New York Injury Attorney Blog

US Court of Appeals for the Third Circuit: United States v. Fullmer et. al.

We live in very contentious times. The red-state-blue-state divide is political, geographical and cultural. Debate about issues is frequently obscured by the politics of hate, by innuendo and by ad hominum attacks on those who speak out on the issues. Whether you support Rush Limbaugh or Al Gore, Sara Palin or Barack Obama, there seems to be way less common ground than in times past—and way less interest in even finding it.

Everything has become a crisis. Everything has become an issue that cannot be compromised. And everything is magnified and disseminated exponentially, courtesy of the worldwide web. Just a click away, a wonderful and dreadful thing the web: both a fountain of breaking news, information and learning and a cesspool of violence, pornography and hatred all at once.

Perhaps there’s no other tool with the power to destroy lives and reputations so easily. Bloggers can be indifferent to facts. Rumormongers can ruin lives with a well placed post. And anyone with a computer can upload their own demise on line or set in motion events that lead to the demise of others.

Somewhere between on-line beheadings and spam, we find US. v. Fullmer.

The case is about the activities of Stop Huntingdon Animal Cruelty (SHAC) and six individual defendants (referred herein collectively as “SHAC”) who were either employees, principals or in some way associated with SHAC. SHAC was formed in 1999. It has been uncompromisingly opposed to Huntingdon’s research with animals and committed to closing its laboratories. According to SHAC, Huntingdon was a purveyor of animal cruelty in the interest of science and corporate profits. Its abuses of animals were depicted in a surveillance videotape (viewer discretion advised) obtained by someone posing as a Huntingdon lab technician. When aired on British TV, it led to a spate of protests and the birth of SHAC-UK and subsequently, its US counterpart after SHAC’s relentless campaign caused Huntingdon to relocate to the states.

SHAC’s opposition to Huntingdon was not based on the actions of Gandhi or Martin Luther King. It was something new. Something born out of the cyber age. It targeted Huntingdon and companies that dealt with it, from accounting firms, bankers and realtors, to Huntingdon board members, stockholders and employees, including their wives and children. SHAC used its website as a bludgeon. Its take-no-prisoners, scorched-earth approach to its mission was incredibly effective. And frightening. As defendant Gazzola put it, “this is the most successful campaign in the history of the animal rights movement and it’s precisely because we’re pushing the limits and we’re tired of standing around holding signs and yelling at buildings and writing letters and not getting anywhere. We’re gonna do what we have to do in order to be effective and in order to save lives.”

The court’s opinion chronicles a sampling of the SHAC defendants’ activities. Its web postings included the following:

-Coordinating protests;
-Encouraging direct action (both legal and illegal, the illegal kind being both lauded and disavowed simultaneously);
-Instructing economic sabotage (including step-by-step how-to instructions as well as posting times for coordinated electronic assaults on corporate servers and fax machines);
-Listing accomplishments (such as people and places that had been attacked or acquiesced to SHAC’s demands); and
-Promoting vandalism (or at least excusing and appreciating it as a natural overflow of anti-Huntingdon outrage).

In a message to all associated with or employed by Huntingdon, defendant Harper used the backdrop of successful personal and institutional attacks to put Huntingdon and its business partners on notice of SHAC’s reach: “animal abusers …may be safe from the cops, the army, and the FBI…they are not safe from us…If no one else will treat them like the criminal scum that they are, at least we will…It is time to go beyond our fear of reprisals.”

Given the contents of the surveillance video, some might find such hard-edged tactics acceptable. But there was more. There were physical attacks and protests at board members’ homes. There were personal threats to them. To their children. Home addresses were published on the web. Phone numbers were published. Houses were flooded, windows smashed and neighbors intimidated. There was the posting of the “Top 20 Terror Tactics.” There were death threats by email and phone. And there was a state of fear that was nurtured and encouraged by SHAC.

SHAC’s web page, while always disavowing illegal activity, sympathized with its supposed unknown, more violent compatriots, and published instructions about how to avoid detection or arrest for such activity (even a cursory reading of the court’s decision is like a manifesto on modern economic warfare by cyber means—in many ways, it’s as disturbing as the Huntingdon video). Those targeted lived in abject fear for their lives, some to the point of arming themselves, others to the point of surrender, acquiescing to SHAC’s demands rather than resisting them alone.

Defendants were eventually charged and convicted of a variety of offenses, including conspiracy to violate the Animal Enterprise Protection ACT (AEPA protects those who use animals for testing from certain forms of animal-rights activity), conspiracy to commit interstate stalking as well as three substantive counts of stalking.

