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The memory of a beloved pet inspires one couple's fight against injustice.

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    Sureshbhai Patel
    Who made the decision to charge Officer Eric Parker with a misdemeanor in the body-slamming assault on Sureshbhai Patel, a 57-year-old grandfather from India? We have yet to find anyone who wants to take "credit" for the decision--and maybe that's because the decision is wrong.

    Under the facts and law of the case, Parker should be charged with a felony. That he isn't suggests someone in authority is trying to protect law enforcement in Madison, Alabama, from even more embarrassment than it's already received because of the Patel incident.

    Who might be trying to cover up for Officer Parker? Well, news reports indicate Lt. Terrell Cook, of the Madison Police Department, had something to do with the charge of third-degree assault, a misdemeanor. We contacted Lt. Cook via e-mail to ask if he made the determination that the assault on Patel should be classified as a misdemeanor--and if he didn't, could he refer us to the individual who did? Lt. Cook has not responded to our query.

    Meanwhile, al.com seems to be indirectly participating in a cover-up, with assistance from a University of Alabama law professor. That comes in a February 20 article titled "Why wasn't Madison police officer charged more harshly in Indian grandfather assault case? A former judge explains," by Anna Claire Vollers.

    There is a slight problem with the article. Vollers chose as her "expert" a former circuit judge and current UA law professor named Joseph Colquitt--and he doesn't know what he's talking about, or he's intentionally trying to mislead the public.

    Colquitt proves an adage I've known for some time--if you want to know the actual law in a particular situation, the last person to ask is a judge or former judge.

    To be sure, Colquitt does a good job of sounding authoritative, as Vollers writes:

    "We aren't dealing with what we think the law should be or ought to be, but what the law is," says Judge Joseph Colquitt, who spent 20 years as an Alabama circuit court judge and is now a law professor at the University of Alabama School of Law where he teaches criminal law, capital litigation, criminal procedure and criminal sentencing.
    "You have to analyze the facts you have, and see where those facts could fit amongst the charges."

    At this point, Colquitt is on solid footing, and his statement supports what I did in preparing my post (see link in first paragraph) that shows the misdemeanor charge is wrong--under the law, as it is.

    Where does the al.com article go wrong? Well, the article is written in a peculiar manner, but it seems to go off track in two ways:

    (1) The issue of "serious physical injury"-- Under Alabama law, misdemeanor assault (third degree) applies only in cases involving "physical injury," which can be as minor as a cut, bruise, or abrasion. Patel sustained a spinal injury that required surgery and caused partial paralysis. Based on the most recent reports, his condition is improving, but it's still not clear he will regain full use of all his limbs. Under Alabama law, that easily fits the definition of "serious physical injury"--and that means a third-degree, misdemeanor charge does not fit.

    (2) The issue of "intent"-- Colquitt correctly states that a felony assault (second or first degree) requires a showing of intent--and, per Vollers, he states:

    "The difference (between second- and third-degree assault) is in the nature of the injuries," said Colquitt. "Assault in the second degree is not only that a person suffered serious physical injury, but it has to be proved that the (perpetrator) intended serious physical injury. That's a little more difficult to prove."

    Actually, it's not that difficult to prove in this case, or any other case, under Alabama law. And even if it were, that's not grounds for classifying the Patel case as a misdemeanor. In fact, a third-degree charge automatically is excluded because we are dealing here with a "serious physical injury." Colquitt seems to be violating his earlier statement about dealing with what the law is. At this point, he seems to say we should go with the charge that's easiest to prove, regardless of what the law says.

    As for what the law says about intent, it is spelled out in a case styled Wells v. State, 768 So. 2d 412 (Ala. Crim. App., 1999). From the Wells decision:

    Intent may be presumed from the use of a deadly weapon, the character of the assault, and other attendant circumstances surrounding the assault . . .

    "Further, `"[i]ntent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence."'

    Under Alabama law, various body parts, such as hands and fists, can be classified as deadly weapons. (See Hollis v. State, 417 So. 2d 617 (Ala. Crim. App., 1982.) That would seem to be especially true in this case, where Officer Parker apparently was trained in self defense and martial arts.

    Intent can be proved in two ways:

    (1) Use of a deadly weapon--Parker's hands qualify under the law, and those are what he used to inflict "serious physical injury" upon Patel.

    (2) The character of the assault--The video makes it clear that Parker said he was going to "put you on the ground" if any jerking action continued. The video does not show Patel jerking away, but Parker body slammed him head-first to the ground anyway. It can be inferred from those facts that Parker planned in advance to use a violent technique on Patel--and it resulted in "serious physical injury."

    Back to our original question--who made the decision to classify the Patel assault as a misdemeanor? A February 17 article at al.com points toward Lt. Terrell Cook:

    In the criminal complaint against Parker, Lt. Terrell Cook of the Madison Police Department states there is probable cause for believing that Parker "recklessly caused physical injury" to Patel by slamming him to the ground.

    Based on that article, I sent the following e-mail to Lt. Cook

    Lt. Cook:

    I am a journalist with the Alabama-based blog Legal Schnauzer. Al.com yesterday (2/17/15) quoted you as stating there is "probable cause for believing Parker recklessly caused physical injury" to Mr. Sureshbhai Patel, from India.

    Did you make the determination that Officer Parker should be charged with a misdemeanor, as opposed to a felony? If not, do you know who made that determination?


    Thank you,


    Roger Shuler

    If Cook had responded and said he made the decision to charge a misdemeanor, I was going to ask if he was aware of the difference under Alabama law between "physical injury" and "serious physical injury." I also was going to ask if he seriously thought Patel's spinal injury was equivalent to a cut or bruise. Alas, I have not heard back from Lt. Cook.

    As for the Anna Claire Vollers article, it's . . . well, it's strange. Prof. Colquitt never actually says the misdemeanor charge is correct; he performs a peculiar dance around the subject and more or less says, "Well, it would be easier to prove the misdemeanor, so that's the way to go."

    But that's not what Alabama law says. It says that a misdemeanor charge is proper only in a case resulting in "physical injury." A case involving "serious physical injury," as both Vollers and Colquitt seem to admit is present in the Patel case, must be charged as a felony, either second- or first-degree assault.

    On top of that, actual Alabama law makes it clear that intent is not particularly difficult to prove.

    The Vollers/Colquitt article mainly serves to muddy the waters on an issue that is not all that complicated--Eric Parker cannot lawfully be charged with a misdemeanor; he left a man with "serious physical injuries," so the charge has to be a felony.


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    Rob Riley
    Many Alabamians probably are still trying to pick their jaws off the floor following reports Friday about evidence in the prosecution of House Speaker Mike Hubbard (R-Auburn). The material includes Hubbard e-mails--many of them to and from former Governor Bob Riley--that spotlight the speaker's financial woes, his whiny demeanor, and his utter disregard for the rights and feelings of others.

    A report from John Archibald, of al.com, carried an appropriate headline: "Stunning e-mails paint Alabama House Speaker Mike Hubbard as desperate for money, favors." The conservative news outlet found Hubbard's words so embarrassing that it followed up with an editorial calling for his resignation. From the editorial: "His own emails show [Hubbard] to be venal and grasping and unconcerned with boundaries between public business and his private interests."

    The worst for Hubbard might still be out there. According to the state's response to Hubbard's Motion for a More Definite Statement, it turned over more than 2.5 million pages of documents on February 17, 2015, outlining the case against the speaker. That apparently means the documents made public last Friday are a small sampling of the material gathered against Hubbard. What other embarrassing and illuminating documents might become known at trial?

    All of this, plus another recent news article that received relatively little attention, raise the following question: Was my unlawful arrest and incarceration somehow connected to the grand-jury investigation of Hubbard and others in Lee County? Let's follow the evidence that we have so far:

    Former Deputy Attorney General Sonny Reagan retained lawyers Rob Riley and Bill Baxley in fall 2013, according to a recent report at Alabama Political Reporter (APR). What else happened in fall 2013? I was arrested and spent five months in the Shelby County Jail on the heels of defamation lawsuits filed by . . . Rob Riley and Bill Baxley.

    Is all of this somehow connected? Since I was released on March 26, 2014, several knowledgeable individuals have told me they believe my incarceration was connected to the ongoing grand-jury investigation in Lee County, Alabama. I've never been sure about that, but the new report from APR's Bill Britt shows that Riley, Baxley, and Reagan were joining forces at pretty much the same time of my arrest.

    Was my incarceration designed to ensure I was not available to report on news that might come out of Lee County? Were Rob Riley, Bill Baxley, Mike Hubbard, and others concerned that my sources would provide damaging information about the Riley political machine? I'm starting to think the answer might be yes--although I doubt the Lee County probe was the only motivating factor.

    We do know this for sure: Rob Riley's lawsuit led directly to my incarceration, and his case bears little or no resemblance to a normal defamation complaint--in fact, it repeatedly seeks remedies that are not sanctioned by law. That strongly suggests an ulterior motive was in play.

    How might all of this fit together? Well, it's complicated. Hubbard, the primary target of the Lee County investigation, has been indicted on 23 criminal counts--and Britt reports that Riley long has represented Hubbard. Reagan testified before the grand jury and wound up being forced to resign from the Attorney General's Office following charges that he leaked information to possible targets of the investigation. To whom did he leak the information? We do not know.

    But thanks to Britt's reporting, we know Reagan must have smelled trouble brewing for quite some time because he retained Baxley and Riley as far back as fall 2013. Let's follow this curious timeline:

    Mike Hubbard
    According to published reports, the Lee County grand jury convened in August 2013 and started calling witnesses in October of that year. When was I arrested? That came on October 23, 2013--supposedly because I violated a preliminary injunction in Riley's defamation lawsuit. Never mind that more than 200 years of First Amendment law says such an injunction in a case of alleged defamation represents an unlawful prior restraint. Never mind that even right-wing legal analysts, such as Ken White at the Popehat blog, have written that my arrest was wildly unlawful and contrary to long-settled First Amendment law. Never mind that none of my reporting ever has been found false or defamatory at trial, but I wound up in jail, with a judgment against me, anyway--thanks to retired judge and Riley sycophant Claud Neilson.

    We already have pointed to evidence that Riley's lawsuit was not really about defamation. From a post dated October 7, 2014:

    Let's consider a few elements of Riley's claim--and contrast them with actual defamation law:

    * Riley immediately asked for a temporary restraining order (TRO), followed by a preliminary injunction--A long line of state and U.S. Supreme Court cases show that TRO's and preliminary injunctions are barred as unconstitutional prior restraints in defamation cases. One of the most recent examples is a Virginia case styled Dietz v. Perez, which involved a woman writing a negative review about a construction contractor on a couple of Web forums. The foundational case on the subject is a 1931 U.S. Supreme Court case styled Near v. Minnesota, which was built on roughly 200 years of First Amendment law.

    * Riley did not ask for a trial--Longstanding law holds that an injunction in a defamation case is proper only after a full adjudication on the merits, at trial. This principle is spelled out in a 1973 U.S. Supreme Court case styled Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376. It is discussed in more full detail in a 2007 California case styled Balboa Island Village Inn v. Lemen, 156 P.3d 339 (Cal. 2007).

    * Riley asked for a judge to rule on the case, not a jury--The law holds that the First Amendment enjoys an exalted place in our democracy, and such cases are to be decided by a jury. To allow bench trials on such matters is to invite censorship by a single judge. Juries are deemed necessary to protect the cherished right to free speech. This principle is perhaps best discussed in Bernard v. Gulf Oil Co., 619 F. 2d 459 (Fifth Circuit, 1980).

    Rob Riley sought an unlawful TRO and preliminary injunction, he did not seek a trial, and he did not ask for a jury. All of this violates clear law, and indicates his lawsuit was really about something other than defamation. In fact, his case never even looked like a defamation claim.

    The recent APR report tells us that Rob Riley's mind very much was on the Lee County investigation at the time he asked Judge Claud Neilson to order my arrest--a move that has zero support under the law. In essence, Rob Riley asked for me to be kidnapped--and he also asked for my wife to be kidnapped, even though she had nothing to do with my blog at the time.

    Why would a major Republican political figure take such desperate and wildly unlawful steps? We don't have a definitive answer, but we do have other questions: Will Alabama Republicans start to drift away from Mike Hubbard in the wake of his embarrassing e-mails? Will Sonny Reagan face criminal charges and possible disbarment for leaking grand-jury information, along with those to whom he leaked?

    If we get to that point, the Lee County story will really heat up--and the mask might get pulled off some of the bad actors who have turned Alabama into one of the nation's most corrupt states.

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    Sureshbhai Patel
    By now, millions of readers around the globe have seen the photo of Sureshbhai Patel in a Huntsville hospital bed, with a spinal injury that an Alabama police officer inflicted.

    Like many people, I view the picture with a mixture of anger and disgust. I also look at it and think, "That could have been me."

    I've viewed the video of Officer Eric Parker body slamming Patel probably two dozen times, and each time I feel like wincing. That's because law enforcement has used a similar level of violence against me.

    According to the words of Shelby County deputy Chris Blevins (see incident report at the end of this post), he threw me to the concrete floor of my garage on October 23, 2013. A more accurate description would be to say that Blevins shoved me as hard as he could--I weigh about 90 pounds more than Patel, but Blevins is significantly bigger than Officer Parker.

