Monday, June 29, 2009

Update on a Civil Right to Counsel / The "Civil Gideon" Movement

Advocacy for a civil right to counsel (Civil Gideon) continues to move forward, as you'll see from these recent developments. "Gideon" (in Gideon v. Wainwright, 372 U.S. 335 (1963)) is a landmark U.S. Supreme Court case that gave poor people accused of crime a right to appointment of counsel. The Civil Gideon movement advocates for extension of that right where "other vital interests" are at stake for indigent civil litigants. Please forward this newsletter to anyone who might be interested.

Right to Counsel in AK Supreme Court

On May 21st the Alaska Supreme Court heard oral argument in Office of Public Advocacy v. Alaska Court System and Jonsson. As reported in the October and December 2008 issues of Civil Right to Counsel Update,the case involves an appeal of a ruling that counsel must be appointed for an indigent parent in a custody matter, under both the equal protection and due process clauses of the Alaska constitution. Ms. Jonsson's equal protection claim, which the Alaska Court System endorsed, was that the statute violated equal protection by denying parents a right to an appointed attorney when the opposing parent was represented by private, rather than publicly-funded, counsel.

Ms. Jonsson's pro bono counsel argued that the due process claim was not properly before the court but that the court might have to reach it anyway, as part of the equal protection argument. The statute treats parents like Ms. Jonsson, involved in custody cases against private attorneys, differently from those battling the state.

Most of the court's questions focused on three areas: whether a right to counsel could be inferred from the statute if a publicly funded party-guardian ad litem is in the case, whether the due process issue was properly before the court, and whether Ms. Jonsson was seeking a bright-line rather than fact-dependent ruling (and if so where the bright line should be drawn). On this last point, Ms. Jonsson argued for a "bright line rule" finding a right to counsel in every new custody case involving an unrepresented indigent parent and a private attorney, once the possibility of fee shifting has been exhausted. The court expressed concern that briefing did not sufficiently present the argument in opposition to a constitutional right to counsel. The court could avoid the constitutional issues by affirming the trial court's ruling that the statute confers a right to counsel when a party-guardian ad litem is involved and one or both parents are indigent. One week after oral argument the court asked for supplemental memoranda from parties and amici on possible mootness and on whether the due process issue is properly before the court.

for more information on the "Civil Gideon" Movement, visit the National Coalition for a Civil Right to Counsel by clicking on the title above;

Sunday, June 28, 2009

Supreme Court Rules Student w/ Disabilities Entitled to Private Education @ Public Expense

This is not a joke. Monday, the U.S. Supreme Court issued a 6-3 decision that required an Oregon public school district to pay a $5,200 monthly tuition (plus fees) for a private boarding school for a high-school senior whose psychologist had diagnosed him with ADHD, depression, math disorder and cannabis abuse.

Also not a joke: The Obama administration had urged the big bench to so rule. Thus the Individuals with Disabilities Education Act (IDEA), which mandates that all "children with disabilities" have the right to a "free appropriate public education," is turning into a cash cow for disability lawyers and private schools. According to an amicus brief filed by Obama's solicitor general, Elena Kagan, Oregon's Forest Grove School District had tested the student -- known as T.A. -- in 2001, but determined that he had no learning disabilities; specialists did not test for Attention Deficit Hyperactivity Disorder (ADHD), although they suspected he had it. Parents and school officials agreed to take a "wait and see" approach.

As he continued to have trouble in public school, T.A.'s mother e-mailed school officials that summer suggesting "there must be some method of teaching more appropriate for him."

In 2002, T.A. started using marijuana. In March 2003, Kagan wrote, T.A.'s parents sent the boy -- then a junior -- to a psychologist who diagnosed him with "ADHD, depression, math disorder, and cannabis abuse" and recommended that he be admitted to a residential program. The parents pulled T.A. from school, sent him to a three-week wilderness program, and then to the Mount Bachelor Academy, which specializes in students with "learning disabilities, substance abuse, and behavioral problems." The parents requested an independent hearing in April 2003 to get taxpayers to pay their son's tuition, as per the Individuals with Disabilities Education Act as the school district again determined that T.A.'s disabilities did not merit special education. But in January 2004, a hearing officer found that T.A. had ADHD and Mount Bachelor was appropriate for him.

