Cancel Trial Continues; Manhattan DA Makes an Appearance

Kevin Pravia in an undated photo

The prosecution in the Jeromie Cancel murder trial ended a day of testimony by playing a video that was ostensibly a crime scene recording of the apartment where Cancel allegedly murdered Kevin Pravia, but included shots that lingered on photos of Pravia and cards sent to him by friends and family that he used to decorate his Chelsea home.

Jurors, attorneys, and observers sat in Manhattan Supreme Court on November 8 as the silent 11-minute video played. The only sound was Paula Pravia, Kevin’s mother, quietly weeping. She testified on November 4, the trial’s first day, and several jurors turned and briefly watched her as the video played. Paula has been carrying a small quilt that friends made for her from Kevin’s clothes and she had that with her when she testified.

Cancel, now 24, faces one second degree murder count in the killing. Allegedly, he strangled the 19-year-old Pravia after the two met near Union Square early in the morning on August 30, 2008. The prosecution is also presenting evidence that Cancel robbed the gay college student after the murder, but Cancel is not charged with robbery.

In what may be an indication of how seriously the Manhattan prosecutor’s office is taking this case, District Attorney Cyrus Vance came to the trial on November 8 and sat alone at the rear of the courtroom for roughly 45 minutes. Vance won the district attorney’s office last year.

Steven Nuzzi, the prosecutor on the case, has been slowly, but deliberately piecing together his evidence. On November 8, jurors heard from the Queens police officer who Cancel first told about the murder.

Cancel was arrested on September 2, 2008 outside his father’s Queens home for an earlier theft from his father. Once at the 104th Precinct, he blurted out that he had killed Kevin and supplied details that only the killer would know. Police were skeptical despite Cancel’s lengthy admission.

“We deal with that a lot,” said the officer who first spoke with Cancel. “Kids from the street try to make themselves out to be more important than they are.”

Police appear to have quickly decided that Cancel was Kevin’s killer and contacted detectives in Chelsea’s 10th Precinct. Cancel was arrested on the larceny charge at 12:30 am on September 2 and by 1:20 am that morning 10th Precinct detectives were in a car to pick up Cancel, Rocco Russo, the detective who ran the investigation testified on November 8.

That timeline has been a major sticking point for the defense which argued that Cancel should have been read his Miranda rights as soon as he admitted to the killing. The defense has suggested that cops in Queens did not just listen to Cancel reveal details of the killing, but questioned him.

The judge in the case, Daniel P. Fitzgerald, threw out the statements Cancel made to two Queens detectives because he had not been read his rights though Fitzgerald allowed the statements to the police officer to come in. That was a Pyhrric victory for the defense because Cancel made eight other statements, including one written and two videotaped statements, that the jury will hear. Cancel waived his Miranda rights at the 10th Precinct at 2:30 am, according to Russo.

More of Cancel’s statements, including his written statement, were introduced through Russo’s testimony and his videotaped statements are expected to be introduced on November 9. At one point, Cancel grew tired of discussing the killing. When Russo asked him to be in a line up, Cancel responded “Why do I have to do this? I murdered him. I strangled him. I’ve been telling you that all day.”

Josephine Madonna, Kevin’s friend and roommate at the time, also testified on November 8 saying she came home from an out of town visit to find the apartment ransacked, two jewelry boxes she owned open with one empty, and Kevin lying dead on his bed.

“I saw his foot was sticking out,” she said. “I pulled the quilt off the bed and he was there...After I saw him I went and I grabbed my phone and I went out into the hallway and I called 911.”

Defense Gets Boost At Katehis Trial, But So Does Prosecution

John Katehis in one of two photos introduced at his murder trial

The defense argument that John Katehis participated in an unwanted sex act with George Weber that led him to kill the 47-year-old gay journalist got some help on October 19 when a criminalist from New York City’s medical examiner’s office said that Weber’s semen was found on his penis.

Sarah Philipps, who has works in the Office of the Chief Medical Examiner, told a Brooklyn jury that her office tested multiple blood and fluid samples from Weber’s Carroll Gardens apartment, the steps in front of his home, and even a nearby subway station.

Swabs of Weber’s penis showed that he had ejaculated, but there was no semen found on his underwear. When he was found dead, his underwear and pants had been pulled down. That suggests that he engaged in a sex act, perhaps with the now 18-year-old Katehis, prior to his March 2009 death.

Jeffery T. Schwartz, Katehis’ attorney, asked Philipps if that showed that Weber’s pants and underwear were down when he had an orgasm. “It would be more likely, but I cannot say yes or no,” she said.

Schwartz has argued that Weber was a sexual predator and that Katehis, who was 16 when he met Weber, was his victim. In his statements to police and the district attorney, Katehis said Weber gave him a beer and cocaine and tried to get him to participate in a sex act that made him uncomfortable.

In New York, a person who is over 21 who has sex with someone under 17 can be charged with third degree rape, an E felony, the lowest level felony. Schwartz has said that the younger man was defending himself from a sexual assault when he stabbed Weber more than 50 times.

Katehis is charged with second degree murder in the case and could get as much as 25-years-to-life if found guilty.

Schwartz also pressed the attack that police and the district attorney had railroaded his client by noting that the medical examiner had received many biological samples, but had tested only a small number of them. Schwartz said that senior officials from the Brooklyn district attorney’s office, the police department, and the medical examiner’s office met to discuss that testing before it was done. Philipps said that the testing choices were influenced by information from the police.

“The narrative information you get is a police officer’s narrative, is that correct?” Schwartz asked and Philipps agreed.

The Brooklyn district attorney is presenting Katehis as a calculating killer and a liar whose statements are filled with self-serving details. That case got some help on October 19.

While media reports had it that Weber placed the craigslist ad that brought the two men together, in fact, it was Katehis who ran that ad on March 18, 2009.

With the subject line “I blow for cash M4M,” Katehis wrote “I’m bi white uncut, but I’m only into oral play. I will blow a guy of any age, but only for cash.” Katehis sought $60 for the service. Weber responded to the ad less than 30 minutes after it was placed seeking to be smothered. The two men conducted a negotiation via email over what they would do and at what price before meeting two days later.

