Please Do Not Tap On the Glass

Some updates fell into my lap from an eyewitness to the trial proceedings. It’s quite long so pick a section or read the entire post:

• Monday, Feb. 9, Plaintiff Witness Lewis/Louis Geto or Gedo
• Monday, Feb. 9, Plaintiff Witness Cuviello
• Tuesday, Feb. 10
• Tuesday, Feb. 10, Plaintiff Witness Sinnott
• Tuesday, Feb. 10, Plaintiff Witness Hart
• Wednesday, Feb. 11, Plaintiff Witness Dr. Ros Clubb, Ph.D.
• Introduction of letter from Washington Humane Society
• Introduction of Frank Hagan videotape

Monday, February 9, 2009

Plaintiff Witness: Lewis/Louis (“Louie”) Geto or Gedo of Long Island

Summary of Testimony/Cross Examination: Testified that he took video footage (exhibit 130/133) shown in court of Ringling eles standing in train box cars, swaying from side to side, etc. Sent video to In Defense of Animals in Summer of 2000, didn’t recall whether he sent it anonymously or attached his name to it. Described in detail what he saw/smell/heard, and said he was “beside myself” afterwards. Judge Sullivan asks Mr. G, “What did you mean when you said you were beside yourself,” and Mr. G. explains that it was very emotional to see the elephants in such conditions, i.e, “the swaying, tugging on their chains, labored breathing, smell of urine and feces …”, etc. Later he says he was contacted by someone(?) from a plaintiff group last year about the video. Defense attorney asks Mr. G. how he was able to get so close to the box car, (they were parked in public area for a show) if he entered the box car, if he used a zoom (yes), if he filmed continuously or in the on/off mode, if the tape was edited (no), how many hours of film he took that day (less than one hour), if he knew of any changes that have been made to the box cars since he took the film (no), and several questions about the auto timer feature on his camera. Testimony 1 p.m.-1:13 p.m.

Plaintiff Witness: Patrick Cuviello of San Mateo County, California

Summary of Testimony/Cross Examination: Mr. C. stated that he has been observing and documenting the RBBB Circus since 1988, and his activities include videotaping and leafletting, in Oakland, Daly City, San Jose, Stockton, Fresno, Sacramento, San Diego, Los Angeles and Rosemond (Illinois). The purpose of his activities is to educate the public about the issues involved in the use of animals in entertainment. He has observed the handling, loading and unloading, holding areas, living conditions and the elephant walks. He was asked many questions about how he has seen the bullhook used and where on the body of the animals he has seen it used. Names of those RBBB employees he has seen use the bull hook include Jeff Pettigrew, Alex Vargas, Adam Hill, Troy Metzler, Pat Harned (?sp), Jeff “Cowboy”, Brian (?) Chipperfield, and Randy (?last name). Other employees he mentions by name include Mark Gabel Williams, Sasha Hook, Rick Boger and Gunther Gabel Williams. Video of much of these incidents is shown in Court.

Mr. C describes several incidents he observed over the years of elephants being hooked, which elephants they were, where the incidents took place, when, and which employees were hooking. He also states that it’s common for the elephants to be confined in the box cars for up to ten hours after arriving in a show city. He describes in detail the chaining he has seen, the holding pens, how long the eles are kept in chains, etc. He also discusses the swaying behavior he has observed in many of the eles and video is shown of many swaying clips. Eles mentioned swaying include Angelica and Sara, with the two eles reaching out to each other. Judge Sullivan asks if there are time indications on the video, after Defense objects to the videos, saying the tapes are edited, misleading and there is no foundation. Sullivan says, “Lay some more foundation before we see the clips.” Tape of Sara swaying is shown again at some point, at which time Sullivan asks, “what is the elephant standing on? Do you know why they stand on wooden platforms?” There was also more testimony about handlers using brooms and pliers to punish the eles, and more video. Testimony about forced defecation and urination was also introduced, along with video showing such. Mr. C. discussed the process by which he made complaint(s) to the USDA (yes) and Judge Sullivan asks, “Well, when you have complained to the USDA, was the agency responsive? How do you complain to the USDA?”

