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- 09/16/14--05:30: _Judge Mark Fuller W...
A 1909 court case uses strong language to decry "censorship in advance" on matters of free speech. Was the case decided in a coastal state that has become known for its liberal traditions? Nope, it was decided right here in Alabama, in a federal court.
Our thanks to the Popehat blog for unearthing Citizens’ Light, Heat and Power Co. v. Montgomery Light and Water, 171 F. 553 (1909). After reading the key finding in Citizens' Light, one can only wonder how Circuit Judge Claud Neilson issued a preliminary injunction in a defamation case, leading to my incarceration in 2013/2014. That remains a head scratcher, but the words from Citizen's Light leave little doubt that I never should have been subject to an injunction, with resulting contempt and incarceration.
Popehat sets the stage by explaining that equitable remedies, such as an injunction, are improper in defamation cases:
An injunction is an equitable tradition because it is only supposed to be imposed when legal remedies — like monetary damages — are unavailable or inadequate. American courts have long held that equity will not enjoin defamation — that courts may not issue an injunction to prohibit someone from committing libel or slander because the victim can always sue for damages.
With that as an introduction, let's consider these powerful words from the 1909 Citizens' Light case.Note it's key finding in the first sentence: that an injunction imposed by a single judge in the equity setting amounts to censorship:
Neither a court of equity, nor any other department of government, can set up a censorship in advance over such matters, and prevent a person from exercising this constitutional right. He has the right to publish, if he chooses to take the consequences. After he has spoken or written falsely, the criminal law can punish him, and the civil courts amerce him in damages. That such redress may not be adequate in all cases, and in some cannot be, is quite apparent; but the remedies named are all that the Constitution permits any court to employ against slanders upon a man’s credit and business standing. The court cannot go outside of the Constitution, or hold that to be an inadequate remedy which the Constitution has declared to be the sole remedy. The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declared it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance. Citizens’ Light, Heat and Power Co. v. Montgomery Light and Water, 171 F. 553 (1909)
A grisly Alabama murder from 1984 led to publication of a book that sparked a classic prior restraint lawsuit. The Alabama Supreme Court, in a 1994 ruling, cited the state constitution in ruling that attempts to suppress publication amounted to an unlawful prior restraint.
The take-home lesson? Efforts to impose prior restrictions on speech run afoul of both the U.S. Constitution and its First Amendment--plus the Alabama Constitution. That means the preliminary injunction that led to my incarceration was unlawful on multiple levels.
The case in question is styled Doe v. Roe, 638 So. 2d 826 (1994), and the high-court ruling came 10 years after a murder that gave rise to a book. Here is background from the Doe opinion:
In 1984, the natural mother of Roe's adoptive children was murdered by their natural father. The man dismembered his wife's body and buried it under a fish pond in the back yard of the family's home. When her body was discovered approximately three years later, the event and the resulting trial received much publicity. The children's natural father was convicted and is now serving a life sentence in the penitentiary.
After the children's natural father was arrested for the murder of their mother, they remained in the custody of relatives for more than a year. Later, they were adopted by John Roe and his wife, who lived in another area of the state. The children moved to the home of their adoptive parents about a month before the trial of their natural father, and since that time they have been undergoing counseling to enable them to lead normal lives.
Doe wrote a novel based upon the events of the murder. She contacted various commercial publishers, but none was interested in publishing her book. She then invested her own money in publishing the book. She had approximately 1,000 copies printed in hopes that she could distribute the book herself. Roe learned of Doe's plan to distribute this book. As next friend of his minor adoptive children, Roe filed a complaint for an injunction against the distribution of the book.
The trial court granted a preliminary injunction, as it did in my case. But it did not hold up in Doe, and that finding helps explain why there never should have been in injunction in my case. From the Doe opinion:
Although Doe raises several issues on appeal, the dispositive question is whether the injunction violated Article I, § 4, of the Constitution of the State of Alabama. According to Article I, § 4, "no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty." The trial court held that a prior restraint was necessary because, it felt, the distribution of the book would injure the children by invading their right to privacy. We do not agree that Doe's right to freedom of speech as guaranteed by the constitution is overcome by the privacy interests raised in this case.
Alabama might not be thought of as a progressive state, but those are powerful words in support of free speech--showing that are free-speech traditions have been supported both by those on the left and the right.
The incident report in my arrest indicates the warrant was unsigned, and that comes on top of courtroom evidence suggesting there was no warrant at all.
What does all of this mean? We still are researching the issue, but we have found Alabama law stating that an unsigned warrant is "utterly void." That suggests my arrest and the resulting five-month incarceration in the Shelby County Jail might have been conducted outside the law.
Alabama incident reports include a notation that certain parts of the report are considered officer work product and "may not be public information." We therefore are not publishing the entire report, but a copy was made available for my defense at the resisting-arrest trial, and I learned the following:
At the bottom of the second page on the report is section No. 208. The section says "Warrant Signed," with boxes for "yes" and "no." The box for "no" is checked.
Our research indicates this is not a minor detail. Long-standing Alabama law has held that an unsigned warrant is "utterly void," and we will be taking a closer look at that law in upcoming posts.
Evidence made public so far strongly suggests that Fuller lied to law-enforcement officers who responded to a call about a disturbance at the Ritz Carlton on Peachtree Street in downtown Atlanta. Our research shows that making false statements to a police officer can be a felony in Georgia.
On top of that, a prominent Alabama attorney and whistleblower is calling on the Obama administration to use the Fuller case as an example in its campaign for zero tolerance in domestic-violence cases. Dana Jill Simpson, who has a law practice in Rainsville, Alabama, testified before Congress about the apparent political prosecution of former Governor Don Siegelman--a case over which Fuller presided. In an article at OpEd News earlier this week, Simpson calls on the White House to make an example of Fuller. From the Simpson article:
Every October President Obama and Vice President Biden speak out against domestic violence and proclaim that they stand for "zero tolerance" regarding this crime. Their speeches often feature the statistic that one in three women in America are impacted by domestic violence. VP Biden, in his first year in office, announced long-time advocate Lynn Rosenthal would be the White House advisor on violence against women, a newly created position because, Biden claimed, his office and the President genuinely believe in zero tolerance for domestic violence. President Obama called on executive heads of federal agencies in 2012 to create policies against domestic violence in their workplaces. In the following years President Obama has signed further laws to protect women who are victims of domestic violence.On a recording of Kelli Fuller's 911 call, she can be heard telling emergency dispatchers that she was being beaten and needed an ambulance. That indicates Mark Fuller did more than just defend himself. The tape suggests he was beating his wife, and it sounds like that's what is going on in the background of the 911 call.
This October President Obama and Vice President Biden will be faced with a challenge to the seriousness of their commitment to zero tolerance for domestic violence. They are now confronted by a sitting federal judge in Alabama named Mark Fuller who has been arrested for battery against his wife in the "ritzy" Ritz-Carlton Hotel in Atlanta Georgia. Fuller has been quoted in the press on the day of his release stating that he "just pushed" his wife (Kelli Gregg Fuller) to the ground and was defending himself from an attack by her, triggered by her concerns over his possible infidelity.
How do we know that Fuller could face a felony for making a false statement to police? Consider the case of a Cherokee, Georgia, school-board member named Kelly Marlow. From an Atlanta Journal-Constitution article about the Marlow case:
The Cherokee Tribune reports Cherokee school board member Kelly Marlow was found guilty tonight of the felony charge of making false statements to police about school chief Frank Petruzielo to police. Under Georgia law, that felony conviction means Marlow will immediately be suspended from her elected post as a school board member.
A jury also found her political adviser Robert Trim and Cherokee GOP Secretary Barbara Knowles guilty of lying to police.
The trio was indicted in October after they had charged that Petruzielo tried to run them down with his car after a school board meeting last June. They were charged with lying to the Canton Police Department.
Three public officials faced felony charges for lying to police? Should Mark Fuller face the same fate?