    Patel was thrown down one time, and I went down three times. He went down on grass, and I went down on concrete. Like Patel, my hands were in a position (trying to protect my face) where I could not use them to break my fall. (Ironically, Patel has been described in several accounts as "elderly," but he's a year younger than I am.)

    I did not escape injury--I had cuts, bruises and abrasions up and down my legs, back, and arms. In some cases, I still have the scars--and they probably will always be with me. I now have chronic shoulder pain, which probably started the night of my arrest and got worse from sleeping on metal/iron beds, with almost no cushioning, for five months in jail. (Deputies twisted my arms behind me to apply handcuffs, and Officer Jason Valenti can be heard threatening to break my arms on the video of my arrest. My shoulders are so sore and stiff right now that I struggle to put on a coat.)

    How did I manage to not wind up in a hospital bed like Sureshbhai Patel? At the time, I was in fairly good shape for my age, and that probably helped. But mainly, I got lucky because several objects in our garage broke my falls.

    First, was a heavy dog pen that belonged to our late miniature schnauzer, Murphy, for whom this blog is named. The pen is solid, to the point that you need to use your shoulder and grunt to move it. Blevins shoved me into it hard enough to move it about three feet. The force left a nasty welt on my back.

    On two other occasions, Blevins shoved me into a stack of boxes, which I long had been planning to throw away. This was a case of procrastination paying off because the boxes probably kept my head from hitting the concrete with significant force. Just behind the boxes were a set of free weights, made of solid metal. Had my head hit those . . . well, I might not have survived long enough to make it to a hospital--or to jail.

    The video from Huntsville shows that Officer Parker had utter disregard for the well-being of Patel, even though there was zero evidence that the grandfather from India had been involved in a crime. Officer Blevins showed the same disregard for me--and he knew for sure I hadn't committed a crime. Blevins supposedly was acting on a warrant for contempt of court in a civil case, but video of my arrest shows he never told me he had a warrant and never showed a warrant.

    Based on courtroom evidence in my "resisting arrest" trial, there was no warrant. And that means my arrest and five-month incarceration essentially were a state-sanctioned kidnapping.

    I'm sure Mr. Patel is able to see only a limited number of visitors right now, but I would love to meet him someday. First, I would like to apologize on behalf of my country. I would like to let him know that Alabama has long been a deeply troubled state, even though it has many positive qualities to recommend it. But mostly, I would like to let him know that he isn't alone, that something similar happened to me--and if he and I have the will to stand up against law-enforcement abuse, maybe it will cease someday in the USA.




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    Ted Rollins
    A group of activist investors seeks to take Campus Crest Communities in a more professional direction following the ouster of founding CEO Ted Rollins amid allegations of profligate spending. News reports indicate New York-based Clinton Group Inc. might engage in a proxy fight to take over the company

    A letter dated February 16, 2015, from a portfolio manager for Clinton Group, states that executives under Rollins made extensive use of luxury sports cars and private aircraft. Clinton Group has developed a partnership with Campus Evolution Villages (CEV) in an effort to reshuffle the management team and get Campus Crest on a profitable path.

    The wild spending under Rollins came as his ex wife, Sherry Carroll Rollins, and their two daughters were forced to periodically live off food stamps in Birmingham. That's because of a grossly unlawful divorce decree issued in Shelby County by Circuit Judge Al Crowson. The judgment was wildly one-sided in Ted Rollins' favor, especially when you consider that Sherry Rollins initiated divorce proceedings in Greenville, South Carolina, where the family lived--meaning jurisdiction was established there, and the case could not lawfully be heard in Alabama.

    On top of his personal ties to Alabama, Rollins has strong business connections to the state. His corporate law firm is Birmingham-based Bradley Arant, and Campus Crest developed student-housing properties at four state universities (South Alabama, Troy, Auburn, and Jacksonville State). A project at the University of Alabama was canceled when Rollins was ousted last November.

    Recent articles in the business press use terms like "blunders" and "loss of credibility" to describe Rollins' performance. But the issues were much uglier than that.

    As Rollins convinced Wall Street to heap more than $800 million on his company, we were reporting about his conviction for assault in the brutal 1995 beating of his stepson in Franklin County, North Carolina. (See documents at the end of this post.) We also reported that Rollins had been the subject of a social-services investigation, based on a citizen complaint in North Carolina about possible sexual abuse of the same stepson.

    Wall Street was well aware of the messiness in Rollins' personal life. Paula Poskon, an analyst with Robert W. Baird and Company, learned in October 2012 about Rollins' criminal record and the child sexual-abuse allegations. Poskon's reaction to this news? "Oh, my God, I was not aware of any of that. . . . It certainly sounds like I need to do a lot more digging."

    Did Poskon do more digging? Apparently not. A few months later, she tried to strong arm me into retracting her statements about Ted Rollins.

    Wall Street did not get alarmed, it seems, until Campus Crest Communities took a financial nosedive under Ted Rollins' leadership.

    It's unclear if Clinton Group knows, or cares, about the ugliness in Ted Rollins' past. But the investment group clearly is unhappy with the way Rollins conducted his business affairs. From the aforementioned letter, written by senior portfolio manager Joseph A. De Perio:

    In forthcoming proxy materials, we will expound in great detail on all the missteps of the Company overseen by the Board of Directors. And we will expose what we see as a lack of leadership and strategy both in the executive suite and at the Board of Directors itself, severely lacking management and board governance and approval processes (as evidenced by questionable site selection and construction practices), weak operating procedures, all of which (and much more) has led to operating results that fall well behind the Company's peers.
    The Board of Directors, the majority of which has been in place since the IPO in October 2010 has overseen shareholder value destruction of 43% since the IPO. All the while, the Board has lavished the Company's executives with luxury sports cars (the Maserati and the Tesla are the ones we know about) and excessive use of private aircraft from a related party. In addition, we will raise questions about the other related party insurance transactions between Fortegra and CCG, the low stock ownership of the Board, and lavish corporate spending.

    That's tough talk, and De Perio was just getting warmed up. He and his partners clearly plan to take the company in a new direction, one way or another:

    We are sending this letter to the incumbent Board of Directors now as we believe a costly and distracting proxy contest should be avoided for the benefit of Campus Crest's shareholders. In our last two proxy contests in which we sought and prevailed in replacing a majority of directors, Stillwater Mining, Inc. and EVINE Live, Inc. (fka ValueVision Media, Inc.), management and incumbent directors spent $4.3 million and $3.5 million, respectively, on defensive and entrenchment endeavors. Our expenditures were a fraction of those amounts, as we were spending our own money and not the shareholders', and the proxy contests ended in decisive votes in favor of Clinton Group's nominees.

    We are available if the incumbent Board of Directors would like to have a meaningful discussion, but we continue to ready our proxy materials and shareholder communications. We plan to encourage other shareholders to contact us to find out more about the details of our plans and the expertise of the players involved and will further encourage them to speak their minds to the Company's existing leadership.

    We've shown that Ted Rollins tends to create messes in his personal life--the documents below are proof of that. Now we know that he also creates messes in his business life.

    It looks like Clinton Group is determined to clean this mess up.





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    Liberty Duke
    Evidence strongly suggests that my October 2013 arrest, by an Alabama deputy who neither showed a warrant nor said he had one, was unlawful. So how on earth was I charged with "resisting arrest," and convicted, resulting in a fine of $845? For that matter, how did I wind up incarcerated for five months on an arrest that was conducted outside the law?

    None of that can happen in a place where the actual law means anything. But we are talking about Shelby County, Alabama, and District Judge Ron Jackson--who I knew from previous experience has a tendency to pull "law" from some dark place underneath his robe. We also are talking about powerful conservative legal/political figures, led by Rob Riley and lobbyist Liberty Duke (and God knows who else behind the curtains) who wanted me in jail to stop my reporting on this blog.

    Here is the fundamental question we asked in a recent post: Can you be charged with resisting an unlawful arrest? The answer is no, and here is why:

    Code of Alabama 13A-10-41 (Resisting Arrest) states:

    A person commits the crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from affecting a lawful arrest of himself or of another person.

    Was my arrest lawful? No, it was not--on at least three grounds:

    (1) Officer Chris Blevins entered our home without showing a warrant or saying he had one. At my resisting-arrest trial, prosecutor Tonya Willingham was instructed to turn over any warrants as evidence, and she said, "Your Honor, we don't have any." At this point, it's a matter of public record that there was no warrant for my arrest. Either that, or Ms. Willingham withheld evidence, which could cost her law license. Entering a dwelling without a valid warrant violates a landmark U.S. Supreme Court case styled Payton v. New York, 445 U.S. 573 (1979). (That case involves serious Fourth Amendment issues, and we will examine it further in upcoming posts.)

    (2) Officer Mike DeHart "served" us with Rob Riley's lawsuit via an unconstitutional traffic stop. I contested service as improper and invalid, and that placed the burden on Riley and Duke to prove that service was conducted properly. No hearing ever was held on that subject once I filed a Motion to Quash Service. (I did not "ignore" the lawsuit, or a court order, as has been widely reported: I responded by challenging service, as any semi-competent attorney would have done under similar circumstances.) The plaintiffs never proved lawful service, so that means the court did not have jurisdiction over me. And that means both my arrest and incarceration were unlawful--ordered by a court and a judge (Claud Neilson) who had no authority over me. It's hard to imagine a more grotesque violation of constitutional rights than that.

    Rob Riley
    (3) My arrest was based on alleged violation of a temporary restraining order (TRO) and preliminary injunction in the Riley/Duke defamation case. But more than 200 years of First Amendment law prohibits such actions as "prior restraints" on free speech. In other words, they prohibit speech before it has been found unlawful at trial--and there was no trial in the Riley/Duke case, meaning my reporting still has never been found false or defamatory in any legitimate proceeding. All of this is governed by a landmark U.S. Supreme Court case styled Near v. Minnesota, 283 U.S. 697 (1931). My arrest might represent the most flagrant violation of Near in American history.

    What is Alabama case law on the subject of resisting arrest. It's spelled out in a 2013 federal-court case styled Rigas v. City of Rogersville:

    Under Alabama law, a person commits the crime of resisting a lawful arrest by preventing or “attempting to prevent a peace officer from affecting [sic] a lawful arrest of himself or of another person.” Ala. Code § 13A-10-41. An arrest without a warrant, as here, may be effected “if a public offense has been committed or a breach of the peace threatened in the presence of the officer.” Ala. Code § 15-10- 46 3(1). There is no Alabama law or practice criminalizing resistance of an unlawful arrest, however. See Shinault v. City of Huntsville, 579 So. 2d 696, 698 (Ala. Crim. App. 1991); see also id. at 699–700 (Bowen, J., concurring). Indeed, Alabama law has historically permitted use of reasonable force to resist an unlawful arrest. Ala. Code § 13A-3-28 Commentary (1975) (“Alabama law . . . allows a person to use reasonable force to resist an unlawful arrest.” (alteration supplied)) (citing Spooney v. State, 217 Ala. 219, 225 (Ala. 1928); Brown v. State, 109 Ala. 70, 91 (Ala. 1895); Tarwater v. State, 75 So. 816, 817 (Ala. Crim. App. 1917));see also, e.g., Brown, 109 Ala. at 91 (“It is not the duty of the citizen to submit to any other than a lawful arrest. It has been said the duty ‘is found in the law side by side with the right of resistance to an unlawful one . . . .’” (alteration supplied) (quoting Drennan v. People, 10 Mich. 169, 186 (Mich. 1862)).

    Note the powerful language, that a citizen has no duty to submit to an unlawful arrest. Also note that this law has roots that date to at least 1862.

    Is it any wonder that California lawyer and conservative legal analyst Ken White, of the Popehat blog, smelled something funny about my arrest and incarceration:

    It's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.
    Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. . . . Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

    Popehatwrote four posts about my incarceration, and while I take issue with some of his statements, his analysis of the law is on target--both on the First Amendment and, as here, on the Fourth Amendment.

    Below is the Motion to Quash Service that my wife and I filed in the Riley/Duke case. It is not time stamped because we filed it on a Wednesday, the day the clerk's office is closed in Shelby County. But it was timely and properly filed, shifting the burden of proving lawful service to the plaintiffs, which they never did because no hearing was held on the subject. In fact, I was awaiting notice of such a hearing when I was arrested on October 23, 2013.






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    (From "Photography Is Not A Crime" Web site)
    Do law-enforcement officers intentionally concoct bogus resisting-arrest cases against citizens? Are officers trained to make false statements during confrontations in hopes it might turn attention away from possible excessive force/police brutality? Are judges, prosecutors, and other members of the "justice infrastructure" inclined to side with officers--even when evidence indicates they were in the wrong?

    Based on my own experience of being charged with resisting arrest in Shelby County, Alabama, I would say the answer to all three questions is yes.

    Someone else must think so, too, because we found the above photo/graphic on the Web. It shows a training officer telling a group of police-academy trainees, "Remember class: Always say, 'Quit resisting,' and 'I feared for my life.'"