Defense Cross examination of Mr. Cuviello began at 3:34 p.m. Just as that was about to begin, Judge Sullivan asked Mr. C, “Are you opposed to elephants and animals in circuses?,” to which Mr. C responded, “Yes.” Sullivan then asks Mr. C. if he is opposed to animals in zoos and Mr. C. responds that he is not necessarily opposed, citing zoos that do rescue work, those who use protected contact with their eles. Defense asks NUMEROUS questions about how Mr. C. knows the names of the RBBB circus handlers and trainers (their names are sometimes listed in the circus flyers, and he often hears other employees calling each other by name), questions about how he found out about the lawsuit, how he first came in contact with Tom Rider, if he was ever instructed by plaintiff attorneys (Meyer, Glickenstein and Crystal, also referred to as Meyer/G) to save video, any conversations about what to film, if he was paid for video footage he would send to Meyer/G (no). Extensive questions about chronology of video clips shown in court, that tapes were heavily edited, that tapes shown in court weren’t sequential or chronological, etc. Judge Sullivan interjected at one point in this issue by saying, “Why isn’t this just like a wedding video? You know, the wedding, the bride and groom leaving the church, the reception, the car drives off at the end …?” Defense moves to strike videos, saying They are “unreliable and an inaccurate depiction of events.” Motion denied. The questions about the video go on for an eternity. One video contains audio of a female voice yelling at the RBBB handlers, “Hit em. Hit em. Do it. Do it. Do it in front of people,” seeming to goad the handlers into striking the animals. Defense objected to a video in which Mr. C is heard to be saying, “I got em hooking babies,” in that it shows bias/motive. Judge asks to see tape again and says, “What’s the bias?” Defense says words affect the tape, but Judge says, “It seems to be consistent to me.”

After the video tape testimony cross, the Defense then begins to question Mr. C. about his affiliations with animal welfare and activist groups, history of filing a claim against RBBB after a handler shoved his camera, and what groups he gave monetary donations to. He was asked about his own group, Humanity for Education, formerly Citizens for Cruelty Free Entertainment, and if Deniz Bolbol was a member of this group (yes). He was asked if he was affiliated with Animal Liberation Front (ALF) (no) and if he was aware there was a link to ALF on his Web site (no). Many questions were asked about Mr. C’s affiliation with Tom Rider, past and present, questions about Mr. C’s USDA affidavit were also presented. Re-direct by Ms.Meyer.

Recess from 5:10-5:32 p.m.

Re-direct by Ms. Meyer continues. She asks the judge about the use or introduction of Gary Jacobsen’s deposition testimony. Plaintiff, Defense and Judge get into discussions about “rules” about moving deposition testimony in to evidence, but Defense objects, there is more discussion about legal rules, can’t hear all of it. Meyer states that objections were due by September 16. Judge Sullivan looks at Defense attorney Simpson and says, “Did you not understand the Court’s order? You said, “Bring it on!” Discussion continues between the three parties. There is discussion about the “time constraints” of the trial, about both sides giving executive summary of Jacobsen’s deposition testimony, etc.

At some point, Judge Sullivan says, “I have a lot of questions about HOW elephants can be maintained and controlled WITHOUT bull hooks. What about in zoos?” Then he goes on to say he realizes zoos are different, “There are moats.There are barriers” and that zoo settings are different.” He then asks, “When am I going to hear from Plaintiffs expert witnesses?”

Another recess begins at 5:30 so the Judge can attend to another matter. Court resumes at 5:55, at which time there is more discussion about rules, etc.

Court adjourns at 6:05 p.m.

Ringling Trial Tuesday, February 10, 2009

The Trial resumes at 10 a.m. with a complaint by Defense attorney John Simpson that Plaintiffs continue to blog and post trial transcripts online, in violation of the Court’s previous order to stop this activity. Plaintiff’s argue that they are now only putting up paragraph synopses of the trial on their Web sites, due to high public interest, duty to their membership, etc. Judge Sullivan says that this issue came up during the trial of Senator Ted Stevens, with the Department of Justice (DOJ) posting trial info on their own Web site, that media interest was high, media had access to exhibits. But Judge is concerned about testimony in daily transcripts that is admitted provisionally then later might be rejected, so public is seeing testimony/evidence that will not be used to make a decision. Also concerned about personal info that might be contained in exhibits. Plaintiff’s attorneys argue that this is essentially no different with someone sitting in court room, other than the fact that it’s on the Internet. Judge says that transcripts, once posted online, can be manipulated, “and this is a high profile case,” “we’re not really preventing public access, anyone can come in and sit down in the court room …” He also said, “What really concerns me is that this is a non-jury trial, I have great flexibility in admitting evidence, and some testimony will no doubt be stricken so that’s a legitimate concern. I think we should allow parties to post exhibits. I don’t recall allowing the posting of daily transcripts in the Stevens trial.” “… tricky evidenciary issues here …”, “I want to make sure the record is complete in its’ entirety. This case should be tried on the evidence.”