A district court found against the parents. The Ninth Circuit Court of Appeals reversed the district court. Monday, the Supreme Court ruled that taxpayers should foot the bill for T.A.'s private boarding school.

At issue was a 1997 revision of the IDEA. Dissenting Justice David Souter argued the revision banned subsidizing parents' decision to send their kids to private school without getting approval from the district. The majority ruling, written by Justice John Paul Stevens and joined by conservative and liberal justices, argued that the revision did not change the law.

Manhattan Institute education senior fellow Jay P. Greene argued that Souter's dissent -- joined by two bench conservatives -- "was unreasonable in raising alarms about costs."

"The aggregate burden of this kind of policy is a tiny, tiny fraction of aggregate spending," said Greene.

On the other hand, the court arguably engages in policy-making when it tells districts how they must spend valuable education dollars.

Walter Olson of nailed the problem with the majority ruling when he opined in an e-mail, "The impulse to get a better shake for one's kid is universal, but it's disproportionately wealthy and clever parents, with their hired lawyers and experts, who succeed in using these rules to obtain a private school education at public expense. In this case, the question was whether parents should at least try the public schools' proffer of special-ed services before declaring them inadequate, which doesn't seem to me to be too much to ask."

And what a test case. You could understand the court's order for tuition payments for private school for a severely disabled child -- but not a teenager who had managed to graduate without any special education from kindergarten to the 11th grade, when he developed a marijuana problem.

The Obama administration blithely went along because, as Solicitor General Kagan wrote, it would be wrong to leave parents with "the choice of leaving the child in an inappropriate placement or paying for an appropriate placement in a private school."

Sadly, many parents face a similar dilemma. But only parents with the resources to game experts (who will diagnose a disability) and lawyers stand to win full boarding school tuition.

Noting that Souter's dissent was joined by conservative Justices Antonin Scalia and Clarence Thomas, Olson noted, "I'm still trying to figure out why being progressive on this issue means siding with the private schools and affluent parents, while the conservative justices are the ones to defend the public school ideal of universal service."

It's one of those nice people things. The government has expanded the notion of disability to the point of absurdity. But nice people refuse to look at the impending drain on public school budgets, or how one child's boarding school tuition can mean that much less funding for all the other students' educational needs.,_inc?page=full&comments=true

Thursday, June 4, 2009

It's OK to Taser a suspect to get a 2nd DNA sample, after cops botch 1st one, NY judge rules

Thursday, June 04, 2009

The suspect, who was accused of a shooting and robbery, had given a sample earlier, but the department sent it to the wrong lab. He refused to give another mouth swab, so they Tasered him. (Shockingly, he agreed to give a sample after that.) The judge said that it's OK to use reasonable force to enforce a court order, though it's rare to use a Taser in these cases.

Thursday, June 04, 2009 at 09:00 AM in Police administration

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Bullet-Proof Yourself

Damage Control for You & Your Business Through Crisis Communication

An Interesting Blog

"Insights and analysis of the most pressing issues facing companies, countries and brands today. This is the blog for bulletproofing a reputation when it matters most"

Better name for it is Big Business BS or Propaganda Central

(and a little bit about law, naturally, for we are a Litigation Nation!)

Click on title above to visit the site;

Humane Society of the United States v. Amazon. com; Supporting Animal Cruelty

Amazon.Com Supporting Animal Cruelty

by Jean-Pierre Ruiz

Jean-Pierre Ruiz is a Washington State-based attorney, practicing animal law and corporate law for non-profit organizations. Jean-Pierre received his engineering degree from McGill University, and his law degree from IIT Chicago-Kent College of Law where he was on the Dean’s List. Jean-Pierre was a member of the school’s nationally-recognized Trial Advocacy Team. Jean-Pierre clerked for Judge Warren Wolfson, author of numerous trial advocacy books. Jean-Pierre combines his passion for animal well-being with empathy, sympathy and compassion He inspires trust, confidence and believes in zealous, but civil, representation. Jean-Pierre is a member of the Animal Legal Defense Fund.