    These issues particularly resonate now because of two important lessons from recent days:

    (1) The case against Alabama officer Eric Parker, in the beating of Indian grandfather Sureshbhai Patel, has wrongly been classified as a misdemeanor (third-degree assault). Under Alabama law, it must be classified as a felony (second- or first-degree assault). This suggests that someone in the aforementioned "justice infrastructure" is trying to let Officer Parker off easy.

    (2) No citizen can be charged with resisting an arrest that was unlawful in the first place. Alabama law says that citizens have no duty to submit to anything other than a lawful arrest--and, in fact, we have the right to use reasonable force to resist an unlawful arrest.

    As for the questions at the beginning of our post, let's consider the words and actions of Shelby County Deputy Chris Blevins in my case. I saw video of the incident during my resisting-arrest trial in January 2014--and having lived through the incident and seen a replay of it--I can't help but almost double over with laughter at the photo/graphic above. It's as if Chris Blevins was one of the dudes sitting in that class.

    On the video, Blevins enters our garage, even though he has not shown a warrant, has not said he has a warrant, and has not said why he is on my property. I clearly tell him to get out of my house, but he ignores that. As I get out of my car and try to get to some stairs to walk up to our kitchen, the dash camera in Blevins' vehicle loses sight of us. Blevins follows me, and the garage door closes behind us--I must have reflexively pushed a button that closed the door, although I don't remember doing it. In fact, I remember saying to myself, "Don't close the door because you want this guy out of here."

    We lose video of what takes place inside the garage, but the audio picks up everything. We also have Blevins' own account of the event from his incident report. (See report at the end of this post.)

    What do we learn? Here are a few things:

    (1) Blevins repeatedly is heard saying "Don't fight me, don't fight me," even with all kinds of noise in the background--which is the sound of him pushing me up against a heavy dog pen, hard enough to move it several feet, and through two stacks of boxes. By Blevins' own words in his report, he initiated physical contact with me, not the other way around, and the only action I took was to raise my arms in front of my face, which I did mainly to keep my glasses and/or nose from being broken. Our photo/graphic above is supposed to be a joke, but it isn't; like most good humor, it's based in reality. Blevins used slightly different words--"Don't fight me," instead of "Quit resisting"--but otherwise, it's like he was sitting there taking notes from the training officer in our illustration.

    (By the way, Blevins does state several times in his incident report that I 'resisted,' but he never says how. In fact, his own words show that I did nothing that amounts to resisting arrest. Also, Blevins admitted at my resisting-arrest trial that his actions amounted to a traffic stop, under the law--and that has profound consequences for what took place on the night of October 23, 2013, inside my garage. More on those two issues coming in a future post.)

    (2) Is Blevins trying to create the tried and true "I feared for my life" scenario? It sure looks that way when you read his words in the incident report. First, he states that I put my "right hand in my right front pants pocket." This seems to hint that he feared I might have been reaching for a weapon in my pocket--perhaps an assault rifle was stored in there. What was the reality? I had just gotten out of my car so--surprise, surprise--I was putting my car keys in my pocket. (By the way, Blevins says he grabbed my arm as I put it in my pocket. And yet, he says I pushed a button to close the garage door. How did I manage to do that if he had grabbed my arm? Did he push the button to close the garage door? I don't know.)

    Then, Blevins states that the garage was "darkened," with "only a dim bulb on the garage opener." Most garages, particularly those (like ours) that are partially underground, tend to be fairly dark. But ours has a large window on the side wall and six to eight small windows across the double garage doors. There was quite a bit of light coming in, and Blevins' vision should have been good enough to see that nothing in our garage posed a threat to him--and he never says I was trying to grab any object anyway.

    I think Blevins and his colleagues intended to rough me up a good bit--Officer Jason Valenti can be heard on video threatening to break my arms while assisting in handcuffing me--and I think they also planned to set up a "resisting arrest" scenario, one that was contrary to facts and the law. A resisting-arrest charge, I'm guessing, takes the spotlight off their own misconduct and puts it on me.

    As for the "justice infrastructure," prosecutor Tonya Willingham was instructed to turn over copies of any warrants, and she replied "Your Honor, we have no warrants." And Judge Ron Jackson, having just been told that this was not a lawful arrest, convicted me of resisting arrest anyway.

    The trial was on January 14, 2014, and I had been in jail since October 23, 2013, with no opportunity to prepare a defense. Jackson denied my request for a continuance, so in essence, I was not allowed to actually prepare a defense on resisting arrest. Even so, I knew that resisting applied only to a lawful arrest, and I argued that this did not involve a lawful arrest--after all, it was a matter of court record that no warrant existed.

    Jackson wasn't hearing any of it--his mind clearly was made up before the proceeding even began--so I was faced with an $845 fine, and I now have a criminal record. I also have had the pleasure of seeing my photo listed on "Shelby County's Most Wanted" for several months, long after the fine had been paid.

    Last time I checked a couple of weeks ago, the "Most Wanted" photo finally had been removed--only after I alerted the sheriff's office that the fine had been paid for months.

    I've written extensively about the emotional and physical trauma of being roughed up inside my own home and being incarcerated for five months. I'm still living with that, but the resisting-arrest case presents a more subtle form of damage that members of the "justice infrastructure" have inflicted on me--and I'm sure countless other citizens have had to deal with it.

    It was bad enough that my picture was on the Shelby County Sheriff's Web site for the five months I was an inmate--on a contempt of court charge that is contrary to more than 200 years of First Amendment law. But imagine having your photo on a "most wanted" Web site for a "crime" you did not commit, even after the fine for said "crime" long has been paid.

    What kind of smear job does that do to your reputation? Where does a law-abiding citizen go to get his reputation back?





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    From freepress.net
    Five of the six American journalists who have been jailed in the 2000s, had their freedom taken away based largely on a U.S. Supreme Court case styled Branzburg v. Hayes, 408 U.S. 665 (1972).

    The sixth journalist is me, and my freedom was taken away for five months based on . . . nothing. No U.S. law supports it. In fact, a long line of U.S. Supreme Court and state high-court cases specifically state that a preliminary injunction in a defamation case is an unlawful prior restraint under the First Amendment--and yet, I spent five months in the Shelby County, Alabama, jail after Republican political figure Rob Riley and lobbyist Liberty Duke sought my arrest because I allegedly had violated a preliminary injunction in their defamation case, a civil matter that involved no criminal allegations of any kind.

    Never mind that the material in question was not found to be defamatory at trial. That's because, under specially appointed judge Claud Neilson, there was no trial--only a hearing, with no discovery, no cross-examination, almost no evidence, no jury . . . well, you get the idea. It was, in fact, a joke--as I stated to the court that day.

    What separates my case from the other five that involve incarceration of journalists? Numerous differences come to mind, but the main one is this: Branzburg was the primary governing law in the other cases, and while I don't agree with the finding in Branzburg, it means that the other incarcerations probably were legal. Mine clearly was not legal, and even knowledgeable legal analysts who differ with me politically, agree on that.

    The key issue in the other five cases involved efforts by journalists to protect confidential sources in criminal matters. Here is the core finding from Branzburg:

    The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.

    I disagree with court actions that led to the incarcerations of editor/publisher Timothy Crews (2000), free-lance writer Vanessa Leggett (2001), broadcast journalist Jim Taricani (2004), New York Times reporter Judith Miller (2005), and free-lance blogger/videographer Joshua Wolf (2006). But the Branzburg case provided legal precedent that probably made those rulings lawful.

    Rob Riley
    While my incarceration clearly was unlawful, litigants like Rob Riley and Liberty Duke (and judges like Claud Neilson) can try to take advantage of an area of law that is more muddled than it should be. The Reporters Committee for Freedom of the Press (RCFP) published a 2002 article, in the wake of the Vanessa Leggett case, showing that Branzburg leaves many questions unanswered--even in criminal cases. From the article, titled "Branzburg Revisited? Landmark ruling limiting reporter’s privilege turns 30, but release of jailed writer sparks call for review":

    The jailing of a Houston book author for 168 days drew the attention of the national media and free-speech groups because of the oddity of a writer spending more than five months in jail when she was not even accused of a crime. . . .

    Could (Vanessa) Leggett's case compel the U.S. Supreme Court to reconsider a muddled 30-year-old ruling on whether a reporter has a First Amendment right to keep sources confidential, especially in criminal cases?

    The question is a sensitive one among journalists. The Supreme Court held in its 1972 decision in Branzburg v. Hayes that reporters had no privilege to refuse to appear and testify before state or federal grand juries. But a concurring opinion in the case, coupled with dissents from four justices, has been construed to give journalists at least a qualified privilege to withhold information in other circumstances. The fractured opinion left lower courts to figure out when and how the reporter's privilege should apply, and those courts have not decided the issues consistently.

    The Supreme Court never again accepted a case that required it to clarify when a reporter has a privilege to withhold information. Press groups recognize the imperfection of Branzburg, but they worry that this court's conservative justices would erode reporters' rights if those justices took another look at the issue.

    The U.S. Supreme Court has not looked at a case similar to Branzburg since that article was written almost 13 years ago, so the rights of reporters to protect confidential sources in criminal matters remain unclear. But the law in my case, a civil matter involving an unlawful prior restraint, is crystal clear. Writes Ken White, a conservative lawyer at the Popehat blog:

    The order underlying Shuler's arrest is unconstitutional.

    There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation. It comes from two sources: equity and the First Amendment

    Injunctions are an equitable remedy, with their origins in courts of equity. Courts of equity applied discretion in an attempt to achieve just results, as opposed to courts of law bound to rules set forth in statutes. Courts of equity and law have been combined since the 19th century, but equitable traditions remain. 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.

    Then there is the matter of the First Amendment. Writes White:

    Preliminary injunctions against defamation are even more strongly disfavored under the First Amendment. Here's how United Sates Supreme Court Justice Harry Blackmun put it in staying an injunction that a lower court had imposed forbidding CBS from running undercover footage of a beef processing plant in CBS, Inc. v. Davis, 510 U.S. 1315 (1994):

    Liberty Duke
    "For many years it has been clearly established that “any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971), quoting Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). “Where … a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1329, 96 S.Ct. 237, 254, 46 L.Ed.2d 199 (1975) (BLACKMUN, J., in chambers). As the Court recognized in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976), prior restraints are particularly disfavored:

    'A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted…. A prior restraint, by contrast, … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.'

    Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96 S.Ct., at 2802, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.Ct., at 2804.

    Rob Riley has a law degree from Yale, but he obviously must have skipped class when important constitutional issues were being presented.

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    Unfrozen Caveman Lawyer
    As a journalist who seeks to expose court-related corruption, I've been accused of hating all lawyers. But that is not true. For example, I'm a huge fan of Cirroc, the Unfrozen Caveman Lawyer of Saturday Night Live (SNL) fame.

    That especially is the case since I recently finished reading You Might Remember Me: The Life and Times of Phil Hartman, by former Chicago Sun-Times arts and entertainment writer Mike Thomas.

    Hartman was the veteran comedic genius who brought the Unfrozen Caveman Lawyer to life. If you have been an SNL fan during its extraordinary 40-year run, you probably remember Cirroc's story:

    A hundred thousand years ago, he was out hunting on the "frozen wastes" when he slipped and fell into a crevasse. In 1988, he was discovered by some scientists and thawed out. He then went to law school and became . . . Unfrozen Caveman Lawyer.

    It was a goofy set-up right out of a comic book, and Hartman played it to perfection. He specialized in oily, ethically challenged characters who displayed a peculiar charm, such as B-list actor Troy McClure and ambulance-chasing lawyer Lionel Hutz on The Simpsons. Hartman's portrayal of former President Bill Clinton, stopping in a McDonald's while out on a run with Secret-Service agents, remains one of the great bits in SNL history.

    A lot of comedians have done Clinton, but Hartman's will forever be the gold standard. Hartman's impersonation of Frank Sinatra is another that reached classic status.

    As for the new biography, Thomas does a top-notch job of telling the bittersweet story of Hartman's life. Thomas takes us along for Hartman's youth in Canada, where he was known to entertain neighbors by walking in with a hearty "Hello, happy people!" We have a front-row seat for Hartman's days as a graphic artist, designing album covers for groups like America; Poco; and Crosby, Stills, and Nash. We learn about Hartman's formative years as a member of LA's renown improv group, The Groundlings.

    While Hartman was known as the adult in the chaotic world of SNL--fellow cast member Jan Hooks nicknamed him "The Glue"--he struggled with a number of issues when out of the spotlight. He had a heavy appreciation for weed, a weakness for beautiful but often mercurial women, and a tendency to close himself off emotionally from those closest to him.

    One of those beautiful women, his third wife Brynn, was wrestling with drug and alcohol addictions when she shot and killed Hartman in his sleep--and then turned the gun on herself, in a murder-suicide that rocked the entertainment world in 1998 and left Hartman fans in shock and grief.

    He also left a string of memorable characters. Why am I so fond of Cirroc, the Unfrozen Caveman Lawyer? Well, for one, he always wins his cases, using a combination of faux cluelessness, stealthiness, and prehistoric charm to win over juries in a big way. Heck, Cirroc might even be able to find justice for me after my experience of being the only journalist to be incarcerated in the western hemisphere in 2013--and the only one this century to be thrown in jail over a purely civil matter.