Anna-Sigga Nicolazzi, the prosecutor in the case, introduced some content from Katehis’ myspace page in which he wrote “I enjoy...drinking.” That may cast doubt on the younger man’s assertion that a beer impaired his thinking. She earlier asserted that tests on blood taken from Katehis within hours of the killing showed he had no cocaine in his system.

Nicolazzi introduced two pictures from myspace that showed Katehis posing with knives that resemble the weapon used to kill Weber. The actual murder weapon was never found. Katehis had a knife collection and was carrying a knife, which was put in evidence on October 19, when he was arrested.

The October 19 session also showcased the continuing tensions between Schwartz and Neil J. Firetog, the trial judge. On several occasions Schwartz’s questioning of prosecution witnesses drew objections from Nicolazzi that were sustained by Firetog. Schwartz would continue with that questioning. Firetog told Schwartz that he could recall those witnesses if he put on a defense case and put those questions to them then.

With the jury out of the courtroom, Schwartz told Firetog that that instruction was “burden shifting” and suggested to the jurors that Katehis was required to prove something to them. He asked for a curative instruction which Firetog said he would do, but Schwartz never said what that instruction should be. As their argument ended, Schwartz said “It’s good to be the king.” Firetog was exiting the courtroom at that point, but paused and appeared to be considering engaging with Schwartz again, but left.

On October 13, Firetog twice threatened to fine Schwartz and hold him in contempt if he continued certain lines of questioning with witnesses after being told by Firetog to stop. On October 14, Schwartz asked Firetog to recuse himself.

Katehis Trial to Start in Brooklyn; Defense Will Put Victim on Trial

George Weber in an undated photo

With the trial of John Katehis, the accused killer of George Weber, slated to start on October 18, it appears that the defense will try to make Katehis the victim in the 2009 homicide and Weber a sexual predator who brought his death upon himself.

“Do you think the person who gets the worst of a situation is automatically the victim?” Jeffery T. Schwartz, Katehis’ attorney, asked prospective jurors on October 14 in Brooklyn Supreme Court. He had posited a circumstance in which a person initiates a fight and ends up losing badly.

In his statements to police and the Brooklyn district attorney, Katehis, who was 16 at the time of the killing, said he responded to an internet ad placed by Weber seeking sexual services for pay in March of 2009. Once at Weber’s Carroll Gardens apartment, Katehis, now 18, said the 47-year-old gay journalist gave him cocaine and beer and asked Katehis to smother him. Katehis bound Weber’s feet with duct tape. When Weber showed him a knife, he panicked and the two men struggled over the knife. Katehis said he recalled only a single cut to Weber’s throat that was made when both men were holding the knife. Weber was stabbed nearly 50 times. The defense has argued that Weber asked Katehis to participate in an activity that made him uncomfortable.

Schwartz asked jurors if they thought that alcohol and drugs could explain the behavior of a 16-year-old and would the fact that the 16-year-old was given alcohol and drugs by “an elder person” influence their thinking.

“Would you agree with me that a child might react differently if he was frightened or startled?” Schwartz asked. “Would you agree with me that people behave differently when they have alcohol in their system?”

Schwartz has consistently represented his client as the victim of an older man who was trying to force a younger man to have an unwanted sexual encounter. During October 12 and 13 pre-trial hearings, however, new facts emerged that may present problems for the defense at trial.

On October 12, Anna-Sigga Nicolazzi, the prosecutor in the case, disclosed that it was Katehis who placed the internet ad and that the two men negotiated what they would do, when they would do it, and what it would cost via email over a period of several days. Nicolazzi has referred to witnesses being flown in from California. They may be from craigslist, the site where the ad ran. Additionally, Nicolazzi said blood drawn from Katehis hours after the killing did not test positive for drugs. In his statements, Katehis said he had a single beer.

In her juror questioning, Nicolazzi asked jurors if the age difference between the two men and the smothering would keep them from following the law or being fair.

“There’s a sexual component, whether there was any sex or not, just by the nature of fetishes,” she told jurors. Katehis gave his age in his internet ad.

“Is it fair to say that when you hear that you say yuck?” Nicolazzi asked prospective jurors. She also prepared jurors to hear Katehis’ statements and signaled that she would be asking them to believe parts and disregard others.

“Ever been in a situation where someone tells you something and part of it is true, part of it’s not maybe to help themselves?” she asked jurors.

Also on October 14, Schwartz asked Neil J. Firetog, the judge in the case, to recuse himself saying the judge had a longstanding bias against him and that it was damaging to his client. Observers said the exchange grew heated at points. Firetog refused to quit the case.

On October 13, Firetog twice warned Schwartz that he would hold him in contempt and fine him if he did not abide by the judge’s rulings when questioning witnesses during the trial.

AFER Supporter Gave Thousands to Anti-Gay Virginia Candidates

Paul Singer

The wealthy hedge fund manager who will host a September 22 fundraiser in his Manhattan home for the pro-gay marriage American Foundation for Equal Rights gave $125,000 to the 2009 campaigns of Bob McDonnell and Ken Cuccinelli, two Virginia social conservatives who have made controversial anti-gay moves in their first few months in office.

Paul Singer, the chief of Elliott Management, a multi-billion hedge fund, gave $100,000 to McDonnell, currently Virginia’s governor, between April of 2009 and September of that year and $25,000 to Cuccinelli, Virginia’s attorney general, in August of 2009. McDonnell and Cuccinelli are Republicans and Singer has a long history of making substantial donations to that party’s state and federal organizations and candidates as well as to right wing think tanks and policy groups.

After saying during his 2009 campaign that he was “completely supportive of policies of non-discrimination,” McDonnell issued a 2010 executive order banning discrimination in state government jobs that omitted sexual orientation as a protected class.

McDonnell’s predecessor, Democrat Tim Kaine, included that class in a 2006 executive order that banned such discrimination. Following a national outcry, McDonnell issued an executive directive, which does not carry the force of law, that said it was the policy of his administration to “prohibit discrimination for any reason.”

In March of this year, McDonnell told WRVA, a Richmond radio station, that laws banning discrimination based on sexual orientation may be unnecessary.

“I don't know that we need it based on the numbers that I’ve seen,” he said. “There really isn’t any rampant discrimination on any basis in Virginia. If you're going to have a law, it needs to actually address a real problem.”

