Ellis County Observer publisher Joey Dauben finally gets a court-appointed attorney

Joey Dauben

Joey Dauben, the publisher of the now-defunct Ellis County Observer, finally got to see a court-appointed lawyer this week to help him fight the three felony counts of child sexual abuse that have kept him in the Navarro County Jail without legal advice for almost two months now.

Edward Jendrzey, whose office is in Waxahachie in Ellis County, received the court-ordered appointment Thursday, Feb. 16. Jendrzey accepted the case after Steve Keathley, a Corsicana attorney whose wife is the president of the Navarro County Bar Association, declined an appointment by District Court Judge James Lagomarsino to represent the journalist.

In a telephone interview today, Jendrzey said, “Yes, he knows I’m representing him,” when asked whether he had met with his new client, who reached out for help from the media this week in a handwritten letter from jail. When a defendant declares himself to be indigent and asks for a court-appointed attorney, that is supposed to occur within 72 hours. In the letter, Dauben also again claimed he is innocent of the charges.

Jendrzey said his first step in Dauben’s representation will be to conduct an independent investigation of the case to learn the circumstances and to attempt to get Dauben’s $200,000 bond set by Lagomarsino lowered. “I’ll be meeting with the prosecutor about that,” Jendrzey said. Dauben’s family and friends have been unable to raise the 10 percent (or $20,000) payment bond agencies typically charge to get a defendant released from jail.

—  admin

Anti-gay El Paso candidate says earthquake and tsunami in Japan were a curse from God

On Monday we told you how several anti-gay candidates are running for El Paso City Council in the wake of the ongoing battle over domestic partner benefits for municipal workers.

Well, one of those anti-gay candidates, Malcolm McGregor III, told ABC 7 he believes the tsunami and earthquake in Japan were a curse from God.

“Japan had built tsunami walls along their coasts but this tsunami was bigger than that. No matter what you say, they either weren’t blessed with protection or they were cursed with an earthquake,” McGregor said. “God did say, Christ did say that earthquakes would increase in the last days and that’s what we’re seeing.”

McGregor is part of the group El Pasoans for Traditional Family Values, which sponsored a successful ballot initiative to rescind DP benefits in November, after the benefits were approved by the City Council. McGregor is also a defendant in the pending federal lawsuit challenging the constitutionality of the ballot initiative.

—  John Wright

UPDATE: Ex-Texas prison official acquitted of charges he sexually abused young male inmates

John Paul Hernandez

John Paul Hernandez, the former Texas youth prison official whose trial we told you about last week, was acquitted of all charges late Monday. The Austin American-Statesman reports:

John Paul Hernandez was found not guilty on 14 counts alleging he molested five boys in 2004 and 2005 after a jury deliberated for six hours, following two weeks of testimony. Prosecutors declined to comment.

A second defendant accused of molesting boys at the West Texas State School in Pyote, former assistant superintendent Ray Brookins, was convicted and sentenced to 10 years in prison last year.

“Six years I’ve been waiting to hear those words,” Hernandez was quoted by The Associated Press in a story filed early this morning. “I’ve already served a six-year punishment and finally a weight has been lifted.”

—  John Wright

Texas Republican seeking to intervene in marriage cases

Lamar Smith claims a ‘protectable interest’ in defending DOMA in Massachusetts lawsuits

Lisa Keen  |  Keen News Service lisakeen@mac.com

Claiming that the Obama Department of Justice is not doing enough to defend the federal Defense of Marriage Act, U.S. Rep. Lamar Smith, the Republican who represents Texas’ 21st district, has asked a federal court for permission to serve as an intervenor-defendant in two cases expected to come before the First Circuit U.S. Court of Appeals.

The Alliance Defense Fund announced Tuesday, Oct. 5,  that it had filed motions on behalf of Smith in the U.S. District Court for Boston, where Judge Joseph Tauro had ruled — in two cases — that one part of the federal Defense of Marriage Act is unconstitutional.

The Department of Justice still has until Oct. 12 and Health and Human Services has until Oct. 18 to give the court notice of whether the federal government intends to appeal those decisions.

In its Oct. 5 motions to intervene, the ADF claims the Department of Justice is mounting “no defense at all” for DOMA. The lawsuits in question challenge only DOMA Section 3, the section that limits the interpretation of “marriage” for any federal purpose to heterosexual couples.

“We should be strengthening and protecting marriage, not subjecting it to a hostile takeover through the courts,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund, in a press release. “If the Obama administration won’t defend marriage, we are ready and willing to do so.”

