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CONTACT: media@aclu.org

ELON – The American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) today announced the successful resolution of a federal lawsuit filed on behalf of John W. Paylor, a resident of Elon and a 55-year-old grandfather who was shot twice with a Taser by Elon police officers on June 18, 2006. The officers had surrounded the home of Mr. Paylor in order to serve him with a misdemeanor arrest warrant for using profanity on a public highway and for reckless driving. A videotape of the incident shows that Mr. Paylor was unarmed, in his underwear, and presented no threat to the officers. Nevertheless, an Elon police officer shot Mr. Paylor with a Taser, causing him to fall from his porch. Then, while Mr. Paylor was lying on the ground, unable to move from the shock of being tased and from the fall down his steps, the officer tased him a second time. Mr. Paylor has sustained permanent physical scarring from the incident. The ACLU-NCLF filed a lawsuit against the Elon Police Department and the individual Elon police officers involved on behalf of Mr. Paylor for excessive use of force in March 2009.    

A settlement agreement was finalized and executed this morning, and cooperating attorneys for the ACLU-NCLF have filed papers in court ending the lawsuit. Under the terms of the settlement agreement, the Elon Police Department will implement measures designed to prevent excessive and unnecessary use of Tasers in the future. In particular, Elon police officers will undergo improved annual training on a new Taser policy and on Elon's more general use-of-force policy.  Elon's new Taser policy must be consistent with policies in place in other North Carolina localities that include protections the ACLU believes are important to safeguard against excessive use of Tasers. For example, these policies prevent the use of Tasers against individuals, such as Mr. Paylor, who are not actively resisting officers. These policies also prohibit the use of Tasers against individuals, such as Mr. Paylor, who could potentially receive a secondary injury resulting from falling off an elevated location, and they also limit the number of times an individual can be tased.  Other settlement terms include the following: (1) the officer who tased Mr. Paylor will undergo additional use-of-force and Taser training at the North Carolina Justice Academy; and (2) the Elon Police Chief will instruct all officers that anyone with a personal interest relating to the subject of a misdemeanor warrant shall refrain from serving such warrant in person, unless safety or exigent circumstances require that person to be present. Additionally, the Elon Police Department made a $50,000 settlement payment to Mr. Paylor for his physical, emotional and constitutional injuries.

"I am happy with this outcome," said John Paylor. "What these officers did to me was wrong, and my hope is that this settlement will prevent others from having to suffer what I suffered at the hands of Elon police."

The lawsuit named as defendants certain individual police officers of the Elon Police Department, including Officer Harold T. Dunn, and contended that the officer used his Taser to retaliate against Mr. Paylor for a verbal exchange that occurred between him and Mr. Paylor the day before. The lawsuit further alleged that the other officers who were present failed to intervene to stop Officer Dunn's unlawful actions and therefore likewise violated Mr. Paylor's constitutional right to be free from excessive force. Finally, the lawsuit contended that the Town of Elon bears responsibility for its failure to properly train its officers in the use of Tasers and for a pattern and practice of permitting its police officers to employ Tasers in an excessive and reckless manner. After the lawsuit was filed, other Elon residents came forward and described instances in which they too had been tased unnecessarily by the Elon Police Department.

"We are happy with the settlement, as this was a flagrant abuse of authority by members of the Elon Police Department," said attorney Mark J. Prak, Cooperating Attorney for the ACLU-NCLF, who represented Mr. Paylor. "John Paylor did nothing to deserve this treatment as the police videotape clearly demonstrates. This was a case of an officer abusing his position as a police officer to satisfy his own ego."

The ACLU-NCLF is a founding member of the North Carolina Taser Safety Project, a coalition of nonprofit organizations advocating for the proper use of Tasers by law enforcement and for better training for officers on the weapons' potential risks. These risks are especially pronounced when used on certain vulnerable populations, such as children, the elderly, the disabled, obviously pregnant women, and people in certain situations that place them at greater risk of harm, such as people standing atop a flight of stairs – as Mr. Paylor was here – who are at risk of injury from falling if shot with a Taser. The Taser Safety Project produced a report in 2008 which can be found online at http://acluofnc.org/files/NotThereYet.pdf.
 
"Tasers are becoming increasingly common in North Carolina and across the country," said Katy Parker, Legal Director for the ACLU-NCLF. "It is important that as officers employ these potentially deadly weapons, they do so only when necessary and that they exercise restraint. These weapons are not toys."

Mr. Paylor was represented by Mark J. Prak, Charles E. Coble and Charles F. Marshall of Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. in Raleigh, North Carolina, and C. Scott Holmes of Brock, Payne & Meece, P.A. in Durham, North Carolina, as Cooperating Attorneys for the ACLU of North Carolina Legal Foundation, as well as by Katherine Lewis Parker, Legal Director of the ACLU of North Carolina Legal Foundation. A copy of the settlement agreement is available upon request.

FOR IMMEDIATE RELEASE
Contacts: Paul Cates, pcates@aclu.org

New York –Lambda Legal, the American Civil Liberties Union, the ACLU of Maryland, and the National Center for Lesbian Rights today released a Frequently Asked Questions (FAQ) guide for same-sex couples in Maryland who married out of state.

These leading advocacy groups have jointly released the following statement along with the FAQ.

“This FAQ follows a favorable opinion by Maryland Attorney Douglas Gansler that says recognition of out-of-state marriages of same-sex couples is consistent with Maryland law, and a response by Maryland's Governor assuring residents that they should expect state agencies to comply. This is a big step forward for Maryland and should bring greater security, protections, and peace of mind for many married couples living, working, and visiting in Maryland —though true equality will come only when same-sex couples in Maryland can marry in their home state. In the meantime, couples who married in other jurisdictions should live their lives as all married couples do and expect to receive respect in Maryland in a broad range of areas.

"This is a new and emerging area of law and this FAQ addresses just the tip of the iceberg. This is an exciting time as state and local governments, private parties, and members of our communities assess all the ways that marriage recognition brings protections to same-sex couples in Maryland and how to implement it, but we should be aware that many answers await further developments and analysis.

”Legal conflicts may arise, but rushing into court may not be the answer, as we work to clarify all that marriage recognition brings to Maryland families. Litigation on this issue could have widespread impact for many couples and should be considered with care. If you are denied a service or protection to which married couples are entitled, please contact one of our organizations for assistance.”

A copy of the FAQ is available at http://www.aclu.org/lgbt-rights/frequently-asked-questions-about-marriag...

On February 23, 2010, the Maryland Attorney General issued an opinion confirming that marriages between same-sex couples entered into in other jurisdictions may be recognized under Maryland law. In response to the opinion, Maryland 's Governor stated: “[W]e will be guided by the Attorney General's thorough analysis and legal advice on this matter. . . . I expect all State agencies to work with the Attorney General's office to ensure compliance with the law.”

We should now expect validly entered out-of-state marriages of same-sex couples to receive respect in Maryland in a broad range of areas. This is a big step forward for Maryland and should bring greater security, protections, and peace of mind for many married couples living, working, and visiting in Maryland. This is an exciting time as State and local governments, private parties, and members of our communities assess all the ways that marriage recognition brings protections to same-sex couples in Maryland and how to implement it. While many answers await further developments and analysis, the legal organizations Lambda Legal, the American Civil Liberties Union of Maryland, and the National Center for Lesbian Rights, along with Equality Maryland, have prepared preliminary responses to frequently asked questions (FAQs) about marriage recognition in Maryland. Check for updates to these FAQs, and let us know of questions and issues arising in your lives.

What did the Attorney General's decision say?
The 45-page opinion was issued in response to an opinion request from Maryland State Senator Richard S. Madaleno, Jr. asking whether Maryland may recognize marriages of same-sex couples legally performed in other jurisdictions, including other countries. The opinion concludes that such marriages may be recognized under State law.

The opinion reviews State statutes and case law addressing marriage rights within the State and the recognition Maryland has historically afforded different types of marriages validly entered in other jurisdictions even if they could not be entered within the State.

The opinion predicts how Maryland's high court, the Court of Appeals, would rule on the question whether validly entered out-of-state marriages of same-sex couples are entitled to the same recognition under longstanding Maryland common law comity principles that have been applied in the courts over many decades. The opinion concludes that because recognition of out-of-state marriages of same-sex couples is neither barred by express statute nor in conflict with Maryland public policy, which already provides significant recognition and support for same-sex couples in many contexts, the Court of Appeals is likely to recognize the marriage of a same-sex couple validly contracted in another jurisdiction.

The opinion asserts that State agencies will need to evaluate their existing policies to determine how the marriage recognition principle will apply going forward in the context of each agency's work.

The opinion says that it does not address how the rule of marriage recognition would specifically apply in contexts beyond the direct jurisdiction of the Attorney General and State government, such as whether the couple may obtain a divorce in Maryland — an area the courts handle and decide. (Nonetheless, the Attorney General's legal conclusion that the marriage recognition rule applies to same-sex couples in Maryland should hold true in other contexts as well.)

Finally, the opinion also observes that consideration will need to be given to whether a particular aspect of Maryland law is governed or impacted by federal law, such as the so-called Defense of Marriage Act (DOMA), which limits marriage for federal purposes to different-sex couples, and whether that might prevent recognition of the marriage for a specific Maryland purpose.

Can we get married here in Maryland now?
No, unfortunately. Maryland same-sex couples cannot marry in their own home state until legislation is passed giving them the right to marry, and full equality will not have been won until that day comes. However, under the marriage recognition rule, the out-of-state marriages of same-sex couples receive respect in Maryland.

Will the State government automatically start treating us as married?
State government is made up of many agencies that provide hundreds of services governed by different laws and regulations — so it may take some time for the Attorney General's opinion to be applied throughout Maryland State agencies. In some cases there may be existing State laws, regulations, policies, and forms that pose an issue for implementing the Attorney General opinion. These will have to be sorted out, and it will not all happen overnight. In some areas, issues may need to be fixed through advocacy or staff training. The Governor and Attorney General have said that this work is underway. Our organizations are advocating to help with this process and to see marriage recognition principles fully implemented as promptly as possible.

You should also be aware that it is possible Maryland may have some specific State statutes that expressly incorporate and piggyback off federal definitions of marriage, which restrict marriage to a male-female couple under the federal DOMA. State officials, and our organizations, are reviewing State laws to see if this may be the case and how conflicts for State agency recognition of marriages may be addressed.

The bottom line is that married same-sex couples should live their lives as all married couples do and expect to be treated as married. There may be instances where legal conflicts will arise, or where there is outright discrimination against married same-sex couples that will require legal advocacy. If you are denied a service or protection to which married couples are entitled, please contact one of our organizations for assistance.

Will our marriage be treated the same in Maryland if we are married in the District of Columbia, or in the states of Massachusetts, Connecticut, Iowa, Vermont, or New Hampshire, or in Canada or another foreign country?
Yes, it should be. So long as you entered into a valid civil marriage in the jurisdiction where your marriage occurred, the marriage is entitled to the same respect under Maryland law whether you married in the District of Columbia, a U.S. state, or a foreign country.

What if we were married in California before Proposition 8 passed in November 2009 denying the right to marry in that state?
The California Supreme Court has ruled that the civil marriages in California of the approximately 18,000 couples who wed prior to passage of Proposition 8 still remain valid under California law. Since your marriage was valid where entered, it should receive the same respect in Maryland as other marriages.

