agreed with the Court of Appeal that there was no law authorizing the trial court to place the sealed portion of the affidavit in the custody of the police department. But it invented a law authorizing the placement of the sealed portion in the custody of the police when five conditions occur. First, the disclosure of the sealed portion would hinder law enforcement investigations or the safety of the informant. Second,That the clerk’s office had insufficient security procedure to maintain the sealed portion of the affidavit. Third, that the law enforcement agency had sufficient safety procedures to protect the document. Fourth, the law enforcement agency can save the document securely for ten years in a noncapital case and permanently in capital case. The fifth and last requirement is that the magistrate must have made a sufficient record of the incident to provide information in case the affidavit is lost or destroyed.

Using these newly invented criteria the Supreme Court found that the magistrate had not complied with them prior to placing the sealed portion of the affidavit in the custody of the Buena Park Police Department. However, since there existed the District Attorney’s unsigned version of the affidavit and since the Orange County Superior Court, after the negative ruling of the Court of Appeal, conveniently, found a signed copy of the affidavit all is well and the Supreme Court reinstated the denial of the Galland’s suppression motion.

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