Russell E. Carparelli, executive director of the American Judicature Society at Vanderbilt University, told the Associated Press that Fuller will continue to be paid while the U.S. 11th Circuit investigates the incident. Carparelli then spelled out the usual disciplinary process for a federal judge:
The federal judicial code of conduct says a judge "should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."Is Carparelli contradicting himself? Yes. Is he trying to protect Fuller? Probably. Is he not familiar with all of the facts made public about the case? Our guess is that he probably is not.
The code doesn't spell out disciplinary actions in cases where a judge is arrested on misdemeanor charges.
Following an investigation and review by the circuit judicial council, he said, a judge found to have violated judicial conduct rules could be reprimanded or censured or asked to retire. Ultimately, a circuit could recommend the impeachment of a judge who refuses to quit.
Impeachment is generally reserved for judges who make false statements, take bribes or do other things to corrupt the judiciary, not those involved in domestic altercations, Carparelli said.
"Typically this type of thing would not go there," he said.
News reports have stated that Fuller told police he "just pushed" his wife and was acting only to defend himself. But a recording of Kelli Gregg Fuller's 911 call seems to tell a different story. On the call, Kelli Fuller can be heard telling emergency dispatchers that she was being beaten and needed an ambulance. That indicates Mark Fuller did more than just defend himself. The tape suggests he was beating his wife, and it sounds like that's what is going on in the background of the 911 call. Kelli Fuller's injuries, as described in press reports (cuts on her mouth and forehead) indicate she had been struck.
In his overall statement to AP, Russell Carparelli seems to be downplaying Fuller's actions, writing it off as a mere "domestic altercation." But in Carparelli's own words, making false statements can cost a federal judge his job. And Mark Fuller appears to have made false statements to police, which can be a felony under Georgia law.
Will the 11th circuit take Fuller's actions seriously or try to sweep them under the judicial carpet?
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Donald Watkins, however, is a different bird in the legal firmament. He has made so much money in various ventures that he apparently feels free to blister most anyone, including U.S. District Judge Mark Fuller (Middle District of Alabama).
Fuller faces a misdemeanor battery charge in the wake of an incident involving his wife at an Atlanta hotel room. If found guilty, Fuller could face up to a year in jail. And Watkins is calling for the judge, if convicted, to receive the maximum sentence. After all, Watkins states in an open letter released late last week, that is the kind of harsh punishment Fuller has handed down in his own courtroom for years. From the Watkins letter:
"Fuller has earned a reputation as a hardcore 'law and order' judge for the harsh sentences he imposes in criminal cases. He is a firm believer in handing down maximum sentences in criminal cases," Watkins wrote.
"... If Fuller is found guilty, we request that the Court sentence him to the maximum one-year jail time allowed under Georgia law for a misdemeanor. As I mentioned earlier, Judge Fuller believes in handing down maximum criminal sentences. I am sure he would want nothing less in his own case."
With that, Watkins was just getting warmed up. Other key points from the letter:
In the letter, Watkins said:
• Fuller does not give defendants a fair trial in his courtroom "We are asking that you give Fuller something he never affords criminal defendants in his courtroom — a fair trial, the letter says.
• That he expects others to attempt to improperly affect the verdict. "Expect his friends in the judiciary to attempt to influence the outcome of his case," Watkins writes.
• And that the judge is biased against women and people of color: "Defendant Fuller is used to receiving special treatment in Alabama. He is part of the oligarchy of white men who run the State of Alabama. Fuller has absolutely no respect for women (or people of color)."
Watkins not only blasts Fuller, he questions the integrity of the judiciary at large. I never thought I would live to see the day when a lawyer would lay it on the line like that about judges. But then, Donald Watkins long has been known for pulling surprises.
Nice to see he has not lost his touch.
|Luther Strange and wife, Melissa in a campaign ad|
The chief of staff to Alabama Attorney General Luther Strange is trying to derail a corruption probe of House Speaker Mike Hubbard, former Governor Bob Riley and his children, and more, according to a new report at the Alabama Political Reporter.
Bill Britt reports that Chief of Staff Kevin Turner is leading an in-house plot to have chief prosecutor Matt Hart removed from the case. Turner, who used to be at the Bradley Arant law firm in Birmingham, is holding a secret over Strange's head as leverage to get Hart off the case, Britt reports.
A secret involving Luther Strange? What on earth could that be? Perhaps we will know shortly, but for now, we have this from Bill Britt:
Sources from both within and outside of the Attorney General’s Office have confirmed that Luther Strange’s Chief Deputy, Kevin Turner, is orchestrating a plot to remove chief prosecutor Matt Hart from the Lee Country Grand Jury investigation. In this latest effort, it is said that Turner has devised a plan whereby a “personnel compliant” has been lodged against Hart.
“He is trying to poison Hart’s relationship with Luther,” said one individual with knowledge of the inter-working of the Attorney General’s Office.
According to two individuals closely aligned with the AG’s office—who wish to remain nameless—the complaint against Hart has been filed with Charla G. Doucet, Chief of the Attorney General’s administrative division. This bogus complaint is the first step in an administrative process to have Hart reassigned or fired from his position as Chief of the white collar crimes division.
The latest internal coup against Hart is believed to be the result of political pressure from Hubbard, along with former Gov. Bob Riley.
Britt writes that Bob Riley is in full damage control over information that has led investigators to his children, Minda Riley Campbell and Rob Riley. Britt outlines Minda Riley Campbell's ties to Hubbard's business and political interests. Multiple reports have linked Rob Riley to Poarch Creek Indian gaming funds that were funneled to the Republican State Leadership Committee (RSLC). Even GOP insiders suggest that transaction was unlawful, and the case has made national news, with coverage from Bill Moyers. The brewing scandal also shows signs of derailing Republican Ed Gillespie's run for a U.S. Senate seat in Virginia, all because of Gillespie's strong ties to the RSLC and Indian gaming money.
As for the secret that Kevin Turner is holding over Luther Strange, here is what Britt writes about that:
Inside the Attorney General’s Office, the effort to sabotage the Grand Jury, by eliminating Hart, is thought to be the work of Strange’s closest ally, Turner.
The seemingly unbreakable bond between Strange and Turner is rumored to be based on more scandalous motives, and not mere loyalty. As Strange’s driver and body man during the 2010 campaign for AG, there is speculation that Turner holds a dirty secret over his boss' head. Whatever the reason may be for Strange’s particular loyalty to Turner, there are more than a few questions raised by Turner’s recent actions against Hart.
Hmmm, Kevin Turner's dirty secret apparently originated with Luther Strange's 2010 campaign for AG? Who was involved in that campaign, at the top level? What could the secret possibly be?
We seem to recall that the job of chief counsel and principal advisor to Strange originally was slated for someone else, but she was forced to step aside--and more or less the same job went to . . . Kevin Turner.
What's going on here? I would say Bill Britt is sniffing into a potentially explosive story.
That statement assumes Fuller had integrity in the first place while the public record shows he's been lacking in that department for a long time--and al.com has ignored it.
We already see signs that any attempt to prosecute Fuller for misdemeanor battery will be a whitewash. In fact, a report out yesterday, indicates Fuller probably will avoid prosecution altogether. Public calls for the judge to resign are likely to go unheard by the judicial establishment, which appears determined to protect one of its own.
(A personal note: I'm one of numerous journalists or legal experts across the country--Scott Horton, Andrew Kreig, Dana Jill Simpson, Grant Woods, Bennett L. Gershman, and Peter B. Collins are among the others--who have questioned Fuller's integrity on the bench for years. In fact, tape-recorded evidence proves that I was cheated out of my job at a public university, the University of Alabama at Birmingham [UAB], because of my reporting about Fuller's unethical handling of the Don Siegelman/Richard Scrushy criminal case. We now have al.com admitting Fuller lacks integrity, essentially confirming my reporting from six-plus years ago [which was conducted on my own time, away from work, and I was protected as a state employee by the First Amendment.] I can't help but notice the irony of al.com, which largely championed Fuller's handling of the Siegelman/Scrushy at the time, now admitting the judge lacks integrity. I'm sure the Siegelman and Scrushy families notice the irony, too. We'll have more in a future post about why the Fuller story hits so close to home for me.)