When in Virginia’s legislature, McDonnell voted to exclude sexual orientation from a state hate crimes law, opposed same sex marriages, and backed an amendment to Virginia’s state constitution that barred any state recognition of same sex partnerships, either marriages or civil unions. The amendment’s language was so sweeping that some Virginia legislators thought it might bar unmarried couples, straight or gay, from entering into any type of contract. In 2006, when he was Virginia’s attorney general, McDonnell issued an opinion saying that the amendment “will not affect current legal rights and obligations of unmarried persons.”

McDonnell’s anti-gay views are longstanding. During the 2009 campaign, the Washington Post reported on August 30 that McDonnell’s master’s thesis from Regent University included harsh, anti-gay language.

“However, man’s basic nature is inclined towards evil, and when the exercise of liberty takes the shape of pornography, drug abuse, or homosexuality, the government must restrain, punish, and deter,” McDonnell wrote in the 1989 document.

Later in the thesis, McDonnell wrote “[E]very level of government should statutorily and procedurally prefer married couples over cohabitators, homosexuals, and fornicators. The cost of sin should fall on the sinner not the taxpayer.”

Cuccinelli sparked controversy early in his tenure when he wrote to Virginia’s state colleges telling them that since the state legislature had not barred discrimination based on sexual orientation or gender identity their policies should not ban such discrimination.

“It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ‘sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly,’’ Cuccinelli wrote in the March 2010 letter.

Like McDonnell, Cuccinelli has long opposed gay, transgender, lesbian, and bisexual community goals. In 2009, Singer also gave $10,000 to Jill Holtzman Vogel and $25,000 to Barbara Comstock, both are Republicans and social conservatives who won seats in Virginia’s legislature last year.

Singer has supported gay causes giving $100,000 to the Gay, Lesbian and Straight Education Network in 2003 and at least $100,000 to the National Gay and Lesbian Task Force, also in 2003. Singer gave $200,000 to oppose a 2009 Maine ballot initiative that successfully overturned a legislative enactment of same sex marriages there.

The New York Times reported on August 27 that Singer has given “$4.2 million to groups supporting gay rights and same-sex marriage.” Singer did not respond to an email seeking comment and further details on his pro-gay philanthropy.

The foundation hired lawyers David Boies and Ted Olson to sue to overturn Prop. 8, the 2008 ballot initiative that banned same sex marriage in California.

AFER Fundraiser: Check Your History at the Door

The invitation to the Sept. 22 fundraiser via towleroad.com

The gay and lesbian community awoke on August 27 to read an odd assertion in a New York Times story. Paul Singer, who runs a multi-billion dollar hedge fund, has secretly donated to gay causes.

“With no public disclosure, Mr. Singer has given more than $4.2 million to groups supporting gay rights and same-sex marriage, like the National Gay and Lesbian Task Force Action Fund, associates said,” Eric Lichtblau, the Times reporter, wrote in the story that presented Singer as a defender of Wall Street and representing a trend of finance industry campaign donations flowing to Republicans and away from Democrats.

Singer is hosting a September 22 fundraiser in his Manhattan home for the American Foundation for Equal Rights, the California group that hired lawyers David Boies and Ted Olson to sue to overturn Prop. 8, the 2008 voter initiative that banned same sex marriage in that state. A copy of the invitation was posted on towleroad.com.

Singer’s co-hosts are Ken Mehlman, the newly out gay man who helped the Bush White House organize anti-gay marriage ballot initiatives in 11 states in 2004 as part of a strategy to turn out conservative voters, and Peter Thiel, the former chief executive officer of PayPal, the web payment service, and now the chairman of Clarium Capital, another hedge fund. Reportedly, Thiel is gay.

When Mehlman came out in an August 25 story in The Atlantic it was clearly timed to coincide with the fundraiser so as an organizer of the 2004 campaigns it would seem that he was doing penance for those earlier anti-gay efforts. Singer and Thiel bring plenty of their own right wing baggage to this fundraiser. Call me cynical, but the same people who helped Mehlman spin his coming out may be helping Singer.

For years, Singer has been a reliable and generous donor to many state and federal Republican political organizations, candidates, and office holders including some of the most anti-gay members of that party, such as Rick Santorum and Bill McCollum, who lost a bid to become the Republican nominee for Florida’s governor’s office on August 24. Singer has also supported moderate Republicans and has donated to Senator Chuck Schumer, a Democrat. In New York, he has donated to Democrats and Republicans, but his largest donations have gone to the state Republican and Conservative parties.

In 2008, the Paul Singer Family Foundation gave $275,000 to the Manhattan Institute, a right wing group that has Singer as the chair of its board. Plenty of the experts at the institute have opposed gay marriage and other gay causes. The foundation gave the institute $30,000 in 2007. Also in 2008, the foundation gave $50,000 to the Witherspoon Institute.

On its web site, Witherspoon describes itself as “an independent research center that works to enhance public understanding of the moral foundations of free and democratic societies.”

Its fellows include Robert George, a Princeton University professor and a leading opponent of same sex marriage, and W. Bradford Wilcox, a professor at the University of Virginia who says he is less opposed to same sex marriage and more of a proponent of traditional marriage. Wilcox’s work is frequently cited by gay marriage opponents. Other Witherspoon fellows have been active in opposing the gay community.

In 2002, George, the chairman of the National Organization for Marriage, co-authored a friend-of-the-court brief for the Family Research Council and Focus on the Family, two conservative groups, in Lawrence v. Texas, a US Supreme Court case, that urged the court to uphold the Texas sodomy law. The court struck down the nation’s remaining sodomy laws in that case. In 2006, George was a co-founder of a religious coalition that supported an amendment to the US Constitution to ban same sex marriage.

George is the director of the James Madison Program in American Ideals and Institutions at Princeton and Singer is one of the program’s advisors. The program is affiliated with the James Madison Society which includes many conservative professors, with some noted opponents of the gay community, among its members. Wilcox is a member of that society.

In 2007, Wilcox received a “multi-year grant” from the Institute for American Values, a New York City group headed by David Blankenhorn who testified for the pro-Prop. 8 side at the trial. While he has been vilified in the gay community and in some of the mainstream press, his testimony was ultimately more helpful in striking down the initiative.