    In Hartman's honor, I've developed a routine at home that borrows heavily on Cirroc. For years, I've been quite capable of making my own microwave oatmeal for breakfast. But for some reason, I recently discovered that the whole experience is more pleasant if Mrs. Schnauzer makes the oatmeal for me. Here's how the bit usually goes:

    Mrs. Schnauzer: How come you aren't able to make your own oatmeal anymore?

    Me: I'm just a caveman. I fell in some ice, and scientists thawed me out. Your modern world confuses and frightens me.

    Mr. Schnauzer: You didn't seem frightened before?

    Me: Well now, when I hear the beeps and buzzers on your modern conveniences, I want to hop in my BMW and run for the safety of my place at Martha's Vineyard.

    Mrs. Schnauzer: You have a place on Martha's Vineyard, and I don't know about it?

    Me: Why yes, and even there, microwaves scare me. I think, "Are little bats in there flapping their wings to warm up my oatmeal?" I don't know! My primitive mind can't grasp these concepts.

    Mrs. Schnauzer: Well, you had better grasp this concept: If you don't remember how to make your own oatmeal soon, a frying pan is going to start flying by your caveman head.

    Me: Oh no, you're frightening me again. Pans that fly? How can that be?

    I've managed to pull off this routine for several weeks, ever since I checked out the Hartman book from the library. Mrs. Schnauzer has been a good sport so far, but if I push it too far, I'm liable to be back out on the "frozen wastes" in no time. I'll keep readers posted on how Mrs. Schnauzer's patience is holding out.

    Meanwhile, here is Cirroc working his caveman magic on a helpless jury:






    This wouldn't be a real tribute to Phil Hartman if we didn't include his bit as President Clinton, wooing the public in a D.C. McDonald's:




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    Kyle Whitmire
    Al.com's Kyle Whitmire, in the midst of a column yesterday urging President Obama to pardon NSA whistleblower Edward Snowden, declared that the prosecution of former Alabama Governor Don Siegelman was "fair."

    The premise was that Snowden has been wronged and is deserving of a presidential pardon while Siegelman got what he deserved. We agree with Whitmire about Snowden, but the reporter simply reveals his ignorance about the Siegelman case. He also proves that just because an individual attends a court proceeding, it does not mean he has a clue about what went on.

    By the way, this is the same Kyle Whitmire who admitted a few weeks back that he possessed court documents showing Republican political figure John Merrill had engaged in an extramarital affair and chose to hide them away in a drawer. That snafu became a statewide story when we broke the news that Whitmire ignored, publishing documents that exposed Merrill's dubious actions in a Tuscaloosa County divorce case styled Brinyark v. Brinyark.

    Whitmire's actions in the Merrill case, plus his statements yesterday about the Siegelman case, add to the mountain of evidence that Alabama's largest news organization has a wildly biased viewpoint that favors the GOP. Did Whitmire feel the need to slam Siegelman in order to get back in good graces with his editors after bringing public embarrassment to al.com? I can see how a reasonable person might think that.

    How does Whitmire sum up the Siegelman case? From yesterday's column:

    Siegelman's sentence was stiff, and the man who delivered it, U.S. District Judge Mark Fuller, has proven himself to be a hypocrite. However, the former Alabama governor is right where he belongs.

    Why should we put any stock in that assessment? Well, because our guy Kyle--by God--was at the trial:

    The Free Don Siegelman narrative has been repeatedly proven to be fiction. . . .

    I was there for Siegelman's trial, and it was fair. The former governor personally secured campaign loans. He all but extorted Richard Scrushy, among others, for money to pay them off. Scrushy obliged, and in return Siegelman reappointed him to the Alabama Certificate of Need Review Board, an appointment that was crucial for HealthSouth.

    What good is it to attend a trial when you don't understand the law relevant to the case? Even worse, what kind of reporter are you if you apparently are too lazy to bother looking up the actual law? The answers to those questions place Mr. Whitmire in an unfavorable light--as do his words from Thursday's column. A brief dissection leaves Kyle standing naked in the public square:

    * Who has repeatedly proven that the "Free Don Siegelman narrative" is a fiction? Whitmire doesn't say--and that's likely because no knowledgeable reporter or analyst has done it.

    * How does Whitmire know the Siegelman trial was fair? He doesn't because he clearly has no understanding of the relevant law. The central charge was federal funds bribery under 18 U.S. Code 666. That statute is so muddled that many public officials have no idea whether they are following the law or not. That's why case law, in the form of McCormick v. United States, 500 U.S. 257 (1991), was central to the case.

    Both sides agreed that McCormick was controlling law, and it's central finding is this:

    . . . only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.”

    This summarizes what commonly is called a "quid pro quo" (something for something) transaction. It is illegal, and if the prosecution proves beyond a reasonable doubt that two parties reached an "explicit" agreement on such a deal, it is grounds for a conviction.

    If you want to find the guts of the Siegelman case, it's right there in McCormick. But you notice that Kyle Whitmire in his column never mentions McCormick or any of its provisions. He also never mentions that no "explicit agreement" was proven at trial, and no such instruction was given to the jury. In essence, the unlawful jury instruction provided by Judge Fuller (who is likely to face impeachment proceedings related to an assault on his wife) means that Siegelman and Scrushy were convicted of a "crime" that does not exist.

    For anyone who wants to understand how the Siegelman case was, in fact, grossly unfair, we encourage a close reading of our post titled "How the 11th Circuit cheated Don Siegelman: A summary." It spells out five key mistakes that an appellate panel made in failing to overturn the Siegelman convictions.

    Most alarming is this: By law, Siegelman and Scrushy could not even stand trial. That's because the alleged misconduct at the heart of the case took place almost one full year outside the five-year statute of limitations (SOL). Here's how we explained the facts and law related to the SOL:

    So how did the government get away with bringing this case, much less winning it? It drafted an indictment that was vague, and when Siegelman/Scrushy moved for a bill of particulars that would have required a few specifics, the judge denied it. Defense attorneys raised the limitations defense in a proper manner for a case involving a vague indictment. But the trial court, and the 11th Circuit, wrongfully ruled that they had waived the defense.

    It's public record that the alleged transaction took place in summer 1999, and the indictment came in May 2005. That's more than five years, so by law, the government had no case--but Fuller let them bring it, and the 11th Circuit allowed unlawful convictions to stand.

    Kyle Whitmire would have us believe that such a wildly corrupt process was "fair"? No one with functioning brain cells should buy that.

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    Bob Riley
    E-mails between House Speaker Mike Hubbard and former Governor Bob Riley provide circumstantial evidence that someone connected to the Riley administration caused my wife and me to be cheated out of our jobs in 2008-09. The e-mails and their timing also suggest that Hubbard, or an ally of his, helped cost one of the state's most experienced and respected journalists his job.

    All of it hints that perhaps the state's two most powerful conservative political leaders have warped personalities.

    The notion that someone on Team Riley caused me to be cheated out of my job as an editor at UAB in May 2008 is not new. I long have suspected that, mainly because a UAB human-resources official admitted that I was targeted because of my reporting about injustice in the Don Siegelman prosecution. No one has benefited more from the political destruction of Don Siegelman than Bob Riley and his children, especially the Birmingham lawyer duo of Rob Riley and Minda Riley Campbell.

    When I tried to interview Rob Riley via phone in early 2013, his comments made it clear that he and "The Family" do not appreciate my reporting, to the point that Riley Jr. concocted a dubious defamation lawsuit that caused me to be unlawfully incarcerated in October 2013. (By the way, I tape recorded the conversation with UAB's Anita Bonasera, and the audio can be heard at the end of this post; I also have audio of the Riley interview, but it might collide with an unlawful permanent injunction that I'm under, so I will hold off on posting it for now.)

    The Hubbard/Riley e-mails don't provide absolute proof about anyone's job loss. But they reveal a mindset where the speaker and former governor seem to have no qualms about ruining careers, almost as a form of political sport.

    Bill Britt, of Alabama Political Reporter, provides insight on the Hubbard/Riley mindset in a new article titled "Email Sheds Light on Clerk's Removal and New Sheriff's Methods." Britt comes close to labeling Hubbard and Riley as sociopaths, a diagnosis that I would say is pretty much on target.

    The primary lesson from the e-mail exchange, Britt reports, is that "Hubbard wants to protect Riley’s State contracts, and demonstrate his personal toughness to State House staff." Britt points to the ouster of Dianne Harper, long-time clerk of the joint Legislative Contract Review Committee, as an example of Hubbard's "tough guy" approach.

    Britt also notes Hubbard's reference to an article about Harper's exit, by former Huntsville Times reporter Bob Lowry. It seems clear from the e-mail, dated February 11, 2011, that neither Hubbard nor Riley appreciates Lowry's ability to investigate such matters. In September 2011, roughly seven months after the Hubbard/Riley communication, Lowry was forced out of his job. Is that coincidence? We doubt it.

    Let's take a closer look at the e-mail in question. It begins with Hubbard touting the joyful news that he has just turned 49 years old. The speaker quickly turns to more serious topics:

    We are shaking things up at the State House, that's for sure. I need to fire about 4 or 5 people pretty soon to really set the tone that new sheriffs are in town and in control.

    Notice that Hubbard does not indicate any of these people are doing a poor job and deserve to be fired. He just likes the notion of others suffering so that his "tone" can be set. Perhaps they will have wonderful birthdays while standing in unemployment lines.

    Mike Hubbard
    How does Riley react? The former governor doesn't seem to bat an eye. A relatively thoughtful person might say, "Mike are you sure that's a good idea to fire these people? Is it fair, is it necessary?" Or such a person might say, "You know, Mike, you can set the tone by doing a good job as speaker and demanding good work from those around you. You can set the tone by earning respect and treating others with respect. Wouldn't that make more sense than firing people who might not deserve to be fired?"

    What was the chance of such a response from Bob Riley? It probably was zero. Here is part of what he said, and there is no indication he has any problem with Hubbard's plans to fire people:
    Happy Birthday, Mike. . . . You are setting the agenda and getting more coverage than anyone! Keep it up!
    In other words, "Fire even more people if you want to. It's working!" Why would Hubbard mention the firing plans to Riley? Probably because he learned such tactics from the governor himself. You can almost hear Hubbard waiting for a pat on the head from his mentor, like a dog who has brought in a wet newspaper from the sidewalk.

    That brings us back to the warped psychology behind the Hubbard/Riley missives. Britt tries to explain it by pointing to a Psychology Today article titled "The Narcissistic Boss." That caught my attention because my former UAB boss, who played a significant role in my unlawful termination, displayed almost all of the following characteristics:

    1. has a grandiose sense of self-importance

    2. is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love

    3. believes that he or she is "special" and unique

    4. requires excessive admiration

    5. has a sense of entitlement

    6. is interpersonally exploitative

    7. lacks empathy

    8. is often envious of others or believes others are envious of him or her

    9. shows arrogant, haughty behaviors or attitudes

    As for Hubbard and Riley, I would suggest that they show major signs of sociopathy, with significant narcissistic traits. The main characteristic of sociopathy (also known as antisocial personality disorder) is lack of a conscience, a callous unconcern for the feelings of others. Interestingly, both sociopathy and narcissism are considered among 10 known personality disorders, and the two conditions share quite a few traits. In fact, psychologists place both of them in Cluster B of personality disorders, which are marked by erratic and dramatic behavior.

    Both disorders are considered almost impossible to treat, and those who have them can inflict significant emotional damage on others.

    This is from "Sociopath Next Door," an article by Allan Schwartz, Ph.D., at mentalhelp.net:

    Perhaps the most difficult for the rest of us to understand is that the sociopath has absolutely no conscience. In other words, they are without any sense of morality or guilt. The cannot and do not empathize with others and how they feel. When most of us look at other people we feel a sense of commonality and shared humanity. That is why we find it difficult to believe that there is a type of person who does not share the kind of compassion and connectedness that characterizes most of humanity. . . .

    No one knows what causes sociopathy except that there is accumulating evidence that it stems from parts of the brain that are abnormal. In other words, it's a biological problem that may be inherited. Early life experiences, such as having been abused, may contribute to worsening the sociopathy.

    Hubbard has been indicted on 23 corruption charges, and the e-mails with Riley could become central to a criminal trial. But the psychological component of the communications might be of most interest to the public right now--and it paints a very ugly picture of politics in Alabama.






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    We showed yesterday that e-mail exchanges between House Speaker Mike Hubbard and former Governor Bob Riley present troubling evidence that two of Alabama's most powerful political figures possess attributes found in narcissism and sociopathy.

    That becomes particularly disturbing when you research personality disorders and discover that the narcissistic and antisocial (more commonly known as sociopathy) disorders have much in common, especially their tendency to produce "victimizers."