What kinds of protections, services, or obligations are affected by marriage recognition?
Marriage brings legal protections and obligations in potentially hundreds of ways, including access to spousal health insurance, death benefits for spouses of firefighters and law enforcement officers killed in the line of duty, mutual obligations of spousal support, the ability to stay together in a hospital, protections for crime victims, presumptions of parentage regarding children born to a married couple, and many, many more. Some of these protections are conferred by State or local governments; others are matters between private parties and may involve enforcement by courts.

This is an evolving area of Maryland law, and in some senses same-sex couples will need to be pioneers. State agencies, as well as our organizations, will be analyzing in the weeks and months ahead the State protections and obligations that flow from marriage recognition. You should assume that your marriage is entitled to respect, though how exactly marriage recognition will apply may need to be determined based on the specific situation.

New York State has been widely applying the marriage recognition rule to out-of-state marriages of same-sex couples for several years already, as the Maryland Attorney General's opinion noted. We can look to precedents and developments there for guidance, while also analyzing specific Maryland laws and policies.

I would really like to be able to provide spousal health coverage to my spouse under my employer's policy. Can I do that?
Now that your marriage is recognized you may be able to access employer-provided spousal health insurance coverage. Of course, you may already have been eligible for domestic partnership coverage from your government or private employer anyway. Whether you are now entitled to spousal coverage from employers that did not offer domestic partner coverage may depend on where you work. If you work for a government employer, you should be entitled to the same coverage that different-sex married couples receive. If you work for a private employer, you can certainly ask for coverage and your employer can choose to treat you fairly and provide it to you. Whether your private employer is legally obligated to do so can depend on what kind of insurance plan your employer offers and the terms of the plan. Lambda Legal's publication Will Marriage Help Us Get Health Insurance explains this further, and you can contact our organizations if you have additional questions.

We are a married same-sex couple, but we have to file our federal income taxes as “single” because under DOMA the federal government does not recognize our marriage. What should we do about filing our Maryland State taxes?
How to handle tax filings and other tax matters is another area that will need to be resolved as a matter of Maryland law, with consideration of what if any impact federal law may have on tax issues. In the past Maryland taxpayers have generally been required to file their tax returns using the same “single” or “married” status they use on their federal returns. Because of the discriminatory federal DOMA, married same-sex couples have had to file their federal returns as “single.” Further analysis will be needed to determine whether married same-sex couples can file their State returns jointly as married. We know tax season is fast approaching and hope to get clearer guidance on this issue soon. In the meantime, you should consult your own tax adviser. Lambda Legal's publication Tax Considerations for Same-Sex Couples also offers additional information.

My spouse and I were planning to do a second-parent adoption so that we are both the legally-recognized parents of our children. Should we still go through with the adoption now that our marriage will be respected?
Yes, absolutely. Marriage recognition should bring additional protections to secure the relationship of a child born to a married parent who is unrelated by biology or adoption, but the scope of those protections has yet to be definitively determined in Maryland. And these protections may not in any event apply where the parents have married after the child is already born. The best way to ensure your child has the security of a legally recognized relationship with both parents is through adoption by the non-biologically or non-adoptively related parent. This may be critical as well to ensuring that the federal government and other jurisdictions where your marriage may not be recognized will nonetheless respect your child's parentage based on an adoption.

We were going to get wills, health care powers of attorney, and other legal documents to protect our relationship. Do we still need those if we are married?
It is still important to get these kinds of life planning documents to protect your family. Different-sex couples with marriages also rely on these protections, and they are especially important for same-sex couples, even as your marriage receives recognition in Maryland. Other jurisdictions continue to discriminate against same-sex married couples and refuse recognition of marriages. Legal documents like wills and health care powers of attorney remain crucial for married lesbian and gay couples. Lambda Legal's publication Take the Power: Tools for Financial and Life Planning offers additional information.

We are domestic partners. If we get married will we still receive the rights we had under Maryland law as domestic partners?
Maryland already has enacted some legal protections for domestic partners, such as rights to hospital visitation, to make health care and burial decisions, and exemptions from residential property transfer taxes and inheritance tax on a jointly owned primary residence. Those rights should continue to apply to domestic partners, including those who then marry out of state.

What if State agencies or other people still fail to treat us as married? What should we do?
In some situations simply asking for the particular protection and explaining why your marriage should be respected may solve the problem. Sometimes further advocacy and assistance from counsel will work. You should certainly feel free to reach out to one of our organizations for help.

It's important to bear in mind that rushing into litigation often is not the answer. Many problems can be worked out without resort to the courts. Others may someday need to be resolved through litigation, and important protections for same-sex couples ultimately may need to be vindicated in the courts. But with marriage recognition bringing many important rights for many families, any litigation that could have broader impact on how the marriage recognition rule applies should be the product of careful thought and planning. A bad ruling could have far-reaching negative impact for your marriage and the marriages of many other couples.

My partner and I are committed to one another and live in Maryland. We are trying to decide whether we should get married in another jurisdiction. Are there other considerations we should take into account?
You should start by asking yourselves such essential questions as whether you're ready to make this binding legal commitment, with many significant financial and other consequences.

There may also be concerns specific to your situation that may factor into your decision to marry. For example, if one of you is in the military or is in the United States on an immigration visa, getting married could be harmful under federal laws, such as “Don't Ask, Don't Tell” in the military context. Entering into a marriage also could be a problem if one of you is in the process of adopting a child in a jurisdiction that allows a single person but not a same-sex couple to adopt.

You should also be aware that while the jurisdictions where you might marry don't have residency requirements to enter into marriage, they do have residency requirements to obtain a divorce. If a Maryland same-sex couple's relationship should someday end, the parties can seek a divorce in Maryland courts. But until divorce cases are brought and divorces granted, uncertainty on access to divorce can't be entirely ruled out for Maryland couples. And if you should move from Maryland to a jurisdiction that does not recognize your marriage and later want to dissolve it, you may be denied access to the courts in your new home state.

Lambda Legal's publication Traveling to Another State or Country to Marry? offers additional information about these kinds of considerations.

We live in Maryland but already have a civil union from another state. Should we get married as well?
The Attorney General's opinion does not address the recognition a civil union might receive in Maryland, and there may be reasons for you to consider entering into a marriage. However, there could be issues depending on your specific situation that you should consider first. In addition, whether you can or should marry having already entered into a civil union may depend on the laws of the jurisdictions where you had your civil union and where you might marry.

Where can I go for further information or assistance?
You can contact our organizations for further information. You may also want to consult with a private attorney.

Here is how to reach us:

Lambda Legal: legalhelpdesk@lambdalegal.org; 866-542-8336 (toll-free) or 212-809-8585; www.lambdalegal.org.

ACLU of Maryland : 410-889-8555; www.aclu-md.org.

National Center for Lesbian Rights: info@nclrights.org; 800-528-6257 (toll-free) or 415-392-6257; www.nclrights.org.Legal info: www.nclrights.org/gethelp

Equality Maryland : info@equalitymaryland.org; 410-685-6567; www.equalitymaryland.org.

PLEASE NOTE: This document offers only general and preliminary information on an evolving area of law and is not intended to provide guidance or legal advice regarding anyone's specific situation.

Group Makes Same Plea In Letter To President

FOR IMMEDIATE RELEASE
CONTACT: Rachel Myers, (646) 206-8643 or (212) 549-2666; media@aclu.org 

NEW YORK – The American Civil Liberties Union today published a full-page ad in the New York Times calling on President Obama not to back down from his administration’s decision to prosecute the 9/11 suspects in civilian courts. The ad comes in response to news reports that the Obama administration is on the verge of reversing Attorney General Eric Holder's November decision, turning instead to the discredited military commission system.

The ad features a picture of President Obama morphing into a picture of former President Bush.

The following can be attributed to Anthony D. Romero, Executive Director of the ACLU:

“We placed this ad because it’s critical that Americans know what is at stake here: nothing less than America’s commitment to the Constitution and the rule of law. The military commissions are seriously flawed and unprepared to handle these complex cases. If President Obama reverses his attorney general’s principled decision under political pressure, it will strike a devastating blow to American values and do serious damage to our nation’s credibility. We urge the president to do the right thing and keep these cases in federal court, where they belong.”

The ACLU also sent a letter to President Obama urging him to keep the 9/11 trials in civilian court and detailing the problems of the military commission system and its inability to provide fair, effective trials in these cases. The letter, signed by Romero, states:

"I believe that you will face few, if any, greater challenges to who we are as a nation and to our commitment to the rule of law than this question of sustaining the Attorney General’s principled decision to use federal criminal courts for these trials... The trials of the defendants alleged to have had roles in the September 11 attacks are the most important terrorism trials – and arguably the most important criminal trials – in the entire history of the nation. It would be a colossal mistake to reverse the administration’s decision to try these defendants in federal criminal court and again relegate these landmark trials to irretrievably defective military commissions."

The full letter can be found at: www.aclu.org/national-security/aclu-letter-president-obama-regarding-federal-criminal-trials-911-defendants

The ACLU New York Times ad is available online at: www.aclu.org/aclu-ad-what-will-it-be-mr-president

The full text of the ad reads:

What will it be Mr. President?
Change or more of the Same?

Candidate Barack Obama vowed to change the Bush-Cheney policies and restore America’s values of justice and due process. Many of us are shocked and concerned that right now, President Obama is considering reversing his attorney general’s decision to try the 9/11 defendants in criminal court. Our criminal justice system has successfully handled over 300 terrorism cases compared to only 3 in the military commissions. Our criminal justice system will resolve these cases more quickly and more credibly than the military commissions.

President Obama can vigorously prosecute terrorists and keep us safe without violating our Constitution.

As president, Barack Obama must decide whether he will keep his solemn promise to restore our Constitution and due process, or ignore his vow and continue the Bush-Cheney policies.

Tell President Obama not to back down on his commitment to our justice system, and to try the 9/11 defendants in criminal court.

Remind the world that America stands for due process, justice, and the rule of law.

More information about the ACLU’s call to use civilian trials to try the 9/11 suspects is available online here: www.aclu.org/national-security/obama-administration-verge-reversing-decision-911-prosecutions

Advisers To Recommend Abandoning Promise Of Civilian Trials For Military Commissions

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CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – According to the Washington Post, the Obama administration is on the verge of reversing itself on its earlier decision to prosecute the 9/11 suspects in federal criminal courts, opting for the military commissions system instead. The report indicates that the president's advisers will soon recommend to him that he overturn Attorney General Eric Holder's November decision to use civilian trials for the cases, and that an announcement could come in the next two weeks.

According to the American Civil Liberties Union, this regrettable reversal under political pressure will strike a blow to American values and the rule of law and undermine America’s credibility.

There have been over 300 terrorism-related convictions in the federal courts, while there have been only three in the military commissions, two resulting in sentences of less than a year.

The following can be attributed to Anthony D. Romero, Executive Director of the ACLU:

“If this stunning reversal comes to pass, President Obama will deal a death blow to his own Justice Department, not to mention American values.

“If the president flip-flops and retreats to the Bush military commissions, he will betray his campaign promise to restore the rule of law, demonstrate that his principles are up for grabs and lose all credibility with Americans who care about justice and the rule of law.