Defense attorney Simpson says, “I don’t care what they’re saying or might be saying about me … My client has no concern about what’s going on in the court room. We have nothing to hide. What does bother me is we have a rule … I think it’s a problem on the World Wide Web.” Judge Sullivan laughs and says, “You have eight attorneys sitting at that table and your client doesn’t care what’s going on in the court room?”

Discussion continues; Judge calls for Recess to study similar issues and how they were handled in Stevens case. Recess 10:30-10:55 a.m.

Judge indicates he will not allow posting of transcripts, due to the possibility that evidence will be misinterpreted outside the context of the court room.

There is now discussion about videos, some of which were of the Red Unit and not the Blue.

More discussion about the Gary Jacobsen deposition testimony. Meyer refers to Exhibit 152 and wants to read some additional testimony in to the record.

Another Plaintiff attorney addresses the court about a “chart,” Defense objects based on “foundation.”

The discussion concerns a document entitled, “Transportation Orders for Ringling Brothers Circus Blue Unit 2000.”

Defense wants to be able to cross examine the witness who prepared the chart; she prepared the chart based in part on information contained in Gary Jacobsen’s deposition testimony. The chart describes how long the elephants are on the train during their journeys from show to show across the country.

There are more arguments/discussion between Plaintiff/Defense attorneys.

Judge Sullivan then says, “Let the person testify! Get him or her up here!”

Plaintiff Witness: Michelle Sinnott, para-legal, Meyer, Glitzenstein and Crystal

11:05 a.m.

Ms. Sinnott is called to testify about her preparation of the chart reflecting information compiled from the document, “Transportation Orders for Ringling Brothers Circus Blue Unit 2000.” She says, “It’s simple data entry.” Judge Sullivan asks her, “So information on this chart is based on information the defendants gave you?” and she responds, “Yes.” There is extensive testimony about the term, “all cars spotted,” which Ms. Sinnott indicates means, “when the cars are ready to be unloaded. The elephants are still on the train but ready to be unloaded.” She says she used the railway company CXS dictionary, along with deposition testimony from Gary Jacobsen, to make this determination of the definition of “all cars spotted.” The term “rest animals” means that the elephants were actually taken off the train,” according to the above references. “Breaks” indicates the animals were watered or got off the train. After reviewing “several hundred” records, she says that only 14 had rest breaks on the Blue Unit. Red Unit had seven rests, and there were some years when there were no rests.

Ms. Sinnott goes on to explain in great detail how compilations of the data were made to determine how long elephants were on the train during their show tours. She indicates that the longest journey where the elephants were on the train continuously was 76 hours, in October of 2007, from Boston to Tampa. She discusses each column in great detail. Judge Sullivan asks, “How long did it take you to do all this?” and she smiles.

Cross Examination by Defense Attorney Simpson is extensive, including lots of time about the term, “all cars spotted,” chiding her for having only a railroad dictionary and Gary Jacobsen’s testimony on which to rely for when determining what “all cars spotted” means. He introduces Gary Jacobsen’s deposition testimony, in which he is asked what “all cars spotted” means the elephants are still on the train, and Jacobsen responds, “I don’t know. Joe DeMike would know.” Simpson also indicates that the chart only reflects scheduled times, so the exact time the elephants are on the train is not correct. Simpson continues his attack for quite some time.

Judge Sullivan cuts him off at some point, saying to Ms. Sinnott, “So you took information that was given to you … you just took calculations … that’s a figure based on raw data that was given to you….”

Simpson also asks Sinnott about factoring in times when the train was traveling across two or more time zones, and if that is reflected on the chart. He says her data is flawed on this account as well. He also has concern that some of her information was included in the March 2008 affidavit but excluded from the May 2008 affidavit and asks that the chart and her testimony be stricken from the record. On redirect, there is explanation of his concerns. Judge Sullivan says he will provisionally allow her testimony.

Plaintiff Witness: Dr. Benjamin Hart, D.V.M., Ph.D., distinguished Prof Emeritus, UC Davis, retired

12:06 p.m.