For now, let's look at al.com's editorial as a classic example of how the modern mainstream media fails the public. Fuller's unethical behavior has been evident for years, but reporters and editors at al.com refused to pay attention. (So did U.S. Senators Richard Shelby and Jeff Sessions, who supported Fuller's nomination to the federal bench by George W. Bush.) Here is an excellent overview, published yesterday, of the many signs that Fuller has lacked integrity for years--and not just in his personal life.
Where to begin with evidence of Fuller's unethical acts, which predate his appointment to the federal bench in 2002? Here are just a couple of examples:
* A Missouri attorney named Paul Benton Weeks provided a lengthy and detailed affidavit showing that Fuller, as a district attorney in south Alabama, tried to defraud a state pension fund in order to provide extra cash for a favored employee.
* As a part owner in Colorado-based Doss Aviation, Fuller benefited financially from U.S. government contracts. In any criminal case before him as a judge, the U.S. government is a party. The conflict presented by Doss should be evident to any rational being, but Fuller refused multiple requests in the Siegelman/Scrushy case to recuse himself. Scott Horton, of Harper's, wrote the definitive article on this subject, titled "The Pork Barrel World of Judge Mark Fuller."
As for Fuller's dubious handling of the Siegelman/Scrushy case, here is a sampling of our posts on that subject:
* Fuller allowed the prosecution to get away with writing a vague indictment that hid the fact the alleged unlawful transaction between Scrushy and Siegelman happened almost a full year outside the five-year statute of limitations. When evidence finally proved that the charges could not lawfully go forward, defense lawyers properly asserted the limitations defense, and Fuller denied it. There never should have been a trial because, by law, the charges were outdated and time barred.
* Fuller allowed a runaway jury to get away with all kinds of transgressions, including improper e-mail communications between jurors and communications between a juror and a member of the defense team.
* Fuller gave unlawful jury instructions, failing to instruct the jury on the critical "explicit agreement" framework required by controlling law, a U.S. Supreme Court case styled McCormick v. United States, 500 U.S. 257 (1991).
That last bit of legal "handiwork" meant Siegelman and Scrushy were convicted of a "crime that doesn't exist." Scrushy has served his sentence, but Siegelman remains in a federal prison at Oakdale, Louisiana.
We could go on, but you get the idea: By law, the Siegelman/Scrushy trial should have been over, with all charges dropped, almost before it got started. Instead, thanks to Fuller's unlawful actions, two citizens who were not guilty went to federal prison.
That should terrify all caring citizens. But al.com has just now decided Judge Fuller has a problem with integrity? Perceptive observers knew that at least seven years ago. The big question is this: Did Mark Fuller have any integrity to begin with, even when he started his judicial career?
Current U.S. District Judge Mark Fuller is expected to keep his seat, even though he faces criminal charges of battery against his wife in an incident that allegedly started after she accused him of having an affair with a law clerk. Fuller is a Republican appointee, with George W. Bush picking him in 2002.
Prominent Alabama attorney Donald Watkins, in an article published on Facebook yesterday, points to the Buttram and Fuller stories as an example of the hypocrisy that reigns among corporate and legal elites in Alabama. Writes Watkins:
Buttram’s alleged womanizing never spilled over to the public arena. He was never arrested for battering his wife or any other woman. Whatever conduct compelled the judges to ask for Buttram’s resignation never rose to the level of a public spectacle. Buttram came to the bench as a scholar and gentleman, and he left as one.
Fast forward to August 11, 2014.
Montgomery federal judge Mark Fuller was bailed out of jail in Atlanta. Fuller, in a drunken rage, had savagely beaten his second wife Kelli Fuller in an Atlanta hotel room just two days earlier. Fuller’s mugshot has been plastered all over the Internet since the beating. Both his first wife Lisa and current wife Kelli have accused Fuller of womanizing. Lisa divorced Fuller amid such allegations. Fuller caved in without much of a fight, rather than answer questions under oath about his alleged alcohol and drug dependency, his verbal and physical abuse toward Lisa, and his infidelity. Kelli accused Fuller of cheating on her with his law clerk. Kelli’s accusation triggered Fuller’s violent behavior. He hit, body-slammed, and kicked Kelli until her battered body was covered in blood. Paramedics had to treat Kelli at the scene.
What is more, Fuller apparently made false statements to the police officers who were called to the scene to investigate his beating of Kelli. His version of the events was contradicted by Kelli’s account, which was supported by the physical evidence at the crime scene. In Georgia, making a false and material statement to a police officer investigating a crime scene is a felony crime. Fuller’s conduct in making false statements to the police officers at the scene has provided Fulton County prosecutors with an opportunity to add a felony charge against Fuller.
Mainstream and social media outlets are clamoring for Fuller’s resignation.
Fuller likely will stay on the bench, and he is expected to avoid criminal prosecution. Why the radically different outcomes in the Buttram and Fuller cases? Watkins spells it out:
This is judicial hypocrisy in action. Buttram had to leave the bench, but Fuller can stay. When the accused judge is a Democratic appointee, he must resign. When he is a Republican appointee, he can come back to the bench after he “deals with these serious issues”.
We need one standard of personal and professional integrity for federal judges, and it must apply across-the-board. The judges who are pushing a double standard for the benefit of Fuller ought to be ashamed of themselves. They need to resign too.
Please join me in saying goodbye to criminal defendant Mark Fuller and his sympathizers. Fuller should leave the bench now. Wife-beaters, drug and alcohol abusers, philanderers, and liars are out. Truthful and clean living judges who have respect for women are in. No exceptions will be tolerated.
In an earlier Facebook post, Watkins provided the best explanation I've read of behind-the-scenes king making in a wildly corrupt Deep South state:
In case you did not know, Alabama is a state dominated by the Republican Party. This oligarchy included Governor Robert Bentley, both of Alabama’s U.S. Senators, all but one member of the state’s Congressional delegation, most of the state’s legislators, most of Alabama’s federal and state judges, and the Alabama Business Council, among others. . . .
The oligarchy has known about Fuller’s propensity to beat his wives and infidelity for years, but it did not matter as long as he was protecting their interest on the federal bench. He made them extremely proud during the seven years that he served as chief judge. None of Fuller’s comrades in the oligarchy have spoken out about his recent arrest for spousal abuse. In Alabama, money is power. . . .
After Fuller’s arrest in Atlanta, the oligarchy made it clear to mainstream media outlets in Alabama that there would be no media-feeding frenzy over Fuller’s wife-beating story. They were instructed to ignore the story, to the extent possible. This is why the stories reported by Alabama media outlets have originated from out-of-state media organizations and my Facebook posts.
Reportedly, the oligarchy is arranging for Fuller to enter into an anger management program, an alcohol and drug abuse program, and a facility for the treatment of Fuller’s alleged sexual addiction. They will try to buy his wife's silence with a nice financial settlement in divorce proceedings that is well above the amount specified in his pre-nuptial agreement. They are working feverishly to get Fuller’s criminal case dismissed. In Alabama, money is power.
When it is all said and done, a new and spit-shined version of Mark Fuller will be rolled out to the public. He will apologize for his bad behavior, pronounce himself as cured of his demons, wrap himself in God and the flag, and march back into his courtroom to dispense justice out to regular Alabamians.
Six years later, in the wake of reports that Fuller has entered rehab because of charges that he recently assaulted his wife in an Atlanta hotel room, the whole world knows Fuller lacks the ethical standards to be a federal judge. Even the staunchly conservative al.com (formerly The Birmingham News) has stated that Fuller "compromised his integrity" and should resign.
Recent events have proven that my reporting from 2007 and 2008 was right on target, that I was right all along. The events also have proven that other journalism "early responders" on the Fuller story, including Scott Horton of Harper's and Glynn Wilson of Locust Fork News, also were right.
But I've yet to see an article about the exemplary job the digital press did in exposing a corrupt federal judge, while mainstream outlets either ignored the story or were slow to examine it. As for me, I'm still out of a job, and my wife and I have suffered financial devastation--all because I reported accurately about a judge that even his one-time staunch supporters now admit has no business serving on the federal bench.