In an age where the ethics and morality of executives have been called into ever greater question, where the means justify the end, and extracting the very last penny from the marketplace is more important than making ethically and morally sound decisions, it should come as no surprise that would rather make a few more pennies than take a stand against animal abuse and cruelty.

In the last few weeks, the press has been reporting that was selling Feathered Warrior, a cockfighting magazine. However, today’s perusal of’s choices also reveals such “great” reading as:

The Game Cock: From The Shell To The Pit - A Comprehensive Treatise On Gameness, Selecting, Mating, Breeding, Walking and Conditioning, etc. (History of Cockfighting Series) - $40.45
The Art of Cockfigthing – A Handbook for Beginners and Old Timers - $34.99
Cockfighters: The Interviews (DVD) - $85
Handling and Nursing the Gamecock - $26.95
The Game Cock – Being a Practical Treatise on Breeding, Rearing, Training, Feeding, Trimming, Mains, Heeling, Spurs, etc. - $26.95
(See, the link to's "choice" literature below)

Cockfighting is an “activity” involving two roosters thrown into a pit, called a cockpit, to fight -- sometimes to the death. These are birds specially bred for aggressiveness toward other males, stamina and strength and are “equipped” with 3-inch long razor-sharp metal or plastic spurs, resembling curved ice-picks, which the birds are taught to aggressively use. Fights can last from a few minutes to over half an hour and usually results in the death of the one or both of the “combatants.” . Common injuries include punctured lungs, broken bones, and pierced eyes.

Cockfighting is illegal in all 50 states, and transporting the birds or cockfighting paraphernalia across state lines is now a federal offense. Of course, that is not say that cockfighting (much like dog fighting) does not go on. Law enforcement has connected cockfighting to drug use and distribution, as well as acts of violence. However, the primary purpose of cockfighting is gambling and thousands of dollars can be wagered on a single fight., led by its CEO Jeff Bezos, has argued that it has a right to sell these items under the Free Speech clause of the Constitution. However, Mr. Bezos forgets that just because you have a “right” does not make it “right.” Perhaps Mr. Bezos believes that the means justifies the end, and damn the moral or ethical stance, when it comes to increasing’s balance sheet and, no doubt, his personal bank account.

For the fiscal year of 2008, reported that revenues increased by 39% to a total of $14.84B (yes, billions), while profits increased by 69% to a total of $655MM. does not break revenues and profits it makes on each item it sells.

The Humane Society of the United States provides a link to send Mr. Bezos an email requesting that he stop selling animal cruelty books and DVDs (see the link below).

For more info:'s link to cockfighting books and magazine:; HSUS link to send Mr. Bezos a letter:
PT 2

In my last posting, I discussed how is breaking federal law and supporting animal cruelty by selling certain material depicting acts of, and advocating for, animal cruelty. Some people have interpreted my position to mean that I am trying to censor what sells. They are partly right, and partly wrong.

Selling material which depicts, and advocates for, animal cruelty is a violation of federal laws

The material presently on sale on’s website both depicts animal cruelty and advocates for it. For example, Feathered Warrior advertises fighting animals and paraphernalia – including steroids and other drugs for the animals - for sale, as well as the venue of upcoming fights.

Every state has laws against animal cruelty. Furthermore, there are two federal laws which are central to this issue. Namely, the Animal Welfare Act and the Federal Depiction of Animal Cruelty Act (See, “For more info” for a link).

Section 2156 of the Animal Welfare Act states:

(c) Use of Postal Service or other interstate instrumentality for promoting or furthering animal fighting venture

It shall be unlawful for any person to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of promoting or in any other manner furthering an animal fighting venture except as performed outside the limits of the States of the United States.

Section 48 of the Federal Depiction of Animal Cruelty Act states:

(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions.— In this section—
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and

(See, “For more info” for a link)

The Humane Society of the United States has sued alleging that this latter is in violation, among others, of both of these acts. (See, “For more info” for a link) has responded that it is entitled to sell this material from a legal standpoint (regardless of whether it’s moral and/or ethical) because the acts infringe on its right to free speech which is enshrined in the First Amendment to the US Constitution and states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(See, “For more info” for a link)

Free Speech v. the Animal Welfare Act and the Federal Depiction of Animal Cruelty Act

It is important to recognize that the Government does not limit speech. We are still free to say, write and publish about anything we like. Rather, the Government can only enact laws that punish certain types of speech.