In research that may be aimed at same sex parenting, the Institute for American Values grant to Wilcox will fund research into “the ways in which parenting is gendered -- in both positive and negative ways,” how gender differences in parents are “related to child well-being,” and if gender differences “contribute to conflict between parents.” Blankenhorn’s institute also funded Dr. Kathleen Kovner Kline to do similar research in Denver.

The only donations by Singer to gay groups that I could find came in 2003 when the foundation gave $100,000 to the Gay, Lesbian and Straight Education Network and at least $100,000 to the National Gay and Lesbian Task Force. And, no, I am not taking the word of anonymous “associates” or the New York Times that Singer handed out over $4 million to gay causes.

Similarly, Thiel, the other co-host, has supported a mix of Republican candidates, office holders, and organizations with some of his cash going to moderates and other checks paid to anti-gay Republicans.

In 2008, Thiel gave $250,000 Federalist Society, a group of conservative and libertarian lawyers who support a reordering of “priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law” and $100,000 to the Hoover Institution, a conservative policy group at Stanford University. He have $75,000 to the Institute on Religion and Public Life in 2006. While claiming to be non-partisan, that institute was the creation and primary voice of Richard John Neuhaus, a neoconservative Roman Catholic priest.

This fundraiser for the American Foundation for Equal Rights looks increasingly bizarre. When donors to a gay group must hire publicists to plant stories about the alleged secret philanthropy of one to gay causes or another’s struggle with his gay feelings as he attacked the gay and lesbian community it seems to me that the message is that they have doubts about their commitment. Or they think the rest of us will question their motives. The solution would have been to approach Mehlman’s coming out with some humility, but I doubt he knows what that is.

UPDATE: A poster on Queerty.com noted that Singer donated to the campaign to defeat Question 1, a 2009 ballot initiative that overturned Maine's legislative enactment of same sex marriage. He did indeed give $200,000 to that effort in three separate donations. I will say this. What Singer gives with one check he takes away with many others. A Republican majority in Congress or any state legislature is a near guarantee that the bisexual, transgender, lesbian, and gay community will see no progress on our issues. It is clear to me that he wants Republicans in office. Additionally, he is supporting the think tanks and academics that vigorously oppose our community.

Target's Politics: The Exception or the Rule?

Appearing on Michelangelo Signorile’s radio show, Fred Sainz, a spokesman for the Human Rights Campaign, defended the group’s Corporate Equality Index saying that it gave bisexual, transgender, gay, and lesbian job seekers a way to assess a prospective employer’s policies.

The index asks, among several items, if employers have anti-discrimination policies that include protections based on sexual orientation and gender identity or do they grant employee benefits to the unmarried partners of their employees. With a possible maximum score of 100, employers can lose 15 points if they engage in “activity that would undermine LGBT equality.”

Sainz told Signorile on August 18 that the index helps people in “understanding the difference between a company being a very solid employer for LGBT people and, in fact, having progressive policies that all Americans don’t enjoy under federal law and understanding perhaps their more holistic persona when factoring in political contributions.”

Doubts about the index arose after Target, the Minneapolis-based retailer, gave $150,000 to MN Forward, a right wing 527 group, that used the cash to pay for television ads supporting Tom Emmer, a candidate for governor in Minnesota and a conservative who holds anti-gay positions. The Human Rights Campaign gave Target perfect 100s in the 2009 and 2010 indexes.

Signorile raised a question about the index -- how could a company that supports political views that are fundamentally at odds with the central goals of the transgender, lesbian, bisexual, and gay community score a perfect 100 on the index and why was it still listed after the disclosure of the MN Forward donation? The Human Rights Campaign ultimately delisted Target, but the gay rights lobbying group is missing a larger point.

Some quick and admittedly cursory searching at opensecrets.org, the web site operated by the Committee for Responsive Politics, shows that corporations that scored a 100 on the 2010 index have employees and directors who donated to pro-gay senators and representatives as well as the most anti-gay members of Congress. Companies with a perfect score that have their own political action committees were just as likely to have supported our friends as our opponents.

Notwithstanding their willingness to put in place a few pro-gay policies, corporations are generally agnostic or oppose the community on our political issues. This was evident in 2007 during lobbying for the Employment Non-Discrimination Act, a federal law that then barred discrimination in employment based on sexual orientation.

Back then, only nine companies and the University of Michigan lobbied in favor of the act. Some major business lobbies -- the American Benefits Council, the US Chamber of Commerce, the National Association of Manufacturers, and the Retail Industry Leaders Association -- were neutral on the bill. The Business Roundtable, an association of chief executives of U.S. companies, never disclosed its position. That neutrality should not be dismissed because it contributed to the employment act passing the House. It came at a very high price.

Using the definition of married in the 1996 Defense of Marriage Act, which says marriage is only between a man and a woman, the employment act said an employer cannot be required “to treat a couple who are not married in the same manner as the covered entity treats a married couple for purposes of employee benefits.”

In other words, a gay or lesbian couple who married in the six jurisdictions where such unions are legal are not recognized as legal spouses under the employment act and employers need not give the same employee benefits or any benefits at all to the spouses of their married gay and lesbian employees.

What makes this concession to these business interests particularly noxious is that back in the 80s and 90s, when the gay and lesbian community sought domestic partner benefits from employers, we demonstrated definitively that the cost of such benefits to employers was minimal. There is no reason to believe that the cost would differ when they are paid to the legal spouse of a gay or lesbian employee.

What we saw in 2007 was corporate America’s real view of the lesbian, transgender, bisexual, and gay community. Companies want our money and they will make pitches for it. They will give a few benefits, but when it comes to the important matters, health insurance for instance, companies are unwilling to spend serious cash though obviously there are exceptions to this.

The larger problem with the Corporate Equality Index is that it gives the impression that corporate America has our back. It does not. As we saw in 2007, when the interests of the transgender, lesbian, gay, and bisexual community are in conflict with what business wants, we lose.

Does NOM Chair Endorse Anti-Gay, Anti-Abortion Violence?

NOM Chairman Robert George

Publishing in the Yale Law Journal in 1997, Robert P. George, chairman of the National Organization for Marriage, explored the conflicts over some social issues and asked the question “Is it possible for people who sharply disagree about important questions of morality, including those pertaining to abortion and homosexuality, to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties?”