On appeal, defendants argued, among other things, that the convictions violated their First Amendment right to engage in civil disobedience and to voice their objections to Huntingdon’s activities. The court disagreed. While some postings on SHAC’s website were protected speech, notwithstanding it was “speech that many find offensive and uncomfortable,” other posts which “coordinate electronic civil disobedience and disseminate the personal information of individuals employed by Huntingdon and affiliated companies are more problematic.” Such communication was not protected speech and some “constituted ‘true threats.’”

As the court observed, “viewed in context, the speeches, protests, and web postings were all tools to further their effort” and were not speech protected by the First Amendment. They were crimes. Accordingly, the individual defendants received sentences ranging from one year to six years in prison.

We are left with a number of questions: Are these people heroes in the animal rights movement? Should they be applauded for putting their lives on the line for their beliefs (even belatedly, since on line, they denied personal involvement)? Are they simply zealots who did what was necessary to save animals?

Or are they thugs? Bullies? And political / business terrorists?

Those on the receiving end of their “protests” would vote for the latter category. Many who share SHAC’s views might see them as visionaries. But the question remains: What type of society are we evolving into?

Maybe the ends justify the means when it comes to animals. How about when it comes to global warming? To illegal immigration? To mandatory vaccines for H1N1? To gun control or legalizing marijuana?

Are we inexorably on a road that takes no prisoners in a winner-take-all battle over everything? Or have we already crossed the Rubicon when it comes to civil discussion and the common good?

Sometimes it looks and feels that way. Sometimes it looks and feels like we are willingly letting the common ground beneath our feet slip away, completely indifferent or oblivious to the fact that we are falling into something much more dangerous and intolerant and insidious—all in the interest of advancing THE cause.

Which, of course, says something either about our lack of powers of persuasion or our inability or unwillingness to listen to the other side. Or to lose gracefully. In the market place of ideas that is America, the wheat has always been separated from the chaff, which historically has brought out the best in America, and which hopefully, will continue to do so even as the internet has the potential to bring out the worst.

Still, we should be glad about this uniquely American problem because freedom of speech can only be abused where it exists in the first place.

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Posted In: Brave New World , Crime and Punishment , Culture War , Speech , Terrorism , The Internet , U.S. Court of Appeals

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U.S. District Court, Southern District of New York: Howard K. Stern v. Rita Cosby et. al.

When trying to understand the tenor of the times, the writing on the wall is often hidden in the small print. And depending on where you live (red state / blue state – the coast or the heartland) the fine print reads and is received differently. The fine print about homosexuality and how it is viewed is what makes the Stern case noteworthy.

Rita Cosby is a well-known TV reporter. After the death of Anna Nicole Smith, Ms. Cosby decided to write a book about her. That book, Blonde Ambition, the Untold Story Behind Anna Nichol Smith’s Death, was published on September 4, 2007, just seven months after Ms. Smith died from a prescription drug overdose.

Cosby rushed to do her book while Anna Nichol Smith was still hot news. Smith had grabbed headlines for years because of The Anna Nicole Show, because of her marriage at age 26, to 89-year-old- billionaire J. Howard Marshall III and because of the death of her son Daniel just days after Smith gave birth of her daughter Dannielynn in 2006.

While publishers were eager to run with any news about Anna Nicole, co-defendant Hatchette Book Group was not interested in Cosby’s idea for a book “unless it contained previously unreported information.” Cosby promised the book would have “a number of previously unreported explosive news items.” As part of the sales pitch, Cosby’s agent told Amy Einhorn, an editor at Hatchette, two “facts” that would seal the deal. Einhron listened, then told her colleagues she had just heard two "holy shit" items. The next day, Hatchette offered Cosby a $405,000 advance plus royalties for the book.

After the book was published, Howard Stern, former Nicole Smith lawyer, boyfriend, alleged father of her daughter for a time and confident of Ms. Smith, sued Cosby and Hatchette for libel. Hatchette and Cosby moved for summary judgment. Hatchette prevailed. Cosby, not so much.

There were 19 Statements in the book that Howard Stern claimed were libelous (they’re described at pages 10 -13 of the decision). Cosby’s motion for summary judgment was granted as to 8 of those statements. It was denied as to 11 others (see page 48 of the decision). So part of the case will go forward. For our purposes, however, we will deal with statements 1 and 2, the two "holy shit" items that closed the deal for Cosby and Hatchette.

Statement 1: “Stern and Birkhead [Nicole Smith’s boyfriend] had oral sex at a party at a private home in Los Angeles. Smith discovered them, laughed, and later remarked that Stern was gay.”

