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Kenneth Feld outside the courthouse after his day on the stand (March 3) (Photo by ESWR)
Docket text in HTML (latest entry, 3/23/09)
Born Free USA/API trial links: Go here for a page of exhibits posted by Born Free USA united with Animal Protection Institute. The group has organized the exhibits -- both documents and video -- by category, making it easy to find what you're looking for. It's definitely worth a gander. Now if only they'd link to this page...
April 2
Thursday, March 26
March 19
Sat., March 14
A lot of exhibits from Feld Entertainment. Ken, Ken, are you tryin' to bankrupt me? Read 'em and weep, as my old man used to say. Of course, he wasn't talking about elephants, he was crowing about laying down Three Deuces.
Defendant's exhibits for Mon., March 9
Part I
Medical Records of Ringling Brothers Elephants Prepared by Defendant or at Defendant's Request
Feld Entertainment employee depositions (excerpts)
In the paper, a Massachusetts zoo keeper says, "The elephant must fear punishment and discomfort, and I repeat this, for if you don't chastise when necessary, then some day, she will get you."
Legal wrangling: Does ESA even apply?
April 3 -- Not surprisingly, Fulbright & Jaworski did not respond to my request (see below) for a copy of the 279-page Elephant Husbandry Resource Guide, so I contacted Feld spokesperson Amy McWethy.
Oddly, however, she would not provide a copy. I say "oddly" because the guide is a defendant's exhibit. That is, FEI asked Judge Sullivan to admit the guide into evidence, and he did so, over the objections of the plaintiffs.
Nevertheless, McWethy said in an email, "Feld Entertainment does not distribute the Elephant Husbandry Resource Guide." She suggested I get it from the International Elephant Foundation -- specifically, Executive Director Deborah Olson, who is also the editor of the 2004 guide.
The IEF web site provides no phone number or email address, just a contact form. So, I downloaded some IRS Form 990's for the organization (to be added shortly -- 2005, 2006 and 2007) -- from Guidestar and got the phone number from those. I've left a couple of voice messages, but no response yet from Olson.
But enough about me and my pointless reporting adventures! I went to PACER, paid $2.40, and have posted the blasted thing. Click on the link and download it for free. Talk about a deal!
Elephant etymology
The guide attempts to gloss over (or ignore completely) the etymological origins of the word "ankus," which is one of the three terms for the bullhook ("guide," of course, being the one favored by Ringling Brothers).
Both bullhook and ankus are "outdated" words, the guide says. "The terminology has been changed for a number of reasons. Ankus is inappropriate as a descriptor as it is unclear where the term originated or what tool it actually represents as they vary throughout Asia" (emphasis added).
Being somewhat of an etymological enthusiast (my Dad kept a dictionary at the dinner table in the event one of his sons mispronounced or misused a word), I had to check that out. I mean, ankus? I'm surprised I hadn't looked it up earlier. (In a previous version, I wrote, "I mean, a word that weird had to come from somewhere, right?")
A few keystrokes later, I learned from Dictionary.com that ankus is Hindi for "an elephant goad . . . with a spike and a hook at one end." It derives from the Sanskrit word ankusá, meaning hook.
According to Wikipedia, "An ankus is one of the eight auspicious objects (known as Astamangala) of Hinduism and certain other religions of the Indian subcontinent. A goad is also an attribute of many Hindu gods, including Ganesha."
In addition, some English fellow by name of Kipling wrote a story in the second Jungle Book called "The King's Ankus". It was published way back in the 19th century.
Because I don't like to trust any source on its own (what's that saying, "If your mother tells you something, check it out"?), I contacted a professor at Columbia University, which as it happens is my Dad's alma mater.
Dr. Sheldon Pollock, the William B. Ransford Professor of Sanskrit and Indian Studies -- bless you, sir -- responded to me on his sabbatical simply to say, "I'm sure the etymology is correct. The ancient ankusás I have seen are sharp-pointed goads or hooks, which do not look very inviting."