Dr. Hart says he has taught basic animal behavior since 1968, developed the first course to be taught at a vet school on animal behavior, and has also taught extensively on animal biology, neurobiology, animal defenses against pathogens and parasites etc., along with research on animal behavior, all at UC Davis with the exception of three months at the University of Wisconsin. He is also a frequent guest lecturer at universities around the country and at symposia and conferences. His CV was admitted into evidence, after Judge Sullivan told him to delete personal info (phone number, date of birth, etc), “anything you don’t want the whole world to know.”

Dr. Hart was asked to explain his field research in 1990 on Asian elephants and their ability to not only use tools, but also their ability to modify or manipulate tools. His research centered on his observations of the eles using tree branches to swat flies that landed on them. He explained that tool use indicates a higher cognitive function and is used as a marker for higher level of cognitive functioning, as in J. Goodall’s research with chimps. Results of his research were published in the Journal of Animal Behavior in 1994, with the title “Fly Switching By Asian Elephants.”

Defense objected to the admission of this paper.

Dr. Hart also spoke at length about studies he has done on brain size in elephants, specifically cerebral cortex size in relation to other terrestrials, and about the pattern of neurons, how they transmit information and how that relates to much of their cognitive function relative to humans and others, particularly with memory.

At this point, Defense and Plaintiff attorneys resume their discussion about Gary Jacobsens’ deposition testimony.

Recess is called for lunch, 1:07-2:15 p.m.

After arguing amongst the attorneys about another matter, testimony resumes at 2:27 p.m.

Dr. Hart is recalled to the stand. Dr. Hart is explaining a cognition article he wrote. He explains how the elephants large cerebral cortex helps with memory, social details, dialect, chemo-sensory skills (i.e. location of watering holes is a function of memory and chemo-sensory skills). His testimony is extensive, and Meyer asks that he be recognized as a expert witness.

Defense attorney Lance Shea conducts voir dire. His questioning of Dr. Hart indicates that Dr. Hart has never been in private practice, has published four articles on elephants, has written no articles on vet care in elephants, has never performed husbandry or vet treatment on an elephant, most of his research is literature review and not field research, not a member of AZA, Taxon Advisory Group, etc., no elephant training experience, has performed no studies on stereotypic behavior in elephants or the use of the bullhook, etc. Shea moves that Dr. Hart’s testimony be stricken from the record, he is not an expert.

Plaintiff attorney Glitzenstein elicits information from Dr. Hart about his extensive knowledge of animal behavior that crosses species lines, that he is an expert on behavioral principles like positive and negative reinforcement, scheduling of reinforcement.

Judge Sullivan then asks Hart,” Why do you believe that our research in to elephant cognition would be valuable to me in understanding this case? Before you answer that, what do you think are the issues in this case?” Dr. Hart says the use of chaining and bull hooks, and “… what is their intellectual domain when the issue of chaining … it’s important to understand the elephant brain and cognition in reference to the effects of chains and bull hooks …”

Judge Sullivan says, “Your work is mostly on elephant brains … yes, the importance of a large brained animal. .. important to understand the harmfulness of long term confinement …”

Judge Sullivan asks Dr. Hart to leave the courtroom. There is a lengthy discussion about what Dr. Hart can testify to based on his knowledge and research. Judge Sullivan asks, “Can I illicit his opinion on the use of bull hooks?” and wonders out loud if elephants can remember being struck with bull hook when young. Hart’s testimony is allowed, “subject to the court giving it any weight at all.”

Hart returns to the stand and discusses how the elephant brain is “hard wired” to facilitate foraging and browsing, moving … their brain size reflects an ecological niche … and discusses what he believes are the harmful effects of intensive confinement in box cars and on chains. Judge Sullivan at one point asks him, “So the saying about a memory like an elephant” is not gratuitous?

Hart talks about elephants “amazing memory,” social memory related to long term chaining, elephant biology, family groups, recognize dialects of own family members, their brain size facilitates social interaction, when looking at “markers” of “normal behavior” that stereotypical behavior is not seen in the wild and that the weaving and head tossing/bobbing seen in captive elephants “to me is a strong marker of the adversity of box car confinement.”