Statement 2: “Smith, in front of her nannies in the Bahamas, used to regularly watch a video of Stern and Birkhead having sex.”

Limiting our focus to Statements “1” and “2”, Cosby’s defense was that Howard Stern’s reputation through all the Anna Nicole Smith years was so bad prior to publication of her book, that he could not have been further damaged by the statements, and that he was therefore “libel proof.” The court did not agree.

Cosby also argued that Statements “1” and “2” which “impute homosexuality to Stern, are not defamatory...and are therefore not actionable.” Stern claimed they are defamatory per se (i.e.,the allegation alone is presumed to cause damages).

Here’s where the blue state - urban - northeast view of the world is contained in the fine print, a view that is either a great progressive step forward, an inconsequential footnote on the law of New York State, or a confirmation that the homosexual agenda has quietly vanquished one of the Judeo-Christian foundations upon which much of our culture stands.

Writing for the Court, Justice Chin concluded that “Statements 1 and 2 are defamatory, but not defamatory per se” even though the 1st and 2nd Departments of New York’s Appellate Division have held that the “false imputation of homosexuality is reasonably susceptible of a defamatory connotation.” Noting that the New York’s Court of Appeals had never ruled on the subject, Justice Chin took it upon himself to “predict what New York’s highest court would do were the issue before it.”

According to Justice Chin,

The New York Court of Appeals has held that the following four categories of statements are defamatory per se: (1) those that accuse the plaintiff of a serious crime; (2) those that ‘tend to injure another in his or her trade, business or profession’; (3) those that accuse the plaintiff of having a ‘loathsome disease’; or (4) and those that impute ‘unchastity to a woman”

The Court went on to find that whether a statement is defamatory per se depends on “the temper of the times, the current contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.”

Based on this analysis, Justice Chin framed the issue thusly:

“The question, then, is whether the New York Court of Appeals, in 2009, would hold that a statement imputing homosexuality connotes the same degree of ‘shame, obloquy, contumely, odium, contempt, ridicule, aversion ostracism, degradation of disgrace”... as statements accusing someone of serious criminal conduct, impugning a person in his or her trade or profession, implying that a person has a ‘loathsome disease’ or imputing unchastity to a woman. I conclude that it would not.” [Some Bible-toting alleged homophobes, or "breeders" as they are non-defamatorily referred to, may not agree.]

To further support his view, the Judge looked to what he sees as the “veritable sea change in social attitudes about homosexuality” including laws decriminalizing homosexual conduct, the movement to legalize gay marriage, that a Quinnipiac poll found that New York State resident support gay marriage 51 to 41 percent with 8 percent undecided and finally, that New York’s Court of Appeals “has not, in its most recent opinion touching on social attitudes toward homosexuality, given any indication that it perceives widespread disapproval of homosexuality in New York."

Justice Chin then relied on his brethren in Massachusetts for this (questionable) conclusion: “If this Court were to agree that calling someone a homosexual is defamatory per se—it would , in effect, validate that sentiment and legitimize relegating homosexuals to second class status.”

OK. Statements 1 and 2 are therefore not defamatory per se. “They are, however, susceptible to a defamatory meaning. Therefore a jury will decide whether they are defamatory.

Here’s the fine line the learned judge has drawn: It’s not defamatory to be called a homosexual. But it might be defamatory to say someone's a homosexual who also engaged in oral sex at a party in the home of another. That, apparently, is conduct that “ a reasonable jury could find...is shameful or contemptible...” (it is not clear whether the accusation of boorish party behavior offended the judge's sensibilities, or the assertiion that the sex occurred at someone else's house). Moreover, since the statement suggests that Howard Stern was having sex with a man while he was intimately involved with Anna Nicole, it implies unfaithfulness to her, and this would be “further reason for a jury to find that the Statement is defamatory.”

Accordingly, the court found that homosexuality no longer holds any opprobrium, at least in the abstract, but reckless homosexuality (with respect to time and place) that is compounded by unfaithfulness can be defamatory because faithfulness is still considered a virtue, as is not coveting your neighbor's bedroom to engage in homosexual acts.

I reserve opinion on this matter—not that there’s anything wrong with that—and leave it to other legal and culture pundits to figure out if this is good for the body politic or not.

As a footnote, it might not be defamatory to call someone a homosexual, but according to today's New York Post, you better think twice before you say someone looks like a "skank." It's not clear how this ruling would affect Judge Chin's decision, but clearly, any name callers out there should think twice before saying a homosexual looks like a skank.