Being an honest scholar, Pollock added, "I've no idea how they were actually used, however--I've never seen them used in contemporary India--and have no idea how these may or may not relate to the modern version."
I urge all of you to go here and buy Prof. Pollock's "The Language of Gods in the World of Men." First sentence of the summary at the link -- "In this work of impressive scholarship, Sheldon Pollock explores the remarkable rise and fall of Sanskrit, India's ancient language, as a vehicle of poetry and polity."
I think it's safe to say that "ankus" has been around as a descriptor far longer than "guide." And that Olson didn't really do any research on "ankus" before declaring that its provenance was "unclear." -- Steve Davies
March 19
A note about this page: Almost all the exhibits -- minus video -- are posted here. I'm double-checking now to see what I've missed. Please email me, Steve Davies, if you find a link that isn't working or a description you think is off. Much of the video is posted at the Animal Welfare Institute's web site. Ringling Brothers also has a site, but it has barely been updated and, maddeningly to this writer and editor (who never screws up, no no), the spelling "defendent's."
posted March 19
There's nothing like a trial. There's no videotape of the proceedings; only by being there can you see the judge's reaction to testimony or hear his tone as he questions a witness. In this case both parties and the judge received transcripts daily. I was able to obtain a handful, just of the first couple of days -- they're here.
The best place to go for coverage of the first week of the trial is this page, which carried quite detailed reportage of the opening arguments and testimony.
The major media, sometimes called the mainstream media or MSM, covered the opening arguments and, at least in the case of The Washington Post (link is to a story that ran Wednesday, coincidentally when Ringling's Blue Unit arrived in D.C. for a 3-day run.), closing arguments, though the coverage was underwhelming. (The March 18 story refers to "so-called bull hooks"; the next day's story just goes ahead and calls them bull hooks.)
In between, the Associated Press covered the appearance of FEI CEO Ken Feld.
On this page, I wrote about Tom Rider's day on the stand and produced snippets on Dr. Phil Ensley's review of Ringling medical records and The Elephant Sanctuary's Carol Buckley's assessment of the health of elephants at Ringling's CEC.
I also offered up my own half-baked analysis and speculation, informed only by my own eyes and ears and my experience covering the courts and the Endangered Species Act. I've also been fortunate in the past to see U.S. District Judge Emmet Sullivan in action on numerous occasions.
I say fortunate because Sullivan is a reporter's dream. He's unpredictable, and I think he likes it that way. He doesn't like to be misled or lied to, and will come down hard on you if he thinks that's the case. (See Stevens trial).
In this case he made sure to treat the defendants fairly, even if it meant castigating lawyers in general at the start of the trial, when he warned both sides not to use "creative ellipses," as he had experienced recently in another case (Stevens again?). Above all, Sullivan ran the trial like a man who does not want to see the case returned to him by the D.C. Circuit Court of Appeals, though that may well happen no matter how he rules.
Sullivan was generous to the plaintiffs in allowing the admission of virtually all their exhibits, but gave the defendants pretty much the same latitude, so far as I could tell. At the end, he allowed The Elephant Husbandry Resources Guide into evidence over the plaintiffs' objections. The volume is edited by Deborah Olson of the Feld-backed International Elephant Foundation.
In essence, Sullivan said he would look at the totality of the evidence, and its credibility, in determining how much weight to give it.
And it's a lot of evidence. Hundreds of pages of depositions, hours of videotape, scientific papers, elephant husbandry guides, transportation orders for the Red and Blue units of the Greatest Show on Earth, USDA inspection reports, years of emails, court filings, photographs, affidavits, and even the USDA's certification that its documents should be considered "business records."
Sullivan will have a lot to digest, but to his credit, he stayed focused on the case throughout. Certainly there were moments when he had trouble following the testimony of some witnesses, but there was also a moment on the last day of testimony when Sullivan returned from a brief recess to ask Ringling' top vet, Dr. Dennis Schmitt, if the elephant whose birth they had been watching on the screens in the courtroom was not, in fact, the same Riccardo who died at 8 months of age? He was, Schmitt said.
March 18: It should be over by now. Closing arguments were happening today.