That's why the flood of Fuller stories over the past two weeks hit so close to home here at Legal Schnauzer. When I first started reporting on the Siegelman case, I had worked at UAB for almost 20 years; I had worked as a professional journalist for almost 30 years. I knew what I was talking about--and history now proves that, without question. But I still got cheated out of my job, and that job never has been replaced, leading to untold misery for my family.
Why do I say "cheated" out of my job? Well, it's undisputed that I wrote my blog on my own time, away from work. It's also undisputed that, as a government employee, I had First Amendment protection to comment on matters of public concern--and that's exactly what I did with my posts about Mark Fuller's actions in the Siegelman/Scrushy case.
Under the facts and the law--and I sat through a four-hour grievance hearing where all of the relevant facts were laid out--I could not have been fired, or even disciplined, at UAB. But I was ousted anyway. How does that happen?
In my view, it happened because certain political/legal forces wanted to protect Fuller's reputation so that the Siegelman/Scrushy convictions would look legitimate. These forces are part of the Alabama oligarchy that prominent attorney Donald Watkins says protects "conservative" judges like Fuller, who in turn protects their financial interests. My reporting, which showed exactly how Fuller was acting outside the law, threatened the plan to legitimize the Siegelman/Scrushy convictions. And as a state employee, I was an easy target. I lost my job, and UAB butchered the First Amendment and all kinds of federal anti-discrimination laws in the process.
We now know that Fuller's reputation wasn't worth protecting. Even his one-time supporters at al.com admit that. A Republican appointee who is corrupt enough to sicken even the al.com editorial board is has to be pretty bad.
Now that it's been proven I was right about Fuller from the outset, how does that make me feel? Vindicated? Satisfied? Justified? I'm not sure any of those is the right word. My wife and I now have to worry about our ability to keep a roof over our heads, putting meals on the table, and paying bills in the future.
My reporting on Judge Mark Fuller, which was both accurate and well ahead of its time, has led to horrible real-world consequences for my wife, our kitty kats, and me. Worries about those consequences are so overwhelming in my mind that I can't even decide what words best describe my feelings about recent events involving Judge Fuller--although I know for sure that I feel sorry for any woman who might come into his orbit. Based on what we know about recent events in Atlanta, plus Fuller's divorce from his first wife, the man clearly is dangerous, with alcohol and substance-abuse issues to fuel his rages.
This post is likely to raise a number of questions for readers, so let's touch on some of them before closing.
How do I know it was my reporting on Fuller's actions in the Siegelman/Scrushy case that caused me to be "fired?" A UAB human-resources official, in so many words, told me just that--and I caught the conversation on audiotape.
Why do I have the word "fired" in quotation marks in the opening paragraph and elsewhere in this post? I've come to realize that the record is unclear whether I actually was terminated or not. A friend of long standing, who has 30 years of experience in state government and higher education, recently heard a chronology of events leading to my ouster--and he says it's doubtful that what happened could accurately be called a firing. After all, the term "firing" indicates I did something wrong, which violated policy in such a way as to justify immediate termination. My grievance hearing showed I did no such thing. In fact, as I've reported previously, the UAB grievance committee that heard my case found that I should not have been fired--but the director of human resources ousted me from my job anyway--and then university president Carol Garrison supported that decision. Is that a firing? What do you call it?
In such a case of obvious wrongdoing by a state university, why did I not win my First Amendment/discrimination lawsuit? If anyone thinks Mark Fuller is the only rogue among federal judges on the bench in Alabama, he or she is sadly mistaken. U.S. District Judge William Acker, who is getting close to 90 years old, handled my case and made unlawful rulings that defy clearly established law, not to mention common sense. Acker granted summary judgment to the UA System without allowing any discovery. Anyone with the slightest knowledge of the law and civil procedure knows that can't be done--but Acker did it anyway. In fact, Acker might have even less integrity than Mark Fuller--if that is possible.
We will address these questions in future posts. But for now, I think I've thought of a word that might best describe how I feel in light of recent proof that I was on target about Mark Fuller, long before it was cool to say he has integrity issues. The word is "hungry"--as in hungry for justice.
Why that word? Well, I recently read an article about "traumatic psychiatric injury." It's different from standard depression or anxiety, and I suspect many victims of courtroom abuse suffer from it. I'm talking about victims I've written about on this blog--Sherry Rollins, Paul Minor, Linda Upton, Mark Hayden, Bonnie Cahalane, Wes Teel, and many more.
The most common cause of traumatic psychiatric injury is bullying. My wife and I have been bullied for 14 years, ever since a bogus lawsuit filed by a criminally inclined neighbor started our legal nightmare. The people mentioned above all have been bullied by the court system--and loads of public documents, many of which we've posted here, prove it.
As for traumatic psychiatric injury, the article states that victims tend to never stop searching for justice. They usually never stop holding out hope that the proper people will be held accountable in some lawful way. Specifically, the article states, the victim "looks forward to each new day as an opportunity to fight for justice."
So call me hungry for justice. And I doubt that will ever change.
(To be continued)
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John Kennard, a pastor and long-time tax assessor in Greene County, Alabama, says Strange's actions represent a clear conflict of interest.
Kennard seems to have a strong point. And prompted by Kennard's complaint to the Alabama Ethics Commission, we can think of numerous disturbing questions about Strange and the office he runs. But first, let's look at key background.
A Greene County grand jury brought perjury charges against three men who testified on behalf of the AG's office in order to obtain a search warrant for a 2011 raid at the Greenetrack casino. A judge determined after the raid that the men--two ABC agents and a gambling expert hired by Strange's office--had made false statements under oath.
Strange now is seeking to intervene in the perjury case and drop the prosecution. From the Montgomery Advertiser:
“I find it to be a clear conflict of interest, an obvious conflict of interest,” said Kennard, who also filed the complaint with the Alabama Bar Association. “No one who looks at this objectively could miss the problem. If it’s not illegal, it’s certainly unethical.”
The Montgomery Advertiser asked Strange’s office for a comment on Kennard’s ethics complaint or an explanation for why it’s attempting to intervene in the Greene County perjury case. A spokesperson in the AG’s office confirmed receipt of the request but did not provide a comment.
ABC agents William Stanley Carson and Gary Michael Reese and gambling expert Desmond Ladner face indictments for perjury. Greene County district attorney Greg Griggers seeks to bring the three men to court, but Strange's office has filed papers to intervene.
Here are more details from the Greene County Democrat:
The ethics complaint questions whether Attorney General Luther Strange acted properly when he took over the cases of three defendants charged by a Greene County Grand Jury with illegal acts when they were under his command and authority. The complaint states, “ the three defendants were hired by the Attorney General’s Office, directly or were provided to his office, to be a part of his illegal gaming task force.”
The complaint further states that Attorney General Luther Strange took over the cases not to prosecute them but to quash or nol prose the indictments of the legitimately convened Greene County Grand Jury.
The Greene County newspaper describes the impact electronic-bingo raids have had on its area and similar counties in Alabama. Citizens of Greene County in 2003 approved a constitutional amendment that allowed e-bingo in the county:
At its height, before the raids, electronic bingo establishments employed over a thousand people in Greene County and generated $200,000 per month to support the Greene County Board of Education, Greene County Commission, municipalities in Greene County, the Greene County Sheriff’s office and other charities. AG Strange has also closed electronic bingo facilities in Macon, Lowndes and Houston counties.
Mayor Johnny Ford of Tuskegee in Macon County has filed a suit in Federal Court against AG Luther Strange for restricting the voting rights of Macon County residents because of his actions in closing down bingo at Victoryland in Shorter, Macon County, Alabama. This lawsuit is pending at the Federal (11th) Circuit Court of Appeals in Atlanta.
What about those disturbing questions regarding Luther Strange? Here are a few that come to mind:
* Is Strange trying to quash the perjury prosecution in Greene County because he and/or his staff instructed the three "experts" to lie under oath? Could that information become public if the case is tried?
* If Strange and his office resorted to such tactics in Greene County, did they do the same thing in Macon, Houston, and Lowndes counties?