To be on the safe side and pending further clarification by the courts, it's probably best to restrict all potential defamatory remarks toward commonly accepted libel-proof targets, such as Christians, far-right conservatives, global-warming deniers, "birthers" and trial lawyers.

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Posted In: Culture War , Damages , Homosexuality , Speech , U.S. District Court

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New York State Court of Claims: DePaula v. State

Like they say on TV, don’t try this at home if you’re not a professional.

Claimant is an attorney. He was a little late for Civil Court in Queens, having missed the first call of the calendar. Like many of us, he had a few cases on in court that morning. While sitting in the back of the crowded courtroom as the judge conferenced cases at the bench, his cell phone rang. Unfortunately, it was not set on vibrate. After less than a half minute of talk, he was approached by a court officer.

Rather than admonish Mr. DePaula, the officer confiscated his phone. As irritating as that may have been, he also advised the busy barrister that he could “get the phone back at about 1:00 PM” when court was in recess. Apparently, they really take the turn-off-your-cell-phone rules seriously in Civil Queens.

There is some discrepancy about what happened next: Attorney DePaula says that while he waited for his case to be called, the officer walked toward him. The officer claims that after he took the phone and was attending to his courtroom duties, DePaula was “staring at him” before he walked over. Both sides agree that when the officer approached, he told DePaula “you should know better.” In response, the attorney admits saying, “You’re just being a prick ” (by which he meant to convey that the officer was a “contemptible, disagreeable, obnoxious person”), while the officer claimed Depaula said, “in a loud nasty tone: ‘You know something, you’re a prick’” (which he treated as a “disruption” of the court proceedings taking place), whereupon DePaula was asked, but refused, to leave the courtroom. Both do agree, however, that DePaula was immediately arrested, handcuffed, removed from the courtroom and confined in a security office in the courthouse, giving new meaning to the term call waiting.

After fifteen or twenty minutes handcuffed incommunicado in the cooler, the officer returned. The cuffs were removed, the cell phone returned and a summons for disorderly conduct was issued. DePaula pleaded not guilty, went to trial on the discon charge, and was acquitted. He then sued in the Court of Claims for False Arrest and Malicious Prosecution.

According to the Court of Claims, “the elements of a false arrest cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged.” When there’s an arrest without warrant, the burden shifts to the defendant to “establish that the arrest was privileged,” thus validating a charge of disorderly conduct under Penal Law §240.20 (3). As it turns out, the court officer had a wrong number, and the arrest was held not to be privileged.

As the court politely put it, “however reprehensible the utterance Mr. DePaula chose to make, in a courtroom and addressed to a Court Officer, the statement alone did not, as a matter of law, amount to disorderly conduct. The law is well settled that the mere use of 'abusive or obscene language' in a public place does not constitute a violation of Penal law §240.20 (3),” as the Court of Appeals has already held. As for the claim of malicious prosecution, the court did not find the requisite “actual malice” and so dismissed that count. A hearing on damages was scheduled to follow.

It’s reassuring to know that the breakdown of civility in our society has transcended the streets, giving us all the right to speak our mind to whomever we want wherever we are, even within the hallowed halls of justice. That’s probably a good thing legally (and maybe it’s an inroad of sorts into the constraints of political correctness), but culturally it may leave something to be desired.

Still, if you’re going to speak your mind, be prepared to put in the time. Your rights often come at a cost. And sometimes, especially when it involves going to court, the cost is billed by the hour. Which is why such bold speech is probably best left to the professionals.

Just ask Mr. DePaula. But ask him nicely.

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Posted In: Crime and Punishment , Culture War , It's My Right! , New York State Courts , Speech

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Supreme Court, New York County: Schoneboom v. B.B. King Blues Club

What do Kill Your Idols, Sub Zero and the Crumb Suckers have in common? They were all heavy metal bands (no offense to the bands if they take issue with the court’s characterization) playing B.B. King’s on August 3, 2006. Mr. Schoneboom was a big-bad-band fan. For him, you’re never too old for a little “slam dancing,” the more “aggressive” form of the ever-popular and intimate “moshing.” 36-year-old Schoneboom was a veteran of the slam-dance two step, having attended more than a hundred concerts where he frolicked in the mosh pits at least thirty to forty times.

The events in question took place during the Crumb Suckers set (in case you were wondering).

The night had begun pleasant enough. While Kill Your Idols was performing, plaintiff went to the lower level to get a better view of the slam dancing going on. A “good time” was being had by all as the fans bounced around off each other in a kinetic frenzy of fun and fisticuffs. After the set, plaintiff returned to his seat in the upper level, away from mosh central. Then Sub Zero came on. As Schoneboom describes it, the slam dancing now seemed “quite a bit more malicious.” Dancers were throwing themselves into non-participants, elbows were being thrown and celebrants were "taking potshots at perimeter people.” For this set, plaintiff remained in the demilitarized zone of the upper level.