“Even with recent improvements, the military commissions system is incapable of handling complicated terrorism cases and achieving reliable results. President Obama must not cave in to political pressure and fear-mongering. He should hold firm and keep these prosecutions in federal court, where they belong.”

More information on why terrorism suspects should be tried in civilian courts can be found online at: www.aclu.org/national-security/terrorism-cases-should-be-tried-federal-court

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Bill Comes As Government Officials Testify In House In Favor Of Repeal

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CONTACT: (202) 675-2312 or media@dcaclu.org

WASHINGTON – Legislation was introduced today in the Senate to end the discriminatory “Don’t Ask, Don’t Tell” policy. The policy, passed by Congress and signed by President Clinton in 1993, states that openly lesbian and gay individuals pose "an unacceptable threat to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability," and prevents gay and lesbian individuals from serving openly in the military. Today’s legislation, the Military Readiness Enhancement Act of 2010 introduced by Senator Joe Lieberman (I-CT) and co-sponsored by several senators including Senate Armed Services Committee Chairman Carl Levin (D-MI), would prohibit discrimination based on sexual orientation by the military.

An act of Congress is needed to repeal the law and the American Civil Liberties Union strongly urges Congress to make ending “Don’t Ask, Don’t Tell” a priority this year.

"The introduction of this bill signals a true commitment from Congress to finally put an end to ‘Don’t Ask, Don’t Tell,’” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “We cannot lose momentum. Congress must act quickly to ensure that lesbian and gay Americans can serve their country free from discrimination. When the president, our nation's top military leaders and the majority of our country have called for an end to this discriminatory policy, it is time to act. Congress must answer these calls with conviction.”

The Obama administration and several high-ranking military leaders, including Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff, Admiral Michael G. Mullen, have called for an end to "Don't Ask, Don't Tell.” There is a companion bill currently pending in the House, H.R. 1283, also titled the Military Readiness Enhancement Act. The House version’s lead sponsor is Patrick Murphy (D-PA) who is an Iraq war veteran.

Also today, the House Armed Services Military Personnel Subcommittee heard testimony from administration and armed services officials on "Don't Ask, Don't Tell." Last month, Defense Secretary Robert Gates announced a 45-day period to examine steps the Pentagon could take on their own to lessen the impact of "Don't Ask, Don't Tell" without having to wait for Congress to pass a full repeal. A Pentagon working group was also established to conduct a year-long assessment of the military’s ability to move forward with a repeal and how it might be carried out. The two co-chairs of that working group, General Counsel of the Department of Defense Jeh C. Johnson and USA Commanding General, U.S. Army Europe, General Carter F. Ham, testified today.

“Gay and lesbian Americans have been forced to live a lie in order to serve the country for nearly two decades,” said Christopher Anders, ACLU senior legislative counsel. “With bills pending in both the House and Senate and the outspoken support of President Obama and military leaders, this year can and must be the end of ‘Don’t Ask, Don’t Tell.’ Our men and women in uniform deserve to be treated fairly. We urge Congress to move swiftly to end this shameful policy."

While the ACLU strongly supports ending “Don’t Ask, Don’t Tell” as soon as possible, it is concerned about a provision in Senator Lieberman’s bill that would require the Defense Department to report to Congress about its efforts to force universities to accept Reserve Officers’ Training Corps (ROTC) units on their campuses in order to receive certain funding. While ending “Don’t Ask, Don’t Tell” should resolve the problem of ROTC discrimination based on sexual orientation, the ACLU still believes that denying funds to universities that might exclude ROTC for other reasons poses threats to academic freedom.

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Declines Review Of Appellate Decision That Displays Improperly Endorse Religion

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CONTACT: (212) 549-2666; media@aclu.org

WASHINGTON – The U.S. Supreme Court has let stand a federal appellate court ruling that a United States Postal Service contract postal unit (CPU) cannot place religious displays on its postal counter and other areas serving postal patrons. By declining to review the case, the Supreme Court left undisturbed an August 2009 ruling by the U.S. Second Circuit Court of Appeals in favor of a challenge by the American Civil Liberties Union of Connecticut, the national ACLU and local residents who use that post office.

"We are pleased that the Supreme Court left intact previous rulings that held that religious outreach is out of place at a postal counter," said Andrew Schneider, Executive Director of the ACLU of Connecticut. "Religious liberty is best protected when the government or those acting as governmental agents remain neutral on matters of faith."

The case was originally filed on behalf of Bertram Cooper, a Manchester, Connecticut resident for whom the CPU, operated by the Full Gospel Interdenominational Church, was the closest post office, and pursued on appeal by two other local residents who had intervened. The ACLU argued that because the CPU functions as an extension of the federal government, pervasive displays of religious materials posted by the church amounted to unconstitutional governmental endorsement of religion. 

In its ruling, the Second Circuit ordered that the areas in the CPU where postal services are provided must be free of religious material.

CPUs are postal facilities operated by private parties on private land and furnish postal services to places where it is not otherwise geographically or economically feasible to build and operate official "classified" post offices.

"We are gratified that the Supreme Court has left in place the Second Circuit's ruling that using the machinery of the state to endorse a religious agenda is unconstitutional," said Daniel Mach, Director of the ACLU Program on Freedom of Religion and Belief.

Lawyers on the case include Mach, David McGuire of the ACLU of Connecticut and Aaron Bayer, Kevin Smith and Sabrina Houlton from Wiggin & Dana, LLP.

Additional information about the ACLU of Connecticut is available online at: www.aclu-ct.org
 
Additional information about the ACLU Program on Freedom of Religion and Belief is available online at: www.aclu.org/religion

Group Tells School Its Ban On Same-Sex Prom Dates Is Unconstitutional

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CONTACT: (212) 549-2666; media@aclu.org

FULTON, MS – The American Civil Liberties Union and the Mississippi Safe Schools Coalition today demanded that Itawamba County School District officials reverse their decision to forbid a lesbian student from attending prom with her girlfriend and from wearing a tuxedo to the prom. Constance McMillen, a student at Itawamba Agricultural High School, said that school officials told her that she could not arrive at the prom with her girlfriend, also a student at IAHS, and that they might be thrown out if any other students complained about their presence.

“Prom is one of those high school moments everyone should get to experience and enjoy. I didn’t go to prom last year, so this is my only chance to go,” said McMillen, an 18-year-old senior at the school in Fulton, a small town of about 3,900 in the northeastern corner of Mississippi. “We just want to be able to be ourselves at our own prom.”

McMillen said she approached school officials shortly before a memo about prom was circulated at school on February 5 that said same-sex dates would not be allowed, because she knew same-sex dates had been banned from prom in the past. McMillen met with the assistant principal and later the superintendent, who told her that they would not be allowed to arrive together, that she would not be allowed to wear a tuxedo to prom, and that she and her girlfriend might be thrown out if their presence made any other students “uncomfortable” at the April 2 event.

“Prom is supposed to be about all students being able to express themselves, have fun, and make memories that will last the rest of their lives,” said Kristy Bennett, Legal Director of the ACLU of Mississippi. “Constance has a constitutional right to take the person she’s dating to the prom, just like any other student at any other public school.”

In today’s letter to Itawamba County School District officials, the ACLU cited federal court cases guaranteeing students’ First Amendment right to bring same-sex dates to school dances, and also pointed out that treating McMillen and other lesbian, gay, and bisexual students differently from other students violates the Constitution’s equal protection guarantees. In addition to illegally barring McMillen and her girlfriend from attending the prom together, the ACLU said that the school further violated McMillen’s free expression rights by telling her that she can’t wear a tuxedo to the prom.

“We hope that informing the school about its legal obligations towards its students will make it think twice about treating Constance and her girlfriend any differently than it does any other student couple who wants to go to the prom,” said Christine P. Sun, Senior Counsel with the ACLU national Lesbian Gay Bisexual Transgender Project, who represents McMillen along with the ACLU of Mississippi. “Schools that discriminate against lesbian, gay, and bisexual students who want to bring same-sex dates to school dances need to know that by doing so they’re violating established federal law, and we will call them on it.”

The ACLU and the Mississippi Safe Schools Coalition have given the school district until March 10, 2010 to respond to their letter.

Additional information, including a copy of the school’s prom memo and the ACLU’s demand letter, is available at http://www.aclu.org/lgbt-rights/fulton-ms-prom-discrimination.

The Mississippi Safe Schools Coalition was formed in the fall of 2008 to address discrimination faced by lesbian, gay, bisexual and transgender students, or students perceived to be LGBT, in Mississippi public schools and colleges. The MSSC works closely with the ACLU of Mississippi to educate teachers, students, and administrators about the rights of LGBT students with the aim of making schools safer for all. The MSSC is youth-led, and any questions about student rights at prom, starting a gay-straight alliance club, or any other safe schools issues can be directed to Ashley Jackson, facilitator, at ashley@mssafeschools.org.

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Sen. Lindsey Graham (R-SC) told the White House on Sunday that there is only one way to close Guantánamo Bay: by abandoning civilian 9/11 trials.

Graham said Sunday that if the White House agrees to try self-professed 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators in military tribunals, he will help the president get the votes needed to close the Guantánamo Bay prison facilities.

“We would be better off as a nation,” said Graham, “if we could close Gitmo safely and start a new prison that he could use—that the world would see as a better way to do business.” But even with Graham on board, Guantánamo is far from closed.

“I think if we could get Khalid Sheikh Mohammed and the co-conspiracies of 9/11 back in the military commission,” Graham said. He added that “it would go down well with the public.”

“But I am going to need Gen. [David] l Petraeus, Admiral Mullen, people not in public office. I’m going to need people from the Bush administration to try to close Gitmo, to put aside partisanship, rally around this president, stand by his side and say, let’s close Gitmo safely.”

President Obama signed an executive order shortly after he was sworn into office to shut Guantánamo within one year. He failed to meet that deadline.

Graham is not in sync with Republicans on this issue.

“Those who want to waterboard on the right and believe that we should keep Gitmo open forever and use any technique to get information, I think they’re equally off base,” said Graham.

“I’m getting a lot of grief,” Graham told Bob Schieffer, host of CBS News’ “Face the Nation,” “because I do believe it’s best to close Gitmo safely.” Republican Sen. Mitch McConnell shot down the idea of closing Guantánamo and moving detainees to a near-vacant maximum-security prison in Thomson, Ill.

“When a foreign national terrorist is captured,” said McConnell, “in the United States like the Christmas bomber, or overseas—he should be sent to Guantánamo, detained there, interrogated there, and the case adjudicated there. They should be treated as military prisoners, not like U.S. citizens.”

Graham’s comments also contrasted fellow Republican Rep. Lamar Smith.  On Friday Smith said, “Guantánamo Bay is best equipped for the detention and prosecution of terrorists, not a prison inside the U.S.”

Since he was sworn in, President Obama was told by his Chief of Staff, Rahm Emanuel, that closing Guantánamo will be impossible without Graham’s support.

Emanuel has been talking to Graham for a while about this issue.  Emanuel favored a military trial for 9/11 detainees and persuaded Holder and Graham, opponents on the issue, to talk.

Emanuel saw Graham as the link to close the much debated prison. “You can’t close Guantánamo without Senator Graham,” he told the New York Times.