ADF claims the DOJ has failed to raise certain crucial arguments in defense of DOMA. For instance, it argues that DOJ should have noted that the U.S. Supreme Court’s “decision” in the 1972 Baker v. Nelson “was binding precedent that DOMA is constitutional.”

“Under the new administration, which strongly supports DOMA’s repeal, the DOJ traded these winning rationales for anemic arguments never recognized by any court in a challenge to DOMA or a similar state marriage definition,” states the ADF’s motion to intervene.

Actually, the Supreme Court did not issue a “decision” in Baker; it dismissed the appeal of a gay couple who had sought a marriage license in Minnesota.

Dismissing an appeal has more significance than simply refusing to hear the appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case.

There is dispute within legal circles as to whether that dismissal means anything today.

And Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders that brought one of the DOMA lawsuits, said the lawsuits here are not — like Baker — about marriage.

Bonauto also said she wasn’t surprised to learn of ADF’s motion to intervene.

“The ADF tries to intervene in everything,” said Bonauto. “We’re just surprised it took this long.”

Bonauto said her organization would oppose Smith’s motion to intervene “on multiple grounds.”

The motions to intervene will be decided by Judge Tauro sometime during the next few weeks or so. Bonauto said she doesn’t imagine the motions will be granted if the federal government decides to appeal the two cases.
The ADF motion claims that Rep. Smith has a “protectable interest” in the outcome of these lawsuits because, as ranking minority member of the House Judiciary Committee, he has a duty to see that federal laws “are fully defended and that adverse decisions are appealed.”

The motion says Smith asked Attorney General Eric Holder, by letter, on Aug. 9, whether DOJ intends to appeal the DOMA cases. DOJ had not yet made a decision, notes ADF.

“[I]t is difficult to understand to DOJ’s indecision,” says ADF’s brief.

Attorneys for the HHS have until Tuesday, Oct. 12, to file notice that they intend to appeal the decision in the state’s case, Massachusetts v. HHS. DOJ attorneys have until Oct. 18 to file notice of appeal in GLAD’s case, Gill v. Office of Personnel Management. GLAD’s Bonauto said it is common for the appealing party to give the court notice of its appeal in the last couple of days remaining to do so.

Thus, the timing of ADF’s motion could have the political benefit of appearing to prod DOJ and HHS to file notice. But Arthur Leonard, a long-time legal scholar on LGBT cases, says it’s also not unusual for Smith to file the intervenor motion.

“There have been occasions in the past where members of Congress have sought to intervene in order to present what they think would be stronger arguments than the Justice Department is likely to present, especially when the administration that is defending the statute is different from the administration that signed it into law,” said Leonard.

“But,” he added, “to the extent this is about getting particular arguments before the court of appeals, I can’t imagine that an appeal of the DOMA case won’t attract plenty of amicus briefs that would make all the arguments that Rep. Smith would want to make.”

© 2010 Keen News Service

This article appeared in the Dallas Voice print edition October 08, 2010.

—  Kevin Thomas

High court may issue 1st Prop 8 ruling this week

U.S. District Judge Vaughn Walker

The Prop 8 case may be going to the Supreme Court sooner than expected — sometime this week.

Not the entire case. Just the motion to extend District Judge Vaughn Walker’s stay.

If the 9th Circuit Court opts not to extend the stay, the defendants in the case may take the case to the Supreme Court.

The argument by anti-gay marriage forces is that the stay needs to be extended to protect those who may marry. If the stay is lifted, those people may suffer harm. Nice of them to be so worried.

According to the New York Times, the anti-marriage folks would be facing an uphill battle on this issue, even with conservative members of the Supreme Court.

First, the interveners who’ve defended Prop 8 in the lower courts would have to convince the high court that this is their battle to fight. The state is the named defendant, but California’s governor and attorney general have declined to defend the marriage ban. In his decision last week allowing the stay to expire this Wednesday afternoon, Judge Walker questioned the defendants’ standing.

In the past, conservative members of the high court have taken narrow views about who has standing in appeals. No matter how much Justices Scalia, Thomas, Roberts and Alito may despise the idea of same-sex marriage, allowing this group to appeal the case when the named defendants have declined to do so would go against precedent.

—  David Taffet

Iran’s deadly ‘Bizarro World’

The use of the Bible to defend laws in the United States could be as dangerous as the use of the Qur’an in the Iranian theocracy

EXECUTION
EXECUTION | Iranians Mahmoud Asqari and Ayad Marhouni were hanged in Justice Square in Mashhad, Iran, in 2005, after being convicted of sodomy. (Iranian Students News Agency)

In the Bizarro World, everything is well, bizarre! The planet is a cube; everything ugly is beautiful; everything is sort of the opposite of Earth.