Judge Sullivan asks, “How do I know it’s not an indication that the elephant is not happy? How do I know that elephant is swaying because it’s not happy with the hay? More importantly, how do YOU know she’s not doing it because she’s happy?” Hart says, ” you must look at the context of the behavior.” Sullivan asks, “Is this the type of behavior you’d see in a zoo?” Hart says, “Yes, in some. That one of the pressures to get zoos to change their management, small sizes,” etc. References a study at ZooAtlanta. Talks about “Behavior of Circus Elephants During Transport” study, and rational assumption that lengthy chaining would be adverse, a marker of abnormal behavior. Less than three hours of chaining, no or low incidence of swaying; greater than 7-8 hours, up to 80 percent of the time swaying. Also discusses article, “Variations in Stereotypic Behavior Related To Restraint in Circus Elephants” study. Small pen confinement is “going from bad to not so bad.” Elephants cannot perform any natural behaviors when chained.

(Dr. Benjamin Hart on the witness stand)

Dr. Hart continues to discuss the effects of chaining on elephants, citing several studies (Schmid, “Keeping Circus Elephants Temporarily In Paddocks-The Effects On Their Behavior”), how stereotypic behavior (SB) goes down but doesn’t disappear if they are in pens as opposed to chained on picket lines. Chaining causes a “severe disruption of normal behavior”.

Judge Sullivan then asks Dr. Hart, “So it’s unsuitable to keep any animal in a circus, limiting its movements, its ability to interact?” “Is this an unsuitable keeping system?” Dr. Hart responds that maybe in circuses where there are not long shows, more like a permanent arena that doesn’t call for travel, could be a ‘perfectly good show.” With regards to Ringling, Dr. Hart, says, “As it exists now, from what I’ve seen, these are unsuitable conditions.” Sullivan says, “I’m focusing on Ringling. As an expert, you’re opposed to keeping them in this situation?” Judge repeatedly asks Dr. Hart for his opinion about RBBB. When asked by Plaintiff attorney if there are other captive situations where one would not have these concerns, Dr. Hart says that numerous zoos, and situations where the elephants are loose at night, or stationary performance situations.

On cross examination by Mr. Shea, Dr. Hart is forced to admit there are no scientific studies on the actual causes of SB (stereotypic behavior), and they go on to argue about the designs and purposes of the studies previously discussed and the fact there is no scientific threshold or limit on how long elephants can be chained before they begin SB. Mr. Shea points out through his extensive questioning of Dr. Hart that even when welfare conditions improve, SB can continue (although Dr. Hart said it was his belief that SB disappears in captive elephants in sanctuaries). And that SB is likely to be an unreliable indicator of current welfare conditions because they can elicited by circumstances that improve welfare.

There was discussion about Dr. Hart’s visits to Asia and observations (non-scientific) of the mahouts and the elephant rides that are popular with eco-tourists. There were numerous questions about that.

Judge Sullivan then asks Dr. Hart many questions about the management of captive eles in Asia, in particular the mahouts. “How are they able to guide or control elephants without using bull hooks?” (Dr. Hart had testified previously that although the mahouts may have bull hooks or more rudimentary instruments, they are not used in the violent fashion of the circus world). Dr. Hart explained that the mahouts use their feet to put pressure behind the ele’s ears to guide or instruct them where to go.

Sullivan asks, “Do you have an opinion about circus people who ride elephants? Are they controlling the elephant?”, and Dr Hart responds, “My opinion is that those elephants are trained to perform a particular act. They know what to do in the circus. With the mahouts in Asia, they have a bond with their elephants. They feed them, they give them treats …” Dr. Hart said the mahouts consider the bullhook
more of a “status symbol”, but “I’ve never seen them use it to jab or poke or use it in a painful way.”

Sullivan continues to ask about the mahouts, bull hooks, etc. “How do the mahouts restrain their elephants if at all against harming tourists? What prevents them from wading through a line of tourists? So is it rare to see male elephants in circuses? Getting back to my attention … How do they control the elephants? Is the mahout in control? No weapons are used? Are I correct or not that the ankus is universally used to control elephants?

At one point Hart says that he believes the elephants enjoy giving the tourist rides. “They get treats. They lift their legs. They go in the water.”

Shea continues cross including the issue of whether the bull hooks are actually painful to the elephants. Hart says it is difficult to know whether the elephants are in pain. In response to question from Sullivan, Hart says that eles don’t have the ability to use facial expressions like humans do, i.e. grimacing, etc Sullivan asks Hart about sounds the eles might make in response to pain, and Hart says, “Elephants are pretty quiet.”