If the Obama Administration agrees to the compromise offered by Graham, it would be a complete reversal of the course Attorney General Eric Holder started in November when he announced that the 9/11 trials would be held in a lower Manhattan courthouse in New York City.

Graham told “Face the Nation’s” Schieffer that the ACLU theory was as “equally off base” as the right wing theory.

The ACLU channeled its frustration about the possibility of Obama reversing holding by taking out a full-page ad in Sunday’s of the New York Times that depicted President Obama morphing into former-President George W. Bush. The message was clear: Change or More of the Same?

“Three is the number of people,” said an ACLU statement released Friday, “who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today.”

A report released by the Justice Department confirmed more than 300 people were prosecuted and convicted for terrorism or terrorism related crimes in civilian courts, a fact the ACLU has been reminding lawmakers and the public about for some time.

“Military commissions are incredibly inept,” said Ben Wizner, an ACLU attorney. “The most basic aspects of trial process were contested down there.  The military commission system is not only unjust, but incapable of handling a complex federal trial like the 9/11 trial.”

“This narrative plays into the hands of terrorists,” said Wizner.

“The biggest supporter in the world of military commissions is KSM,” said Wizner. “If you read his combatant status review transcript from Guantánamo, he is very, very delighted to be treated as an enemy combatant, and to address US military officers as equals. They’re proud to declare that they’re enemy combatants.”

In an apparent policy reversal on Friday, White House officials anonymously suggested that military commissions are under more serious consideration the 9/11 terror trials of Khalid Sheikh Mohammed and four co-conspirators.  But the decision is reportedly still weeks away.

Joshua Durkin is a staff writer for The Public Record based in Connecticut. He can be reached at joshua.durkin@pubrecord.org

As John Yoo’s visit to Mr. Jefferson’s university here in Charlottesville approaches, one is tempted to ask the same question people around here ask about everything: WWJD? What would Jefferson do?

Of course, it’s almost taboo among the most serious peace and justice advocates to cite positive precedents from Jefferson, because he was a slave owner. But Jefferson’s views on the structure of a government don’t actually become less admirable (or more) when we remember the horrors he inflicted on the people at Monticello.

On the other hand, protesting someone like John Yoo (a march and rally are planned) is almost verboten among the comfortable liberals in Charlottesville, because of a Jeffersonian view of free speech as absolutist as the ACLU’s defense of campaign bribery. “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it,” quoth Jefferson.

Yet this admirable line of thought came from the same enlightenment that gave us this one: “Man will never be free until the last king is strangled with the entrails of the last priest.” In fact, the author of the Declaration of Independence, that lengthy list of crimes committed by King George, would not have approved of the College of William and Mary inviting the King to lecture on law. Jefferson and his fellow revolutionaries would have sought to kill or imprison such a lecturer. Translated into an age of nonviolence, they would have PROTESTED him.

John Yoo’s book “Crisis and Command” discusses Jefferson at length and devotes a chapter to his presidency. Yoo finds much to lament in Jefferson’s opposition to expanded presidential power, and much to praise in Jefferson’s expansions and abuses. I would reverse Yoo’s attitudes, praising what he laments and denouncing what he praises. But I don’t argue with his basic outline of the facts of the matter. I argue with the further expansions Yoo assisted in during his employment at the Justice Department, expansions that went far beyond those of Jefferson and did so in violation of a body of laws and treaties that did not exist in Jefferson’s day.

Jefferson thought a president should only veto a bill if he believed it to be unconstitutional. Today presidents routinely veto bills they simply disagree with. Or they alter bills with signing statements or with memos drafted by people like John Yoo. Or they simply violate the law. While Jefferson did not casually veto or alter laws with signing statements or memos, he did choose to simply not enforce laws based on his interpretation of their unconstitutionality. He claimed equal power with the Supreme Court in making such interpretation, something presidents since him — including Bush — have not tended to assert.

Jefferson favored the frequent use of impeachment, but not purely to protect the legislative branch, rather to advance the interests of a political party led by a president. Jefferson refused to comply with a court subpoena. He launched military operations without Congress, including covertly. In some cases he took unconstitutional actions while Congress was not in session, a situation that does actually provide him with an excuse that presidents don’t have today. In other cases, Jefferson simply acted outside the constitution, claiming to represent the will of the nation. The action Yoo seems to admire most for its brazen lawlessness is Jefferson’s purchase of Louisiana. But Yoo also seems to recognize the immense impact Jefferson had in developing a two-party system and the notion of a president possessing a national policy mandate.

Yet Jefferson was no Dick Cheney. Claiming to act, and plausibly acting, on behalf of majority opinion (or majority wealthy white male opinion) is — at least in retrospect — a dangerous precedent for an official who was supposed to execute the will of Congress. But the Bush-Cheney White House claimed the power to act without even a pretense of acting on behalf of the nation’s people. They were acting simply on behalf of Bush and Cheney. Jefferson worked to limit or avoid a standing military.

He acquired territory by purchasing it. Yoo praises Jefferson for purchasing Louisiana because it was an act of presidential assertiveness. And Yoo blames President James Madison for allowing Congress to lead him into a disastrous invasion of Canada, because Madison was following Congress, just as the Constitution he’d played a central role in writing required him to do. What Yoo misses is that negotiations tend to work and wars tend to be catastrophes no matter who makes the decisions. In comparison with Bush and Cheney, Jefferson was an opponent of the greatest evil there is: war. The Congressional Research Service just released a list of hundreds of overt U.S. military actions. Most of them have been launched by presidents. Most of them have been murderous and criminal catastrophes.

Yoo wrote memos that were treated as secret laws by a president. His memos authorized aggressive war and torture, which have been banned by international treaty and domestic laws since Jefferson’s day. Jefferson honored treaties. Yoo does not. Jefferson made exceptions to his adherence to laws. Yoo proclaims presidential liberty to openly ignore all laws. Yoo has famously gone so far as to argue that a president can crush testicles, massacre villages, or nuke cities. Nuclear weapons and most other weapons of war did not, of course, exist when Jefferson went after pirates without congressional authorization. The level of destruction in war was as small then as the body of law restricting it. Yoo lives in an age of far more evil wars, yet allows no limits on presidential war making. A president could nuke city after city until none remained, according to John Yoo’s theories, which I find it very hard to imagine Jefferson accepting or even hypocritically acting upon.

When pressed, Yoo recognizes the power of Congress to stop a president through defunding or impeachment. But Yoo has never, to my knowledge, opposed Bush’s unconstitutional spending of funds for uses other than those for which they were appropriated. And crimes and abuses must be crimes and abuses even prior to an impeachment and conviction. The partisan system developed during Jefferson’s presidential election makes presidential impeachments very unlikely. In fact, they are only possible when the Congress is controlled by the other party and that other party has not become complicit in the president’s crimes or abuses. The same Justice Department that Yoo worked for argued that a president can violate a law until the Supreme Court says otherwise, even though the Supreme Court cannot possibly rule in a timely manner on every law passed by Congress, and even though the Supreme Court is also corrupted by the party system.

While Jefferson advanced the shift of power from Congress to the White House, not to mention that he owned slaves and held every power over them that the United States military holds over prisoners in Bagram, there is only one thing that it is clear to me Jefferson would have done upon learning that John Yoo had been invited to speak at the University of Virginia. Jefferson would have demanded the resignation of the university president.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Since Paxil came on the market in 1992, there have been three separate types of failure to warn lawsuits filed against GlaxoSmithKline over Paxil; birth defects, suicide, and addiction.

Roughly 150 suicide cases were settled for an average of about $2 million, and about 300 cases involving suicide attempts were settled for an average of $300,000, according to a December 14, 2009 report by Bloomberg News. Glaxo paid an average of about $50,000 each to resolve about 3,200 cases linking Paxil to addiction problems. The drug giant has also paid about $400 million to end antitrust, fraud and design claims, Bloomberg reports.

All total, Glaxo has paid out close to $1 billion to resolve Paxil lawsuits since the drug came on the market in1992. The company’s provision for all legal matters and other non-tax disputes as of the end of 2008 was listed as $3.09 billion in its annual report.

The first birth defect trial, in over 600 cases filed, resulted in a verdict for the plaintiffs on October 13, 2009, and an award of  of $2.5 million in compensatory damages for the the family of Lyam Kilker, who was born with three cardiac birth defects after his mother took Paxil while pregnant.

In the Kilker trial, Glaxo’s lead attorney was King & Spalding partner, Chilton Varner, and Sean Tracey, from Houston, led the family’s legal team.

Andy Vickery, of the Houston firm of Vickery, Waldner and Mallia, is the lead attorney in several Paxil birth defect cases. The first case set for trial is unique in that it involves, Delaney Novak, an infant born with heart defects on April 4, 2002, to Laura and Derek Novak, after Laura was prescribed Paxil off label for migraine headaches.

The Novak case is also unique among the Paxil birth defect cases because Delaney’s parents had their insurance with United Healthcare, and Laura was part of the study that Glaxo contracted for, which resulted in the initial warning letter about birth defects in September 2005.

According to Vickery, Glaxo conducted a study on Wellbutrin (bupropion), another antidepressant, after discovering a possible link to birth defects. “The review found no problems with Wellbutrin, but discovered that a significant number of mothers who had been prescribed Paxil (nearly twice as many as those who had not taken the drug) had children born with heart defects,” he says.

Doctors Ra-id Abdulla, David Healy, Shira Kramer and Suzanne Parisian testified as the experts for the plaintiffs in the first trial. All told the jury they believed Paxil caused Lyam’s heart defects. Doctors Abdulla, Healy and Kramer are also expert witnesses in the Novak case.

Ingenix Study in First Trial

The Ingenix study, with lead researcher, J Alexander Cole, was conducted using data from the Ingenix Research Data Mart, containing insurance information from UnitedHealthcare. The study was not supposed to look at Paxil.

During the testimony of several witnesses in the first trial, the jury was shown a February 7, 2003 email in which Glaxo employee, Graham Cottam, stated that he had informed Anne Bell, the project leader for Paxil, about plans to do the Ingenix pregnancy study on Wellbutrin, and “Anne wanted to be sure that we will not be looking specifically SSRIs or Paxil.”

Doctor Suzanne Parisian, a former FDA scientist, testified that the initial 2002 proposal was “to do a large database study for Bupropion in pregnancy.”

There was “nothing that addresses Paxil,” she told the jury. The “procedure had never been designed to specifically look at Paxil.”

But when the data was broken out for Paxil in the original study, it “showed the increased risk and the pregnancy was changed to Category D,” she explained.

The FDA later requested that Paxil be studied, according to the testimony of Glaxo employees and documentation, she said.

The famous neuropyschopharmacologist and professor of psychiatry from Cardiff University in Wales, Dr  David Healy, explained that Glaxo had hopes that the study would show Wellbutrin as an antidepressant that did not cause birth defects and the company could apply to the FDA to have it classified as a pregnancy category B drug instead of a C.

“It would give the message,” he said, “that this of the drugs we have available to use for women of childbearing years, this would be one of the safer ones.”

Healy told the jury that there was “no reason from the scientific point of view why they would not want to also look at Paxil.”

“And this appeared to be the FDA’s view,” he said, “because FDA said, well, you looked at Bupropion, why don’t you look at Paxil, also,” a couple years later.

When asked whether by the year 2003, he could think of any scientific reason not to do a pregnancy study with Paxil, Healy replied, “No, I can’t.”