The Princeton professor and an influential conservative opinion maker spent nearly 17,000 words exploring the answer then summed up in a section titled “Civility, Reciprocity, and the Conflict of ‘Comprehensive Views.’”

It is possible, George concluded, “for citizens who differ fundamentally over certain basic moral questions to share a ‘deliberative’ conception of democracy that includes the mutually recognized obligations of citizens to treat those with whom they disagree with civility and respect.”

He cited “Democracy and Disagreement,” a 1996 book by Amy Gutmann and Dennis Thompson, as an example of those on the left who proposed a framework for tackling seemingly intractable issues.

“Their claim, rather, is that ‘reciprocity,’ which they consider to be deliberative democracy’s ‘first principle,’ demands that people recognize that others who come down on what they judge to be the wrong side of a disputed moral question may nevertheless be reasonable and honest people who deserve, therefore, to be reasoned with and treated with respect,” he wrote. But George equivocated.

“Yet reasoning with people and treating them with respect does not entail tolerating what one judges to be grave injustices so as not to offend those who judge otherwise,” he wrote. “Nor does it mean that one ought not to oppose injustices resolutely and forcefully in one's advocacy and action. Nor does it mean that one may not protest against injustices or even practice civil disobedience to prevent them. It does mean, however, that one has certain obligations to one's opponents, obligations that are not mere matters of politeness.”

That mildly ominous line had an endnote that read “For a succinct and, in my view, sound treatment of the morality of civil disobedience, see Finnis et al., supra note 46, at 354-57. On the vexed question of when violence may be used to combat injustices, see id. at 308-18.”

So it is a difficult question, but, in George’s view, apparently, violence can be used to fight injustices. But when?

The endnote referred to “Nuclear Deterrence, Morality and Realism,” a 1987 book by John Finnis, Joseph M. Boyle, Jr., and Germain Grisez. Like George, the authors are proponents of natural law theory, a 13th century philosophy that argues that moral truths can be discerned through reason and by observing man and the natural world.

As the title suggests the book is concerned with the moral questions that are raised by a central feature of nuclear war -- the idea of destructive weapons as implements that prevent violence. The pages that George cited wrestle with the inevitable killing of non-combatants, or “innocents,” that would result from a nuclear strike. Then there are some broader arguments.

“Justified social use of force is not limited to cases where those challenging just order are already attacking the lives of others,” Finnis and his co-authors wrote. “Also, as explained above, nothing in our moral theory limits the justifiable use of lethal force to cases in which human life is threatened. And so, just as a woman about to be raped can be justified in using lethal force against her assailant, so a society whose just order is about to be attacked by wrongdoers can be justified in using lethal force to defend itself.”

So when the “just order” of a society is threatened, that society can use force, even “lethal force,” to defend itself. In George’s world view, gay, lesbian, bisexual, and transgender people are not part of the “just order.” On the contrary, we threaten it.

George is a vocal opponent of same sex marriage. He has argued for criminalizing homosexuality. In 2002, he co-authored a friend-of-the-court brief for the Family Research Council and Focus on the Family, two conservative groups, in Lawrence v. Texas, a US Supreme Court case, that urged the court to uphold a Texas sodomy law. The court struck down the nation’s remaining sodomy laws in that case. George aided Colorado in its defense of Amendment 2, a 1992 law passed by voters in that state that barred any government entity there from enacting a regulation or law that banned discrimination based on sexual orientation. The US Supreme Court struck down Amendment 2 in 1996.

The American right wing has been saying for some time that they are subjected to discrimination, harassment, and even violence for expressing their views. In fact, it is lesbian, transgender, bisexual and gay Americans who endure violence, but that has not stopped conservatives from complaining publicly and in federal court cases that they are victims. Finnis and his co-authors have a comment on such a circumstance.

“Moreover, those who are mounting a serious challenge to just order and backing that challenge with the threat of force, even if they are not already threatening the lives of others, are almost certainly ready and willing to escalate their challenge to the point of killing,” they wrote. “Hence, if authorities reasonably judge that a particular challenge to just order cannot be met without using lethal force, its use will almost always be in defence of life as well as of other values included in and protected by just order.”

George did not respond to an email seeking an explanation.

Robert George responds:

In my opinion, there are no circumstances under which violence could be justified in any cause connected to sexual morality and marriage. It would be profoundly morally wrong for anyone on either side, or any side, to resort to violence (or the threat of violence or intimidation). Both sides, or all sides, are strictly morally obligated to use nonviolent means.

In a constitutional democratic polity such as ours, the currency of politics is reasoned argument. We all have the moral right to participate in the process and attempt to persuade our fellow citizens of the soundness or our views and the unsoundness of our opponents’ positions. Where people disagree about the requirements of justice and the common good, they should treat each other with respect even as they strongly argue for the positions they regard as true. I have no problem with the rough and tumble of democratic politics. Elections are not philosophy seminars. But I have a big problem with violence in any cause or for any political reason. I don’t mind politicians or political groups on all sides running aggressive and even negative ads or engaging in peaceful and respectful protests. That’s free speech, and it is protected by our Constitution. But violence and intimidation are different matters altogether, and have no legitimate place in our politics.

You asked when I believe violence can be justified to fight injustices. My answer is in line with traditional just war theory, except that I reject punitive war (which many traditional defenders of just war regarded as legitimate). (So I believe that war must be declared or launched by legitimate authority, be for defensive purposes, respect non-combatant immunity, etc.) I argued in a piece in the Wall Street Journal a few years ago that pre-emptive attacks against unjust aggressors who were themselves in the course of planning murderous attacks on others could legitimately be classified as defensive, and were therefore potentially justifiable. (I say “potentially” because any particular pre-emptive attack might be unjustified for other reasons. My point is only that one cannot infer from the fact that an attack is pre-emptive that it is something other than defensive. A pre-emptive attack might very well fail to qualify as defensive. But if such an attack fails to qualify as defensive, it is not necessarily because it is pre-emptive.) I realize that this position is controversial among just war theorists. Many believe that pre-emptive attacks by definition fail to qualify as defensive.