* Aren't the Poarch Creek Indians the major beneficiary of Strange's actions to close non-Indian e-bingo facilities? Don't the raids wipe out the tribe's competition? Didn't Strange receive major campaign contributions from the Poarch Creeks? Was an illegal quid pro quo involved in said contributions? Did Strange agree to close non-Indian casinos in exchange for the tribe's support. If so, isn't that the kind of unlawful act that can lead to a federal prison sentence?
* If the answer to the above questions is yes, doesn't that mean Luther Strange is a criminal, running a criminal enterprise out of the Alabama Attorney General's Office?
* Will the U.S. Department of Justice ever scrutinize the curious actions of Luther Strange and his like-minded conservatives regarding the closing of non-Indian casinos--after taking, or arranging for the transfer of, large sums of money from Indian gaming interests? These associates include former Governor Bob Riley and his son Rob Riley, conservative activist Eric Johnston, House Speaker Mike Hubbard, and every member of the Alabama Supreme Court?
* Speaking of the Alabama Supreme Court, it has made a long string of dubious rulings that allowed Bob Riley and Strange to pursue e-bingo raids against non-Indian facilities. In some instances, the high court appeared to contradict its own previous rulings. Has there been unlawful communication between certain conservative forces and the all-Republican Alabama Supreme Court? If so, doesn't that make a mockery of "justice" in the state--and shouldn't it be the subject of a federal criminal investigation?
|Paul Craig Roberts|
These thoughts come to us after reading the latest from Paul Craig Roberts, a former assistant treasury secretary in the Reagan administration and former columnist at the Wall Street Journal. Despite his solid conservative credentials, Roberts has become an independent voice who is willing to criticize bad actors on both the right and the left.
One such bad actor is Judge Mark Fuller, and he caught Roberts' attention in a recent piece at the Foreign Policy Journal. Fuller's handling of the Don Siegelman prosecution is a black mark on a criminal "justice" system run amok, Roberts reports:
In the totally corrupt American criminal justice (sic) system, anyone indicted, no matter how innocent, is almost certain to be convicted.
Let’s take the case of Alabama Democratic Governor Don Siegelman. Judging by the reported evidence in the media and testimony by those familiar with the case, Don Siegelman, a popular Democratic governor of Alabama was a victim of a Karl Rove operation to instruct Democrats that their political party would not be permitted a comeback in executive authority in the Republican South.
There is no doubt but that the Alabama Republican newspapers and TV stations are political tools. And there is little doubt that former Republican US Attorneys Alice Martin and Leura Canary and Republican US federal district court judge Mark Fuller were willing participants in Karl Rove’s political campaign to purge the South of popular democrats.
Are Martin, Canary, Fuller, and Rove the kind of people we should entrust with our most important institutions? Roberts says the answer is no, and he points to Fuller's recent activities:
Republican US district court judge Mark Fuller was arrested in Atlanta this month for beating his wife in an Atlanta hotel. The judge, in whose honor courts must rise, was charged with battery and taken to the Fulton County jail at 2:30AM Sunday morning August 10. If you look at the mug shot of Mark Fuller, he doesn’t inspire confidence. Fuller was a bitter enemy of Siegelman and should have recused himself from Siegelman’s trial, but ethical behavior required more integrity than Fuller has.
Among many, Scott Horton, a professor of law at Columbia University has provided much information in Harper’s magazine involving the corruption of Fuller and the Republican prosecuting attorneys, Alice Martin and Leura Canary.
Roberts does not give Democrats, or the public, a free pass. He is particularly critical of those who live in the South and happily ignore Mark Fuller and his ilk:
So why hasn’t the Obama regime pardoned former Alabama Governor Don Siegelman who unlike other pardoned parties is actually innocent? Siegelman was bringing the Democratic Party back in the corrupt Republican state of Alabama. He was a successful governor who would have been US senator, and Karl Rove apparently exterminated him politically in order to protect the Republican hold on the South.
It is extremely ironic that the formerly solid Democratic South, plundered, looted, and raped by Republican armies, votes Republican. If anything shows the insouciance of a people, the South’s Republican vote is the best demonstration. The South votes for a party that destroyed the South and its culture. There is no greater evidence of a people totally ignorant of, or indifferent to, their history than the Southern people who vote Republican.
Corruption across the board should be a concern for all Americans, Roberts writes. But corrupt courts are a sure sign of trouble in the future:
Every public institution in the United States and most private ones are corrupt. . . .
Law is just one public institution, but it is a corner stone of society. When law goes, everything goes.
When law goes, everything goes? Experience has taught me that law already has gone in Alabama, and it is teetering in many other states--in all regions of the country. If Roberts is correct, and I believe he is, America has grim days ahead.
|Protests in Ferguson, MO|
The nation's attention has been riveted in recent weeks on Ferguson, Missouri, a St. Louis suburb where an unarmed black teenager named Michael Brown was shot and killed by a white police officer on August 9.
Many Americans now are asking questions about abusive tactics that law-enforcement officers use against citizens. This is not a new issue here at Legal Schnauzer. I've seen abusive cops in a firsthand way, inside my own home.
You don't have to be a young black guy, in a public place, to be injured by rogue cops. It can happen when you are a middle-aged white guy, simply trying to park a car in your own garage.
How gross is the misconduct in my case?
Courtroom evidence indicates my arrest last October was conducted without a warrant. The facts presented in court strongly suggest I was the victim of a state-sanctioned kidnapping, unlawfully thrown in jail for five months--all because of posts that appeared on this blog. (I was the only U.S. journalist to be jailed in 2013, quite a distinction for Shelby County, Alabama.)
A videotape of the arrest, played in court, shows that Shelby County Deputy Chris Blevins never showed me a warrant, never told me he had a warrant, and never said I was under arrest until I had been knocked down three times and sprayed in the face with Mace. When prosecutor Tonya Willingham later was ordered by Judge Ron Jackson to turn over copies of any warrants in the case, she said, "Your Honor, we have no warrants."
(In an incident report, Blevins states that he had two warrants for my arrest on contempt of court. The alleged contempt of court stemmed from a preliminary injunction that Judge Claud Neilson had issued in a defamation lawsuit filed against me by Alabama political figure Rob Riley. Never mind that a 1931 U.S. Supreme Court case styled Near v. Minnesota says you cannot be subject to a preliminary injunction in a case of alleged defamation, and that finding is built on First-Amendment law that dates back some 200 years, almost to the beginning of the country. Cases subsequent to Near make it clear that First Amendment issues are considered so important under the law that no court is to issue a preliminary injunction in a defamation case because it would amount to censorship by a single judge. For that reason, cases involving the First Amendment generally must be heard by a jury, but Rob Riley never requested a jury trial, and Judge Neilson repeatedly made "single judge" rulings that amounted to unlawful censorship. [See Bernard v. Gulf Oil Co., 619 F. 2d 459, 1980.]
(It's not Officer Blevins' job, of course, to know the law behind any warrant that might come his way. But one has to wonder about his actions. His report states that he had two arrest warrants for contempt of court, but a video of the arrest shows that he never showed me a warrant, never told me he had a warrant, and never even told me he was there to arrest me until I had been beaten up and sprayed in the face with Mace--inside my own home. Things become even more curious when prosecutor Tonya Willingham is ordered in court to turn over any warrants and states that she doesn't have any. What is a reasonable person to think? This reasonable person thinks there either was no warrant, or it was defective to the point that law-enforcement officials did not want me to have a chance to give it a close look.)
In previous posts, I've raised the issue of whether the warrant in my case was unsigned. But that issue is irrelevant in light of courtroom evidence that there was no warrant at all.
What does this mean under the law? An Alabama appellate court overturned the conviction in a 1975 stolen-property case because a search warrant in the case was unsigned. In so doing, the court cited a 1903 case that found an arrest warrant under such circumstances was "utterly void."
The stolen-property case is styled Kelley v. State, 316 So. 2d 233 (1975), and we will take a close look at it in upcoming posts. But first, let's look at these issues in the context of my own arrest, which appears to go beyond the question of whether a warrant was signed to whether there was a warrant at all.
