From: mhulsey@hestia.fcs.uga.edu (Martin Hulsey)
Subject: Re: Silver Spring Monkeys
Followup-To: talk.politics.animals
Organization: Dept. Foods & Nutrition, Univ. of GA
Date: Sat, 23 Jan 1993 20:25:35 GMT

Note: In this exchange, I have referred to the Maryland anti-cruelty law as
Article 59.  In fact, I am referring to Article 27, section 59 of the
Maryland code.  I apologize for the confusion.


In article <1993Jan20.180518.16286@clpd.kodak.com>,
black@che.serum.kodak.com (Robert Black (x37236)) writes:

>[...]
>
>>> Maybe we should use the court's words (thanks for faxing me a copy of
>>> the Appeals Court ruling) which were: "[the statute] is inapplicable to
>>> Dr. Taub and the laboratory and thus the charges against him should be
>>> dismissed."
>>
>>I knew that I could count on you to selectively cite this document as well.
>
>I cited a passage which summed up the outcome.  And this passage is
>worded more favorably toward Taub than the opening paragraph or the
>next-to-past paragraph, both of which mention the federal funding
>aspect.  I'm not sure why you're jumping all over me here. 

Let me explain.

The central issue surrounding the Appeals Court's opinion regards PETA's
long-standing claim that Taub's sole conviction was overturned on a
jurisdictional technicality that did not address the charges of cruelty.

You now attempt a Lawrencian maneuver by avoiding the real issue, and
suggesting that an opinion, which completely exhonorated Taub, contains
passages that are "unfavorably worded" against him.

Would you say that the opinion contains issues in addition to the
jurisdictional technicality that PETA maintains as the sole issue?

>Anyway, I reread the entire judgment more slowly and carefully, trying to
>project myself into your head.  I now think I see where you're coming
>from.  The short paragraph, starting at the bottom of page 5 says:
>
>        It can readily be seen that the legislature has consistently
>        been concerned with the punishment of acts causing "unnecessary"
>        or "unjustifiable" pain and suffering.  Furthermore, clearly the
>        legislature recognized that there are certain normal human
>        activities to which the infliction of pain to an animal is purely
>        incidental and unavoidable and, in such instances, section 59
>        does not apply.
>
>First, this paragraph does not name these "normal human activities."
>So apparently the court accepts those listed in Article 59.

You are falsely implying that section 59 would limit the "normal human
activities" to those listed.  In fact, section 59 prefaced the list of
examples with the phrase "...such as..." to imply that the list contained
*examples.*

If I said "...posters such as Bob Black and Socrates Lawrence...," would
you assume that Bob and Socrates comprised the entire set of posters?

>Secondly, it's true that article 59 exempts certain activities and it
>lists some examples of exempted activities.  Interestingly, animal
>research is not included among these examples.

As discussed above, this doesn't matter.  Give it up, Bob.

>This would explain why
>Pacheco had previously been advised that article 59 did not apply to
>animal research. 

Not really.  Perhaps Pacheco consulted the "Valerie" person that Ingrid
refers to in her new book instead of a lawyer, who would have known better.
 Anyway, Pacheco obviously consulted a person who, like yourself, has a
poor understanding of the phrase "such as."

>The next few paragraphs of the decision mention that the legislature,
>which passed the law, was aware of the federal AWA, of the existence of
>USDA regulations, and of the existence of NIH regulations.  Then the
>summing up:
>
>        Accordingly, we do not believe the legislature intended
>        section 59 of Article 27 to apply to this type of research
>        activity UNDER A FEDERAL PROGRAM [emphasis mine].
>
>Your case seems to built on that lone paragraph cited above from page
>5.

No, my "case" is built on the existence of issues other than the technical
jurisdictional technicality.

>Even if you were correct, can you see how most people reading this
>would not arrive at the conclusion you reached?  ...and not necessarily
>out of some duplicity?

No, the "duplicity" arises when you acknowledge the jurisdictional issue,
and deny any others.

Perhaps you have misunderstood my position.  I have argued that the opinion
involved the jurisdictional technicality cited above, *as well as* the
issue on page 5 (that, regardless of the source of funding, article 27
section 59 would also exempt biomedical research, a "normal human activity"
that involves "necessary and justifiable" pain).  In addition, the opinion
noted the potential for human benefit in Taub's work.

You suggested previously that courts often "dodge" issues.  I submit that
this opinion does quite the opposite.  If this court wanted to dodge the
issue of cruelty here, it would not have gone to the trouble of discussing
the other two points, but would have stopped with the points that it
declared to be "dispositive."