Sullivan asks, “What is your opinion why they don’t react more to the bull hook? Is it because it doesn’t hurt them? Why don’t they react? The ankus has been used for hundreds of years. So their only reaction to the bull hook is to move away from it? So it’s not easy to determine whether they are in pain. I’ve been looking at the video footage of the bull hooks being used … I pull back because I sense the pain … maybe I’m overeacting? You agree my reaction could be an over reaction? I’m wrestling with this. If I’m overeacting, you need to tell me. Maybe it’s not painful.” … So elephants that fight with other eles or predators in the wild … do they experience pain in those fights? So sometimes the rush of adrenaline masks pain? Is it difficult to measure pain? Is it fair to say that sometimes when bull hooks are used elephants don’t experience pain? So not every time is not necessarily painful? So when they fight in the wild do they make noise? So you don’t have an opinion that they trumpet in the circus? Why don’t they swat at their chains or the bull hooks in the circus like they swat at flies in the wild?”

This goes on for some time.

Sullivan says, “How could RBBB transport, say to Chicago, then without inducing stereotypic behavior? What about two hours on and two off? Determine how long you can keep them in chains on the train cars. Hart responds, “I would think you could put a reasonable system in place. It would take longer and cost more.”

Court ends at 5:34 p.m.

Ringling Trial, Wednesday, February 11, 2009 Plaintiff Witness: Dr. Ros Clubb, Ph.D., BS, Biology; PhD, Zoology; research on Stereotypic Behavior (SB) in Zoo Animals

Highlights of Testimony: SB is repetitive behavior with no function.
Study on SB commissioned by RSPCA, with her Ph.D. supervisor Dr. Georgia Mason based on literature review, zoo staff interviews, stud book info, etc.
Study showed SB present in 40 percent of animals, increased infant mortality, shortened life spans, significant foot and joint problems. Study noted significant welfare problems in captive zoo elephants (Europe) and recommended a cessation of captive breeding and importation until these issues can be resolved.
The UK is considering a pending ban on the use of wild animals in circuses.
Biggest problem is transport, temporary nature of enclosures, and confinement.

Voir Dire conducted by Defense Attorney Mr. Lance Shea: Regarding the Clubb/Mason study, Dr. Clubb said she has altered her position somewhat regarding captive breeding since the study was published.She also said if circuses do not decrease the quality of welfare for the animals, she is not necessarily opposed. Shea requested that her testimony be stricken from the record; she simply is not an expert on elephants, the study was published by her employer (RSPCA), she has no expertise in elephant training or management and she has never worked for or consulted with a circus.

Judge Sullivan asks Dr. Clubb, in reference to a question asking about her membership or association with animal rights groups such as the RSPCA, what the difference is between an animal rights group and an animal welfare group. Dr. Clubb responds by saying that animal welfare groups such as the RSPCA are more pragmatic and take a more utilitarian stance, and focus on improving standards of care for animals in research facilities, farming interests, etc.

Judge Sullivan asks, “What’s the harm in the Court hearing her testimony?” Shea says that her testimony is prejudicial to his client, as she is employed by the RSPCA and has no “real world” experience with elephants.

Voir dire continues with Mr. Shea asking Dr. Clubb if she was present for the inspections at the ECC (Elephant Conservation Center). At this point the Plaintiff and Defense attorneys began arguing about the negotiations for this inspection, with the Plaintiff attorney telling the judge that the Defense limited the number of experts that would be permitted to attend the inspection of this facility. She said that the magistrate judge told them to “work it out,” and pressured them to limit the numbers. Judge Sullivan asks why they didn’t appeal the issue or notify him of the problem, saying, “I wouldn’t have tolerated that.” There is lengthy discussion about this matter.

Judge Sullivan allows Dr. Clubb to testify and asks Dr. Clubb, “What is stereotypic behavior?”

Dr. Clubb responds: It is fixed in form. It is repetitive. It generally develops in captive elephants from frustration and is associated with deprivation of performing natural behaviors. It is the degree of repetition and the form, and can mimic a natural behavior that is being suppressed such as travel, in sub-optimal environment. It is generally expected to be an abnormal behavior and an indication of substandard or inadequate welfare or conditions. It is not present in all captive elephants, and some believe that elephants who do develop SB do better than animals who do not develop SB. It is a general indication that something is wrong with their environment. Often see reduction in SB when welfare conditions improve. Must look at context of natural behavior. Elephants are extremely social, esp. females and spend the majority of their time traveling and foraging.