Anti-Gay Policies Made Sense in '97: More Socarides Memos

Former Clinton Advisor Richard Socarides

As a lawsuit brought by the Log Cabin Republicans that challenges the military’s Don’t Ask, Don't Tell policy opened on July 13 in a federal court in San Diego, Richard Socarides, a former advisor on gay issues in the Clinton White House, told the Associated Press that the defense of the policy by the Obama administration was nonsensical.

“On the one hand, [President Barack Obama] has said he's working hard to stop these discharges,” Socarides said. “And on the other hand, the Justice Department is spending taxpayer dollars defending their ongoing right to kick people out.”

What must also be nonsensical then is that, as Gay City News reported, Socarides aided the Clinton administration in deflecting criticism of Don’t Ask, Don’t Tell by drafting presidential debate talking points in 1996 that advised President Clinton to dodge the issue. Socarides continued to aid the White House on that issue into 1997.

In February of that year, the Servicemembers Legal Defense Network, a group that assists lesbian and gay servicemembers, was preparing to release a report showing that discharges under Don’t Ask, Don’t Tell had increased by 42 percent since the policy was implemented. White House staff contacted the Pentagon to head off “any combative language” and Socarides told people at 1600 Pennsylvania Avenue what to say.

“The policy was intended to provide an opportunity for continued service to those willing to abide by the new policy,” Socarides wrote in a February 25, 1997 memo titled “Draft Talking Points: SLDN Report on Gays in the Military” that was downloaded from the Clinton Library. “While we have not had an opportunity to review the report, the allegation that the policy is not being implemented fairly, if true, is quite troubling.”

Socarides noted that then Defense Secretary William Cohen had “instructed his staff to investigate the allegations and any other relevant information to determine what is happening” and that “Secretary Cohen has indicated that violations of either the letter or the spirit of the policy will not be tolerated and the President, of course, concurs in this judgment.”

With appearances on cable TV, quotes in the mainstream press, and a recent editorial in the Wall Street Journal, Socarides is a leading critic of the Obama administration who whips the current White House for failing to undo the policies that Socarides’ former boss put in place.

This nonsensical posture does not end there. Just as Socarides drafted 1996 talking points that defended Clinton’s support for the Defense of Marriage Act, the 1996 legislation that barred the federal government from recognizing same sex marriages and allowed state governments to do the same, he aided Clinton in responding to a 1997 announcement from the Democratic National Committee that it would begin providing health benefits to the domestic partners of its employees.

In a May 14, 1997 memo titled, “Talking Points: DNC/Domestic Partner (Health Care) Benefits for Same Sex Partners,” Socarides wrote that businesses and non-profit organizations had the option of providing such benefits. What the DNC did was its business.

“Decisions relating to employee benefits are made by the Chairman and senior DNC management,” Socarides wrote. “The White House was made aware of the policy change at a staff level.”

And the president’s position on such benefits?

“The President is aware that many communities and institutions are considering whether basic benefits can be provided outside the context of traditional marriage,” Socarides wrote. “The challenge in addressing these issues is to remain sensitive to the values of our communities while preserving the fundamental right to live free from unjustified discrimination.”

Roughly two months later, Socarides issued another set of talking points on domestic partner benefits that recommended neutrality.

“While I'm sympathetic to many of the concerns raised, I think we will have to moniter (sic) for a time how these policies work in practice and take a hard look at what's happening in the private sector and in communities which have instituted such policies,” Socarides wrote in a July 21, 1997 memo titled “Domestic Partner Proposed Talking Points.”

Nonsensical indeed.

Using Faggot Isn't Anti-Gay, Judge Asserted

Joseph Holladay on July 1, 2009, three days after the assault

Before he laid out his reasons for dismissing the hate crime charges against Driton Nicaj, a now 20-year-old who was indicted on two counts of third degree assault as a hate crime in the 2009 attack on Joseph Holladay, Judge Ronald A. Zweibel turned to his copy of the Oxford Dictionary of the English Language, which was published in 1982, for a definition of the word “faggot,” the slur Nicaj used during the assault.

“[T]he Oxford Dictionary makes no reference to faggot meaning a male homosexual, which is not surprising given that it is not a common slang usage in the United Kingdom,” Zweibel wrote in the December 10, 2009 decision dismissing the charges. “The origin of the term faggot to derogatorily refer to a homosexual male is obscure and subject to much urban legend.”

The gay men, like Holladay, who have heard that word before, during and after an attack know all too well that it comes from prejudice and violence. Its meaning is as clear as the blow from a fist, the wound from a knife or bullet, or the pain that lingers long after the cuts, bruises, and broken bones have healed.

In his 12-page decision, Zweibel spent a page-and-a-half pondering the word “faggot.” When it seemed he would assert that Nicaj’s meaning was unclear, Zweibel concluded that in the United States “a person of ordinary intelligence would take it as a derogatory term for a male homosexual and no reasonable person would infer that respondent was calling the alleged victim a bunch of twigs.”

Nicaj’s assault left Holladay unconscious and put him in the hospital. Roughly 24 hours later, Nicaj attacked two others, also gay men if 2009 press reports are to be believed, with the attacks taking place 30 minutes apart. One of those men had a broken nose and three skull fractures requiring six hours of surgery to insert a metal plate in his head. It is beyond offensive for Zweibel to muse at length on the meaning of “faggot” given what these men endured.

In a deal with the Manhattan district attorney, Nicaj pleaded guilty to the assaults and was sentenced to 45 days in jail and three years on probation. He began his sentence on May 20 and was released on June 9 after accounting for time served and good behavior.

Zweibel also looked like a fool. It did not occur to him that consulting a 28-year-old dictionary is a mistake when one is trying to look clever. “Faggot,” the anti-gay slur, has been among the definitions of that word in the Oxford English Dictionary since 1989 and the 2005 edition of the Oxford American Dictionary has the slur as the first definition of the word.

Just as offensive was Zweibel’s tortured reasoning on what was shown by Nicaj’s use of “faggot” as he committed the assault. Zweibel called it “just typical trash-talking” in his decision. It was not evidence of Nicaj’s motivation or state of mind.

“First, there is no evidence that the alleged victim is a homosexual,” Zweibel wrote. The New York state hate crime statute does not require that the victim be a member of the law’s protected classes, which include sexual orientation. The defendant need only believe that the victim belongs to those classes. How would we know what Nicaj believed? According to Zweibel, what he said during the assault is not evidence of what he was thinking at the time.