But when the Crumb Suckers were about to come on, Schoneboom threw caution to the wind. He found his way to a spot 10 -12 feet from stage, directly in front of the moshkateers. At seven minutes into the performance, plaintiff “felt a shove from behind into the side of his knee which felt like a kick,” but didn’t see which mosher had mashed him. Plaintiff ended up with a knee injury and surgery. He then sued B.B. King’s.

Much to his dismay, the court slam-danced Schoneboom right out of court.

“If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed his duty” to exercise reasonable care. This is a longstanding rule of law that applies to all sorts of activities, including ball games, horseback riding and even samba dancing.

Schoneboom staked out his turf near the stage and the mosh pit only moments after having observed the more “malicious” slam-dancing that occurred when Sub Zero was performing. “Here, plaintiff not only elected to assume the risk of concert-going in a mosh dancing venue but was in the position, given his experience, to fully appreciate the risk.”

As for the injury, that he did not appreciate.

For Schoneboom court was a bust and there would be no dancing for dollars.

Case dismissed.

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Posted In: Culture War , Injuries , It's My Right! , New York State Courts

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U.S. Court of Appeals for the Eleventh Circuit: NAACP v. Evon Billups, Superintendent of Elections

The great voter-photo controversy continues. This time in Georgia.

Just how burdensome is it to individuals living in the 21st Century to produce a photo before they can vote? According to the plaintiffs who challenged Georgia law requiring such onerous measures as proving you are who you say you are with an ID (even a free one paid for by the State if you somehow managed to live your life in America without possessing some sort of photo ID), it is the equivalent of a poll tax and worse, and therefore in violation of the Twenty-Fourth Amendment, of the Equal Protection Clause, of the Fourteenth Amendment, of the Civil Rights Act of 1964, of Section 2 of the Voting Rights Act of 1965 and of the Georgia Constitution.

A photo ID?

Have we become so sensitive (senseless?) that merely requiring voters to show a confirming photo to vote could be thought so burdensome and discriminatory as to invoke monumental claims of constitutional and legislative infringements? Or are we not prepared to deal with the fact that voter fraud might be occurring right here in the good ole U.S. of A.

Well, there is still some common sense afoot in the common law and the Court of Appeals ruled that the minimal burden imposed by the voter-photo law was far outweighed by the state’s interest in “protecting ‘the integrity and reliability of the electoral process.’”

Here’s the bottom line: “The ordinary burdens of producing a photo identification to vote, which the Supreme Court described as ‘arising from life’s vagaries,’ do not ‘raise any question about the constitutionality of’ the Georgia statute.” Accordingly, voters in Georgia, as in Indiana (and 5 other states), will have to reach into their wallet for their picture before they cast their ballots. Hopefully, they will survive the trauma.

But will the nation survive this negative assault on our electoral process? Is this a portrait of an empire in decline entering the darkroom of disenfranchisment? Or merely a snapshot that has exposed the voter to the brutal truth that the camera doesn’t lie, even if some voters do.

Show ‘em a picture already!

With so many hotly contested elections and legal challenges ending in photo finishes, maybe we should all just smile and say “cheese” before we poke a few chads or pull the lever.

That’s how I vote on this one.

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Posted In: Culture War , It's My Right! , Other State Courts , Politics , U.S. Court of Appeals , Voting Rights

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U.S. Court of Appeals for the Sixth Circuit: Phelps-Roper v. Strickland

Here’s the good news: Common decency still has a recongnized place in America, notwithstanding indicators to the contrary.

Topeka Kansas-based Westboro Baptist Church cannot protest at funerals in Ohio. These are the lovely people who believe God is punishing America for the sin of homosexuality by killing Americans, including soldiers. These “church” members believe that “protesting at funerals is an effective way to convey the message of their church.” To make them even more effective messengers, their preferred venues are funerals of soldiers where, as we’ve seen on TV, they share such inspirational messages as “God Hates Fags,” “Thank God for Dead Soldiers” and “Thank God for 9/11.”

Ohio law proscribes protests at funerals. It’s been the law since 1957 with two amendments since. The original law regulated picketing at funerals and funeral processions. The amendments put time limits on protests (from one hour before to one hour after the funeral), specified a 300 foot buffer zone for permitted protests and expanded the definition of “protest” to include “other protest activities.”