Elephants spend 4-6 hours in a 24 hour period sleeping, some times standing and sometimes lying down. Studies on captive elephants activity budgets have been done. Most common manifestations of SB include weaving (swaying from side to side), bobbing and shifting. Causes in elephants include restraining, confinement and chaining. SB is more common in socially isolated eles, less common in groups of eles.Schmid study and Friend/Parker studies are discussed. Picket line video is show to the Court room and include footage of eles in picket lines weaving, and weaving with a leg lift.

Judge Sullivan: “What’s an insignificant amount of time?” (of SB)

Clubb: “If it’s transient,” can’t quantify exactly. But weaving can lead to the development of foot and joint problems and is of great concern.

Video by Pat Cuviello was shown of SB and scenes discussed.

Clubb says RBBB eles have a “quite severe” level of confinement, up to 20 hours on train and eight plus hours chained. This confinement greatly restricts the types of behaviors they can engage in. “I would be greatly concerned about this and expect to see a high percentage of SB”.

Louis/Lewis Gedo/Geto video of eles swaying in box cars was shown.

Recess 11:45 a.m.-12:12 p.m.

Average length of time in CONSECUTIVE hours that eles spent on the train, per journey:
Year 2000: 27 hours
Year 2001: 26 hours
Year 2002: 25 hours
Year 2003: 27 hours
Year 2004: 27 hours
Year 2005: 28 hours
Year 2006: 26 hours
Year 2007: 31 hours

Judge Sullivan: “What can be done to address that behavior in a circus?”
Clubb: More space to lie down/feed. There will always be a problem due to the constraints of the box car.
Judge Sullivan: “So what you’re saying is that not much can be done in that context?”
Clubb: “Yes.”

Clubb says she is concerned about any system that relies on regular chaining, but guidelines would be six hours out of 24, overnight chaining would lead to harm, 30 minutes for vet procedures.

The issue of training is addressed by Clubb. She talks about the difference between free contact (FC) and protected contact (PC). In FC the handler maintains dominance via punishment, negative reinforcement, use of bullhook, and compliance must be 100 percent. In PC, compliance of 100 percent is not necessary, general doesn’t involve the use of the bullhook. She said the use of the bullhook by RBBB is likely to cause significant bleeding, and bullhook is used very frequently and with great force. Eles are punished for the slightest infraction, such as touching another ele or rattling its chain. It is a serious welfare concern, even growth of young eles can be affected, and such level of control over the animal causes great stress.

12:26 p.m. Cross examination by Defense Attorney Lance Shea:
Shea points out through questioning of Dr. Clubb that she has not reviewed any Feld Entertainment, Inc. ele medical records, she cannot point to any evidence of harm, although Clubb says, “It is my opinion that harm has been done.” She cannot point to any specific injuries or physical harm. Clubb says, “the evidence suggests they are being harmed.” She discusses the effects of hitting on their psychological health, hitting is an a “frequent unpredictable event” and mental harm includes harm from “power behaviors,” problems with breeding, feeding and sheltering and mentions Jewel and her problems.

What natural behaviors are restricted by chaining? Lying down, turning, foraging, socializing. Shea elicits from Clubb that there are no studies on the treatment of FEI elephants, no direct empirical studies on the welfare of FEI, etc. Further, he elicits responses from Clubb that there are no studies that identify the incidence of osteomyelitis or arthritis in wild elephants, no studies that indicate chaining should be kept to a certain number of hours, etc.

Brockett, R.C. (1999) study, “Nocturnal Behavior In a Group of Unchained Female African Elephants” is discussed, in which the three eles at ZooAtlanta – Tara, Dottie and Kelly – were studied for 14 weeks in 1994 to assess their behavior. A follow up study by Wilson (2006) was also discussed.

Recess 2:51-3:03 p.m.

Page 247 of Clubb/Mason study was being discussed, then …
Judge Sullivan: “Wait, you mentioned something about elephants being broken. What does that mean?”\

Clubb: “It’s the process of getting wild caught elephants to accept human contact. It involves harsh techniques like chaining, beating and deprivation of food, water and sleep.”
Sullivan: “So that’s the same procedure or process that takes place regardless of if they are being trained for safari rides or the elephant rides in Asia?”

Clubb: “Yes, basically the same.”

Sullivan: “So even if the elephants are available for these different things, they are still subjected to these things? They have to submit. So, uh … they’re subjected to corporal punishment whether they’re mahouts on their backs….?”

Sullivan: “So am I correct in saying there’s no humane way to domesticate an elephant?”

Clubb: Well, there are some working camps in India that are using more gentle techniques but basically yes.