“Second, there is no evidence that defendant believed that the alleged victim was a homosexual -- except for the fact that he called him one,” Zweibel wrote.

Saying that this could lead to bizarre cases, Zweibel went on to list fictional cases in which “calling a Jew a wop” or “calling a black person a white Aryan bastard” or “calling an atheist or agnostic a Christian or Islamic fascist” could lead to a prosecutor charging a hate crime.

“The law does not countenance absurd results such as this,” Zweibel wrote.

The problem with American hate crime laws has never been that they lead to “absurd results.” The problem has always been that they are not used by law enforcement and prosecutors. Clearly, we have a problem with some of our more benighted judges as well.

City Discloses Wider Porn Shop Arrest Effort

Blue Door Video on First Avenue

Speaking at a hearing on four federal civil rights lawsuits brought by five men who charge they were falsely arrested for prostitution in porn shops and a spa by New York City vice cops, an attorney for the city said police made such arrests in 10 businesses from January 2007 to the end of 2009.

Attorneys for the five men have argued that the city made the arrests so it could later cite them in nuisance abatement lawsuits it brought to try and shut the businesses down. Tonya Jenerette, a senior counsel in the city’s Law Department, said that the city’s data did not support that.

In the three-year period, 75 lawsuits brought against businesses by the police department’s legal unit cited prostitution arrests, but just eight of the 75 cited arrests of men, Jenerette said. Two of 24 lawsuits that cited prostitution arrests brought during that time by the Mayor’s Office of Special Enforcement cited arrests of men.

“Their theory of the case is just nonsense,” Jenerette said at the July 7 hearing before Judge Shira A. Scheindlin. Jenerette did not say how many men were arrested altogether and she declined to comment following the hearing.

Reporting for Gay City News, I previously identified six porn shops and two spas in which men were arrested for prostitution by officers in the Manhattan South Vice Enforcement Squad in 2008. Among the six porn shops, only five were sued by the city so it is possible that there are additional businesses where such arrests were made, but they are not included in Jenerette’s data because those businesses were never sued. At least 30 men were busted in the six porn shops. Eleven men and one woman were busted in the two spas.

Attorney Michael L. Spiegel is representing three men who were busted in Unicorn DVD on Eighth Avenue and one man who was arrested in a 34th Street spa. James I. Meyerson is representing Robert Pinter, a gay man who was arrested in Blue Door Video on First Avenue and blew the whistle on the city in late 2008. It appears that the police department largely stopped making these arrests after Pinter went public. A man who was arrested in an East 37th Street spa is suing the city in state court.

While interesting, Jenerette’s data does not disprove the plaintiff’s theory. It may supply more information to bolster that theory. Then the plaintiffs never claimed that they were the only population targeted by the police.

What Jenerette’s data clearly does not explain is the improbable nature of these arrests. In Blue Door Video, eight of the 12 men arrested were between 42 and 54.

These arrests were made by the same crew of undercover officers who were identified only by their badge numbers in criminal and civil court records. Just two officers -- 3371 and 31107 -- made most of the porn shop arrests. Undercover 3371 is known to have busted at least 16 men. Four were 27 or younger, six ranged in age from 32 to 38, and another six were 41 to 49. Four of the seven men that 31107 arrested ranged from 34 to 37 and two were 43 and 44. The oldest, Pinter, was 52.

In a December 3, 2008 email to me, Paul J. Browne, the police department’s chief spokesman, wrote that “So far in 2008, 31 out of 179 men who were arrested for prostitution-related offenses in Manhattan South were above the age of 40. In other words, 82.7 percent were younger, often in their 20s.”

Or, in other words, male prostitutes arrested in Manhattan South, which ranges from 59th Street to the bottom of the island, were overwhelmingly younger men. So how does one explain this concentration of older male prostitutes arrested in Blue Door Video and other porn shops?

What Pinter and other men who were arrested said was they were first approached by a young, attractive man who flirted aggressively with them. After they agreed to consensual sex, with the young man insisting that the sex take place in his nearby apartment or car, the young man then said he would pay them for the sex. The offer of money usually came right before the arrest.

It certainly looks like the city was less interested in addressing prostitution and more interested in racking up arrests to be used in closing porn shops, an industry that the city has been attacking for decades.

In 2008, police arrested 151 men, 329 women, and 32 people whose gender was “unknown” for prostitution in Manhattan, according to statistics from the state Division of Criminal Justice Services. In 2009, police arrested 57 men, 247 women, and 28 people of “unknown” gender for prostitution in Manhattan. Inexplicably, prostitution arrests in Manhattan fell by 35 percent in 2009 over 2008. In the other four boroughs, prostitution arrests were stable or increased in 2009 over 2008.

I know from reviewing roughly 35 nuisance abatement lawsuits brought by the city in 2008 that the undercover officers who arrested men in porn shops and spas also frequently worked together arresting women for prostitution and unlicensed massage in other businesses.

What the state data suggests is that when the gay community objected in late 2008 to the police tactics used in these arrests, the bosses at One Police Plaza flipped a switch and Manhattan prostitution arrests plummeted in 2009. That may be due to the city not caring so much about prostitution and caring more about shuttering porn shops, spas, and massage parlors. Of course, that also means that Jenerette is wrong.

Adventures in Transparency or What a Difference a Federal Subpoena Makes

Manhattan District Attorney Cyrus R. Vance

I have watched with some envy, perhaps a lot of envy, as attorney Michael L. Spiegel has battled with the Manhattan district attorney over access to records he subpoenaed as part of three federal civil rights lawsuits he brought in 2009 on behalf of four men who were busted by vice cops for prostitution in a porn shop and a spa.

Spiegel’s theory, as described by Judge Shira A. Scheindlin in a June 22 order, is that “their arrests were not only baseless, but were part of an unconstitutional program by New York City to pursue nuisance abatement lawsuits against businesses by making false arrests for prostitution at the business sites, then using the facts of those arrests to bolster the City’s efforts to close those businesses.”

To show such a program, Spiegel needs more than just his clients’ arrest records so he sought documents from two investigations into the arrests done by the district attorney -- one by the Official Corruption Unit and the second by attorneys in the Trial Division. The district attorney objected.