From the docket, 3/17/09:
MINUTE ORDER. Upon consideration of the arguments and objections raised by the parties in open court and the supplemental briefing by both sides, it is hereby ORDERED that defendant's exhibit DX2, the Elephant Husbandry Resource Guide shall be admitted over objection and it is further ORDERED that page 10 of plaintiff's will-call exhibit 86 (PWC 86) shall be admitted over objection. Signed by Judge Emmet G. Sullivan on March 17, 2009. (AS) (Entered: 03/17/2009)
That guide is 279 pages long, so I'm going to make that the ONLY thing I won't download from the ECF system, further enriching our court system. I will, however, ask the folks at Fulbright & Jaworski for it.
[Update, April 2: I asked F&J, FEI and IEF for the guide, got nowhere, so I downloaded it from the PACER site.
Sunday night, March 1 (updated Monday night, 3/2): The title of this page is "Ringling trial blog," but whether it qualifies as a true blog is a definitional question best left to bloggers, media mavens, and any others who care. I called it that because I figured it might generate a bit more traffic/attention.
What's in a name? Needless to say, a lot. The name of the circus hasn't changed in decades, even while the Feld family was buying it, selling it, and buying it back again. Kenneth Feld, who took over from his father, Irvin, as sole owner of the company in 1984, wisely chose to retain the trusted brand name.
Feld Entertainment Inc. isn't just the Big Top. Ken Feld, with properties such as Disney on Ice and Doodlebops Live!, monster truck shows, and, of course, the Greatest Show on Earth, has built FEI into an entertainment powerhouse that takes in between $750 million and $1 billion a year. The numbers are estimates because FEI is not a publicly traded company.
If it were, this trial probably would not be taking place. Stockholders would be screaming and the press would be all over the place. But even with the cultural significance of the Circus, most people will tell you that they have no idea who Ken Feld is. Chances are they've heard of "Ringling Brothers and Barnum & Bailey Circus" and perhaps even P.T. Barnum, the guy who said no one ever went broke underestimating the gullibility of the American public.
Feld may be relying on the same axiom here, especially if no one pays attention to what he says -- or doesn't say. The mainstream media -- and the alternative media, electronic media, hell, even George Will! -- have, except for the first day, stayed away. So any stories that come out of Tuesday's testimony may lack a certain ... context. We'll see how well Feld can sell his story: that he cares deeply for the elephants, that they're all well cared for, have 24-hour supervision, etc.
Presumably because of inclement weather in the D.C. area., Judge Sullivan has delayed the start of Tuesday's proceedings until Noon.--Steve Davies.
Thursday, Feb. 26: I did not write more on Tuesday, as planned, but have posted a lot of exhibits to the left. Wednesday was an off day for the trial, and today the plaintiffs rested their case.
But that doesn't mean there was no activity. Most of the morning was spent arguing about whether exhibits should be admitted into evidence, with the defendants objecting on numerous grounds to virtually every one. They made some headway with Sullivan on the issue of USDA Secretary Tom Vilsack's "certification" of a number of department records as official business records. In the main, they are APHIS inspection reports, which the defendants attacked as containing "multiple levels of hearsay" prepared by "low-level" USDA employees.
Sullivan said he understood and shared the concerns of the defendants about the certification process, but nonetheless allowed all but one of the plaintiffs' exhibits in. As he has before, Sullivan said he would, in essence, separate the wheat from the chaff when it comes time to decide the matter.
I just took a look at www.ringling.com under Animal Care and Animal Care FAQ.
The contrast between what's on the web site and what's contained in the documents at left could not be more stark. "Our training methods are based on reinforcement in the form of food rewards and words of praise," the company says. "Verbal or physical abuse and the withholding of food or water are strictly prohibited."
And yet Kenneth Feld, CEO of Feld Entertainment, said in a deposition that he had seen handlers use bull hooks to "prod" elephants behind their ears, strike them on their legs, and strike them under the chin. He also said elephants are disciplined.