Plaintiff, the charming Shirley Phelps-Roper, contended that she wanted to protest at Ohio funerals in the future and that the law violated her Constitutional right to free speech. She had been protesting at funerals for quite some time making a name for herself and for her church along the way.

While the District Court struck down that part of the statute that prohibited protests at “funeral processions” (since it created a “floating buffer zone” which was Constitutionally overbroad) it upheld the rest of the law. So too did the Court of Appeals. It found that the Funeral Protest Provision was content-neutral (no one could protest at funerals, not just the loving members of Westboro Baptist); it served an important governmental interest—balancing the First Amendment rights of protestors with the rights of funeral attendees to grieve, memorialize and gather in honor of the deceased, and; the funeral protest provision is narrowly tailored—300 feet away and no protests from one hour before to one hour after. As the court noted, there are other ways for these protestors to get their message out and “Phelps-Roper is not entitled to her best means of communication.”

Here’s the really sick part: Ms. Phelps-Roper “does not claim that funeral protests are [even] her most effective channels of communication” or that “mourners at a funeral are...her primary audience.” For her, a “funeral is the occasion of her speech, not its audience.”

Well isn’t that special.

Solidiers die and at the moment of heart-breaking grief and remembrance, Phelps-Roper sees her chance for 15 minutes of fame by reviling the dead with hate-filled venomous speech. Pathetic. But still protected. Partly.

Maybe Westboro Baptist would be better off knowing what God loves rather than what it claims God hates. After all, the Bible says we should “comfort all who mourn,” and that those who do so will be called “oaks of righteousness.” Those who do what Phelps-Roper and her “church” do are more like poison oak. And if they really believe what's written in the Bible, they will have to answer for spreading it in God's name.

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Posted In: Culture War , Homosexuality , It's My Right! , Religion , Speech , Strange but True , U.S. Court of Appeals

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U.S. Court of Appeals for the Fifth Circuit: Oliver v. Quarterman

In New York State, before a witness takes the stand at trial, he either places his hand on a Bible and swears to tell the truth, or, if he objects to swearing, he affirms under penalty of perjury to tell the truth. Then he can take the stand, say whatever he wants, and be cross examined accordingly.

But what happens if that Bible ends up in the jury room when deliberations are under way? The Oliver decision is a must read for anyone interested in the relationship between the Bible and the gavel. Khristian Oliver was tried for murder in Texas: Joe Collins came home to discover Mr. Oliver burglarizing his home. Oliver then shot Mr. Collins and while he lay mortally wounded on the ground, struck him several times in the head with a rifle butt, killing him. After a trial, Oliver was convicted of capital murder and sentenced to death.

Mr. Oliver appealed. He claimed that there were at least four Bibles in the jury room and that one juror read a Bible aloud to a small group of other jurors, thereby influencing their deliberations. A number of passages were read, but this one from the book of Numbers gave rise to his appeal: “And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death.” This hit too close to home for Mr. Oliver. Given the Bible's authority among some folks, and that it is not evidence or the law of Texas, Oliver argued for a new trial. The state court entertained his complaint and held hearings, but concluded that the jury did not act improperly. Although some jurors had looked at the Bible, the court held that the jury was not affected “by any outside influence” and had rendered its verdict in accord with court’s instructions and the evidence presented.

After exhausting his state court appeals, the defendant sought a writ of habeas corpus from the US District Court. It was denied. He then took his case to the U.S. Court of Appeals.

Jury tampering occurs when a jury is influenced by any means except evidence presented in open court. Anything not presented in court is an external influence and is generally not permitted. Was the Bible, particularly the reading of the damning passage that mandates death for a person who kills someone by striking him with iron (as defendant Oliver did) an external influence on the jury? According to the Fifth Circuit Court of Appeals, it was both an external influence and Constitutional error: “[T]he jury’s use of the Bible here amounts to a type of ‘private communication, contact, or tampering’ that is outside the evidence and law...” Of course this begs a number of questions, not the least of which is: A type of private communication or contact with whom?

Putting aside that question for the moment, the court, in fact, accepted Oliver's argument. But did it matter?

Because this was a habeas petition, the Federal court had to determine if the Bible’s external influence was harmless error, which in these proceedings meant whether it had “a substantial and injurious effect or influence in determining the jury’s verdict.” Since the Texas courts already held hearings on this question and decided the jury was not influenced by the Bible or the passages read, the U.S. Appeals Court ruled that the accused “failed to rebut the state court’s factual finding that the Bible did not prejudice the jury’s decision.” Accordingly, Oliver's writ of habeas corpus was denied again.

For now, the verdict stands.