    Consider the insights of Stanton Samenow, Ph.D., a clinical psychologist in Alexandria, Virginia, and author of Inside the Criminal Mind. Samenow wrote an article for Psychology Today titled "Narcissistic Personality Disorder and the Antisocial Personality Disorder--A Lot in Common: There Is Little Difference Between the Antisocial Individual and the Narcissist." Here is how Samenow describes the tie that seems to most bind the narcissist and the sociopath:

    The most important point is that people who are either antisocial or narcissistic are victimizers. Most likely, every reader of this column has unfortunately known a man or woman who is incredibly self-centered and self-aggrandizing, who is untruthful and cannot be trusted, who fails to see things from any point of view other than his own, and who is able to eliminate fear (and conscience) long enough to pursue any means to an end. Invariably, others are betrayed, deceived, and emotionally (perhaps financially) injured.

    How else are narcissists and sociopaths similar? Both tend to lead chaotic lives, or create chaos for others, Samenow writes:

    The narcissist, for example, "is uncomfortable in situations in which he or she is not the center of attention." The same is true of the antisocial person. The narcissist evidences "self-dramatization." People who are antisocial can also be quite dramatic. In fact, some count on drama to distract others from their real intentions. And some appear dramatic as they play out their perception that they are the center of the universe around which all else should revolve.

    How do these traits present themselves in the Hubbard/Riley e-mails? The most obvious example comes when Hubbard states that he needs to fire four or five people "to really set the tone that new sheriffs are in town and in control." Hubbard, it seems, had picked out his victims, and the grounds for their dismissals apparently were . . . well, nonexistent. Hubbard's victims simply had parts to play in a twisted game that revolved around Mr. Speaker.

    As for Riley, he didn't seem to have any qualms with Hubbard's plans. In fact, one gets the impression that Riley had taught Hubbard such tactics and was taking a certain pride in hearing about them.

    What is the main difference between a narcissist and a sociopath? Samenow provides an intriguing answer:

    Criteria in the (American Psychiatric Association's) DSMIV for Antisocial Personality Disorder (30l.70), include "failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest." Arrestability is not a criterion for diagnosing a Narcissistic Personality Disorder (30l.81). However, if you omitted the diagnostic labels and reviewed the other criteria for each of these "personality disorders," you might not be able to distinguish one from the other.

    In simple terms, a sociopath is more likely than a narcissist to have a criminal record. That's ironic because Hubbard currently faces a  23-count corruption indictment--and Bob Riley and his daughter, Minda Riley Campbell, are named in the indictment.

    For good measure, published reports have former first son Rob Riley working with Hubbard on a scheme to funnel Indian gaming funds through the Republican State Leadership Committee (RSLC) and back to a group designed to combat non-Indian gaming. Hubbard, Rob Riley, and anti-gambling zealot A. Eric Johnston all claimed to have no idea that the money came from gambling sources, and, not surprisingly, powerful evidence suggests they were lying.

    Could Hubbard, the Rileys, and some of their cohorts all go down together in a steaming pile of criminality? It's possible, but we suspect the Rileys will save themselves by throwing Hubbard (and perhaps others) under the proverbial bus.

    Stanton Samenow probably would not be surprised by such an outcome. Some warped individuals are better than others at getting away with criminal behavior:

    The narcissist may not commit an act that is illegal, but the damage he does may be devastating. In fact, because the narcissist appears to be law-abiding, others may not be suspicious of him, leaving him freer to pursue his objectives, no matter at whose expense.
    I have found that the main difference between the narcissist and antisocial individual, in most instances, is that the former has been shrewd or slick enough not to get caught for breaking the law.


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    My arrest and incarceration in 2013-14 has been widely reported as unlawful under the First Amendment--and that is correct. But it also violates the Fourth Amendment right to be free from unreasonable searches and seizures--and it does it on multiple levels.

    Police misconduct might be the biggest news story of the past six months or so. Disturbing incidents in Ferguson, Missouri; New York City, and Madison, Alabama, have made international news and caused even some conservative, "pro police" citizens to ask, "What's going on with our cops?" I've certainly had cause to ask that question after watching Shelby County, Alabama, officers repeatedly abuse their right to "show authority"--a process that ended with me being assaulted in my own garage and hauled off to jail, with mace dripping all over me.

    Perhaps I'm best known as the only U.S. journalist to be arrested in 2013, and I suspect most citizens quickly understand that involves matters of a free press under the First Amendment. The Fourth Amendment violations might be harder to grasp, but in many ways, they are even more disturbing--maybe because they bring you face to face with officers who are violating the law they are entrusted to uphold.

    Why is that so unsettling? Not everyone is a journalist or a blogger, but almost all of us drive or ride in automobiles at some point. Law enforcement has frightening power to abuse citizens in what is supposed to be the relative security of their vehicles. Such abuse is present all over my case--both while my wife and I were driving to a nearby library and while I was trying to drive down our driveway and into our garage about three weeks later.

    In both instances, we were subjected to traffic stops that violate the Fourth Amendment--and that means the stops and all actions flowing from them, including my arrest and incarceration, were unconstitutional.

    What is the applicable law? It starts with a U.S. Supreme Court case styled Terry v. Ohio, 392 U.S. 1 (1968), which set the framework for traffic-stop law at the federal and state level. From that grew a case styled Whren v. United States, 517 U.S. 806 (1996), which held that a traffic stop is a "seizure" under the Fourth Amendment--and that puts a significant burden on any law-enforcement officer who is thinking about stopping a vehicle. From the Whren opinion:

    The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures." Temporary detention of individuals during the stop of an automobile detained by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. [Citations omitted].

    An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

    That brings us to the first of two unlawful traffic stops to which the Shelby County Sheriff's Office subjected my wife and me. It came on September 29, 2013, and we already have presented powerful evidence that Officer Mike DeHart concocted a bogus violation (rolling through a stop sign) in order to serve me with court papers in a lawsuit brought by Republican political figures Rob Riley and Liberty Duke. Even if the traffic stop had been legitimate at the outset, and it almost certainly was not, DeHart violated the Fourth Amendment by extending the stop for an improper purpose, violating long-established law that is outlined in a case styled United States v. Simms, 385 F. 3d 1347 (11th Cir., 2004).

    As for the second unlawful traffic stop, it came on the evening of October 23, 2013. Thankfully, it directly involved only me, not my wife; she was taking a nap in an upstairs bedroom, unaware her husband essentially was being kidnapped in the garage two stories below.

    I had spent most of the afternoon at a library and was on my way home after grabbing a quick bite for dinner. Unbeknownst to me, Deputy Chris Blevins was waiting for me. He was sitting in a marked police vehicle, parked on a street (MacIan Lane) that runs perpendicular to ours (Logan Drive)--about 100 yards from our house.

    As I turned left onto our street and prepared to pull into the driveway at 5204 Logan Drive, Blevins started to follow me. I was waiting for the door to fully rise before pulling into our garage, when Blevins drove down our driveway and activated a siren/horn and his emergency lights.

    I was in my vehicle and had just come off the roadway; he was in a vehicle and had just come off the roadway. This was a traffic stop, a seizure under the Fourth Amendment, as outlined in a case styled United States v. Purcell, 236 F. 3d 1274 (11th Cir., 2001).

    How else do we know this was a traffic stop? Well, a simple check of the "traffic stop" entry at Wikipedia tells us. It states, in part:

    A traffic stop, commonly called being pulled over, is a temporary detention of a driver of a vehicle by police to investigate a possible crime or minor violation of law. . . .

    A stop is usually accomplished through a process known as "pulling over" the suspect's vehicle. Police vehicles (except those used by undercover personnel) traditionally have sirens, loudspeakers, and light bars that rotate and/or flash. These devices are used by the officer to get the attention of the suspect and to signal that they are expected to move over to the shoulder and stop.

    We also can check an article, titled "The Law of Traffic Stops (Keyed to Alabama Law)," by Montgomery attorney Patrick Mahaney. Writes Mahaney:

    The regulation of movement of vehicles on the highway by law enforcement is continually scrutinized under Fourth Amendment standards. The police use of emergency lights, police siren, or other indicia of authority to direct a motorist to pull over and come to a stop, which may include simply pointing to a motorist and giving direction by hand signal for the motorist to stop, reviewing courts have consistently held such police actions squarely falling within the concept of "show of force." . . .

    Consistent with prior opinions of the Supreme Court, any show of force by a law enforcement officer, to include the use of police equipment to indicate to a motorist to stop, even a law enforcement officer's hand gesture to a motorist to pull over, places the burden of Constitutional reasonableness on the government. Such actions are customarily termed a "seizure" under the Fourth Amendment.

    Blevins used his lights and siren as a "show of force" that caused me to stop and be detained. This, by legal definition, was a traffic stop. For good measure, Blevins admitted at my resisting-arrest trial that his actions constituted a traffic stop.

    Did Blevins meet his burden of "Constitutional reasonableness" when he stopped my vehicle? In other words, did he "have probable cause to believe that a traffic violation had occurred"?

    The answer to both questions is no. And that has profound meaning for my arrest and the five months I spent in jail--all of which was unconstitutional under the First Amendment AND the Fourth Amendment.


    (To be continued)

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    An Alabama sheriff's deputy used an unconstitutional traffic stop to initiate my October 2013 arrest, adding to the growing number of grounds by which my five-month incarceration was unlawful. Did the deputy have reason to know he was acting outside the law? Well, he violated a U.S. Supreme Court decision that has been in place for 30 years.

    I was the only journalist in the western hemisphere to be incarcerated in 2013, drawing national and international news coverage that focused largely on violations of free-speech rights under the First Amendment. But the actions of Shelby County deputy Chris Blevins trample the Fourth Amendment right to be free from unreasonable searches and seizures--and Blevins' acts should be disturbing to every American who drives, or rides in, a vehicle. To make matters even more disturbing, Blevins was not the first Alabama law-enforcement to conduct an unconstitutional traffic stop against my wife and me during roughly a three-week period in fall 2013.

    I raised the traffic-stop issue at my resisting-arrest trial in January 2014, trying to show that I could not resist an arrest that was unlawful, on multiple grounds, in the first place. But District Judge Ron Jackson claimed Blevins was making a "pick-up stop," based on a warrant for my arrest, and therefore was not subject to Fourth Amendment provisions. Jackson, as seems customary for Shelby County judges, cited no law to support this notion--and my research indicates there is nothing in the law to support it.

    Do citizens pay a price for that kind of judicial arrogance and incompetence? The answer is yes, both literally and figuratively. Jackson found me guilty of resisting arrest and imposed an $845 fine. My picture was on the Shelby County "Most Wanted" list for months, long after the fine had been paid in April.

    Where does one go to have his reputation restored when it has been trampled by rogue officers, prosecutors, and judges. We've already shown that Circuit Judge Claud Neilson issued a preliminary injunction in a defamation case against me (brought by Republican political figures Rob Riley and Liberty Duke), violating roughly 230 years of First Amendment law. We've shown that prosecutor Tonya Willingham brought a resisting-arrest charge against me even though Jackson ordered her to produce any warrants for my arrest, and she responded, "Your Honor, we have no warrants."

    As it stands now, the public record indicates Blevins entered the garage underneath our house, knocked me to a concrete floor three times, maced me in the face, dragged me to the driveway, handcuffed me and tossed me in the back of a police cruiser--all without having a warrant. (This apparently violates a U.S. Supreme Court precedent styled Payton v. New York, 445 U.S. 573, 1979; more on that case coming in future posts.) The record also indicates officers were trying to arrest my wife, but apparently were unwilling to knock down our front door to get at her in an upstairs bedroom.

    This is unlawful enough to boggle the mind, but the problems really started when Blevins honked his horn in the driveway and forced me to stop our car.

    How do we know that Blevins acted in an unconstitutional matter? Well, it isn't easy to make such a determination because traffic-stop law is murky; it's mostly enforced at the state level, but it is grounded in federal law--especially the Fourth Amendment, under which a traffic stop is considered a "seizure."

    In general, an officer can stop a vehicle under two circumstances: (1) He witnesses a violation of traffic laws, which can include moving violations or issues related to a vehicle's condition; (2) He has reasonable suspicion to believe an occupant in the vehicle is involved in criminal activity.

    We've already established that Blevins' actions constitute a traffic stop under the law. He drove his police cruiser down our driveway as I was coming home and trying to pull our car into the garage. He activated his horn/siren and emergency lights to get my attention, forcing me to stop. Blevins' own words from his incident report (see report at the end of this post) show that he was conducting a traffic stop:

    I observed Mr. Shuler traveling toward his home at 5204 Logan Drive. Mr. Shuler pulled into his driveway, and I drove in behind him. I used my vehicle's air horn to get Mr. Shuler's attention, and he stopped his vehicle in front of his garage.

    Blevins' own words describe a "show of force" that caused me to stop and be detained--meaning this was a traffic stop, as described in "The Law of Traffic Stops (Keyed to Alabama Law)," by Montgomery attorney Patrick Mahaney.

    Did Blevins have lawful grounds to stop my vehicle? For guidance, we first turn to a case styled Whren v. United States, 517 U.S. 806 (1996), which holds:

    An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

    Could Blevins stop my car because he had probable cause to believe I had committed a traffic violation? The answer is no. Blevins' never stated to me that I had violated any traffic law and never made any mention of writing a ticket or warning. His own words in the incident report make no mention of an alleged traffic violation.