And despite the rosy picture painted in a video about the Center for Elephant Conservation, the CEC's manager, Gary Jacobson, told plaintiffs' attorney Katherine Meyer (see deposition excerpts) that as part of the weaning process, elephants had been tied up with ropes and chained -- one for four months straight with very little respite. In winter quarters, the elephants are chained half the time.
These are the animals the narrator of the video calls "the most pampered pachyderms on the planet."
"Here, the comfort of the Asian elephant is our number-one priority," the voice says. There are "many roomy paddock areas" and "spacious pastures where they can roam about during the day."
Some of the elephants have been placed under quarantine for tuberculosis by the Florida Division of Animal Industry (again, see left).
Defendants will begin presenting their case Tuesday, March 3. Their exhibit and witness list for the day includes CEO Kenneth Feld.
Tuesday, Feb. 24: Will have something later today about testimony from Dr. Phil Ensley, a longtime (now retired) vet at the San Diego Zoo. He reviewed thousands of pages of medical records on Ringling Brothers elephants. Suffice to say, what he found wasn't pretty. Elephants suffer from an array of foot problems, including split nails and abscesses, but Ensley also described wounds that would typically be the result of the use of an ankus (also known as a "bull hook" or "guide").
Deciphering the medical shorthand used in the records, Ensley said one elephant -- Sophie -- had two superficial wounds on the inside of the ear canal. The wounds "would be consistent with a bull hook or Ankus injury," he said.
Asked by U.S. District Judge Emmet Sullivan why it would have to be a bull hook, Ensley said the size of the opening is so small that a bull hook is the "only explanation I can think of."
Monday, Feb. 23 (abt 12:30 p.m.): There's a brief recess in Judge Emmet Sullivan's courtroom where the Ringling trial is proceeding. This morning Carol Buckley, one of the plaintiffs' expert witnesses, has been testifying about the condition of elephants she inspected during a circus stop in Michigan, while the elephants were still on the train, and at Ringling Bros. and Barnum & Bailey's Center for Elephant Conservation in Florida. (Tried to post from the courtroom earlier, but my FTP wasn't working)
Looking at photographs taken during the CEC visit last fall, Buckley described scars on elephants' backs, their legs, and in the area where their ears attach to their heads.
"That's a flex point," Buckley said, pointing to one such scar. "Every time they move their ear," they can re-open the wound, Buckley said. Elephants move their ears to cool themselves.
But that location is a favorite one of handlers who use bull hooks, Buckley said.
Buckley runs The Elephant Sanctuary in Hohenwald, Tenn.
OK, back to the courtroom.
Sunday, Feb. 22: Last week, U.S. District Judge Emmet Sullivan ordered the parties to brief him on the issue of organizational standing, in light of the addition of the Animal Protection Institute as a plaintiff in the case. Those briefs are due tomorrow, and we will of course bring them to you as soon as we have them.
Years ago, Sullivan ruled that Tom Rider did not have standing to pursue his claims against Feld Entertainment. But the D.C. Circuit Court of Appeals reversed him, and the litigation continued. Sullivan has narrowed the number of affected animals to six (or seven, because in this case, the two sides can agree on nothing) -- those being the elephants with whom Rider had formed a bond sufficient to meet the standing test. Presumably, then, if the plaintiffs won, relief would be limited to those elephants.
But the animal rights groups (the plaintiffs) claim an interest in all the elephants, and API, which merged with Born Free USA (its full name is now "Born Free USA united with Animal Protection Institute") has a more specific interest in pachyderms than any of the other groups.
Sat., Feb. 21: After the plaintiffs conclude their case, Feld Entertainment Inc. (FEI) plans to move for a directed verdict. FEI has raised standing and statutory issues (see column at left) that appeared to have been resolved. But Judge Sullivan has said he will hear arguments on Thursday on whether he should end the trial in mid-stream and grant FEI's motion, which would mean FEI CEO Kenneth Feld and other Ringling employees, including elephant handlers, would not have to take the stand.