Maybe there are other avenues of appeal for Mr. Oliver, and maybe he will get the last laugh, but the Bible also says “The wicked plot against the righteous...but the Lord laughs...because he knows their day is coming.” For Mr. Oliver, this is no laughing matter. Maybe he would be best served appealing his judgment pro se by seeking his own private communication and contact before that day arrives.

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Posted In: Crime and Punishment , Culture War , Habeas Corpus , Other State Courts , Religion , U.S. Court of Appeals

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U.S. District Court for the Southern District of New York: Casillas v. Daines

It’s only money, except when you’re looking for Medicaid to pay for gender reassignment, or what was previously known as a sex-change operation. Without the state’s cash, Terri Casillas could not obtain the operation "she" claimed she needed. The state refused to pay. The court refused to make the state pay.

Ms. Casillas was born male but identified as a woman from age 16 and lived as one from the time she was 20. When she was about 28, she was diagnosed with Gender Identity Disorder (GID or transsexualism), a form of depression “defined by strong, persistent feelings of identification with the opposite gender and discomfort with one's own assigned sex” (hence the need for gender reassignment). For twenty-four years Ms. Casillas underwent hormone therapy courtesy of Medicaid, which caused her to develop breasts and a “more traditionally female body.” When Medicaid funding ended, the plaintiff paid her own way. When she could no longer afford it, therapy stopped and Ms. Casillas “began to exhibit male characteristics.” This was the point of no return for Ms. Casillas, so she sued the New York State Department of Health to make them pick up the tab for the ultimate remedy: gender reassignment, i.e.,“vaginoplasty (removal of the penis and creation of a vagina) with orchiectomy (removal of the testes).”

It turns out there is a 1997 Department of Health regulation which restricts Medicaid payments for gender reassignment. Ms. Casillas claimed this limitation violated her federal right to obtain such a procedure, which was guaranteed under federal statutes and the US Constitution. The court disagreed. It found that the state can limit medical services based on criteria such as “medical necessity” or “utilization control” (control over the distribution of limited resources through Medicaid). Moreover, if the state had a valid medical reason not to cover such procedures, it didn’t have to. The state identified numerous concerns about gender reassignment, including that “serious complications” could result from such surgery and that the long-term effects of the lifetime hormone therapy that would be required were unknown. Accordingly, the state’s refusal to pay was neither irrational, discriminatory nor a violation of Ms. Casilla’s statutory or Constitutional rights.

In this age of breakthrough medical technology where there are procedures from butt, breast and calf implants, to male sexual enhancement or labiaplasty (look it up!), to cryogenics, the court seemed to recognize that valid lines need to be drawn with respect to state-funded health care and that Medicaid cannot pick up the tab for every medical procedure available. You can’t always get what you want under Medicaid, but you can get what you need.

Finally, Ms. Casillas argued that what she wanted removed surgically was akin to a mastectomy, where a breast is removed because of a medical condition affecting the body part. As she saw it, GID similarly affected a body part (by causing her depression and discomfort) and the surgery should be approved. Since the state pays for one procedure, it should pay for the other and the offending part should be taken off courtesy of Medicaid.

That argument did not cut it, according to the court. And neither would Medicaid.

The case was dismissed.

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Posted In: Culture War , Damages , It's My Right! , U.S. District Court

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U.S. Circuit Court of Appeals for the Eleventh Circuit: Frazier v.Winn

In the 70's TV show Welcome Back Kotter, Juan Epstein always had a note for his teacher. And every note was “signed Epstein’s Mother.” That won’t cut it in Florida public Schools where the state Pledge Law requires public school students from K to 12 to recite the pledge at the beginning of each day. The only way to be excused from this obligation is by an authentic written request from the student’s parent. Once you submit a note, you can exercise your right to remain silent during the pledge, but the law still requires you to respectfully stand at attention.

Cameron Frazier thought he was old enough to take a stand on sitting out the pledge. The high-school junior challenged the statute claiming the Pledge Law violated his First Amendment rights. The court’s answer to his objection was basically “Sit Down!”

Mr. Fraizier claimed the statute “robbed him of his right to make an independent decision.” The court disagreed. While it overturned that part of the statute that requires students to stand if they opted out of the pledge (the constitutional right to sit during the pledge was long ago established), it determined that the Pledge Law is “largely a parental-rights statute.” Accordingly, it concluded that “the State’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech.” The only way out of the pledge for Cameron Frazier was a real note, signed Frazier’s mother.

Depending how you score this, it’s either one against the rights of free speech, or one for the rights of parents. Funny how age and circumstance can affect your view of what is and isn’t constitutional. Now if only the courts would rule on our children's right to opt out of cleaning their rooms or taking out the garbage...