To make matters more disturbing, my arrest was not even for a crime. It was for alleged civil contempt, and at the time, I had a pending motion before the court showing that I had not been lawfully served. That meant the court had no jurisdiction over me, that it had no authority to order my arrest or do anything else.
The civil contempt grew from a preliminary injunction in a defamation case, and analysts from both the left and right have written that it represents an unlawful prior restraint under the First Amendment.
Since my release from five months of incarceration on March 26, 2014, I've reviewed a portion of the many articles written about my case in both the mainstream and Web press. Most of the reporting has focused on First Amendment issues, and that is understandable given the weighty nature of free-speech matters.
But I also am troubled about the Fourth Amendment issues, which deal with the right to be free from unreasonable searches and seizures and requires a warrant that is judicially sanctioned. I was subjected to two traffic stops, which are considered seizures under the Fourth Amendment. And I still have nightmares from a deputy entering my home, without showing a warrant, and then knocking me to a concrete floor three times, Macing me in the face, and dragging me to a patrol car.
All of this is particularly troubling when you consider that this was a non-criminal arrest inside a dwelling. The U.S. Supreme Court has placed special standards on law enforcement when making arrests inside the home. We see signs that those standards were not met in my case.
We will examine relevant state and U.S. law in upcoming posts.
It all shows that police officers have been acting outside the law long before most Americans ever heard of Ferguson, Missouri.
The news broke on the same day that the Alabama Supreme Court ruled against State Rep. Barry Moore in his effort to have perjury charges dismissed. That seems to mean that a grand-jury investigation in Lee County, with House Speaker Mike Hubbard and former Governor Bob Riley possibly at the center, will stay on a steady track.
Could a new day be dawning for justice in Alabama? We will not be holding our breath here at Legal Schnauzer. Without serious attention from the Obama Department of Justice, we see little chance that Alabama corruption will be unearthed in a major way. (On a possibly hopeful note, the Obama DOJ landed convictions yesterday in a corruption probe involving former Virginia Governor Robert McDonnell and his wife. Our guess is that any sleaze in Virginia is mild compared to what we've seen in Alabama over the past 15 years or so.)
For now, Judge Mark Fuller is front and center, thanks in large part to the Facebook reporting of prominent Alabama attorney Donald Watkins. The Fuller story hits close to home at this blog because I was cheated out of my job as an editor at UAB because of my accurate reporting in 2007-08 about Fuller's corrupt handling of the Don Siegelman/Richard Scrushy case. Now, we all know that Fuller is ethically challeged, that he's had drug, alcohol, and domestic-abuse issues so severe that even his judicial colleagues have called on him to resign, according to Donald Watkins.
In other words, my reporting on Fuller was both accurate and ahead of its time. And evidence at my UAB grievance hearing showed I produced those reports on my own time, away from work. I did not violate university policy in any way, and as a state employee I was protected by the First Amendment to discuss matters of public concern, but powerful legal/political forces backstabbed me because they could not have my posts showing the public that the Siegelman and Scrushy convictions were illegitimate. Sadly, UAB's "leaders" at the time were so weak and ethically challenged, they allowed an unlawful termination to take place.
As for Donald Watkins, he was in Atlanta for today's Fuller hearing and reports as follows:
Criminal defendant Mark Fuller traded his Fulton County Jail attire for a polished Wall Street look as he stood before a Fulton County Magistrate this morning. Without objection from his battered wife Kelli, Fuller, who has no prior arrest for domestic battery, will be entering a 24-week treatment program for his domestic violence. Fuller will also be assessed and treated (if necessary) for alcohol and substance abuse while undergoing his domestic violence treatment. He will not be permitted to have contact with Kelli while he is undergoing treatment.
Fuller is free to select an approved treatment program outside of Georgia. He did not announce today the name and location of the treatment facility he has selected.
Fuller will report back to Court in person on October 14, 2014, to show proof of his enrollment in the court-approved treatment program. His case will be dismissed at that time. If Fuller fails to complete the 24-week program or engages in another act of domestic violence while being treated, his criminal case will be reinstated.
Fuller quickly exited the courthouse after his pre-trial treatment program was announced. Fox TV News (Atlanta) covered the hearing. No Alabama media outlets covered the hearing. Apparently, wife-beating by one of the State's most powerful federal judges is not a newsworthy event.
A number of online news outlets picked up on the discrepancy. Perhaps my favorite was from Esquire, with the title "A Tale of Two Thugs."
You might think Fuller's hearing last Friday in Atlanta would have been a somber occasion. But the judge and his lawyer issued two of the most outrageous quotes I've heard in a while. Either Fuller and his lawyer think the public consists of dolts--or they are trying out for the comedy-club circuit, or both.
Here are a few of the disturbing questions raised by the Rice and Fuller cases:
* Do Americans hold professional football players to a higher standard than they have for federal judges?
* Is Rice getting rougher treatment because he is black, and Fuller is white?
* Do we need protests like the one that followed the shooting of Michael Brown in Ferguson, Missouri?
Yes, video evidence played a key role in sealing Ray Rice's fate. But there is powerful audio evidence in the Fuller case--where it sounds like a serious beating is being administered to Fuller's wife in an Atlanta hotel room. She is heard to scream, "He's beating on me! Please help me!"
What about those quotes that came out of the Fuller hearing? Let's try this one, as reported by al.com, from attorney Barry Ragsdale, referring to Fuller:
"He doesn't have a drug or alcohol problem and never has," Ragsdale said.
Right, that's why Fuller accepted a 24-week diversion program administered by a Georgia court that, according to the Montgomery Advertiser, includes drug and alcohol evaluation. My research shows that 90 days is standard for drug rehab. Fuller is getting twice that long, but we are to believe he has no drug or alcohol problems? Sheesh!
Here's the outrageous Fuller quote:
"I reached this difficult decision after consulting with my family, and deciding that it was in every one's best interests to put this incident behind us," Fuller stated. "While I regret that my decision means that the full and complete facts regarding this incident will likely not come out, I have no doubt that it is what is best for all involved."
Mark Fuller wants "the full and complete facts" to come out? This is the same guy who, during a divorce from his first wife, asked that the case file be sealed so that revelations about extramarital affairs, alcohol abuse, prescription-drug abuse, and child abuse would not come out. (Alabama attorney Donald Watkins states on his Facebook page that he has all the brutal details about the beating Kelli Gregg Fuller sustained, and he intends to publish them.)
During Fuller's 2012 divorce, Montgomery Independent Editor Bob Martin addressed some of the ethical issues that appeared to be present. And Martin showed they appeared to involve violations of the public trust and possible misuse of public funds. Wrote Martin:
Those in a position to know, report that the affair by Judge Fuller, conducted with his former Courtroom Deputy Clerk and bailiff, Kelli Gregg, has been ongoing for four or five years and is basically an “open secret” in the building. Ms. Gregg, who has two children, was divorced by her husband about six months ago.
Sources in a position to know tell the newspaper that Fuller and Gregg have traveled together extensively, including trips to Dothan, New York, Tallahassee and perhaps Las Vegas.
To borrow a phrase from Esquire, Ray Rice seems to be a thug who got what he deserved. But Judge Mark Fuller also seems to be a thug, and he has received mostly protective treatment from his judicial brethren.
The public should not rest until Mark Fuller has been held accountable. And clear signs of racial favoritism in these two cases should not be ignored.
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The trial began yesterday before Montgomery County Circuit Judge William Shashy. Why is the trial in Montgomery when VictoryLand is in Macon County? That's because Macon County Judge Thomas Young correctly denied Attorney General Luther Strange a search warrant, so Strange asked the Alabama Supreme Court to force Young off the case.
The All-Republican Supreme Court, which has routinely violated its own precedent to allow raids of non-Indian gaming facilities, granted Strange's request. That's why Shashy, who was appointed to the bench by former Republican Governor Fob James, is hearing the case. Strange wants Shashy to allow his office to destroy some 1,615 machines and $223,000 in cash that was seized from Victoryland, the facility that long has been run by Milton McGregor.