No amount of manuvering on your part will conceal the fact that the case of
the Silver Spring monkeys was a clear defeat for PETA.  They have salvaged
their image by continuing to suggest that Taub was cruel to his monkeys
despite the fact that he was fully exhonorated.

>>> Note that the court did not say that no cruelty had taken place.
>>
>>Wrong.  In directing Montgomery County to "dismiss all information"
>>(charges of cruelty) and bear all court costs, that is *exactly* what it
>>said.
>
>I'm not sure I follow you here.

You choose not to.

>Are you saying that by directing
>Montgomery County to pay all court costs, the Appeals Court was saying:
>"No cruelty took place in Dr. Taub's lab?"  This seems like quite a
>stretch.

Maybe so.  I'm sorry that I even mentioned the court costs, because it gave
you an excuse for another Lawrencian manuver.  You overlooked the real
issue in the preceding clause:


           ========>     "dismiss all information"      <========


When Taub was convicted of *cruelty*, and the Appeals Court directed
Montgomery County to "dismiss all information (charges)" against Taub, they
were, in effect, saying that no *cruelty* took place.  How can you and PETA
argue otherwise?  This would seem slanderous toward Taub.

>A couple questions:
>
>        Isn't the court really implying that the occurrence or 
>        non-occurrence of cruelty is not directly relevant to its own
>        verdict, since other (federal) agencies already exist to address 
>        that?

They did not say "irrelevent," they said "dispositive."  This means that
this issue was sufficient to dispose of the case.  It is noteworthy that
the opinion did not stop there although it could.  See below.

>        Isn't it routine to pass the cost back to the county when the
>        verdict is against the prosecution, independently of the 
>        reasoning behind the verdict?

Yep.  As I said above, I'm sorry that I brought the "court cost" issue up
at all.

>[...]
>Where does the court opinion "clearly state that Taub's research ... falls
>under the classification of normal human activities?"

In retrospect, I should have said "clearly indicates..."  See above.

>[...]
>>>Basically the court ducked the central issue, as courts sometimes do in controversial cases. 
>>
>>The court ruled that the jurisdictional issue was "dispositive."  It could
>>have stopped there, but it went on to outline the chronology of Article 59,
>>and to indicate why Article 59 does not apply to biomedical research.  It
>>could have stopped there, but the opinion also acknowledged the potential
>>role of Taub's research in treating humans victims of stroke.
>
>Where was the mention of stroke in the court's verdict?

Another case of selective dyslexia, Bob?  Page two, paragraph one, sentence
one states, "...Dr. Taub, under an NIH grant, was conducting research to
gain information to help retrain human beings afflicted with a stroke."

>>Therefore, PETA's claim that the opinion did not address the charges is, at
>>the least, misleading.  I was hoping that, by providing you with a copy of
>>the document, you could see this also.  I should have known better.
>
>I'm not sure what PETA claim you're referring to here.  Here's what
>Pacheco wrote:
>
>        The court ... ruled that animal experimenters who receive federal
>        tax funding do not have to obey the State anticruelty laws.  No
>        matter how heinous the deeds committed by an animal experimenter
>        in Maryland, the court held that the experimenter could not be
>        prosecuted.  Sadly, the court did not consider whether or not
>        Taub had treated the monkeys cruelly.
>
>Do you really see a conflict between what Pacheco wrote and what the
>Appeals Court wrote?

Yep.  Pacheco is really reaching here.  Where, precisely, does the opinion
indicate or even suggest that "heinous deeds" would be excluded?

Section 59 of article 27 would exempt "necessary and justifiable" pain
inflicted in "normal human activities" such as bona fide biomedical
research.  Section 59 would not exempt any "heinous misdeed" as Pacheco,
you and Russell imply.

The suggestion that the court "did not consider whether or not Taub had
treated the monkeys cruelly" implies, contrary to Taub's full exhonoration,
that Taub was cruel after all.  I consider this slanderous toward Taub.   

>>>[...]
>>> Pacheco believed that the case would hinge on a *consistent pattern*. 
>>> He was concerned that, without establishing this consistent pattern, the
>>> whole case was vulnerable to dismissal on grounds of being an isolated
>>> and unrepresentative incident. 
>>
>>There was no "consistent pattern" except that which Pacheco, by his
>>inaction, perpetuated during Taub's vacation.
>
>In your opinion.

Do you deny that, with a mere phone call, Pacheco could have notified Taub
or some other responsible authority and ended the suffering of the monkeys?
 Remember, this is the *same* suffering that he claims to be so concerned
about

>[...]
>
>I wasn't talking about a job in a laboratory.  I was referring to the
>type of experience which would allow one to examine a confined area
>where animals were kept and then render an informed judgment regarding
>the conditions and quality of care.  It's this type of experience which
>would be relevant.