It could be argued – and often is – that any limitation on free speech ultimately results in censorship and tyranny. If right, the opposite of the argument must necessarily be true. That is, that no limitation on free speech ultimately results in anarchy. Regardless of one’s opinions on the subject, the US Supreme Court has placed limits on the concept of free speech. In essence, the Court placed a value on certain forms of speech relative to what we consider other ideals such as public safety, national security, justice, etc. Hence, the First Amendment does not protect statements which are said with the intent to provoke violent acts or incite illegal actions. Furthermore, the First Amendment does not protect libelous or slanderous statements, or obscene materials. The First Amendment also does not protect speech which conflicts with other legitimate and compelling social or governmental interests where regulations are content-neutral. Contested speech must have religious, political, scientific, educational, journalistic, historical or artistic value to be protected.

At issue from a legal standpoint, therefore, is whether the First Amendment will “protect” the right to sell material which depicts, and advocates for, animal cruelty, or whether the Court will recognize the Government’s compelling interest in prohibiting the sale of such material. That is, does material which depicts animal cruelty has any religious, political, scientific, educational, journalistic, historical or artistic value.

A case presently before the US Supreme Court may be partially determinative of HSUS’s case against which is still before the court.

US v. Stevens

In 1999 a federal court sentenced a Virginia man to three years in prison for selling dog fighting videos in violation of the Federal Depiction of Animal Cruelty Act (the Act).

In US v. Stevens, the Defendant – a pit bull enthusiast – was convicted by a Federal Court in Pennsylvania of violating the Act for selling videos of pit bull fights and pit bulls attacking other animals. The trial court determined that the videos had no religious, political, scientific, educational, journalistic, historical or artistic value and sentenced Stevens to 37 months in jail. On appeal, the 3rd Circuit Court of Appeal was unwilling to create a new category of unprotected speech and ruled that the Act violated the First Amendment because the Government had failed to show a compelling interest, nor show that the Act was narrowly tailored to achieve such interest, or that it provides the least restrictive means to achieve the Government's interest. The Court noted that the Government had failed to show a sufficient link between the law and the Government’s interest in preventing animal abuse, unlike existing state laws criminalizing animal cruelty.

Before the US Supreme Court, the Government will argue that depiction of animal cruelty is not worthy of protection under the First Amendment. In turn, Stevens will argue that showing the proper way to train a pit bull to hunt and further showing pit bull fights to show the difference between a pit bull trained to fight and one trained to hunt has educational value.

If the Court agrees with the Government, it will mark the first time since 1982 that a category of speech is excluded from protection. In 1982, the Court unanimously upheld a New York law banning the sale of child pornography under the theory that the Government had a compelling interest in protecting children from sexual abuse and exploitation.

Regardless of the Court’s ruling, should stop selling this material

First, it important to note that’s own policies are that it will not sell a broad range of objectionable, but lawful, material including sexually explicit material, crime-scene photos, human organs or body parts (?), items that promote racism, hatred or religious intolerance, and anything else “[] deems offensive.” (See, “For more info” for a link). In fact, since HSUS filed suit, removed a video titled “Unleashed” from its website. “Unleashed” is a two-hour video in which some 20 dogs are intentionally maimed, mutilated, tortured, wounded or killed in some 12 dog fights. Some of the dogs in the video are puppies, with one being described as being 11 months old. Over the course of the two-hour video, “Unleashed” depicts thousands of injuries, including one dog having his throat ripped out. Other injuries include large pieces of skins ripped from dogs’ shoulders, necks, faces, the top of their heads. Escape is impossible as the dogs are forcefully kept inside the pit. The final “chapter” of “Unleashed” contains more than 30 minutes of 10 seconds clips alternating between dog fight sequences and clips of nude women undertaking various sexual acts.