By the way, the recent report about the cost of the anti-gambling crusade since 2011 doesn't come close to the actual figure. As we reported here, the Birmingham law firm Bradley Arant sucked up $10 million of state dollars during the final two years of Governor Bob Riley's tenure, when the administration largely was fighting non-Indian gaming. Associated Press reported that Riley paid Bradley Arant more than $536,000 for work related to the anti-gambling task force. (Riley's son-in-law, Rob Campbell just happens to be a partner at Bradley Arant.) The true cost to Alabama taxpayers numbers way into the millions.
Why do we say in our headline that money spent on the bingo battle is being "wasted." Why do we put quotation marks around the term "illegal"? The basic answer is simple; anyone with minimal reading-comprehension skills can figure it out.
Is it a coincidence that Riley opposes non-Indian gaming, considering that he benefited from $20 million of Indian gaming funds, much of it funneled through GOP felon Jack Abramoff? Is it coincidence that Riley's son, Birmingham lawyer Rob Riley, helped funnel $100,000 of Poarch Creek Indian funds to an organization supposedly designed to fight gaming on all fronts? Is it a coincidence that Luther Strange received $100,000 in campaign funds from the Poarch Creek Indians?
The answer to all of these questions likely is no. And a reasonable person could conclude that all of these transactions involved a "quid pro quo," meaning the politicos agreed to shut down the tribes' gaming competitors in exchange for campaign cash. If proven, that is the kind of illegal deal that can send a public figure to federal prison for years. If proven that the Alabama Supreme Court made it happen via a string of unlawful rulings . . . well, one can only imagine how Chief Justice Roy Moore and his colleagues might look in orange jump suits.
We're not sure what will happen in Judge Shashy's courtroom this week (and perhaps into next week). But it doesn't really matter because we've already proven in a lengthy series of posts that electronic bingo is legal in Macon County. (For the record, our research shows electronic bingo also is legal in Houston County; we have not studied the constitutional amendments for Greene and Lowndes counties, but our guess is that e-bingo is legal there, too.)
By the way, you can check out our series of posts on the Macon County issue here.
Why do we say the issue is simple? Well, the gist of the matter is this: Strange's main argument is that the VictoryLand machines violate state statutes that outlaw slot machines and illegal gambling devices. A simple concept of state law, however, is this: A constitutional amendment trumps a state statute.
Chorba-Lee Scholarship Fund v. Sheriff Mike Hale, et al, 60 So. 3d 269 (2010) is just one of many cases in which the Alabama Supreme Court has spelled this out.
'Undeniably, the legislature cannot enact a statute that conflicts with the Constitution, that is, that prohibits that which is permitted by the Constitution or that permits that which is prohibited by the Constitution.'" Opinion of the Justices No. 373, 795 So.2d 630, 632 (Ala.2001) (quoting City of Birmingham v. Graffeo, 551 So.2d 357, 361-62 (Ala. 1989)).
We will provide more details in an upcoming post. But you can see why we say this involves a simple matter of law. You can also see why we say the Alabama Supreme Court has repeatedly violated its own precedent.
Who will be the winner in the Montgomery courtroom? Our first guess is that Judge Shashy already has received instructions to rule against VictoryLand--and he will do just that. If Shasy proves to be competent and honest, Strange will appeal to the Alabama Supreme Court--and it will rule in the AG's favor.
The winner might be in doubt, but Alabama taxpayers are the clear losers. Millions of their dollars are being wasted on a legal battle that never should have started in the first place.
The VictoryLand forfeiture case, going on this week in the courtroom of Montgomery Circuit Judge William Shashy, will determine if the Alabama court system has a shred of integrity left.
On the surface, the case is about electronic-bingo equipment. VictoryLand maintains that its machines, equipment and cash were unlawfully seized in a February 2013 raid conducted by Attorney General Luther Strange. The AG's office maintains the equipment represents illegal gambling devices and should be destroyed.
The real entity on trial, however, is the Alabama court system--and the judges who rule over it.
That's because the facts and law in the VictoryLand case are stunningly straightforward--and they have been since Strange's operatives stormed the Macon County facility roughly 19 months ago.
As we showed in a post yesterday, the law clearly shows that VictoryLand and owner Milton McGregor have the correct position here. According to the Montgomery Advertiser, Strange's office does not even have a certified electronic-gaming expert to counter VictoryLand's testimony.
The e-bingo machines in question were operating lawfully, under a constitutional amendment approved in 2003 by Macon County voters, and never should have been seized. In fact, no one even questioned their legality for seven years. That happened only after former governor Bob Riley decided to launch a crusade against non-Indian gaming during his last two years in office.
Riley had been the beneficiary of millions of campaign dollars from Indian gaming interests, much of it funneled through GOP felon Jack Abramoff, so his raids apparently were based on politics and not the law. If the law accounts for anything in Alabama, the machines will be returned to VictoryLand as soon as possible.
Moreover, it's clear that Macon County Circuit Judge Thomas Young was correct in 2013 to deny Strange's request for a search warrant--and the Alabama Supreme Court was wrong to force Young to sign the search warrant and then step down from the case.
The key facts and law on this case can be examined in a series of posts we wrote last year about the VictoryLand case. Nothing about the fundamental law and facts has changed since then, and the only questions are: (1) Will Shashy rule according to law and order VictoryLand's equipment returned? and (2) Will the Alabama Supreme Court correctly deny Strange's inevitable appeal?
The high court has consistently violated its own precedent to side with Strange and Riley in their crusade against non-Indian gaming facilities--which appears driven by the huge sums of money both have received from Indian gaming interests.
Does that mean the all-Republican Alabama Supreme Court is tainted by Indian gaming cash? Is it possible something has caused the high court to change, and it now will rule lawfully for VictoryLand?
How easy is the law in the VictoryLand case? Here are the two overriding issues:
(1) Strange claims that the casino's machines violate state statues that outlaw slot machines and illegal gambling devices. But e-bingo in Macon County was approved by a constitutional amendment, and the Alabama Supreme Court has ruled repeatedly that a constitutional amendment overrides a state statute. To use gaming lingo, the constitutional nature of the Macon County law "trumps" anything Strange can come up with of a statutory nature.
(2) Strange claims the game played on the machines does not match what commonly is defined as bingo. But again, Amendment 744 ("Bingo Games in Macon County) takes care of that issue. The amendment states:
The sheriff shall promulgate rules and regulations for the licensing and operation of bingo games within the county. The sheriff shall insure compliance pursuant to any rule or regulation and the following requirements . . .
Judge Young, in denying Strange's application for a search warrant, addressed this issue:
In the instant case, given the fact that the Constitutional Amendment which provides for bingo being played at Victoryland allows the Sheriff to make a determination as to the nature of the bingo, and further, given the fact that he has publicly declared the machines presently located at that location to comply with the Supreme Court guidance in Cornerstone, there is clearly a lack of sufficient probable cause to warrant such an extraordinary writ.
In other words, it's up to the sheriff to decide if a certain game meets the definition of bingo. And the Macon County sheriff has ruled in the affirmative.
That, plus the fact that a constitutional amendment trumps a state statute, means Strange never had any lawful grounds to seize VictoryLand's equipment--and he certainly has no grounds to keep it.
This is a high-profile case that is being closely watched both in Alabama and beyond. Will Alabama courts finally get it right on such an easy case? If they don't, will it be time for the U.S. Department of Justice to launch an investigation, perhaps of Luther Strange, his associates, and the Alabama Supreme Court?
We don't know the answer to the first question. But the answer to the second question definitely is yes.
|Joe Espy and Milton McGregor|
That means any testimony presented by gambling experts for VictoryLand owner Milton McGregor will go uncontroverted. McGregor has a powerful legal team, led by Joe Espy and Charlanna Spencer, and they are expected to present expert witnesses to show that the electronic-bingo machines at VictoryLand casino are legal under Macon County's 2003 constitutional amendment.
If VictoryLand's experts show Montgomery County Circuit Judge William Shashy that the machines are legal, and the AG's office presents no expert to counter that, the controversy should be settled. Law, it seems, doesn't get much simpler than that.
Montgomery Advertiser reporter Josh Moon picked up on that point in this blog post from the courtroom, referring to the testimony of a VictoryLand expert:
Josh Moon @Josh_Moon Here's what I don't get: if this guy w/his background says these games are bingo and state has no expert saying otherwise, isn't that a wrap?