Editor's note (2/19/09): The ESA Section 9 citizen suit against the Greatest Show on Earth (ASPCA v. Feld Entertainment Inc., 03-2006, D.D.C.) is about two weeks old. The following article concerns testimony given by Tom Rider on Thursday, Feb. 12. It has been written by ESWR Editor .--Steve Davies, who is solely responsible for all content. More updates and court documents from the trial will be posted as it progresses.
Washington, D.C., 2/12/09 -- Former Feld Entertainment barn man Tom Rider told a federal judge Feb. 12 that elephant handlers at Ringling Brothers and Barnum & Bailey Circus frequently used bullhooks to "discipline" the animals.
Rider, who worked for the circus from 1997 to 1999, is the only individually named plaintiff in the case. Since leaving the circus in November 1999, he has spent most of his time criss-crossing the country in a used Volkswagen van, telling his story to a wide variety of local and national media outlets and meeting with local, state and federal lawmakers.
Rider took the stand at 10:35 a.m., swearing to tell "the truth, the whole truth and nothing but the truth." He declared that he is 58 years old and received his G.E.D. in 1971.
Rider worked with the Blue Unit of Asian elephants at Ringling Brothers from June 3, 1997, to November "20-something" of 1999. He started as a barn helper "helping clean up around the elephants" but was quickly moved up to afternoon barn manager, where he spent virtually all his working hours around the elephants.
Unlike the handlers, trainers and other barn men, Rider said he did not use a bull hook, except for three months right after he left Ringling to go to Europe with a trainer, Daniel Raffo, and three of the elephants. Under harsh questioning from Feld Entertainment attorney John Simpson, who showed a couple of photographs of Rider with bull hook in hand, Rider acknowledged he had used it, but that he had assumed the treatment would be better in Europe, and that Raffo "forced" him to use the tool.
Rider was on the stand all day. Plaintiffs' attorney Katherine Meyer questioned him until 1 p.m. and resumed after a 90-minute break for another half-hour or so until Simpson got his shot at Rider during cross-examination.
Rider told the same story he's been telling for nearly a decade. He discussed his bond with the elephants, whose names he ticked off, along with brief descriptions of their personalities. He also spoke at length about the circus's nearly year-long travel schedule, which requires the elephants to be chained in railcars for many hours at a time. When traveling, the elephants are rarely allowed off the train.
Rider said he is committed to helping "my girls," as he called the elephants he worked with during his time with Ringling Bros.
"I want to see the end of long periods of chaining" and use of bull hooks, he said. "I believe it's very inhumane to use bullhooks"
"I miss them. If we prevail I have a feeling they'll be in a better situation than they are now."
Meyer called up a 12-second clip Rider shot in 2001 in Tulsa, Okla., after he had left the circus, showing elephant handler Sonny Ridley hooking an animal on the inside of its mouth and then -- apparently -- getting the hook caught in the animal's tongue. "He gets it stuck in her mouth and has to twist it to get it out," Rider said, describing the brief clip.
Sullivan looked at it at least three times before saying, "I see." After objecting to the clip and being overruled, Simpson later tried to debunk Rider's testimony during his cross, noting that Rider could not have seen the bullhook actually pierce the tongue. But Rider maintained he could tell it had gotten stuck because of the way Ridley had to twist it.
While with Ringling, Rider got in trouble three times. He was written up for insubordination to a supervisor; missing a day of work; and being drunk and disorderly.
He wasn't drunk on the job, but on the train. At a late-night birthday party for Rider, he and some other barn guys had a few drinks and shouted an obscene chant about another (higher-ranking) employee, who had shoved Rider against an elephant.
Simpson tried to make Rider look like a paid shill in animal advocacy groups' continuing campaign against Feld Entertainment, detailing payments from the Performing Animal Welfare Society, Animal Welfare Institute, Animal Protection Institute, and a nonprofit group set up by the law firm representing the plaintiffs in the current case.
The firm, Meyer Glitzenstein & Crystal, formed a nonprofit group called the Wildlife Advocacy Project that has funded Rider's travel and lodging over the past few years.
More links
APHIS/Animal Welfare Act
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