On June 22, Scheindlin largely gave Spiegel everything he sought allowing limited redactions to the records. Given my experience with Freedom of Information requests sent to the district attorney, it was refreshing to see that one branch of government takes transparency seriously.

Before Scheindlin issued her order, I made a Freedom of Information request to the district attorney seeking some of the same records that Spiegel sought. I was not at all surprised when I was granted access to just three pages of records out of the dozens I sought.

In 2008, when Gay City News first reported that at least 30 men had been busted on prostitution charges in at least six Manhattan porn shops, I made a Freedom of Information request to the district attorney seeking all criminal complaints alleging prostitution by men in Manhattan in 2008. The district attorney’s office, then under Robert Morgenthau, denied me access to every single complaint saying in 2009 that they were the subject of a “pending DANY investigation.”

What I knew then was that at least 179 men had been arrested for prostitution in the police department’s Manhattan South unit, which ranges from 59th Street to the bottom of the island. I assumed, with some doubts, that every one of the 179 arrests was being scrutinized. As Spiegel tussled over his subpoena, the district attorney made filings this year in federal court that described the scope of the two investigations. Together, they reviewed, at most, 37 arrests and the real number is probably closer to 20 with the two investigations weighing at least some, perhaps all, of the same arrests. While 20 percent, at best, of the prostitution complaints against men were being investigated, the district attorney used the pretext of the investigation to deny me access to all those records. Did the district attorney’s office lie to me? Perhaps. There may have been another reason for this subterfuge.

When Assistant District Attorney Sarah Hines first responded to my 2008 request, she wrote that she was trying to find a “practical and feasible way” to fulfill my request. In other words, she had to figure out how to separate the hundreds of complaints alleging prostitution by women from the far smaller number charging men with that crime without reading every complaint. The district attorney was being lazy. But that’s not all.

I have from time to time sent Freedom of Information requests to the city’s five district attorneys seeking criminal complaints alleging public lewdness against men. I do this to assess the extent to which the New York City police department is targeting gay and bisexual men for arrest in cruising spots. Alone among the city’s five district attorneys, the Manhattan district attorney has consistently denied me access to pending cases and blacked out the names of the men arrested to prevent me from speaking to them. The consistent figure in these denials has been Patricia J. Bailey, chief of the Special Litigation Bureau, the same unit that handled Spiegel’s subpoena.

It is apparent that Bailey possesses the mindset that sees New York’s Freedom of Information Law as a threat to the bureaucracy that has nurtured her career since 1986. Knowing this, and given that Manhattan had a new district attorney in Cyrus Vance, I decided to try an end run around her.

When my Freedom of Information request for some of the records that Spiegel had subpoenaed was denied, as I fully expected it would be, I sent an appeal to Bailey with a copy to Vance. At his home.

I laid out the recent history with Hines and the longer, more troubling history with Bailey. In closing, I told Vance that it was “past time that your agency obeyed the provisions of the Freedom of Information Law.” Apparently, he disagrees. On June 11, my appeal was denied in its entirety. I have heard nothing from Vance.

I had hoped that with Vance’s 2009 election that there would be more sunshine coming from the Manhattan district attorney’s office, but it appears that will not be the case.

Bloomberg Backs Down on HASA Cuts

Threatened with a court battle by Housing Works, a leading AIDS service organization, the Bloomberg administration abandoned plans to cut 248 of the current 850 case manager positions at New York City’s HIV/AIDS Services Administration.

“We will not be attritting out or redeploying any of the HASA case managers,” said Roy A. Esnard, the general counsel at the city’s Human Resources Administration, at a June 24 hearing in federal court before Magistrate Judge Cheryl Pollak. “That leaves in place the 248 case managers.”

Facing a shortfall of $4.9 billion in the city’s $63 billion budget for the 2011 fiscal year, which begins on July 1, Mayor Michael R. Bloomberg proposed eliminating the case managers to save $4.2 million in the $8.8 billion HRA budget. The AIDS agency is part of HRA. On June 22, Housing Works went into federal court seeking a restraining order to bar the city from making the cut.

On behalf of several HASA clients, Housing Works sued the city in 1995 over a number of issues related to the agency’s operations including the ratio of case managers to clients. In 1997, the City Council enacted a law requiring the AIDS agency to maintain a ratio of one case manager for 34 clients. That ratio was litigated in the lawsuit and Housing Works won a 2001 ruling requiring the city to follow the 1997 law. The latest motion asked the court to enforce the earlier ruling.

“I think that the order in this case couldn’t be clearer,” said Armen Merjian, a senior staff attorney at Housing Works, following the June 24 hearing. “The proposed cuts are clearly illegal.”

Settling the issue is complicated because the Bloomberg administration has already submitted the 2011 budget to the City Council which is expected to vote on it within days. The city and Housing Works agreed that they would sign a stipulation by the end of the day on June 25 to memorialize the deal.

Pollak also made clear that she was ready to rule, at least temporarily, for Housing Works.

“Frankly, the temporary restraining order is ready to go,” she said though she added that her preferred solution was a stipulation.

The case managers enroll people with AIDS in food stamp, Medicaid, housing, and other programs. While private AIDS groups offer many services to their clients, only the city case managers can link people with AIDS to government benefits. Currently, HASA serves roughly 45,000 people with AIDS and their dependents.

“We are delighted that the city has decided to withdraw a series of cuts...cuts that would have destroyed HASA,” Merjian said. “Forty-five thousand people with AIDS will breath a sigh of relief today.”

During his eight years in office, Mayor Rudolph Giuliani repeatedly tried to gut or close the AIDS agency. Until this year, Bloomberg has not attempted that. In prior years, the City Council has usually restored such cuts. This year some members objected to the cuts, but it was not clear that they would vote against the budget if it contained the proposed cuts, in part, because they knew Housing Works was likely to sue Bloomberg.

Joining Housing Works in seeking the federal court ruling were the law firm Emery, Celli, Brinckerhoff & Abady, the HIV Law Project, and attorney Virginia Shubert.

The city’s Law Department and an attorney representing state Attorney General Andrew Cuomo joined HRA in first opposing then acceding to Housing Works.