That's an excellent question from Mr. Moon, and the answer is, "Yes, that should be a wrap"--not even counting the points we raised in our two previous posts that also should have made the case a wrap.
We're not sure what the AG's office is up to with its trial "plan," but its decision to pull expert witness William Holmes (age 81) did provide some comic relief. From the Montgomery Advertiser:
The state also told the court that it wouldn’t be calling its expert witness, William Holmes, to testify. The AG’s office entered into a two-year, $15,000-per-year contract with Holmes after its previous expert, Bob Sertell, died in May.
Lawyers for VictoryLand and owner Milton McGregor had filed a motion to exclude Holmes as an expert, because the 81-year-old former FBI agent, who retired 26 years ago, had never examined or played an electronic bingo machine.
The AG's trial strategy seems to be farcical. It replaced a dead expert witness with one who is 81 years old, has been retired for 26 years, and admittedly (it seems) has never examined an electronic-bingo machine.
Deputy AG Sonny Reagan bragged in court that his office has twice won favorable rulings in bingo trials without calling an expert gaming witness. That can only lead one to conclude that Reagan must have been facing incompetent opposing counsel (Espy, Spencer & Co. could hardly be described as incompetent) or he was the beneficiary of a crooked/incompetent judge.
Is this all a joke to Luther Strange? Is he unconcerned about Shashy's ruling because he knows the Alabama Supreme Court consistently has ruled in his favor, contrary to all kinds of law? Was Strange's goal simply to damage McGregor financially, and that's been accomplished, so the AG doesn't care about the outcome of this forfeiture trial. According to several reports, Strange's agents so badly damaged VictoryLand's machines that they might now be worthless anyway. Perhaps that's why "Big Luther" doesn't seem to be putting much effort into this trial.
That leaves us with this question: Does VictoryLand have grounds to seek civil remedies for the huge damages it has suffered from being closed some 19 months, especially if the AG's raid is proven to have been unlawful? Our guess is that such damages probably range in the hundreds of millions of dollars--at least.
Strange likely is protected by prosecutorial immunity, and it often is difficult to sue the state under Eleventh Amendment immunity. Perhaps Espy and Spencer have a plan for seeking monetary justice on their client's behalf--from somewhere--but our guess is that any legal avenues will be slim and narrow.
Will the Alabama Supreme Court once again, in spite of all evidence and law to the contrary, give Strange a favorable ruling on his inevitable appeal? If that happens, it will be time for the U.S. Justice Department to enter the picture and start measuring all nine justices for orange jumpsuits.
That's the kind of action it might ultimately take to restore any sense of justice in perhaps the nation's most corrupt state court system.
|Joe Espy and Milton McGregor|
We certainly did not see that one coming.
The trial portion of the proceedings ended on Friday, with Judge William Shashy instructing both sides to submit briefs, which he will consider before making a final ruling. That process is expected to take about 45 days.
How did Strange's lawyers, at least in our eyes, admit that the VictoryLand machines play bingo? They seemed to focus heavily on whether the constitutional amendment allowing bingo in Macon County allowed "electronic" forms of the game. In fact, Deputy Attorney General Sonny Reagan repeatedly asked Tuskegee Mayor Johnny Ford why the word "electronic" was not in the constitutional amendment.
In the past, Strange's office had focused on the notion that the VictoryLand machines did not constitute the game commonly known as bingo, that they are slot machines or gambling devices that are illegal under Alabama statute. Perhaps I missed it, but I don't recall seeing in court documents where the Strange team argued in previous proceedings about the word "electronic" being absent from the amendment.
Is that because Strange this time did not have an expert witness to counter VictoryLand's contentions that the machines do, in fact, play bingo? Perhaps.
But by focusing on the "electronic" issue, Reagan seemed to admit that the machines play bingo. His argument this time, more or less, was: The machines are illegal because they are electronic, not because they don't play bingo.
We already have cited three grounds, under the law, that require Shashy to rule in VictoryLand's favor and force the AG's office to return machines and cash to the casino.
Reagan's argument seems to create a fourth reason that Shashy must rule in VictoryLand's favor. Perhaps that's why the Montgomery Advertiser quoted casino lawyer Joe Espy sounding confident about the outcome:
"In all my years of practicing, that was quite honestly the weakest case I've ever argued against," attorney Joe Espy said. "I don't see how the state can survive what's happened here these last four days."
But like the other editorials, there is something missing from the Eagle's piece. It ignores Fuller's unethical conduct on the bench, while focusing only on his shortcomings as a husband and private citizen.
Those who paid close attention to Fuller's most famous case--the prosecution of former Governor Don Siegelman and former HealthSouth CEO Richard Scrushy--know Fuller was a public crook long before he became known as a private thug.
Fuller has been a bad judge for years, and he should be removed from the bench for that reason. But judges are pretty much untouchable for their corrupt acts from the bench, except on those rare occasions when the U.S. Department of Justice pursues criminal charges against them. The legal community usually binds together to protect corrupt judges, while the mainstream press ignores them, and the public is clueless about them.
That is a fact of American life that needs to change immediately. But for now, let's look at just one example of Fuller's professional crookedness, which resulted in two innocent citizens going to federal prison.
First, we have written several dozen posts showing that Siegelman and Scrushy were innocent of the corruption charges against them. They were convicted, in large part, because Fuller gave improper jury instructions, meaning the defendants were convicted of a "crime" that does not exist under the actual law.
But that is not nearly the worst of Fuller's unethical acts in the Siegelman/Scrushy trial. The worst one came near the beginning of the trial--and if Fuller had ruled correctly, the case would have been over before it had hardly begun.
That's because the alleged illegal acts involving the defendants took place almost a full year outside the five-year statute of limitations. We've already shown that Siegelman and Scrushy were innocent of the charges against them. But without Fuller's unlawful rulings at the outset, they never would have had to defend themselves at all.
How do two defendants go to trial on charges that are so old they are way outside the statute of limitations--and should have been dismissed as a matter of law? It happens when a corrupt judge allows the prosecution to get away with most anything.
In this case, Fuller let prosecutors get away with an indictment that was hopelessly vague. The normal solution for such a problem is for the judge to order a bill of particulars, forcing the prosecution to lay out its case with sufficient specificity. Without that, defendants don't know what wrongful acts they are alleged to have committed, and when they allegedly committed them. They are left to defend against what might be called "ghost charges."
As we showed in a previous post, even former Penn State assistant football coach Jerry Sandusky, now convicted as a child rapist, was given the benefit of a bill of particulars. Fuller denied that request for Siegelman and Scrushy. It only became apparent after days of testimony that the alleged wrongful acts had taken place in summer 1999. Given that the original indictment was issued in May 2005, that meant the charges were brought almost six years after the fact--well beyond the five-year statute of limitations.
Defense lawyers properly raised the statute of limitations defense again at the close of testimony, and Fuller cheated them a second time, on the same issue. Here is how we summed it up in a previous post:
If Fuller had ruled according to law, Siegelman and Scrushy never would have faced a trial. But Fuller didn't stop there; he cheated the defendants again after the trial was over. Defense lawyers filed a Rule 29 motion, asking for a judgment of acquittal because testimony had shown the key bribery charge was brought too late. Fuller wrongfully denied the motion, and the U.S. Eleventh Circuit Court of Appeals, misreading simple procedural law and butchering its own precedent, found that defense lawyers had waived the statute of limitations defense by failing to properly raise it at trial.
A clear reading of Rule 29 of the Federal Rules of Civil Procedure--plus a pertinent case styled Phillips v. U.S., 843 F. 2d 438 (11th Cir., 1988)--shows that the Siegelman/Scrushy defense team raised the issue in a proper fashion and did not waive it.
The public, and Alabama newspapers, are understandably outraged that Fuller stands charged of beating his wife--and faces a 24-month treatment program for alcohol, drug, and domestic-violence issues? But where is the outrage about his unethical conduct as a judge? Why does no one seem interested in holding him accountable for sending innocent individuals to prison?
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