Regardless of the experience of the observer, why would you weigh the
assessment of a chaperoned inspector more readily than an unannounced
inspector.

>But in any event, wouldn't Donald Barnes, with 17
>years of laboratory research, meet anyone's qualifications?

Perhaps, but remember that Barnes and the others saw the lab *only* while
Taub was absent on vacation, and after BOTH caretakers mysteriously stopped
coming in to work.

Contrary to your implication, this "evidence" does not indicate anything
about husbandry conditions at other times, when Taub and the caretakers
were at work.  Remember that the charges regarding husbandry conditions in
Taub's lab were entirely dismissed.

Why do you continue to imply wrongdoing on Taub's part?  If it us based on
what Pacheco wrote in his journal, remember that he was not allowed to
admit this into evidence in court.

>[...]
>Please be more specific.  Are you accusing these gentlemen of lying in
>their signed affidavits in an attempt to influence the upcoming hearings?

No.  But the upcoming hearings would make them anxious to donate their
"expert" opinion to the "cause" that Pacheco was promoting.

>[...]
>>Even if we accept your opinion of the USDA (and I don't), it provides no
>>justification for Pacheco's actions or PETA-supported laboratory invasions.
>
>Nor was it intended to.  It was an expression of concern about how
>dedicated and effective the US Department of Agriculture would be
>in monitoring all the animal research labs throughout the country. 

Hey, its easier said than done.

How much would you spend to monitor laboratories as opposed to doing
research?

>[...]
>>He/she was right.  They were Pacheco's fabrications.
>
>Where did he/she say that the conditions were Pacheco's fabrications?

Where did I claim that he/she said such?

>[...]
>>Without diverting to an argument based on economic considerations, how
>>would you change the "status quo" regarding animal research to protect the
>>interests of human and non-human animals?
>
>I thought I had addressed this even to the point of naming some specific
>individuals who could be placed on review boards.  

On second thought, you are correct.  However, I'm not impressed with your
nominations.  I might accept Barnes' opinion, but if the likes of Reines or
Barnard ever sit in judgement of my research, I will move.

Despite skillful moderation by James Hoskins, the Lawrence Review Board was
unable to arrive at a decision on ONE EXPERIMENT after weeks of debate
about "universal" ethical principles.  Before I witnessed that fiasco
(thankfully, a simulation), I was in favor of more public input on IACUC
committees.  Now, I am absolutely opposed to the idea. 

>[...]
>Again your opinion.  Should Pacheco have supplied eyeglasses?

Come on,  Bob.  Any reasonable person would have tried to correct the
situation immediately.  The (unlikely) possibility that Taub would not act
is absolutely no excuse for not calling someone else.  Pacheco actions were
not reasonable from the standpoint of animal welfare.

>>In my analogy, how could you justify not informing Russell that his dogs
>>were not being cared for?
>>
>>In this instance, how can you justify not informing Taub that his animals
>>were not being cared for?
>
>Sigh.

Why are you reluctant to address these issues?

>[...]
>This doesn't make sense.  If a prosecutor has information relevant to a
>case he is prosecuting, is he not under legal obligation to disclose it?
>What about other citizens? Is anyone allowed to withhold information?

After further consultation with a more experienced litigator (another
acquaintance), I discovered that Taub's lawyers should have filed a "Brady"
motion of discovery, which, in essence, says "give me everything that you
have."  If Taub's lawyers filed such a motion, then Galvin would risk
disbarment in withholding the pathology report.  If Taub's lawyers failed
to file such a motion, then Galvin would be under no obligation to provide
such information.  

>[...]
>
>Supply the evidence of wrongdoing by Galvin and I'll try to get it to
>him for his comments.  I'll even try to word my letter (within reason)
>in a way that would satisfy you.  But the evidence should consist of
>something more than statements from Taub. 

As discussed above, we cannot determine malfeasance on Galvin's part until
we know the actions of Taub's defense.  If you do decide to contact him, I
would like to know how he justifies his withholding of the report, and the
repetitive implication that Nero had osteomyelitis in his closing
arguments.

You said above that you tried to "project yourself into my head."  I would
prefer that you try to get into Taub's.

How would you feel if you were a victim of the tactics described above?

How would you feel if you had to spend huge sums of your own money to
defend yourself against bogus charges?

How would you feel if your career was interrupted for eight years?

How would you feel if you were totally exhonorated in court, yet a national
organization, with a powerful PR organization, and a multimillion dollar
budget persisted in implying your guilt for a decade?

Think about it.

--
mhulsey@hestia.fcs.uga.edu (Martin G. Hulsey)
Neuroscience, NRA-ILA, SSIB, NAASO, IASO
Newsgroups: talk.politics.animals