I think we can all agree that is selling this material in order to make money. In fact, the “Feathered Warrior” consistently ranks in the top 1% of all magazine subscriptions sold on

Perhaps we can also agree that there is a difference between material that examines acts we deem immoral and/or unethical (such as WWI, Genocide, 9/11, animal fighting, etc.) from a historical perspective, and material which shows how to perform those acts. I would hope that none of the people who posted comments advocating for’s “right” to sell material depicting, and advocating for, animal cruelty, would also advocate for’s “right” to sell material which would show people how to build a bomb, plant it on the premises of a federal building, and detonate it undetected; or fly a jumbo jet into a sky scrapper; or, run a children pornographic ring; and on, and on.

The connection between acts of animal cruelty and acts of human violence are well documented. For example, a 1983 study noted that more than a third of the children referred to New Jersey’s Division of Youth and Family Services for suspected child abuse were abusive to animals. A 1995 noted that 32% of the pet-owning victims of domestic abuse reported that one or more of their children had hurt or killed a pet. A subsequent study conducted in 1997 reported that 50 of the largest shelters for battered women in the United States found that 85% of women and 63% of children entering shelters discussed incidents of pet abuse in the family. Another study in 1997 by the Massachusetts Society for the Prevention of Cruelty to Animals and Northeastern University found that 70% of all animal abusers have committed at least one other criminal offense and that almost 40% had committed violent crimes against people. The study also found that over a 20-year period, a group of individuals who had abused animals as youths were five times more likely to commit violent crimes, four times more likely to commit property crimes and three times more likely to have drug or disorderly conduct offenses than a matched group of non-animal abusers In fact, the FBI now considers animal cruelty to one of the predictors of violence and considers past animal abuse when profiling serial killers. The US Department of Justice emphasizes the importance of including information about past animal abuse when assessing youth who are at risk of committing inter-personal violence. (See, links at “For more info”).

Therefore, I would argue that, from an ethical and moral point of view, should stop selling material which depicts, and advocates for, acts of animal cruelty.

In the end, each of us will make a choice as to what activities propel us forward as a species worthy of survival. I do not believe that acts of animal cruelty profit us as a species or as a society. And since cruelty to animals is linked to acts of human violence, perhaps acts of kindness to animals will lead to acts of kindness toward one another and a more peaceful world.

Finally, my two dogs are pleased to announce that they are indeed treated very well (see picture) and wish every dog out there happy trails.

In my next blog, we’ll take a look at the world of animal fighting and its documented effect on our society.

For more info: Animal Welfare Act:; Federal Depiction of Animal Cruelty Act:; HSUS's complaint:; US Constitution:;'s policies:; Domestic violence and cruelty to animals, F. R. Ascione:; The Abuse of Animals and Domestic Violence, F. R. Ascione:; The Care of Pets Within Child Abusing Families, L. DeViney, J. Dickert, R. Lockwood, 1983 - International Journal for the Study of Animal Problems 4(4), 321-336; PAWS - The Animal Abuse - Human Violence Link:; Animal Cruelty: Pathway to Violence Against People, K. M. Heide, Altimara Press (2003); Cruelty to Animals and Interpersonal Violence: Readings in Research and Application, F. R. Ascione, Purdue University (1998).

Jean-Pierre's Home Page
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Wednesday, June 3, 2009

Yahoo sues to get free fantasy football info

Last update: June 3, 2009 - 2:26 PM

Featured comment

This is funny because Yahoo charges you for access to same day, live stats in all their fantasy leagues. The application is called Stat … read more Tracker. What a joke.

Internet giant Yahoo Inc. has filed suit in Minnesota, demanding free access to the player information that drives its popular fantasy football game.
Yahoo alleges that the NFL Players Association and corporation has no right to charge for the use of players pictures, biographies and on-field statistics, according to its suit filed this week in federal court. In the past, the NFL Players Association has asserted that those things fall under intellectual property rights.

Yahoo's fantasy football site relies upon such real-time statistics. Participants use them to decide which players to draft and trade throughout the football season.

The issue of whether companies can use league information for fantasy sports sites has come up before. Then, the sport was baseball.

In 2007, the United States Court of Appeals for the Eight Circuit decided that CBC Distribution and Marketing Inc. could use Major League Baseball players' names and statistics for its fantasy baseball products -- without paying a licensing fee.