In fact, Tracey showed the jury an internal company email written by a Glaxo employee two years later in August 2005, around the time that the results on Paxil from the Ingenix study came out, who asked the question: “Why hasn’t the company gathered data on this until now, 13, I think, years after the product was approved?”

In the case of the study on Wellbutrin, there were only 16 reports of birth defects that indicated there was a signal to do the study, Parisian told the jury. While an internal analysis conducted by Glaxo on Paxil in 2000, showed 79 cases of birth defects.

In September 2005, the conclusions of the Ingenix study were: “The use of paroxetine in the first trimester of pregnancy was associated with an increased risk of congenital malformations compared with other drugs.”

“To your knowledge, prior to 2005 did GSK ever do a single epidemiological study to determine whether or not Paxil caused birth defects?” attorney, Adam Peavey, asked Parisian.

“Not that I have seen,” she said.

Ingenix Downside

During the testimony of Dr Shira Kramer, an epidemiologist, Tracey put up a slide on the Cole paper that was published in 2007.

The paper was on a study conducted by epidemiologists who were employed by Glaxo to do the research, Kramer explained. It was a continuation of the Ingenix study that looked at Wellbutrin and then Paxil. One of the co-authors was Sara Ephross, an employee of Glaxo.

Kramer was asked to explain the importance of the Cole study. “First of all,” she said, “it was a cohort study comparing … people exposed to Paxil … to people who were exposed to other SSRIs.”

“So one very key thing for you to remember is that here the … unexposed group is not people who were not exposed to SSRIs, they were exposed to SSRIs,” she told the jury.

“That’s a very important point,” she said, “because if SSRIs are a risk factor for cardiac defects, birth defects, then the relative risk that will be generated in this study is going to be lower than it normally would if truly people were unexposed to SSRIs.”

“The other thing that is important to keep in mind,” she told the jury, “is that the information was obtained from an administrative claims database called the Ingenix Research Data Mart. “

“There was no individual, either examination or interviewing of anyone,” she explained. “The information was extracted from administrative claims data that was available.“

“The other thing that’s important,” she said, “is that initially the population that was studied covered the years 1995 to 2002, and then after the fact an additional two years were added to the study.”

“The published results, based on all of the years that were eventually included in this study, were an odds ratio for all cardiovascular malformations related to Paxil exposure of 1.46, which means that individuals who took Paxil were at 46 percent increased risk of their child having a cardiovascular malformation diagnosed at birth compared to individuals who took other, other SSRIs,” Kramer explained.

“In the second odds ratio of 1.68,” she said, “showing a 68 percent increased risk, now we are comparing women who took Paxil either alone or in combination with another SSRI, compared to the other SSRI group, either alone or in combination with other SSRIs, mono- or polytherapy.”

The published study contained an asterisk that said: “An interim analysis performed by Cole, et al, using births occurring between ‘95 and 2002 found an odds ratio of 2.0 for the association between first trimester Paxil use and cardiac birth defects.”

Kramer was asked to explain what that statement was referring to. “Initially, the study was designed to include the years 1995 through 2002 with a sampling ratio of controls to cases of 7 to 1,” she said. “That was the protocol.

“And when that analysis was done, the odds ratio, instead of being 1.46, which ultimately is what was published, was actually higher, it was 2,” she told the jury.

“That means that the exposed group had a risk of a child with a cardiac malformation two times that of the group not exposed to Paxil,” she added.

The odds ration got smaller when the Glaxo researchers, the authors of the study, “added in two additional years of data with a different sampling ratio,” Kramer explained.

It is not appropriate for an epidemiologist to do that, she said, because “you are changing the rules after you look at the data.”

It “really raises the questions as to, are you trying to influence the data,” she noted.

“I can say very clearly,” she told the jury, “that that is not considered to be appropriate conduct, scientific conduct. “

“What you are supposed to do is set up a study protocol in advance and follow it, and not change it after you have looked at the results,” Kramer explained.

It is not appropriate to find out the results and change it in the middle, she said, “for obvious reasons, it looks like you are manipulating the data to make it come out looking a certain way.”

“And if you want to do an unbiased, fair study,” she told the jury, “the only appropriate plan of action is to develop a study protocol ahead of time, to follow it, and to analyze the results and not to fool with it, not to fiddle with it and not to change it.”

While testifying, Kramer explained the meaning of “underpowering” a study. You need to have “a sufficient number of people in a study in order to test a certain research question,” she said.

“And if you are going to apply statistical tests to the data that you generate,” she told the jury, “you need to have enough people in that study to have generated enough cases of the outcome and you need to have enough people who are exposed.”

“Now, this case,” she said, “we have got a relatively rare exposure to Paxil, we have a relatively rare outcome, which is congenital cardiac birth defects, so you need to study very, very large populations in order to achieve statistical significance at these levels that we have been discussing.”

She said the “investigators, the research team,” dictates the size of the study.

Kramer went over the reasons why the odds ratio in the Cole study might be attenuated, or lower. It’s “very clear that there are certain characteristics of this study that are making this odds ratio probably lower than it really would be given certain characteristics of the study design,” she told the jury.

“One of the them is that the controls are really not unexposed to the SSRIs,” she said. “They are exposed to drugs in the same class.”

We have “observed in epidemiological literature that other SSRIs are associated with an increased risk of cardiac malformations,” she told the jury. “Therefore, it is likely that since that’s the comparison group, we have got an odds ratio in this study that’s lower than it probably would be.”

The second reason was that the analysis only included live births. “So you are missing fetuses who were miscarried,” she said. “And then there are many miscarriages that are due to birth defects.”

“You are missing fetuses that are aborted, electively aborted, because of known cardiac or other congenital malformations,” she told the jury. “You are missing stillbirths.”

And with a follow up for only nine months, she said, “you are missing congenital cardiac defects that aren’t detected until later.”

“So you have got a fairly substantial population that is not really being captured in this study of exposed fetuses,” she pointed out.

Closing Recap

During closing arguments, Tracey reminded the jury about the email with Anne Bell’s statement to make sure Paxil was not included in the Ingenix study, and said: “This document … two years before this child is born, they are affirmatively saying: We do not want to look at Paxil in pregnancy.”

In her closing argument, Varner told the jury: “Now, Mr. Tracey has talked to you about Anne Bell this morning.”

“He has said that GSK would have done anything to avoid looking at the risk for Paxil,” she pointed out.

“Well, ladies and gentlemen,” Varner said, “GSK funded the study that did look at Paxil for the risk and published preliminary findings in August of 2005.”

As soon “as even a possible link emerged in all of 2005, GSK reacted promptly and proactively to notify both FDA and doctors,” she told the jury.

“It went immediately to FDA. It immediately changed its label,” she said. “And it immediately sent out letters to doctors telling them about the changes.”

In his final summation, Tracey told the jury, “I want to talk to you about the Ingenix study because Ms. Varner said something that is very, very important.“

“She said when they found out what she says is August of 2005, within 21 days, they changed the label. Within 21 days, the doctors got the news,” he recounted.

What “she forgets to tell you is that two years prior to this, Anne Bell said, Don’t study the drug,” Tracey told the jury.

“Had they not listened to Anne Bell,” he said, “had they studied the drug in 2003, Michelle David wouldn’t be sitting here because the warning would have gone out like that.“

“We would have been two years ahead of the game,” he pointed out.

“GlaxoSmithKline did not want to study the drug,” Tracey told the jury. “The FDA made them study Paxil.”

“It was not some sort of voluntary we’re just a good drug company trying to get along,” he said. “It was we don’t want to study it and they’re forcing us to study it.”

Paxil Off-Label Promotion

Paxil is not FDA approved for use by pregnant women, so all mothers who gave birth to infants with heart defects received the drug off label. In Andy Vickery’s first case set for trial, Delaney Novak was born with heart defects after his mother, Laura, was prescribed Paxil for migraine headaches, another unapproved use.

Dr Dee Mangin is an expert witness in the Novak case. Her research and published work has focused on rational prescribing, and the influence of drug company promotion both to physicians and direct to consumers. She submitted a report on October 13, 2009, which outlines Glaxo’s off label promotion of Paxil around the time of Laura’s pregnancy.

In her report, Mangin defines off-label use as the “practice of prescribing drugs for a purpose outside the scope of a drug’s approved label – often an unproven use or one that has not been widely tested.”

“While it is legal to prescribe off label in the United States, it is illegal for companies to promote off label use,” she notes.

“The risks of off label promotion,” she says, “are that it could lead to exposure of patients to the risks of a medicine for no benefit, and furthermore they maybe denied other more effective treatment.”

“GlaxoSmithKline from 2000,” Mangin says, “mounted a multifaceted and targeted national promotional campaign that employed explicit strategies designed to promote sales of Paxil in pregnant women and women of reproductive age.”

An exhibit cited in the report from a “Paxil Tactical Marketing Plan in 2000,” states: “New Paxil data with high media interest, hot flash, postpartum, depression, pregnancy, and lactation will position Paxil as the drug of choice for women.”

“One of the known reasons that physicians change their prescribing behavior is as a response to the volume of evidence containing the same message that the physician is exposed to,” she wrote. “The so-called “Carpet Bombing” technique used in the Paxil campaign feeds directly into this.”

“There are a number of strategies companies can use to highlight use for off label conditions including distribution of individual scientific articles discussing the off label indication and use of the drug as well as mentions of off label use by key opinion leaders in continuing medical education,” the report explains.

“In relation to the off label prescribing for migraine,” Mangin says, “there is no evidence of any effectiveness over placebo for SSRIs in migraine prevention.”

Yet a paper titled, “Paroxetine in the Treatment of Chronic Daily Headache,” by Carol  Foster, MD, and Jacklyn Bafaloukos, RN, that was distributed to doctors, specifically states: “The dramatic improvement in the patients in our study suggests that paroxetine appears to be a safe and effective drug for the treatment of chronic daily headache.”

“The strategies outlined where reprints about treatment of migraine with paroxetine, large numbers of form letters containing summaries of studies of use in headache were sent to physicians and detailing and providing free samples to physicians likely to treat women with migraine were therefore encouraging use of Paxil and exposure to its risks when in reality it is no more effective in this situation than a sugar pill,” Mangin reports.

Encouragement “of unapproved use for migraine further attempted to expand the market beyond that which was medically justified and likely to lead to unnecessary exposure to the risks of Paxil,” she advises.

In an August 11, 2009 deposition, Laura’s doctor testified that Glaxo sales representatives would commonly leave reprints of articles on off label uses and salespeople did discuss the literature on the off label use of Paxil for migraines with him. One of the sales representatives visiting the doctor at the time stated in a deposition that it was his habit to distribute all such articles.

But most importantly, the doctor said he would not have prescribed Paxil to Laura had Glaxo told him back in 2000, or early 2001, that there was an association between Paxil and birth defects. He further noted that there was no benefit from Paxil that would outweigh the risks of birth defects and that he had not used Paxil in his practice since the Dear Doctor letter warned about birth defects.

Delaney suffers from a septal heart defect. “None of the information from the medical records of the family or their statements on potential genetic, environmental and pharmaceutical causes of heart defects indicates any other factor more likely to have caused her condition than the Paxil exposure,” Mangin points out.