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Posted In: Culture War , It's My Right! , Speech

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U.S. District Court for the Northern District of California: Michael Savage v. Council on American-Islamic Relations, Inc. et. al.

The Savage Nation is Dr. Michael Savage. The Bronx-born broadcaster has one of the most popular radio talk shows in the country. His brand of libertarianism and conservatism are dished up in flaming doses of Truth-Gone-Wild. Some would call his advocacy the scorched-earth approach; others would say he wields facts like a bludgeon without regard to consequences or sensibilities. Whatever your view, he is no wallflower and no stranger to controversy. He infuriates, elucidates and inundates all at once.

After railing against Islamic extremism, Mahmoud Ahmadinejad and certain aspects of the Koran, efforts were made by the Council on American-Islamic Relations (CAIR) to boycott his show and have him removed from the air. Moreover, CAIR aired excerpts from Savage Nation broadcasts on its website to rally opposition to his program. Savage would have none of it. He filed suit against CARE for racketeering and for copyright infringement.

Unfortunately for the good doctor, “fair use” allows critics to appropriate portions of his speech to make their point. Such use is not copyright infringement. As for Savage’s racketeering claim—that CAIR is not a civil rights group at all, but a political organization and front for terrorist groups—the court found the pleadings insufficient to support the claim and dismissed with leave for Savage to re-plead and try again.

Has CAIR been unfairly maligned? Has Savage? Has a raw nerve been struck? Or is it Truth that’s taking a beating? When it comes to debates involving terrorism, free speech, talk radio, Islam and the right to criticize, Truth is the first victim. Truth is always the first victim in important debates, whether they’re about abortion, global warming or the war on terror. Thankfully, Truth is also the last thing standing when all is said and done and the fog of battle lifts.

Savage battles over Truth are good for the nation. They draw us into the controversy, make us examine the facts and choose sides by reaching our own conclusions. That’s the privilege and responsibility of citizens who live in a free society. That, and serving jury duty.

And that’s the Truth.

11/17/08 Addendum: CAIR sued Savage for nearly $200,000 in legal fees after this action was dismissed. The court determined that while Savage’s claim was initially defective, the allegations he made about CAIR were not frivolous. So for CAIR, "No soup for you!" And no legal fees.

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Posted In: Culture War , Religion , Speech , Terrorism , U.S. District Court , War on Terror

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U.S. District Court, Eastern District of New York: Fowler v. Zondervan;
Fowler v. Thomas Nelson

In the King James Bible, 1 Corinthians 6:9-10 says this:

“Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God.”

The New International Version (NIV) translates the same verse this way:

“Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God.”

Bradley LaShawn Fowler, who is gay, does not appreciate the translations which identify homosexuals among the sinners who will not inherit the Kingdom of God. So he did what any offended individual has a right to do: He sued the publishers of the Bible. Referring to this translation as a “malicious conspiracy” Fowler claims it has destroyed relationships with his family and caused him all sorts of mental anguish including loss of self esteem and bewilderment. He is seeking $70 million dollars in damages in the two lawsuits.

It used to be that if you didn’t like what the Bible said, you either ignored it or disparaged it. But times have changed. There seems to be a movement to silence those with whom we disagree and the courts are often the vehicle used to accomplish the task. If, as Mr. Fowler hopes, one man can censor the Bible’s reference to homosexuality (one wonders if Mr. Fowler will be filing separate actions over Romans 1:26-27 and Leviticus 20:13), then liars, adulterers, thieves, drunks and other aggrieved readers may well follow suit. Who knows, if Fowler’s lawsuits are permitted to proceed, he may cause a revival as other potential litigants search the scriptures for verses that offend their sensibilities, only to find their salvation.

We used to cherish the market place of ideas where we battled each other with thoughts and words and trusted that the most worthy and profound ideas would rise to the top, persuade us of their value and elevate our society. That is what made America great. We let every one have his say, no matter how absurd, no matter how silly, no matter how divisive. Juxtaposed against the profound, the wise and the loving, the former ideas just couldn’t withstand scrutiny or analysis and in the end were rejected. Now, it seems, we have lost some of our confidence in our fellow citizen's ability to choose wisely, and instead look to the courts to shut the mouths of the other side and to claim that our right to be free of offense is greater than the freedom to speak we claim to cherish.

There’s something offensive about all this that can make you want to scream. Which is, after all, our right.

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Posted In: Culture War , Homosexuality , Religion , Speech , Strange but True , U.S. District Court

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