    Since Blevins fails under the Whren test, we must turn to his second option--a case styled United States v. Hensley, 469 U.S. 221 (1985), which is 30 years old and holds:

    Where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation but might also enable the suspect to flee and remain at large. The law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes. When police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.

    Hensley grew from an armed robbery in the Cincinnati area, where police issued a "wanted flyer" for the driver of the getaway car. Based on the wanted flyer, police eventually stopped a vehicle, and the U.S. Supreme Court found the stop lawful because officers had "reasonable suspicion" that the person was "wanted in connection with a completed felony."

    Was I wanted in connection with a complete felony? Heck, I wasn't even wanted in connection to a crime. I was wanted because of a contempt of court order based on an unlawful preliminary injunction in a defamation lawsuit.

    As noted above, traffic-stop law can be tricky. For example, four federal circuits have extended Hensley to apply to cases of suspected misdemeanors. But I wasn't suspected of a misdemeanor, not even jaywalking.

    Every state-law case that I've seen acknowledges that traffic-stop law, by definition, is grounded in the U.S. constitution--specifically, the Fourth Amendment. And I've yet to see a case that cites federal law to say it's OK to conduct a traffic stop on an individual who allegedly has an arrest warrant in a civil case that involves no allegations of criminal activity.

    The word "allegedly" is important here because, the public record at the moment, indicates Blevins entered our home without an arrest warrant--and I've neither seen nor heard anything from him or prosecutor Willingham to show that a warrant existed at all.

    What can we take from this? Perhaps its best to turn to an article titled "Alabama Journalist Jailed for Contempt Under Political Stench," which was published on January 15, 2014, at photographyisnotacrime,com (PINAC), a Web site that Miami multimedia journalist Carlos Miller started in 1997. PINAC opposes efforts to limit the public's ability to chronicle police activities.

    Reporter Andrew Meyer notes that my case raises troubling issues about the First Amendment (right to a free press), Fourth Amendment (right to be free from unreasonable search/seizure), Fifth Amendment (right not to be deprived of liberty without due process of law), Sixth Amendment (right to a trial by jury), and Fourteenth Amendment (right to due process and equal protection).

    Concludes PINAC's Meyer:

    Shuler’s story might set the record for amount of constitutional rights casually broken in one case.

    Perhaps more than any other journalist I'm aware of, Meyer understands that my case goes way beyond the First Amendment violations--as important as those are. These are violations that should trouble every American, even those who have no interest in ever practicing journalism or writing a blog.

    Have you ever driven, or ridden in, a vehicle? If so, these issues should matter to you.






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    Liberty Duke
     Please trust me when I say there is nothing fun about being roughed up by Alabama sheriff deputies--inside your own home, on a civil matter--and hauled off to jail for five months. But a reader did manage to find something amusing about that scenario the other day--and it helps drive home an important point of law that we've never addressed.

    We wrote on March 9 about the tendency of cops, in a world where cameras and microphones catch many of their actions, to use certain magic phrases that make it seem a suspect is resisting. With that in mind, I noted that Shelby County Deputy Chris Blevins can be heard on a video of my arrest repeatedly saying, "Don't fight me, don't fight me"--even though his own incident report indicates I wasn't fighting him.

    A reader noticed the disparity between the words Blevins spoke and the words he wrote on his report, which we ran at the bottom of our post, and responded with this comment:

    I know this was unpleasant for you, LS, but it's kind of funny to see that Officer Blevins was shouting "Don't fight me!" while he states on his report that he was throwing you through boxes multiple times. Who was fighting whom here?

    Even I had to chuckle at that. But it raises a serious question: What acts tend to constitute a real case of resisting arrest?

    As we noted in our March 9 post, Blevins states multiple times in his report that I was resisting, but he never says what I did that amounted to resisting. He admits that he initiated physical contact with me, that I never turned away from him as if to escape, that my only physical act was to raise my arms in front of my face for protection.

    So how on earth did I get hit with resisting arrest--and convicted, resulting in a fine of $845? The only answer to that question, in my case, is that we are talking about Shelby County, Alabama, a place where corruption has reigned for so long that law-enforcement and legal types probably have forgotten what it's like to conduct their affairs in an honest fashion.

    But what about a jurisdiction that at least puts on a reasonable show of trying to dispense justice? Even a lot of lawyers find many resisting-arrest cases to be dubious. Ken White, a California lawyer who writes at the Popehat blog, says they often are referred to as "contempt of cop."

    But what acts should give rise to a real resisting arrest case? Most statutes, including the one in Alabama, are vague on that question. But it appears that case law provides some guidance. The best information I've found comes from an article titled "Possible defenses to resisting arrest charges" at attorneys.com. From the article:

    Resisting arrest is usually defined as intentionally preventing a police officer from lawfully arresting or handcuffing you or taking you to jail. Here are some things that can be considered resisting arrest:

    * Physical acts, such as running away, hiding, or struggling with the officer

    * Giving false identification, either verbally or by presenting a fake ID

    * Trying to help another person avoid arrest

    * Threatening the officer

    Being slow to comply with an order or swearing at an officer is not, by itself, usually enough to warrant resisting arrest charges. Neither is questioning an officer's actions or authority before ultimately complying with requests.

    The article goes on to state that, as we showed in a post last week, you can't be charged with resisting an arrest that was unlawful in the first place. And mine was unlawful on multiple grounds--starting with the fact that it was based on a preliminary injunction in a defamation lawsuit, which has constituted an unlawful prior restraint under First Amendment law for more than 200 years.

    Chris Blevins was in my garage only because Alabama GOP political figures Rob Riley and Liberty Duke sought a preliminary injunction that is wildly contrary to law--and Claud Neilson, a corrupt hack of a judge, let them get away with it.

    Rob Riley
    Were the acts noted above present in my resisting arrest case? A quick look at Officer Blevins incident report (which can be read at the end of this post) shows the answer is no.

    I didn't run away or hide or struggle with him (unless being thrown through two stacks of boxes counts as struggling); I didn't give false ID; I didn't threaten or curse him; and I wasn't slow about complying with any orders because I wasn't given any orders--Blevins didn't state why he was there until after I had been knocked to the concrete floor of my basement three times and maced in the face.

    Perhaps my only defiant act came when Blevins asked me to step outside, and I refused, telling him to get out of my garage. He had not shown me a warrant or even said he had a warrant, so I saw no sign that he had grounds to be directing me to do anything.

    Yes, there are comical elements to this story, but in the end, it is a serious matter. It's left me with a criminal record for a "crime" I didn't commit. I had lived 56 years on this planet without ever coming close to being arrested for anything.

    My record was crystal clean, but now it isn't--all because a rogue cop, who had no lawful grounds to be on my property, concocted a bogus case of "don't fight me."

    I intend to do everything in my power to make sure my record gets back to the clean state it once was in. And one way or another, I'm going to hold Chris Blevins, Rob Riley, Liberty Duke, Claud Neilson, and others accountable.




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    Rob Riley
    Alabama House Speaker Mike Hubbard; former Governor Bob Riley; and Riley's son, Birmingham attorney Rob Riley, received leaked information related to the Lee County grand jury beginning in at least December 2012, according to court documents released yesterday.

    E-mails between Hubbard and Bob Riley, included in the court documents, make it clear former Deputy Attorney General Sonny Reagan was the source of the leaks. Reagan was forced to resign from the AG's office in December 2014 amid allegations that he had shared secret grand-jury information with targets of the investigation.

    Documents also show that the grand jury filed a subpoena seeking to question Rob Riley. His lawyer, William Athanas of the Birmingham firm Waller Landsen Dortch & Davis, threatened to file a motion to quash the subpoena, and Rob Riley apparently has managed to escape testifying so far.

    All of this adds to evidence that my unlawful incarceration--from October 23, 2013, to March 26, 2014, in Shelby County, Alabama--was connected to the Lee County investigation. Rob Riley and lobbyist Liberty Duke sought my arrest based on a dubious defamation lawsuit that sought a temporary restraining order and preliminary injunction, both prohibited as prior restraints under more than 230 years of First Amendment law.

    Our ongoing investigation indicates I probably was beaten and maced in my own garage, arrested without an apparent warrant, and jailed for five months--the only journalist in the western hemisphere to be incarcerated in 2013--for more than one reason. My reports on U.S. Circuit Judge Bill Pryor and his connections to 1990s gay pornography almost certainly played a role. But we now know Rob Riley was concerned enough about the Lee County probe to trample his profession's ethical provisions, and perhaps commit state and federal crimes, in order to get inside information.

    The first sign of leaks are tied to former ALGOP chairman Bill Armistead and his announcement on December 12, 2012, that Hubbard was under investigation, according to a report yesterday from Bill Britt at Alabama Political Reporter. An e-mail exchange between Hubbard and Bob Riley, dated the next day (December 13, 2012), shows they already had inside information about the grand jury--as did Rob Riley.

    From the December 13 e-mails, marked as Exhibit L, starting with Hubbard:

    On Dec 13, 2012, at 8:19 AM, Mike Hubbard wrote:
    Gov:
    Talk with Rob when you can. Armistead and Luther have now teamed up to try and ruin me politically. Not sure what Luther'a end game is others than he views me as a potential threat down the road. Rob knows details.

    This response came from Bob Riley:
    On Dec 13, 2012, at 9:06 AM, "Bob Riley"wrote:
    I was with him during the conversations with you and Sonny last night - ..... Have a couple of people trying to understand what's happening.
    Bob Riley

    What does this tell us? Bill Britt provides a summary:

    Here Riley acknowledged a conversation with Reagan and Hubbard and also indicates that Rob Riley was involved in receiving information about the Lee County Grand Jury as early as December, 2012.

    The dirt gets even deeper with Exhibit K, which involves a January 18, 2013, e-mail from Hubbard to Bob Riley, referencing former Hubbard aide Josh Blades:

    Confidentially, I received word just now from Josh [Blades] that a mutual friend in the AG’s office (he used to work for you) called to tell him that the prosecutor told him this afternoon that the accusations against me have been thoroughly investigated and totally dismissed by the Grand Jury.”

    What does this mean? Here is Britt's brief summary:

    The emails show that Riley and Hubbard, along with Rob Riley and Josh Blades, then Hubbard's Chief of Staff, were involved in leaked secrets from the Grand Jury. It also reinforces that Reagan was the leaker because he is the only person in the Attorney General’s Office who had worked in the Riley Administration.

    This is the most powerful evidence yet of the deep sleaze in which Hubbard and the Rileys have engaged. This raises all kinds of questions, but for now, we will focus on these:

    * Rob Riley and Sonny Reagan are lawyers, and they clearly engaged in efforts to undermine the justice process. Will they face disbarment proceedings?

    * The actions of Rob Riley, Bob Riley, Hubbard, and Reagan involve attempts to obstruct the Lee County grand jury. Could this lead to criminal charges--perhaps under the state statute for obstructing governmental operations? Since the federal wires were involved via e-mails, could that lead to federal obstruction of justice charges?

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    Ray Watts
    Documents released Monday show that UAB officials knew they were going to dismantle the Blazer football program before the 2014 season even started. UAB President Ray Watts had said on multiple occasions that he made the decision in November, not long before the announcement last December 2. According to a new report from al.com's Kevin Scarbinsky, Watts lied.

    Many of Scarbinsky's readers might be aghast that a university president would look into the lenses of television cameras--into the eyes of student-athletes, boosters, and community leaders--and speak words that he knew were not true. But documents presented with Scarbinsky's articles show that is exactly what happened.

    None of this surprises me. I've known for a long time that UAB administrators--especially those who are too weak to stand up to the corrupt University of Alabama Board of Trustees--have no problem lying on a monumental scale. That is particularly true since Paul Bryant Jr., who has documented ties to a massive insurance-fraud scheme, became a member of the board in 2000.

    In a darkly comic way, Blazer football fans should consider themselves lucky. At least Watts was not under oath when he lied to them. I, on the other hand, was the victim of about a half dozen UAB administrators who made false, written statements other oath. In other words, they committed perjury--and remained silent in the face of a federal judge's rampant unlawful rulings--in order to "win" my First Amendment/discrimination lawsuit.

    Is it a coincidence that lying has become almost a varsity sport at UAB since 2000, a sport in which the university's two most recent presidents--Ray Watts and Carol Garrison--should earn all-conference honors? I don't think so. It's the natural fallout from allowing a scoundrel like Bryant to gain power, and I suspect the subterfuge will continue until UAB breaks from the UA board and is controlled by individuals who actually care about the Birmingham campus, its students, and supporters.

    It has been widely reported that Bryant was behind the scheme to end UAB football, and I have zero doubt that is true. I also have no doubt that Bryant, or a like-minded member of the board, pushed for my unlawful termination in 2008, after almost 20 years of employment as an editor at UAB.

    What was my sin? I was reporting accurately--on my own time, with my own equipment--about the unlawful actions of U.S. District Judge Mark Fuller in a prosecution that sent former governor Don Siegelman and former HealthSouth CEO Richard Scrushy to federal prison for crimes they did not commit--in fact, for "crimes" that do not even exist, under the law.

