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

What’s Shakin’ – Stone Soup at F Bar, Washtonians support marriage equality

Stone Soup1. For people living with AIDS proper nutrition is more than just healthy living, it’s a vital part of the regimen that keeps them alive. Unfortunately the struggling economy and cuts to government HIV/AIDS nutrition programs mean that, for some, eating right, or just eating, is a challenge.  That’s where the AIDS Foundation Houston Stone Soup Food Assistance Program steps in.  Kelly McCann, CEO of of AFH, says that the program has recently seen a 40% increase in request for assistance and needs an additional $25,000 a month to meet demand. F Bar (202 Tuam) is doing its part to help out tonight, collecting monetary and food donations from the community. Donors will receive a VIP invitation to an appreaciation party on Nov 22, and be entered in a raffle to win fabulous prizes.
2. Washington may soon become the seventh state to have full marriage equality, if a recent poll by the University of Washington, Institute for the Study of Ethnicity, Race & Sexualityis accurate.  The poll asked 938 registered voters in the evergreen state if they would support a same-sex marriage law were it to appear on the 2012 ballot: 47% responded that yes, they would strongly support it, only 32% said they would strongly oppose.
3. Voter turnout in Harris County is slowly catching up with the last municipal election cycle in 2009, but continues to lag.  So far 28,679 people have cast their ballots, 81% of the 34,485 who had voted at this point in the process the last go around.  Early voting continues through November 3.  Election day is Nov 8. A list of all early voting locations and sample ballots  are available at harrisvotes.org.

—  admin

Judge to rule this week in Nikki Araguz case

Nikki Araguz

Transgender widow vows appeal if she loses case

JUAN A. LOZANO  |  Associated Press

WHARTON, Texas — The transgender widow of a Texas firefighter will likely learn next week whether his family’s request to nullify their marriage and strip her of any death benefits will be granted, a judge said Friday.

State District Judge Randy Clapp made the announcement after hearing arguments in a lawsuit filed by the family of firefighter Thomas Araguz III, who was killed while battling a blaze last year. The suit argues that his widow shouldn’t get any benefits because she was born a man and Texas doesn’t recognize same-sex marriage.

The widow, Nikki Araguz, said she had done everything medically and legally possible to show that she is female and was legally married under Texas law. She believes that she’s entitled to widow’s benefits.

“I believe the judge is going to rule in my favor,” Araguz said after the court hearing.

The lawsuit seeks control over death benefits and assets totaling more than $600,000, which the firefighter’s family wants to go to his two sons from a previous marriage. Voiding the marriage would prevent Nikki Araguz from receiving any insurance or death benefits or property the couple had together.

Thomas Araguz died while fighting a fire at an egg farm near Wharton, about 60 miles southwest of Houston, in July 2010. He was 30.

His mother, Simona Longoria, filed a lawsuit asking that her son’s marriage be voided. She and her family have said he learned of his wife’s gender history just prior to his death, and after he found out, he moved out of their home and planned to end the marriage.

But Nikki Araguz, 35, has insisted that her husband was aware she was born a man and that he fully supported her through the surgical process to become a woman. She underwent surgery two months after they were married in 2008.

Longoria’s attorney, Chad Ellis, argued that Texas law — specifically a 1999 appeals court ruling that stated chromosomes, not genitals, determine gender — supports his client’s efforts to void the marriage.

The ruling upheld a lower court’s decision that threw out a wrongful death lawsuit filed by a San Antonio woman, Christie Lee Cavazos Littleton, after her husband’s death. The court said that although Littleton had undergone a sex-change operation, she was actually a man, based on her original birth certificate, and therefore her marriage and wrongful death claim were invalid.

Ellis presented medical and school records that he said showed Nikki Araguz was born without female reproductive organs and that she presented herself as a male while growing up and going to school. He also said her birth certificate at the time of her marriage indicated she was a man.

“By law, two males cannot be married in this state,” Ellis told the judge.

Nikki Araguz, who was born in California, did not change her birth certificate to reflect she had become a female until after her husband’s death, said Edward Burwell, one of the attorneys for Thomas Araguz’s ex-wife, Heather Delgado, the mother of his two children.

But one of Nikki Araguz’s attorneys, Darrell Steidley, said that when his client got her marriage license, she presented the necessary legal documents to show she was a female. He also noted changes made in 2009 to the Texas Family Code that allowed people to present numerous alternatives to a birth certificate as the proof of identity needed to get a marriage license. That was an example, he argued, of the state trying to move away from the 1999 appeals court ruling.