“It is clear that if the prescribing doctor had been informed of the risk of heart defects, Laura Novak would not have been exposed to Paxil,” she notes.

In the report’s conclusion, Mangin states: “It is my opinion that this promotional campaign for Paxil was inappropriate given the scientific knowledge and what was known by the company at the time.”

“The degree of comfort with the use of this medication in the reproductive years and pregnancy is likely to be influenced by GSK’s misleading promotional campaign where concerns were minimized, efficacy was overstated, the idea of off label prescribing was seeded for migraine, and lastly the marketing specifically targeted a group at higher risk in terms of safety concerns – pregnant women and women in the reproductive age group,” she reports.

“This Paxil promotional campaign was irresponsible, and potentially disastrous from a public health perspective as it was likely to expose a much greater proportion of the population to these potential harms,” she concludes.

Glaxo’s Phone Book

During closing arguments on October 8, 2009, Tracey told the jury regarding Glaxo: “They have a telephone book full of doctors.”

Referring to an exhibit introduced during the trial, he said: “This is all the doctors that they pay to give speeches on their behalf to push their drug, to sell it, to convince other doctors to prescribe their drug.“

While Healy was testifying, Tracey had him go over some of names of doctors in the book that included Lori Altshuler, Vivian Burt, Lee Cohen, Charles Nemeroff, Jeffrey Newport, Zachary Stowe, Katherine Wisner and Kimberly Yonkers.  None of these doctors appeared to testify on Glaxo’s behalf in the trial.

What “they did was aggressively market this drug to women,” Tracey told the jury.

All “these names of people that they ghost-wrote articles for to get the doctors … to sell the drug,” he noted.

Doctor Healy told you that “they altered the prescribing practices in this country,” he recounted. “What they set out to do, they succeeded in doing. They got doctors to prescribe the drug to women.”

“And they did it,” Tracey said, “by having seminars where they would put these doctors, experts in the field, on their payroll, that the doctors would go and listen to, unwittingly knowing what they are really hearing is a marketing campaign.”

In reference to another exhibit viewed during the trial, Tracy said: “This document describes that it worked. When the doctors came out, these are the comments they made after attending these seminars: Will prescribe Paxil to pregnant women. My comfort in treating depression in pregnancy has increased. Treating pregnant patients with confidence. Will feel more comfortable giving Paxil to pregnant women.”

In citing $765 million in the US alone, between 1997 and 2005, Tracey told the jury: “This is the number for over a nine-year period this company spent to convince doctors to sell their drug, to prescribe their drug to women of childbearing years.”

“And they got a heck of a return on it,” he said. “Net. After expenses. Almost 14 billion dollars for a nine-year period.”

“Out of the 700 million dollars they spent trying to sell this drug to people,” Tracey stated, “there is not one shred of evidence in the record about how much money they spent to try to figure out whether it was going to induce birth defects.”

“And as far as I can tell in the record,” he said, “after they bought it, they did one animal study and they didn’t spend another penny.”

Evelyn Pringle is an investigative journalist focused on exposing corruption in government and corporate America. She won multiple awards for her investigative reporting from the International Center for the Study of Psychiatry and Psychology.

U.S. Army Sgt. Pedro Rodriguez-Ortiz provides security in Khowst province, Afghanistan, Feb. 27, 2010. Rodriguez-Ortiz is assigned to Charlie Troop, 1st Squadron, 33rd Cavalry Regiment. U.S. Army photo by Sgt. Jeffrey Alexander

The stated goal of the US-led War in Afghanistan, according to the Obama Administration, is to defeat the Taliban and establish a stable democratic government over the entire country. Critical to that goal is establishing a professional Afghan army and police force that is not corrupt, and that has the respect of the Afghan people.

But reports out of Canada suggest that far from creating such a military and police force, the so-called International Security and Assistance Force (ISAF) is turning a blind eye to the thuggish criminality of those organizations, both to avoid growing opposition in ISAF member countries, and to avoid offending those organizations in Afghanistan.

The issue in question is routine rape and sodomy of children by Afghan soldiers and police operating on Canadian-run bases in the Kandahar region.

As reported last fall in the Ottawa Citizen newspaper, Canadian military chaplains and some soldiers have been complaining as far back as 2006 that Afghan security forces have been sodomizing young boys on their base. These military whistle-blowers charge that the military brass has been ignoring or burying their complaints, fearing the bad publicity they could generate.

The paper reports that Canadian military police have also complained, as reported by Brig.-Gen. J.C. Collin, commander of Land Force Central Area, that they were being told “not to interfere in incidents in which Afghan forces were having sex with children.”

According to the paper, the Canadian military command has argued that, even though sex with children is against the law in Afghanistan, the practice is culturally accepted and that the Canadian forces “should not get involved in what should be seen as a ‘cultural’ issue.”

Makes you wonder what other “cultural” issues involving Afghan security forces that the Western occupiers might not want to get involved in. Perhaps the oppression of women? That’s certainly part of the culture. How about bribery and extortion? Based on the evidence–that the police in Afghanistan are a wholly corrupt entity, and that the army is not much better–arguing that corruption is “culturally acceptable” would be easy to do. How about drug dealing? Again, that appears to be quite the culture in Afghanistan.

Kudos to the Canadian grunts, MPs and chaplins who found the sexual abuse of children more than they could stomach, and who brought their concerns to public attention at home in Canada when their own commanders sought to cover it up.

It makes me wonder, though, why here in the hyper-moralizing US, we haven’t heard a peep from our troops about similar behavior by Afghan forces on US-run bases.

It’s hard to believe that a practice so common on a Canadian base that it provoked such outrage among Canadian soldiers is not also occurring elsewhere.

This leaves us with two possibilities:

US soldiers and marines are just not as willing to go outside the chain of command and go public with their complaints, or

The US media are not interested in investigating this kind of story. It involves only Afghans, and who cares about Afghans? What American journalism covers is Americans. (Remember the big spate of stories about the sex escapades of guards at the US embassy in Kabul?)

I’d say it’s probably a combination of the two.

At any rate, the picture painted of Afghanistan’s army and police in the Ottawa Citizen article does not bode well for any plan that hinges on their taking over from US and ISAF troops any time soon…or for the fate of young children of Afghanistan, if and when they do.

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

David Cole of Georgetown University and formerly of the Center for Constitutional Rights has been doing some good writing, not only on our failure to enforce laws against powerful people, but also on our out-of-control epidemic of incarceration which has struck those too unimportant to gain immunity.

Cole argues persuasively that we lock up a dramatically higher percentage of our people than any other nation because it is mostly poor African-American communities that get hit. He points out that when segregation was legal in the 1950s, African-Americans were 30 percent of the prison population, whereas now, with a monstrously increased prison population, African-Americans and Latinos make up 70 percent of it. Sixty percent of African-American high school dropouts have spent time behind bars.

Of course it costs less money to educate people than it does to incarcerate them. It costs less to treat them for drug addiction than to incarcerate them. It costs less to help them get on their feet than it does to repeatedly lock them up. And it is these cost considerations that are driving some badly needed, and encouraging, reform.

When Cole spoke on Friday at the University of Virginia, I asked him where the best successes were to be found. While Virginia Sen. Jim Webb has proposed a national commission, Washington D.C. is obviously the last place anything is going to be reformed. The racism and demagoguing are joined by the legal bribery from the privatized prison industry, the corruption of the corporate media, and the control of party leaders. We must look to the states for action. But which states are making the most progress?

Cole pointed me to a new study by the indispensible Sentencing Project which looks at four states where incarceration is being downsized: Kansas, Michigan, New Jersey, and New York.

These states have “reduced their prison populations by 5-20% since 1999 without any increases in crime. This came about at a time when the national prison population increased by 12%; and in six states it increased by more than 40%. The reductions were achieved through a mix of legislative reforms and changes in practice by corrections and parole agencies.”

That crime did not increase as these prison populations shrank is not shocking. But it’s also probably not because crime shrank and incarceration shrank with it. The many-fold increase in US incarceration over the past 35 years did not follow any crime increase; it was the creation of more punitive laws and policies. And scholars give it very little credit for having reduced crime. In fact, with prisons no longer concerning themselves with rehabilitation, there is always the possibility of incarceration increasing crime.

The reforms the Sentencing Project found include:

“* Kansas – Changed sentencing guidelines to divert lower-level drug cases to treatment rather than incarceration; Expanded supportive services to people on parole supervision.
* Michigan – Eliminated most mandatory minimum sentences for drug offenses; enacted statewide initiative to reduce parole revocations and enhance employment, housing, and treatment services for people leaving prison.
* New Jersey – Increased parole releases by adopting risk assessment instruments and utilizing day reporting centers and electronic monitoring.
* New York – Scaled back harsh drug penalties, established Drug Treatment Alternative to Prison programs, and applied ‘merit time’ credits to speed up parole consideration.”

Another Sentencing Project report, “The State of Sentencing 2009: Developments in Policy and Practice,” looks at newly enacted reforms in 19 states:

“* Three states – Minnesota, New York, and Rhode Island – significantly scaled back the scope of mandatory sentencing laws for certain drug offenses.
* Seven states increased the proportion of “good time” credits to be earned in prison to expedite parole eligibility.
* Four states Arkansas, Illinois, Nebraska and New Jersey – established oversight committees to examine sentencing policies, prison overcrowding and reentry services.”

These reforms may be driven more by budget cuts than by demands for racial or class fairness. But they will produce that fairness in the end, and more humane and effective approaches to law enforcement will be proven to work by experience long before we develop a communications system that would permit a victory in the policy debate.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Susan Harman, who by now deserves some kind of medal and who will be joining in a protest of John Yoo on March 19th, questioned Jay Bybee yesterday about his crimes. Here’s her report:

“Yesterday Jay Bybee sat with the 9th Circuit as they modeled appellate court for 140 law students at the University of NV’s law school in Las Vegas. I sent out a plea to [Progressive Democrats of America's] Vegas list of edresses, and about 10 people responded. Of them, two showed up with signs and we handed out Impeach Bybee postcards and talked with the law students as they waited to get through security to go inside. I was appalled at their ignorance and/or lack of outrage. Two older students said he was a friend (he lives in Henderson, just outside Vegas), and a young one said his parents were friends of Bybee.

“We finally got inside, and listened quietly to the cases, as usual. We were ready to speak out at the end, but instead they announced they would hold a Q&A for the students. We moved down to the second row, and I asked the first question:

‘Mr. Bybee, given the new information that’s come out in the Office of Professional Responsibility Report, and the information in the missing emails, which we will surely find, what will your defense be to prosecution of conspiracy to commit the felonies of aggressive war and torture?’

‘I’m not answering that.’

‘Oh. Well.’

“Another activist, there for an unpleasant immigration case, asked something about the memos from the back, and Bybee gave the same cool, stolid non-answer.

“I would have sat quietly, but the students were asking idiotic questions, like ‘How should we refer to our clients when addressing judges?’

“Finally one asked about career options in a shrinking economy. The three judges gave good answers (‘my first case in front of the Supremes was pro bono – do pro bono work for experience’), and when they were done I turned and said, ‘And if you’re willing to break the law, you might wind up a 9th Circuit judge.’ Then the very patient and polite marshals decided enough was enough, and asked us to leave.