Welcome to Iran!

In the real world, when a person is accused of a crime, evidence is presented to support the charge. Some sort of due process is used to deal out justice.

In the Bizarro World of Iran, not so much.

Take the case of Ebrahim Hamidi. He was arrested two years ago in Iran and charged with “lavat” (sodomy), a crime that is punishable by death.

Hamidi and three friends were involved in a fight with members of another family. Part of the charges leveled against them were that they had assaulted a man and attempted to abuse him sexually.

After three days of alleged torture, Hamidi confessed, and his three friends were released in exchange for their testimony against him.

It might sound like a pretty ordinary assault and attempted rape case — but for the fact that the alleged victim admitted he fabricated the charges under pressure from his family.

In the real world, that would most likely result in the charges being dropped and Hamidi being set free.

But remember, we are in the Bizarro World of Iran.

Hamidi sits awaiting execution for homosexual acts, even though he is heterosexual and from the testimony of the victim, innocent.

Why? Well, it seems there is a bizarre legal loophole that allows something called a “judge’s knowledge” to bear weight in a case where there is no supporting evidence, and the judge says, “Hang him.”

Here in the real world his defense lawyer would be throwing out every legal motion in the book to stop this miscarriage of justice. In Bizarro World the defendant has no lawyer, at least not any more.

His attorney, human rights lawyer Mohammad Mostafaei, is no longer in Iran. He was forced to flee the country to live in permanent exile in Norway because of his human rights advocacy.

His wife was arrested and held in solitary confinement just to drive home the message. She has since been released now that Mostafaei is out of the country.

You see, in Bizarro World, lawyers like Mostafaei, credited with saving at least 50 people from execution during his career, are not welcome. He defends children and women against harsh punishments that include the medieval practices of stoning and public whipping.

Sounds strange and outlandish, but it’s true.

Iran is a country that is, in effect, a theocracy. The laws are adaptations of Shari’ah, the Islamic legal tradition that includes the Qesas law, or “eye for an eye.”

These traditions were augmented with loopholes like the one allowing judges to use circumstantial evidence and just plain intuition in deciding life or death matters.

It is not a happy place for many people — and LGBT citizens in particular. There is a lesson in this sad and strange tale, and that is the explicit warning against theocratic justice.

If you don’t see any reason to fear this kind of problem back here in the United States, you must be familiar with neither the Bible nor the make up of our highest courts. The legacy of the Bush years still haunts us and will for many years.
And that “eye for an eye” thing is a direct quote from both the Qur’an and the Bible.

Our founding fathers were some pretty sharp cookies, and when they consciously shied away from any kind of state religion, they did so because of the immense potential for abuse that they saw in theocracy.

That wisdom is under constant attack by the right wing revisionists who would have us believe we are a Christian nation. Those same voices warn against the evils of Islam and the draconian Shari’ah Law, yet if given a chance they would impose the same kind of restrictions. They would just give them a different name.

The story of Ebrahim Hamidi is a cautionary tale, and it is one we should take note of, leastwise we might slip into the “underverse” and end up in a Bizarro World of our own.

Hardy Haberman is a longtime local LGBT activist and a member of Stonewall Democrats of Dallas. His blog is at http://dungeondiary.blogspot.com.

This article appeared in the Dallas Voice print edition August 13, 2010.

—  Kevin Thomas

Clearing the confusion on lifting the stay: Walker’s stay order will expire as originally scheduled next Wednesday

Ken Upton, senior staff attorney in Lambda Legal’s South Central Regional Office here in Dallas, has cleared up the confusion over Judge Vaughn Walker’s ruling on lifting the stay of his order overturning Proposition 8.

Upton explains, in a comment to an earlier Instant Tea post, that Walker has declined to extend the stay he issued last week, but instead to let it expire as originally scheduled on Wednesday, Aug. 18, at 5 p.m. PST.

The 9th Circuit Court of Appeals has the option to issue its own stay of Walker’s ruling against Prop 8. I have heard a rumor that I can’t even begin to confirm yet that the 9th Circuit isn’t likely to issue a stay. If that is how it turns out, same-sex couples will again be able to legally marry in California beginning next Wednesday.

The question still remains as to whether the Yes on 8 campaign — which unsuccessfully defended Prop 8 in Walker’s court — even as legal standing to appeal Walker’s ruling. The actual defendants in the case were Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, both of whom declined to defend the amendment and both of whom issued statements this week saying same-sex couples should be allowed to legally marry. Since the Yes on 8 people are actually only “defendant intervenors,” they might not have legal standing to appeal Walker’s decision, some experts have said.

—  admin