    My reporting came roughly seven years before the nation learned that Fuller had beaten his wife in an Atlanta hotel room, in a rage probably fueled by alcohol and prescription-pill abuse. Fuller now faces possible impeachment proceedings this year, led by U.S. Rep. Terri Sewell (D-AL), and that means my reporting was both on target--and way ahead of its time.

    As a government employee, my communications on such matters of public concern were protected by the First Amendment. But the U.S. Constitution doesn't mean much to UAB managers, especially when they answer to a board that includes a deceitful thug like Bryant.

    So what happened? UAB "leaders" claimed that I was writing my blog at work. When a one-month investigation by a member of their own IT staff showed that wasn't true, it created a slight problem. When their own grievance committee found that I should not have been fired--in fact, the grievance hearing showed there were no documents to support discipline of any kind--they had another problem.

    Carol Garrison, UAB's president at the time, decided to solve the problems by going against her own committee to uphold my termination. This was the same Carol Garrison who, during her first year on the job, brought copious amounts of embarrassment to UAB by carrying on an unseemly affair with John Shoemaker (the former president of the University of Tennessee), which involved misuse of public resources.

    How did UAB administrators lie under oath? As my federal lawsuit unfolded, six of them submitted sworn affidavits, stating in part, that the termination had nothing to do with my speech via this blog. The perjurious six included Garrison, former human resources director Cheryl E.H. Locke, former associate vice president Dale Turnbough, former publications manager Pam Powell, employee relations director Anita Bonasera, and vice president for advancement Shirley Salloway Kahn.

    All six of them stated under oath, in various ways, that speech issues had nothing to do with my termination. (See Motion to Strike Affidavits at the end of this post.) That, however, was not true--and like Kevin Scarbinsky, I have the evidence to prove it.

    While on administrative leave, I contacted Bonasera to ask a question about my response to the university's accusations. During the course of the conversation, Bonasera admitted that I was targeted because of blog posts about the Siegelman case, that Pam Powell (my immediate supervisor) went to the IT department to seek digital evidence against me regarding any Siegelman posts. In fact, Bonasera mentioned Siegelman's name twice, and while she tried to backtrack, her overall tone was that my termination was based almost 100 percent on journalism at Legal Schnauzer.

    Here is a partial transcript of that conversation: (The whole thing can be heard on the video at the end of this post.)

    RS: I told Dale Turnbough about this two weeks ago, and she never said a word about any of this. In fact, she said she was going to take care of it, she assured me absolutely that this had nothing to do with my blog—and then two weeks later I find out it’s all about my blog.

    AB: It’s not all about your blog. Your blog was an insignificant piece. . . . The blog . . . was a very small part of the bigger picture. . . . again, related to other non-work related things. I didn’t see those non-work related things. Pam (Powell) sat down with the computer people—and I don’t know who else was there—and they reviewed what was work related and what was non-work related.

    RS: And she’s the determiner of that, even though she has told us . . .

    AB: She was able to determine what you were working on and whether it was related to your blog . . .

    RS: Well, you just said it, it’s all about my blog. You just said that.

    AB: That was a piece of it. Some of it was research related to your blog, from my understanding. I understand there were some things about Siegelman, screens up about Don Siegelman, things that they saw you doing that they consider to be research for your blog because then that was topics that you wrote about on your blog.

    RS: Those are also news articles that we are supposed to keep up with, about Alabama, stuff in the news.

    As you can see, Bonasera commits enough verbal twists and turns to be an Olympic gymnast. She starts by admitting my blog "was a very small part of the bigger picture." (News flash: Firing a government employee for protected speech, even if it's a small part of a "bigger picture," violates the First Amendment.) Bonasera betrays her previous words by stating that Pam Powell checked with computer people to see what I was working on and "whether it was related to your blog." In other words, Powell's trip to the digital experts was all about my blog--and a techie later testified at my grievance hearing that I had never touched a keystroke on my blog while at work.

    When I catch Bonasera in her lie--as Kevin Scarbinsky did with Ray Watts--she started to back pedal, claiming the blog was "a piece of it." She then digs her hole even deeper by admitting that Powell was specifically looking for information regarding my reporting on the Siegelman case--and Judge Mark Fuller.

    UAB football at Legion Field
    Despite this, Bonasera actually had the mangoes to write in her sworn affidavit that she was "not aware that any of Shuler's speech on his blog or elsewhere was related to the decision to terminate Shuler's employment." She even denied telling me I was terminated because of my speech, even though the words above show that is exactly what she said. (See Anita Bonasera affidavit at the end of this post.)

    If there is a positive for UAB football fans, I've found that lying university administrators tend to be cowards. In my employment lawsuit, U.S. District Judge William M. Acker Jr., granted the university summary judgment, even though there had been no discovery in the case. In fact, there wasn't even a discovery schedule, as required by Rule 16(b) of the Federal Rules of Civil Procedure.

    This is mind-bogglingly unlawful, the equivalent of baseball umpires letting one team bat while the other team never gets a chance at the plate. Case law, as cited in Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Circ., 1988), shows that Acker was acting way outside the law. From Snook:

    This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.

    Heck, I wasn't even allowed to make discovery requests. That's likely because Acker knew a significant e-mail trail, if produced in discovery, would show that UAB did, in fact, discriminate against me and violate my First Amendment rights--that I was fired, 100 percent, because of my blog. The cheat job extended all the way to the Eleventh Circuit, which upheld Acker's ruling with a "Do Not Publish" opinion. That is a nasty trick that appellate judges use to cheat a litigant while not sullying the record with a ruling that is contrary to years of legal precedent. (More on that in an upcoming post.)

    Ethics rules of the legal profession require a lawyer to report the misconduct of another lawyer or judge. Did chief university counsel Lisa Huggins object to Acker's violation of "black letter" law? Heck, no--she stayed quiet because Acker was cheating on her behalf.

    That might provide comfort for UAB football fans. In a pathological environment created by  neanderthals like Paul Bryant Jr., individuals become cowards--and their ethics become so warped that they eventually make glaring mistakes.

    I suspect that eventually will happen to Ray Watts. He's going to become such a drag on the Board of Trustees, they eventually will cut him loose.

    UAB, for its long-term health, still needs to cut itself loose from the Tuscaloosa board. But getting rid of Ray Watts will be a step in the right direction.

    To add some levity to this subject, here is a video of Ray Watts (as Hitler) learning that his skybox privileges in Tuscaloosa have been rescinded because of his failure to kill the entire UAB athletics program.















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    Bill Pryor at badpuppy.com
    U.S. Rep. Aaron Schock (R-IL) resigned last week and now faces an FBI investigation to determine if his spending activities rise to the level of criminal behavior. For good measure, Schock has faced rumors for several years that he is gay, even though he has consistently voted against gay-rights measures.

    All of this reminds us of Birmingham-based federal judge William H. "Bill" Pryor, who was exposed here at Legal Schnauzer in fall 2013, for having appeared nude in a series of photos that were shot while he was in college in the 1980s but gained new life when they appeared on a gay-porn Web site called badpuppy.com in the 1990s. As for Schock, the gay stories originated with journalist Itay Hod and eventually made their way into The New York Times.

    Pryor still holds a lifetime position, to which George W. Bush appointed him, and we are not aware of any investigation into Pryor's activities. But like Schock, Pryor appears to be a world-class hypocrite, given his ardently anti-gay positions. More importantly, our research indicates Pryor has engaged in misconduct that would dwarf any allegations against Aaron Schock.

    From his seat on the U.S. Eleventh Circuit Court of Appeals, Pryor essentially serves as a fixer for conservative, pro-business interests, multiple sources tell Legal Schnauzer. When Pryor ran for Alabama attorney general in the 1990s, his campaign manager was GOP guru Karl Rove. Our sources state that Rove knew about Pryor's connections to gay porn--and knew they would make him vulnerable to a not-so-subtle form of blackmail. In other words, Pryor would guide certain cases in the proper GOP direction or risk having his porn photos released.

    The D.C.-based Wayne Madsen Report (WMR) apparently was first to break the Pryor story, in 2009. The site requires a subscription, but we have received permission to publish certain items here. This is a portion of Madsen's piece on Bill Pryor:

    June 15, 2009 -- Is there a closet door closed at the 11th Circuit Court of Appeals in Atlanta?
    William H. ("Bill") Pryor, Jr., the former Attorney General of Alabama who was involved in the political prosecution by the Bush administration of Alabama Democratic Governor Don Siegelman and who squeaked by U.S. Senate confirmation after being nominated by George W. Bush to the 11th U.S. Circuit Court of Appeals, appears to have a little something in his "closet." Pryor was confirmed by the Senate in 2005 in a 53-45 vote, his nomination being secured by a bi-partisan agreement between Senator John McCain and thirteen "Gang of 14" senators to force an "up or down" vote on three stalled Bush federal court nominees. Pryor was 43 when he was sworn in as a federal judge.
    According to WMR sources in Alabama, Pryor, who now acts as a gatekeeper on the 11th Circuit for the Bush interests in Florida, Alabama, and other states in the jurisdiction, advertised himself during his younger days on a gay website called "Bad Puppy." There are also rumors from informed sources that naked photographs are held by some top Republicans and conservatives as an insurance policy that Pryor rules the correct way on issues on the 11th Circuit bench.

    How many cases have received unlawful interference from Bill Pryor? Could they include the high-profile case of former Alabama Governor Don Siegelman? God only knows at this point, but if proven, such conduct would point to obstruction of justice, racketeering, conspiracy, and probably other crimes.

    Aaron Schock
    That brings us to Pryor's Senate confirmation hearing. It is standard for a federal nominee to be asked, under oath, if there is anything in his background that might embarrass him or the president who nominated him. Pryor has known the nude photos were public since at least September 1997, and our sources say he likely did not disclose their existence to FBI and Senate investigators.

    What are the possible implications of that? Here is how we answered that question in an earlier post:

    Could Pryor face serious consequences if it is shown he made false statements to officials looking into his background? Based on the impeachment and removal of Louisiana federal judge Thomas Porteous in 2010, the answer might be yes.

    One of the articles of impeachment against Porteous involved his failure to disclose information to investigators--and his false statements during pre-confirmation regarding any background information that might prove embarrassing to him and the president who nominated him, Bill Clinton.

    Did Pryor withhold information that would embarrass him and George W. Bush? We don't have a certain answer at the moment, but it appears likely.

    What kind of bad boy has Aaron Schock been? Here is how Yahoo! Finance describes it:

    According to . . . the Associated Press and CNN, the Federal Bureau of Investigation has opened up a criminal investigation to determine whether Schock broke the law with some of his spending activities.

    Among other things, Schock faces accusations that he accepted improper gifts, used campaign funds for personal purposes, improperly billed the government for travel expenses, and used taxpayer funds for lavish trips for his staff.

    Our friend Billy Dennis, at the Peoria Pundit blog, lives in Schock's district and has written extensively about the Congressman's rise and fall. From a recent Pundit post, taking Peoria's mainstream media to task for pretty much giving Schock a free pass:

    Aaron Schick was raised in Peoria. He graduated high school and college in Peoria. He represented Peoria on the school board, the State Legislature and in Congress. And Peoria’s one and only newspaper of record sat back and let the Chicago Sun-Times, the Chicago Tribune, the Washington Post, Politico and Blue Nation Review (and to a humble extent, Peoria Pundit) carry their f*cking water when it came to investigative pieces on Peoria’s Congressman.

    It makes you want to vomit.

    Speaking of vomit, that brings us back to Bill Pryor. With him, we have signs of obstruction of justice, racketeering, conspiracy, and lying to Congress. That doesn't count apparent Pryor activities I'm currently investigating. That includes my effort to unearth information about "Ernie," the mystery man who apparently helped bring the Pryor gay-porn photos to public light.

    My research indicates Pryor has been involved in certain activities that would make Aaron Schock seem like Dudley Do-Right. Stay tuned for more.


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    Paul Bryant Jr.
    (From Bloomberg Markets)
    A significant number of individuals who help govern the public University of Alabama System also have connections to a private bank where UA trustee Paul Bryant Jr. serves as chairman, according to a report this morning from al.com.

    Did such an incestuous, conflict-riddled system allow Bryant Jr. to push for demolition of the UAB football program, without anyone raising an opposing view? Columnist John Archibald does not answer that question, but he suggests the university's governing board operates in "the smoke and shadows," discouraging members from conducting their business "in the light of day"--in part, because of loyalties to Bryant.

    Birmingham attorney Donald Watkins, on his Facebook page, reacted to the Archibald column by calling the UA system a "modern day plantation." Watkins seemed particularly appalled that even Governor Robert Bentley is connected to the ugliness. His son, John Mark Bentley, is a vice president at Bryant Bank.

    Watkins offers stinging insights on the UA board, but he's using the wrong metaphor, in my view. I would suggest Bryant has taken a public board and turned it into a private whorehouse. Why? As far as I know, the plantation system was legal in its day, but prostitution has long been the "oldest profession" that operates outside the law.

    While Archibald provides important information about the UA board, he leaves out at least one major detail: Paul Bryant Jr. has documented ties to criminal activities, and our research indicates a prominent Birmingham lawyer helped him get away with it.