“Tyler, an iron worker, gave me a unique tour of the Strip, pointing out buildings he’d worked on (and hadn’t fallen from), some of which are sitting, unfinished hulks, when the money simply ran out.

“I think we have the possibility of getting some activists together in Vegas!”

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Sơn Mỹ village, Sơn Tịnh district of South Vietnam, March 16, 1968. Photo/Wikicommons.

When Charlie Company’s Lt. William Calley ordered and encouraged his men to rape, maim and slaughter over 400 men, women and children in My Lai in Vietnam back in 1968, there were at least four heroes who tried to stop him or bring him and higher officers to justice.

One was helicopter pilot Hugh Thompson Jr., who evacuated some of the wounded victims, and who set his chopper down between a group of Vietnamese and Calley’s men, ordering his door gunner to open fire on the US soldiers if they shot any more people. One was Ron Ridenhour, a soldier who learned of the massacre, and began a private investigation, ultimately reporting the crime to the Pentagon and Congress. One was Michael Bernhardt, a soldier in Charlie Company who witnessed the whole thing, and reported it all to Ridenhour. And one was journalist Seymour Hersh, who broke the story in the US media.

Today’s war in Afghanistan also has its My Lai massacres. It has them almost weekly, as US warplanes bomb wedding parties, or homes “suspected” of housing terrorists that turn out to house nothing but civilians. But these My Lais are all conveniently labeled accidents. They get filed away and forgotten as the inevitable “collateral damage” of war. There was, however, a massacre recently that was not a mistake–a massacre which, while it only involved fewer than a dozen innocent people, bears the same stench as My Lai. It was the execution-style slaying of eight handcuffed students, aged 11-18, and a 12-year-old neighboring shepherd boy who had been visiting the others, in Kunar Province, on Dec. 26.

Sadly, no principled soldier with a conscience like pilot Hugh Thompson tried to save these children. No observer had the guts of a Michael Brernhardt to report what he had seen. No Ron Ridenhour among the other serving US troops in Afghanistan has investigated this atrocity or reported it to Congress. And no American reporter has investigated this war crime the way Seymour Hersh investigated My Lai.

There is a Seymour Hersh for the Kunar massacre, but he’s a Brit. While American reporters like the anonymous journalistic drones who wrote CNN’s Dec. 29 report on the incident, took the Pentagon’s initial cover story–that the dead were part of a secret bomb-squad–at face value, Jerome Starkey, a dogged reporter in Afghanistan working for the Times of London and the Scotsman, talked to other sources–the dead boys’ headmaster, other townspeople, and Afghan government officials–and found out the real truth about a gruesome war crime–the execution of handcuffed children.

And while a few news outlets in the US like the New York Times did mention that there were some claims that the dead were children, not bomb-makers, none, including CNN, which had bought and run the Pentagon’s lies unquestioningly, bothered to print the news update when, on Feb. 24, the US military admitted that in fact the dead were innocent students. Nor has any US corporate news organization mentioned that the dead had been handcuffed when they were shot.

Starkey reported the US government’s damning admission. Yet still the US media remain silent as the grave.

Under the Geneva Conventions, it is a war crime to execute a captive. Yet in Kunar on December 26, US-led forces, or perhaps US soldiers or contract mercenaries, cold-bloodedly executed eight hand-cuffed prisoners. It is a war crime to kill children under the age of 15, yet in this incident a boy of 11 and a boy of 12 were handcuffed as captured combatants and executed. Two others of the dead were 12 and a third was 15.

I called the Secretary of Defense’s office to ask if any investigation was underway into this crime or if one was planned, and was told I had to send a written request, which I did. To date, I have heard nothing. The Pentagon PR machine pretended to me on the phone that they didn’t even know what incident I was talking about, but without their “help” I have learned that what the US military has done–no surprise–is to pass the buck by leaving any investigation to the International Security Assistance Force–a fancy name for the US-led NATO force fighting the Taliban in Afghanistan.

It’s a clever ruse. The ISAF is no more a genuine coalition entity than was George Bush’s Iraq War Coalition of the Willing, but this dodge makes legislative investigation of the event impossible, since Congress has no authority to compel testimony from NATO or the ISAF as it would the Pentagon. A source at the Senate Armed Services Committee confirms that the ISAF is investigating, and that the committee has asked for a “briefing”–that means nothing would be under oath–once that investigation is complete, but don’t hold your breath or expect anything dramatic.

I also contacted the press office of the House Armed Services Committee to see if any hearings into this crime have been planned. The answer is no, though the press officer asked me to send her details of the incident (Not a good sign that House members and staff are paying much attention–the killings led to country-wide student demonstrations in Afghanistan, to a formal protest by the office of President Hamid Karzai, and to an investigation by the Afghan government, which concluded that innocent students had been handcuffed and executed, and no doubt contributed to a call by the Afghan government for prosecution and execution of American soldiers who kill Afghan civilians.)

There is still time for real heroes to stand up in the midst of this imperial adventure that may now appropriately be called Obama’s War in Afghanistan. Plenty of men and women in uniform in Afghanistan know that nine innocent Afghan children were captured and murdered at America’s hands last December in Kunar. There are also probably people who were involved in the planning or carrying out of this criminal operation who are sickened by what happened.

But these people are so far holding their tongues, whether out of fear, or out of simply not knowing where to turn (Note: If you have information you may contact me). There are also plenty of reporters in Afghanistan and in Washington who could be investigating this story. They are not. Don’t ask me why. They certainly should not be able to call themselves journalists–at least with a straight face.

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

Yesterday, UPI reported on a new study by Scott Phillips, associate professor of sociology and criminology at the University of Denver. Professor Phillips analyzed data from 504 death penalty cases in Harris County, Texas, between 1992 and 1999, and found:

the probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree.

While Professor Phillips' research was limited to Texas, this mirrors a national trend, as the ACLU's Capital Punishment Project's Brian Stull wrote last year:

Nationally, studies consistently demonstrate that, everything else being equal, a defendant is approximately four times more likely to get the death penalty for killing a white person than for a black person. The racial configuration by far the more likely to result in a death sentence is a black defendant and a white victim. Studies of jurors from across various death penalty states demonstrate that in "black on white" murder cases with six or more white male jurors, juries issue a death sentence 78.3 percent of the time. But if three or more jurors were black males, the overproduction of death sentences disappears.

This problem is exacerbated by the fact that there are likely many innocent men on death row. Brian points to the case of ACLU client Levon "Bo" Jones, was exonerated in 2008 after 14 years on North Carolina's death row. Jones, who is African-American, was convicted and sentenced to death by an all-white jury.

h/t: StandDown

When a person accused of a crime goes free, we often hear the refrain, "He got off on a technicality." In reality, these technicalities often involve a violation of a person's constitutional rights. In the case of Holland v. Florida, argued before the Supreme Court last week, a technicality may determine whether Albert Holland lives or dies.

In the Holland case, the court will decide a technical question about the rules that govern federal habeas corpus review, which is a federal court appeal of a death sentence handed down in state court. A federal habeas corpus review assesses a case for violations of the U.S. Constitution. Every death-sentenced defendant has the right to this review, and it's crucial, because studies show (PDF) that in 37 percent of cases, federal courts throw out death sentences after finding serious constitutional violations.

The first thing to know about federal habeas corpus review is that there are many complexities to filing a petition. There are rules about precisely when, where, and how a federal constitutional claim must be raised in the state courts. And those rules are also bound by Supreme Court case law and federal law. If a lawyer violates any of these rules, the client risks execution even if his death sentence violates the federal constitution.

One such rule took Albert Holland to the Supreme Court. Albert Holland was assigned an attorney by the State of Florida to appeal his death sentence (also known as a "capital appeal"). Florida has a statute saying attorneys assigned in such cases must be "competent." But Holland's appointed attorney was far from competent: despite Holland's repeated requests to his attorney to file the petition and keep him updated on the status of his case, his attorney failed to file the petition in a timely manner, prompting the federal district court to dismiss the petition without deciding its merits. Holland even attempted to have the attorney removed from his case because he appeared to be incompetent and unconcerned, and Holland made every possible effort to obtain necessary information about his case so that he could file the petition himself.

In the Supreme Court, Holland argued that he should not forfeit his right to federal review based on his attorney's gross negligence. We supported his argument with a friend-of-the-court brief demonstrating that the deadline should be forgiven in certain narrow circumstances. But this case presents a more basic question of fairness: why should a death-sentenced inmate who does everything he possibly can to follow these complex rules, lose his life due to the gross negligence of an attorney assigned by the state? At Thursday's oral argument (PDF), the lawyer representing the State of Florida suggested that only in instances of "extreme attorney incompetence" should missing the federal deadline be forgiven. This suggestion prompted Chief Justice Roberts to ask, "[W]hy isn't it extreme attorney incompetence to miss a deadline?"

For Albert Holland, much hangs on how the court answers the Chief Justice's question. Whether a federal court ever rules on the merits of his constitutional arguments against his death sentence should not depend on a technicality. We can only hope the Supreme Court agrees.

Yesterday, WNYC's On the Media (OTM) profiled our cell phone tracking case. In this case, the ACLU, Center for Democracy and Technology and the Electronic Frontier Foundation (EFF) asked the court to require that the government at least show probable cause before it can ask a wireless provider to fork over information about your whereabouts using GPS or cell tower tracking via your cell phone. We won in the district court (PDF); the government appealed that decision to the 3rd Circuit.

ACLU attorney Catherine Crump blogged about the case when it was heard by the 3rd Circuit Court of Appeals in Philadelphia last month.

EFF's Kevin Bankston, who argued the case before the 3rd Circuit, told OTM:

At a security and surveillance conference a few months ago, the Sprint electronic surveillance manager admitted that law enforcement was making such extensive use of [the cell phone tracking capability] that Sprint had set up essentially a Web portal for law enforcement to go to, to ping cell phones to find their location based on GPS. He said that that website had been used eight million times over a one-year period.

Basically, through our purchases of cell phones, we American consumers are building the technical infrastructure for a surveillance network that's so extensive and pervasive that even Orwell or J. Edgar Hoover, for that matter, could not have dreamt it up.

Eight. Million. Times. That sounds like an abuse of power to us.

In defense of this practice of surveillance via cell phone, the Justice Department argued that you — yes you, with the cell phone — gave up your Fourth Amendment rights when you bought the cell phone. And that if you don't want to be tracked, don't carry a cell phone.

We heartily disagree. Stay tuned…we expect a decision from the 3rd Circuit soon.

Every year on March 8, we celebrate the triumphs and struggles of women around the world. In my home country of Australia, the day is always special — and it's not unusual for a stranger to wish you a "happy women's day!" on your way to work. For the past 10 years or so my friends and I have made it a ritual to get up ridiculously early to mark the occasion with a women's breakfast. I always leave these events inspired by the past achievements that we as young women benefit from, and filled with a sense of purpose for the work that is still yet to be done.

In New York today, I'm looking forward to continuing the tradition of celebrating International Women's Day by attending the two events that the ACLU is cosponsoring in conjunction with the 54th Session of the United Nations Commission on the Status of Women.

The first event will be held this afternoon and will feature a roundtable discussion with American and international advocates for women's human rights addressing the need of the U.S. to finally ratify the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The discussion will focus on CEDAW as an international human rights instrument, its implementation in other countries, and the real impact that U.S. ratification would have on women's lives.