Sullivan: “Do you have an opinion on whether the circus elephants at RBBB went through this?”

Clubb: “It’s hard to tell” and expounds somewhat.

Shea continues cross for a few moments, then …

Sullivan: “Getting back to this breaking subject, do you have any opinion on why the elephants behave the way they do when the bullhook is NOT used?”

Clubb: Says “Yes” and describes it as “learned helplessness.” The elephants realize there is “no escape, they have no control,” and are subjected to repeated negative conduct by their handlers. They develop “apathy,” which in itself is unnatural and is manifested by them simply standing still doing basically nothing. They seem to accept they have no control over their environment.

Sullivan: “So it’s a result of constant attention …”

Clubb: Yes, they develop depression and other psychological disorders.

Sullivan: “So if I were to point to two scenarios where the mahout guides without a bullhook, at that point it’s probable or likely or what that that elephant was subjected to harsh breaking?”

Shea points out through questioning Clubb that the Ringling elephants would have already been broken at the time they entered the circus.

Clubb testimony completed at 3:22 p.m.

The next order of business was the introduction by the Plaintiffs of a letter from the Washington Humane Society to Julia Strauss, legal counsel for Feld Entertainment, Inc., dated May 20, 2005. The letter was concerning a complaint the WHS received about Ringling when they were on site at the D.C. Armory for a show on April 15, 2005 and advised that a man was seen beating an elephant, and seven elephants were seen without access to water or shade, and one elephant was chained. An investigator from the WHS arrived on the scene, spoke to a “Mr. Stewart” who said that the elephants are chained 17-20 hours a day and are only unchained when they are performing. The letter states that several violations were noted, but the “official notification” document completed by the WHS investigator notes only “Rottie X and elephant chained,” with no other written violations.

Defense moved to strike letter and official notice, saying there were numerous details in the letter not noted on the official notification, there were discrepancies (date of both 4/15/05 and 4/16/05) and it was incomplete.

The next order of business was the viewing of videotape deposition taken on November 9, 2004 of Frank Hagan, a young man who worked for RBBB from 1993-2000 (March) then again from sometime in 2000-2004. Mr. Hagan has since died since his deposition was taken. He worked on the Blue Unit, and during his testimony he describes numerous incidents of elephants being hooked, names several RBBB employees who beat the eles (including Troy Metzler also known as “Captain Hook,” so named because he had a “tenacity for getting results” with a bullhook). He was given a bullhook, describes how it was used then demonstrated its use by standing and making motions of jabbing, poking, two-handed beatings, etc. He also mentions the elephants by name on the Blue Unit, how they would cry out in pain when getting hooked, talks about RBBB management (including Jeff Steele) being present during hooking, would sometimes hear eles screaming, no padding in box cars or box car flooring, no rest, policy was every 24 hours “but that doesn’t happen.” Once they arrived in a town on Sunday 10 p.m. eles not unloaded until Tuesday 9 a.m. Very rare to off load. Very common to leave them in the box cars overnight when they arrived. On July 12, 2004, trip started at 10 a.m., ended July 13 at 11 p.m., eles not off loaded. From Pennsylvania to Las Vegas, four-day trip with one stop in Illinois for six hours off train. Described use of Wonder Dust to conceal wounds from beatings. Videos shown.

Video deposition ended 4:40 p.m.

Cross examination during deposition reveals that Mr. Hagan was fired from RBBB, filed a $50 million lawsuit against them, contacted PETA and was paid a “consulting fee” for his work with them about circuses, had several brushes with the law including a domestic incident with his wife in 1991 involving charges of harassment and impersonating a police officer, was charged with felony theft of services for skipping out on a hotel bill at the Fairmont, checked into a New Orleans hotel as a “doctor” and told the staff to bill it to Tulane Medical Center.

Cross ends at 5:15 p.m.

Ms. Meyers indicates that she will be calling Tom Rider to the witness stand tomorrow and has other deposition testimony she would like to introduce. On Tuesday of next week she has two additional expert witnesses, an another expert witness on Wednesday, and two other witnesses, so she will need all of next Tuesday, Wednesday and Thursday, and hope to rest on Thursday.

Sullivan asks, “At what point is this testimony cumulative?”

A discussion about Rule 52 takes place.

Court ends at 5:25 p.m.

s.

Filed under: animal rights, endangered species Tagged: | animal cruelty, Elephants, ringling elephant trial