    We've shown in a series of roughly 50 posts, beginning in October 2009, that Bryant and one of his companies (Alabama Reassurance) were implicated in a $15-million insurance fraud scheme that netted a 15-year federal prison sentence for a Philadelphia lawyer/entrepreneur named Allen W. Stewart.

    Bloomberg Markets picked up on our reports and turned them into a national story for its January 2014 print issue. An early version of the story appeared at Bloomberg's Web site on November 25, 2013. Bloomberg did not credit Legal Schnauzer for providing the foundation to more than half of the story, but reporter Anthony Effinger consulted me multiple times while conducting research.

    Why did Archibald not mention Bryant's connections to criminality? That's hard to figure because Bryant's shady background probably contributes to the secrecy that Archibald decries in the UA board.

    Archibald notes that board members routinely refuse to give substantive answers to questions about public business, including the decision to cut UAB football. That should not be a surprise to anyone who has followed this blog.

    Doug Jones
    Our investigation shows that Birmingham lawyer Doug Jones, while serving as U.S. attorney for the Northern District of Alabama in the late 1990s, called off a planned investigation of Bryant in the wake of the Stewart conviction in Pennsylvania.

    I've tried to interview Jones twice on this issue, and he responded both times with a series of non-answers and insults. Here is an example:

    Jones: I'm trying to make sure you understand that I have read your stuff, I have seen your conspiracy theories, and I am not going to answer any of your questions because I don't trust what you will write, period.

    LS: I'm taking it down word for word. . . . I'm asking you, who called off the investigation of Paul Bryant?

    Jones: I am not going to respond to any of your questions . . .

    LS: You were a public official then, Doug . . .

    Jones: I am not going to respond to any of your questions. . . . I've seen the garbage you write and the way you spin and the way you slant. It's the most disingenuous stuff I've ever seen. . . . It just doesn't matter to me. You're a nothing to me."

    Notice that Jones never denies having called off the Bryant investigation. And he refuses to answer important questions about public business--from Jones' time as a public official.

    John Archibald, in so many words, takes the UA board to task for acting in an arrogant and condescending fashion toward the public. But that should be expected when you know about Doug Jones' history of doing legal work for Bryant, followed by Jones' refusal to answer questions about his apparent actions to protect Bryant.

    Do people affiliated with Bryant tend to become smarmy, greasy sycophants? I invite you to listen to my interviews with Doug Jones, via the two videos below, and come to your own conclusions.

    I contend that this is the kind of attitude UA board members now take--and they are doing it with your tax dollars.






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    Erwin Chemerinsky
    Last Thursday (March 26) marked the one-year anniversary of my release from an Alabama jail, ending my term as the only journalist in the western hemisphere to be incarcerated in 2013. But the story is far from over.

    My wife and I continue to suffer the physical, emotional, and financial fallout from an arrest that has (best I can tell) universally been deemed unlawful. Legal analysts from both the left and the right have stated that the temporary restraining order (TRO) and preliminary injunction in my case were prior restraints that run afoul of more than 200 years of First Amendment law.

    We are more determined than ever that Republican political figures Rob Riley and Liberty Duke, who sought the unconstitutional injunction, will be held accountable--along with the powerful figures who likely were pulling their strings from "behind the curtains."

    It will not be an easy battle, given the grossly corrupt nature of Alabama courts, at both the state and federal levels. But we find inspiration in the words of Erwin Chemerinsky, the founding dean at the University of California Irvine law school and one of the nation's foremost constitutional scholars.

    Chemerinsky has written both scholarly articles and legal briefs that show the TRO/preliminary injunction that sent me to jail was unconstitutional, as is the permanent injunction that I'm still under.

    In 2007, Chemerinsky wrote "Injunctions In Defamation Cases" at Syracuse Law Review and shows that the Riley/Duke requests for prior restraints should have been dead on arrival--in a real court of law. But with Judge Claud Neilson handling the case, on assignment from the Alabama Supreme Court, this hardly was a real court of law. Neilson apparently ordered me arrested for "violating" a TRO/preliminary injunction that could not lawfully be in place to begin with. Writes Chemerinsky:

    "The [U.S.] Supreme Court has declared that prior restraints on speech constitute "the most serious and least tolerable infringement on First Amendment rights. . . . "The strong presumption against prior restraints is evidenced by the fact that the Supreme Court has never upheld a prior restraint as a permissible remedy in a defamation action."

    Let's let those words sink in for a moment. Rob Riley and Liberty Duke were seeking a remedy in their defamation claim that the highest court in the land never has approved. On top of that, they took away five months of my freedom, based on a remedy that the U.S. Supreme Court has rejected throughout its history.

    Chemerinsky maintains that a permanent injunction, such as the one I'm under now, also is unconstitutional. To be clear, Chemerinsky is talking about permanent injunctions that have been reached after a finding at trial that certain material is, in fact, defamatory. One such case is Balboa Island Village Inn v. Lemen, 156 P. 3d 339 (Cal., 2007). My case, however, is an entirely different matter. Under "Judge" Neilson, my case never went to trial, never went before a jury. In fact, I am forbidden from publishing material about Rob Riley and Liberty Duke that never has been adjudicated as defamatory.

    Lyrissa Barnett Lidsky
    A Texas case styled Kinney v. Barnes (Texas Supreme Court, 2014) could be headed to the U.S. Supreme Court, and Chemerinsky has filed an amicus brief in the case, once again driving home the unlawfulness of injunctions in defamation cases. Joining him on the brief is Lyrissa Barnett Lidsky, from the University of Florida School of Law. Lidsky has written extensively on issues of Internet free speech, cyberbullying, and defamation and other privacy torts.

    What are the issues in Kinney v. Barnes? The case involves executives at rival legal-recruiting firms, and this is how one court document describes the conflict:

    BCG Attorney Search, Inc. employed Robert Kinney as a legal recruiter until 2004, when he left and started a competing firm. Several years later, BCG's President, Andrew Barnes, posted a statement on the websites JDJournal.com and Employmentcrossing.com implicating Kinney in a kickback scheme during his time with BCG. . . . The posted statements prompted Kinney to sue Barnes, BCG, and two other companies Barnes owned (Employment Crossing, Inc. and JD Journal, Inc.) for defamation in Travis County. Kinney did not seek damages in his petition, requesting only a permanent injunction following a trial on the merits. . . . Barnes filed a motion for summary judgment on the ground that the relief sought would constitute an impermissible prior restraint on speech under the Texas Constitution.

    According to Chemerinsky and Lidsky, Barnes is on the right side of the law. From the professors' amicus brief:

    Is a permanent injunction against defamatory speech ever permissible? Amici urge the court to hold that even where a statement has been adjudicated false and defamatory, the First Amendment bars a permanent injunction against republication of the statement.

    On what do Chemerinsky and Lidsky base their position? They turn to U.S. Supreme Court precedent--and two cases we have mentioned several times here:

    Any injunction that restrains a defendant in a defamation case from making certain statements in the future is a prior restraint on speech. The U.S. Supreme Court has expressly declared that “permanent injunctions . . . that actually forbid speech activities — are classic examples of prior restraints” because they impose a “true restraint on future speech. . . .” Alexander v. United States, 509 U.S. 544 (1993).

    The seminal case concerning prior restraints is Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). In Near, a newspaper appealed a permanent injunction issued after a case “came on for trial.” Id. at 705-06. The injunction in that case “perpetually” prevented the defendants from publishing again because, in the preceding trial, the lower court determined that the defendant's newspaper was “chiefly devoted to malicious, scandalous and defamatory articles. . . .” Id. at 706 (quotations omitted). The Near Court held that such an injunction on future speech, even if preceded by the publication of defamatory material, was unconstitutional.

    Like my case, Kinney involves Internet speech, and the case likely will raise this question: Does the Internet provide such a free-flowing communication platform that it requires changes in U.S. law that long has forbidden prior restraints. Chemerinsky and Lidsky answer in the negative:

    The landscape of communication has been dramatically reshaped by the Internet. Americans rely on digital means of communication for nearly every conceivable purpose in their daily lives. The U.S. Supreme Court has recognized the Internet’s importance and made clear that it is entitled to the full protection of the First Amendment. Reno v. ACLU, 521 U.S. 844, 870 (1997). Indeed, the Internet gives great power to the fundamental First Amendment axiom that “[t]he remedy for speech that is false is speech that is true.” United States v. Alvarez, 132 S. Ct. 2537 (2012). . . .

    Ironically, however, it is the very characteristics of the Internet that the U.S. Supreme Court in Reno v. ACLU found justified its full First Amendment protection—speed, ease and efficiency of communication, and the ability of the Internet to make any person a global publisher—that often lead to calls for speech on the medium to receive diminished protection. . . . However, the U.S. Supreme Court has stated clearly that “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011).

    Profs. Chemerinsky and Lidsky clearly are two of the nation's leading experts on First Amendment law, and we encourage readers to follow the Kinney case.

    What happened in my case--the jailing of a journalist based on an unlawful preliminary injunction; a permanent injunction based on communication that never has been found to be defamatory at trial--might be beyond the imaginations of even our nation's finest constitutional scholars.

    A little more than one year ago today, I was in jail because two Republican operatives and a seemingly incompetent judge essentially decided that the First Amendment does not apply to Alabama. My goal is to prove that it does--and that those who violate it will be held accountable.

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    Matt Hart
    Alabama House Speaker Mike Hubbard (R-Auburn) seeks dismissal of the criminal charges against him, based almost entirely on the words of a former deputy attorney general who was forced to resign for leaking grand-jury information, according to court documents filed yesterday.

    Hubbard's lawyers allege that prosecutorial misconduct, mainly by special prosecutor Matt Hart, has tainted the investigation to the point that a 23-count indictment against the speaker should be dismissed. To support his motion, Hubbard relies mainly on written evidence from Sonny Reagan, who was forced to step down from his post in the attorney general's office last December.

    The motion and its exhibits do provide several comical moments, that is if you believe anything Sonny Reagan says or writes. The defense apparently will try to prop up Reagan's words during an evidentiary hearing set for April 15.

    This is the same Sonny Reagan, by the way, who testified before the Lee County grand jury last year and wound up invoking the Fifth Amendment right not to answer questions for fear that he might incriminate himself. It's the same Sonny Reagan who was the recipient of a stinging letter from Attorney General Luther Strange, dated October 16, 2014, outlining examples of improper leaks and placing the deputy AG on administrative leave. (See exhibits attached to Hubbard's motion, from link at the end of this post.)

    Finally, this is the same Sonny Reagan, who in documents that prosecutors released last week, is shown in e-mails as the source of leaks to key Republican political figures who are connected to targets (or are targets themselves) of the Lee County investigation. Involved in receiving leaks were Hubbard, former governor Bob Riley, Birmingham attorney Rob Riley (Bob Riley's son), and former Hubbard aide Josh Blades.

    Hubbard's dismissal motion, in essence, relies on the word of a man whose "credibility" has been left in tatters. Does that mean the 123-page filing is a desperation move? It sure looks that way. Does it mean the motion has zero chance of being granted? Absolutely not. In the world of Alabama "justice," anything can happen.

    The motion gets off to a farcical start by quoting Martin Luther King's Letter From the Birmingham Jail. The citation to MLK from a guy as white as Hubbard, who probably received .002 percent of the black vote in his district, is . . . well, it reads like something from a Saturday Night Live sketch.

    Is the Hubbard defense team serious with this stuff? It's hard to tell, but things really get interesting when Reagan starts pointing out the myriad ways Matt Hart has been an ole meany to certain high-level Republicans. A few highlights, according (mostly) to the "word of Sonny":

    * Reagan's own lawyer, Bill Baxley, clearly wants nothing to do with the evidentiary hearing on April 15. Writes Baxley: "If our attendance is necessary, naturally we will comply with the subpoena, but it would be nice to have as much notice as possible and even nicer not to have to go." That's the spirit, Bill. Sounds like you can't wait to do battle on behalf of your client.

    Rob Riley
    * Hart allegedly claims to be aware of a meeting where Rob Riley had encouraged a number of individuals to interfere with the Lee County investigation. Writes Reagan: "I would be shocked if Rob Riley was interfering with a criminal investigation, and it was more likely that he was trying to politically protect Mike Hubbard's role as House Speaker." Reagan seems to be making a "distinction without a difference"; either way, Rob Riley would be interfering with a criminal investigation, regardless of his motive. We now know, of course, that Reagan himself leaked grand-jury information to . . . Rob Riley.

    * Hart allegedly referred to Rob Riley as a "mafia thug" and insinuated that former State Sen. Bryan Taylor was violating the ethics law by working as a contract lawyer for the Escambia County Commission in legal matters against the Poarch Creek Indians.

    * Hart allegedly asked Reagan if he had heard that political consultant Dax Swatek "was a homosexual." Reagan said no and wrote, "I had met Dax's very attractive wife when they attended the AG's election party in 2011."

    * Hart allegedly told Reagan that Rob Riley had motivated him to continue this grand jury investigation "like no other person has done before." Reagan wrote: "Matt said Rob Riley was a 'bad guy,' and he did not care who Rob's daddy was. Matt said the grand jury began with a definite ending point, but it would now 'continue indefinitely.'"


    Mike Hubbard's Motion to Dismiss and Exhibits



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