If you are in New York, please come and join us for some thought-provoking discussion of how to make equality a reality for women in this country!

And don't forget to wish some one a "happy international women's day!"

What: Advancing Gender Equality: The Impact of CEDAW Ratification on Women's Rights in the U.S.
When: Monday March 8, 2010 at 4:00 p.m.
Where: U.N. Church Center, 2nd Floor, 777 U.N. Plaza (44th St. and First Ave.), New York, NY

On Friday, United Nations Special Rapporteur on the Right to Adequate Housing Raquel Rolnik presented her final report on the state of housing rights in the U.S. to the U.N. Human Rights Council in Geneva, Switzerland. While there is no official right to housing under the U.S. Constitution, international human rights treaties and declarations recognize adequate housing as a basic human right. In her role as U.N. Special Rapporteur, Raquel Rolnik documents in the report the degree to which the U.S. government has met its obligation to ensure access to adequate housing for all people. The report summarizes her investigative findings and recommendations from her 18-day official visit to the U.S. last October and November and identifies the many housing rights violations people face, including the "persistent impact of discrimination in housing."

Rapporteur Rolnick's findings regarding housing discrimination references issues raised by the ACLU in the written and oral testimony we presented during her visit. Citing a fact sheet published by the Women's Rights Project (WRP), she notes in her report that current housing policies "negatively target victims of domestic abuse, as they do not take into account whether tenants who are subject to eviction are the victims or the perpetrators of criminal activity." WRP Staff Attorney Sandra Park testified at the National Town Hall Forum that the rapporteur held in Washington, D.C., in November 2009, and also submitted written testimony about discriminatory evictions of women who experience domestic violence, as part of WRP's ongoing work to advocate for the housing rights of survivors of gender-based violence. (Check out a photo slideshow from the town hall meeting.)

WRP's testimony also describes discriminatory public housing policies, byproducts of the War on Drugs, that tear families apart by criminalizing behavior and banning people from residing in, or even visiting other residents, in public housing. Annapolis public housing residents Glenda Smith and Esther Sharps, represented by WRP and the ACLU of Maryland in a lawsuit against the Annapolis housing authority, testified about the devastating impact of these banning policies on their families at the rapporteur's town hall meeting. Ms. Smith spoke about her granddaughter, who has been prohibited from living with or visiting her own son, who is in Ms. Smith's care, because she was placed on the Housing Authority's banned list after a juvenile arrest three years ago, for which she has long since served her sentence. "The banning policy is unfair because it is punishing [my granddaughter] beyond what the court decided her punishment should be; it is punishing our whole family." Rapporteur Rolnick addresses these issues in her report, expressing her concern about "the discriminatory nature of these practices towards the residents of public housing, and their negative, fragmenting effects on families."

In her report, Rapporteur Rolnick expresses "her deep concern about the millions of people living in the United States today who face serious challenges in accessing affordable and adequate housing, issues long faced by the poorest people and today affecting a greater proportion of society." The human right to adequate housing is a critical women's right, because women, especially low-income women of color, are amongst those most vulnerable to housing instability as a result of factors including poverty, domestic violence, and discrimination. In response to the report's release, Sandra Park said,

Confronting violence against women is crucial to addressing homelessness. The United States must prohibit housing discrimination against survivors of domestic violence, sexual assault, and stalking, effectively implement the Violence Against Women Act, and ensure that families escaping abuse have access to safe, permanent housing.

The rapporteur's report will inform the Human Rights Council's upcoming assessment of the U.S. government's record in meeting its human rights obligations. This marks an important step forward in addressing discriminatory housing practices in the U.S., and we hope that the government will take immediate measures to remedy these violations.

— Chelsea Zimmerman & Selene Kaye, Women's Rights Project

Today's Washington Post tells us that advisors to President Obama are telling him to reverse Attorney General Eric Holder's decision to send the 9/11 defendants to federal criminal court, and send them back to the military commissions system.

There are only two numbers you need to know in this debate over where the 9/11 defendants should be tried: three and 319.

Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today.

Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons.

President Obama promised during his campaign to bring those behind the 9/11 attacks to justice, and to restore the rule of law. Send him a message now, telling him to support his attorney general's decision to try the 9/11 suspects in federal court.

If Friday’s tired, old defense of “Don’t Ask, Don’t Tell” (DADT) by former Air Force chief of staff Merrill McPeak in The New York Times is the best that opponents of repeal can come up, we nearly have this struggle won! If you needed any further evidence, just check out this piece on Huffington Post on the dirty little secret behind the letter being consistently touted by Sen. McCain (R-Ariz.) in opposition to repeal, which he says is signed by over a thousand retired and flag general offices. I’ll give you a little hint, there are a lot of very old (the average age is 74) and, in at least a few cases, dead guys on the letter.

But to get back to McPeak, he runs through all of the typical nonsense that opponents of repeal always bring up – it’s not the job of the armed forces to advance civil rights, repealing this policy now while we are engaged in two active war zones threatens to undermine unit cohesion, etc.. I don’t want to spend too much time discussing each misguided point raised in the op-ed, but this one in particular cried out for a response –

Thus allowing an openly gay presence in ranks will be very difficult until we have committed leadership for it. I certainly had trouble figuring out how to provide such leadership in 1993. While I believed all people are created equal, I did not believe such equality extended to all ideas or all cultures.

While McPeak’s views on equality would make George Orwell laugh, more telling is his rather candid statement that repealing DADT will take committed leadership, something that he lacked both in 1993 and today. Some things apparently don’t change with time.

What has in fact changed, are the views of members of our armed services. According to a 2006 Zogby poll, one in four troops who have served in either Afghanistan or Iraq know a member of their own unit who is gay. The same poll found that an overwhelming 73 percent of military personnel report being comfortable with those who are lesbian or gay. 

Perhaps more telling is the fact that the lead sponsor of legislation in the House of Representatives to repeal DADT is none other than the first Iraq War veteran to be elected to Congress – Patrick Murphy of Pennsylvania. In discussing the counter-productive nature of DADT, Murphy said, “My battle buddy in one of the toughest courses in the Army got kicked out because he happened to be gay. And the guy who took his place couldn’t carry his lunch.”

Murphy’s legislation, the Military Readiness Enhancement Act, has close to 200 co-sponsors. Earlier this week, Sen. Joseph Lieberman (I-Conn.), along with 12 original co-sponsors, introduced similar DADT repeal legislation in the Senate. Support among members of Congress for finally ending this illogical discrimination against otherwise talented and dedicated men and women is stronger today than ever before.

Finally, there is the testimony and statements from the likes of Joint Chiefs Chairman Mullen and Gen. Patraeus acknowledging their years of services alongside men and women who just happen to be gay. Much has indeed changed since 1993, perhaps most tellingly among those in positions of leadership who recognize that repealing DADT makes sense as much from a military perspective as it does as an issue of fundamental fairness.

Last month, the Utah legislature passed a new abortion amendment (H.B. 12) that threatens to criminalize women for their behavior during pregnancy. Gov. Gary Herbert can and should stop this dangerous legislation from becoming law.

The back story that got us to this point is tragic: A 17-year-old so desperate to end a pregnancy paid a stranger to beat her up, hoping beyond hope that the blows to her abdomen would cause a miscarriage. It didn’t. The state arrested the attacker and threw him in jail, but it had no legal basis for doing the same to the teenager. So Utah legislators decided to change the law and criminalize the acts of women who “recklessly” engage in conduct that results in the termination of a pregnancy.

It’s important to solve problems, not exacerbate them. Charging a desperate teenager with a crime solves nothing. Clearly, this teenager, like other women facing unintended pregnancies, needs our support. Everyone’s circumstances are different. We should be making laws and policies that ensure that every woman, no matter what her situation, can get the health care she needs. We should not be putting up obstacles to care or threatening to prosecute women who need our compassion. The medical community is clear: prosecuting pregnant women for their behavior can dangerously drive a woman who is most in need of help away from seeking services. We all suffer when that happens. We also need to provide our youth with medically appropriate information about sex and its consequences in our public schools, to ensure that our young people are equipped with the information they need to avoid facing this situation in the first place.

Moreover, we should all be concerned that in the hands of an overzealous prosecutor, this overbroad amendment could be used to punish pregnant women more generally. For example, could a pregnant woman who fails to wear a seatbelt and is in a car accident be charged with reckless homicide should she miscarry? We know from experience that prosecutors can and do bring cases against individuals that go far beyond what the legislature intended. In 2004, for example, a woman was arrested and prosecuted under Utah’s existing criminal homicide statute for refusing, against her physician’s recommendation, to undergo a cesarean section. Pregnant women do not lose their right to make personal, private medical decisions, even when they disagree with their doctors. H.B. 12 threatens to undermine this basic right.

Gov. Herbert is now faced with a decision. We hope that he will realize that making criminals out of women in unthinkably hard circumstances is not the answer. Gov. Herbert should veto this legislation, and the legislature should turn its attention to supporting, not criminalizing those who most need our compassion and assistance. The eyes of the nation are on Utah; it is time to do the right thing.

(Cross-posted to Daily Kos and Feministing.)

On Monday, the Human Rights Fund (HRF) celebrated the release of Perfecting Our Union: Human Rights Success Stories Across the United States (PDF), a report that profiles how groups like the ACLU have used international human rights standards and strategies to improve people's lives in this country.

The report profiles how the ACLU's Human Rights Program worked with the Border Network for Human Rights (BNHR) to make the U.N. Human Rights Committee aware of the problems of racial profiling and harassment of people who live in the Texas-Mexico border region and the overall militarization of the border. Residents of that region were the targets of Operation Linebacker, a federally financed law enforcement program meant to target violent crime and drug trafficking at the border. But instead of arresting drug runners, the initiative ended up ethnically profiling brown-skinned people.

(The ACLU and BNHR (PDF) detailed these abuses, and many others, in shadow reports submitted to the U.N. on the occasion of a 2006 review of U.S. compliance with the International Covenant on Civil and Political Rights, a treaty this country ratified in 1992.)

As a result of the ACLU and BNHR's advocacy to the U.N., 

The drumbeat of local coverage put pressure on the mayor and legislators in Austin, the state capital, to rethink support for the policing initiative, which was later de-funded.

Perfecting Our Union also tells the story of the Jessica Gonzales. In 1999, Gonzales's estranged husband Simon kidnapped their three daughters—over the course of 10 hours, Jessica's desperate pleas for help to the Castle Rock police in Colorado went unheeded. After a shootout between police and Simon, her three daughters and husband were dead. It's not known if her daughters died in the shootout, or at their father's hand. Gonzales sued the City of Castle Rock for its failure to enforce a protection order against her husband. After several losses and a few wins, she took the case to the U.S. Supreme Court, where she lost.

After the U.S. courts failed her, Gonzales, with the help of the ACLU and Columbia University's Human Rights Clinic, petitioned the Inter-American Commission for Human Rights (IACHR) to hear her case. We still await a decision, but in the meantime, the report points out Gonzales's case before the IACHR has brought international attention to the problem of domestic violence in this country, and has given advocates for domestic violence survivors hope that an international forum will be receptive to claims when domestic courts have failed them.

This report is filled with inspiring stories like these, covering a broad array of issues including workers' rights, education and prison policy. Be sure to check out the full report here (PDF).