The changes in 2009 allowed transgendered people to use proof of their sex change to get a marriage license. The Texas Legislature is currently considering a bill that would prohibit county and district clerks from using a court order recognizing a sex change as documentation to get married.

After the hearing, the firefighter’s family and attorneys for his ex-wife criticized plans by Nikki Araguz to star in a reality television dating show and implied she was only interested in money and fame that the case would bring her.

“That is absurd,” Nikki Araguz said in response. “I’m after my civil equality and the rights that I deserve as the wife of a fallen firefighter.”

If the judge rules against the firefighter’s family in their motion for a summary judgment, the case would then proceed to trial. Araguz said if the judge rules against her, she would appeal, all the way to the U.S. Supreme Court if necessary.

—  John Wright

CALIFORNIA: Protect Marriage Files Request For Recusal Of Prop 8 Judge

Protect Marriage has filed a formal request for the recusal of Ninth Circuit Court of Appeals Judge Stephen Reindhardt, who is scheduled to be part of the three judge panel hearing the appeal of Proposition 8 on Monday. As I noted yesterday morning, at issue is Reinhardt’s wife and her involvement with the No On 8 campaign via her job with the ACLU.

In papers filed with the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for Proposition 8′s supporters said Judge Stephen Reinhardt’s “impartiality might reasonably be questioned” because his wife heads the Southern California chapter of the American Civil Liberties Union. In that role, the judge’s wife, Ramona Ripston, has been an outspoken opponent of Proposition 8 and taken part in legal proceedings to overturn the voter-approved law, the lawyers said. They cited the friend of the court brief the ACLU filed on behalf of the plaintiff’s in the case pending before her husband as an example.

According to the above-linked story, Reinhardt has recused himself from past cases involving the ACLU.

Joe. My. God.

—  admin

DOJ Files Opposition to LCR Supreme Court Request to Vacate DADT Stay Order

MetroWeekly reports that the government has responded to the Log Cabin Republican request to vacate the stay that the Ninth Circuit placed on Judge Virginia Phillips's injunction barring enforcement of 'Don't Ask, Don't Tell':

Dadt "In a filing at the U.S. Supreme Court this afternoon, the U.S. government, represented by acting Solicitor General Neal Katyal, asked the court to leave in place the stay of U.S. District Court Judge Virginia Phillips's injunction of the "Don't Ask, Don't Tell" policy. The government's argument would keep DADT in effect while the Log Cabin Republicans v. United States case is on appeal before the U.S. Court of Appeals for the Ninth Circuit."

The response was requested from Justice Kennedy when the LCR application was filed.

Argues Acting U.S. Solicitor General Neal Katyal in the briefing: "It was entirely appropriate for the court of appeals to defer to the considered judgment of senior military leaders that any change in policy must be done in an orderly and careful manner in order to be successful."

Woods Wrote Dan Woods, lead attorney for the Log Cabin Republicans, in a statement:

"We have reviewed the government's opposition to Log Cabin's application to vacate the stay of Judge Phillips's injunction by the Ninth Circuit. In our view, the government's lengthy, detailed, 29-page brief does not address the two key arguments we presented to the Supreme Court.  First, we argued that the premise of the government's position–that it needs time to conduct an orderly process of repealing DADT–is entirely speculative because Congress has not and very well may never repeal DADT; the government's filing today does not address that issue.  Second, we argued that the Ninth Circuit order did not take into account the harm to servicemembers and potential enlistees resulting from the stay; the government's filing today does not respond to that point either.  At this point, all we can do is to look forward to a favorable ruling from the Supreme Court."

Added R. Clarke Cooper, Executive Director of the Log Cabin Republicans:

"It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court to halt this failed policy.  At the same time, President Obama remains far from the front lines of the fight for legislative repeal while commanding his lawyers to zealously defend 'Don't Ask, Don't Tell' in court.  This week Log Cabin Republicans have conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President's call.  The White House has been missing in action on Capitol Hill, undermining efforts to repeal 'Don't Ask, Don't Tell' in the final session of this Congress, potentially leaving the judiciary as the only solution for our brave men and women in uniform."

View the brief, AFTER THE JUMP

US-response-10A465-11-10-10


Towleroad News #gay

—  admin

DOJ Files Emergency Stay Request with Ninth Circuit on ‘DADT’

The Department of Justice has filed an emergency request with the Ninth Circuit Court of Appeals requesting a stay on the injunction barring enforcement of DADT. The DOJ requests the Ninth Circuit to enter the stay today.

Here's the document (via Politico):

PPM143_101020_dadt_stay


Towleroad News #gay

—  John Wright

Calling DOJ Arguments “Vague” & “Insufficient,” Judge Phillips For Now Rejects DOJ’s Stay Request

From The Advocate‘s Judge Skeptical of Govt. Arguments

A federal judge issued a tentative ruling Monday denying the government’s request for a stay in the injunction against “don’t ask, don’t tell” but will issue a final ruling by late Monday afternoon or Tuesday morning.

During a 25-minute hearing in Riverside, Calif., U.S. district judge Virginia A. Phillips wasted no time in rejecting the government’s position that barring DADT immediately would be an undue burden on the military, calling the arguments “vague” and “insufficient.”

…Phillips said there were “significant failings” in the evidence submitted by the Justice Department following her injunction issued last week. Though the government declined to put on evidence in the Log Cabin Republicans’ trial against “don’t ask, don’t tell” in July – instead relying solely on the legislative history of the statute – DOJ attorneys submitted a declaration to the court last week from a top Pentagon personnel official who warned against any abrupt change in the policy.  

“[T]he military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas,” the official, Under Secretary of Defense for Personnel and Readiness Clifford Stanley, wrote. “The magnitude of repealing the DADT law and policy is demonstrated by the Department’s ongoing efforts to study the implications of repealing DADT[.]”

From the Los Angeles TimesJudge tentatively rejects ‘don’t ask, don’t tell’ stay request The federal government had asked to delay enforcement of the ruling allowing gays to openly serve in the military. A final decision will be made later Monday or Tuesday:

A federal judge in Riverside who halted the military’s “don’t ask, don’t tell” policy on Monday issued a tentative ruling rejecting a federal government’s request to stay enforcement of the landmark ruling while the government appeals.

Paul Freeborne of the U.S. attorney’s office had urged the judge to halt implementation of the injunction while the federal government appealed the decision.

U.S. District Judge Virginia Phillips said she would issue a final decision later Monday or Tuesday.

Pam’s House Blend – Front Page

—  John Wright

Judge Rejects Government’s Request for Stay of DADT Injunction

Judge Virginia Phillips has rejected the government's request for a stay in the injunction against "Don't Ask, Don't Tell" at a hearing in Riverside, California.

The Advocate reports: Dadt

"During the 25-minute hearing, Phillips wasted no time in rejecting the government's arguments that barring dadt immediately would be an undue burden on the military and called the justice department's declarations to the court both vague and insufficient. Assistant U.S attorney Paul Freeborne asked the court for a five day administrative stay so it can pursue an appeal of the injunction to the U.S. court of appeals for the ninth circuit."

The AP adds:

"Phillips called (the DOJ) request 'untimely,' saying the government had plenty of opportunity to modify her injunction before she ordered it last Tuesday. She also balked at their admission of a Rolling Stone article to support its argument that the abrupt change in the policy would hurt military readiness. 'I hardly need to say more than that,' Phillips said of the article. 'It's hearsay. It's not reliable.' Phillips also said the Justice Department also did not present evidence at the trial to show how her order would cause irreparable harm to U.S. troops. Justice Department attorney Paul Freeborne told her the government had no reason to respond until her order came down. He said her nationwide injunction is unrealistic. 'You're requiring the Department of Justice to implement a massive policy change, a policy change that may be reversed upon appeal,' Freeborne told her. Freeborne said the government would go to a higher court if she denied their request to temporarily freeze her injunction."

Phillips is expected to issue a formal ruling later Monday or early Tuesday.


Towleroad News #gay

—  John Wright

Air New Zealand Safety Film: Hot Ruggers & A Rebuffed Kiss Request From A Steward

The new passenger safety film from Air New Zealand is cute enough and includes lots of hotties from the famed All Blacks rugby club. But I’m not sure how I feel about the kiss request from the male flight attendant, which is turned down with a grimace by the handsome player. At the 2:45 mark.

Joe. My. God.

—  John Wright

Here’s AG Brown’s Opposition To The Stay Request From Protect Marriage

Are you dizzy yet from all these legal docs? Protect Marriage has until 9am Monday to deliver their final response.
CA9Doc 8

Joe. My. God.

—  John Wright