Articles on this Page
- 04/30/15--04:13: _Matt Pitt trial hid...
- 05/04/15--04:36: _Walter Scott vs. Te...
- 05/05/15--04:13: _Does Poarch Creek p...
- 05/06/15--04:17: _Study indicates I a...
- 05/07/15--04:10: _Was Arrest In Legal...
- 05/11/15--04:24: _Will Poarch Creeks ...
- 05/12/15--04:16: _Alabama GOPer Rob R...
- 05/13/15--04:09: _You had better thin...
- 05/14/15--04:12: _Alabama deputy's ow...
- 05/15/15--04:20: _Alabama's Mike Hubb...
- 05/18/15--04:14: _Hearing on motion t...
- 05/18/15--09:08: _U.S. Magistrate Cha...
- 05/19/15--04:18: _Orders in Rob Riley...
- 05/20/15--04:19: _Could crime-fraud e...
- 05/20/15--17:30: _U.S. Eleventh Circu...
- 05/21/15--04:22: _Eleventh Circuit pa...
- 05/22/15--11:27: _Will UA trustees gu...
- 05/26/15--03:55: _My incarceration in...
- 05/27/15--04:15: _Judge B. Avant Eden...
- 05/27/15--09:00: _Hearing on motion t...
We have the answer to that question, and it means "the rest of the story" on the Pitt trial is not behind us. In fact, sources tell Legal Schnauzer, the Matt Pitt trial was not about the law at all--it was clear from the outset that he did not impersonate a peace officer. But Pitt did anger powerful elitist forces in Alabama by resisting their efforts to more or less take over The Basement ministry he founded. That largely is the reason Pitt has been beset by legal problems for most of the past two years.
We also now have added evidence that these thuggish forces will subvert the "justice system" to attack those who refuse to do their bidding. That's exactly what happened to Matt Pitt.
Who makes up these forces? They are individuals aligned with University of Alabama trustee Paul Bryant Jr. and former Governor Bob Riley. They appear to have have race-based attitudes that are right out of the 1930s. And when someone fails to abide their demands, they quickly turn into bullies. Anyone familiar with how the Bryant and Riley factions tend to operate should not be surprised by any of this.
Why would Bryant Jr. and Riley try to wrest control of The Basement ministry from its founder? We have a theory on that, and we will touch on it in a moment.
First, let's return to our post from yesterday, showing that Tuscaloosa-based Bryant Bank (of which Bryant Jr. is chairman) has a dismal record when it comes to providing mortgage loans to Alabama's large black population. As for Riley, he has longstanding ties to the Grand Lodge of Free and Accepted Masons of Alabama, a secret society that--at last report--was governed by documents that forbid membership to "negroes or other inferior races."
Former Birmingham radio hosts Russ and Dee Fine were fired from their on-air gig not long after reporting on Riley's ties to a Masons sect that appears to have racist origins. The axing of Russ and Dee Fine does not surprise me, given that overwhelming evidence indicates Riley acolytes caused me to be fired at UAB for reporting on this blog about the unlawful acts of wife-beating federal judge Mark Fuller in the Don Siegelman case.
(Ironically, Russ Fine also works at UAB, as a tenured professor of medicine. Because of the safety net tenure provides, Fine was safe in his full-time job. That meant the Rileys could only cheat him out of his part-time radio gig.)
Many Alabamians undoubtedly remember Bob Riley's Mafioso-like threat to anyone who might "get too close to the families," a performance that was caught on video in 2010. (See video at the end of this post.)
Matt Pitt certainly knows what it's like to run afoul of the Bryant and Riley thugs. As we reported in a post last week, just as the Pitt case was going to a jury:
Pitt's troubles with law enforcement began when he refused to do the bidding of conservative political/corporate forces who wanted to use his ministry (The Basement) for their own purposes, sources tell Legal Schnauzer. Those forces allegedly include former Governor Bob Riley and University of Alabama trustee Paul Bryant Jr. Our sources say Pitt never would have been prosecuted if he had allowed his ministry to be used for the political and financial interests of others. They also say Pitt has made enemies from his desire to build a ministry that reaches across racial boundaries.
What about specifics? We provided them:
What led to Matt Pitt's legal problems? Our sources point to three key events:
(1) Political figures, apparently with ties to Riley and Bryant, encouraged Pitt to use The Basement to endorse a slate of white, conservative political candidates;
(2) Business figures encouraged Pitt to do the ministry's banking with Bryant Bank;
(3) Pitt and a few associates were invited to attend a University of Alabama football game and sit in Bryant's private box. During the game, a Bryant crony was heard to say, after looking out over the packed stadium, "Can you imagine this many people pay us to watch n-----s beat up on each other?"
Pitt rebuffed the first two entreaties and was so disgusted by No. 3 that he decided to have nothing to do with Paul Bryant Jr. or his bank.
Before long, Pitt was in trouble with the law because of an honorary sheriff's badge that he never asked for--Jefferson County Sheriff Mike Hale, an ally of Rob Riley (the former governor's son), gave it to him.
Imagine being a devoted University of Alabama football and going to Bryant-Denny Stadium to sit in the regular seats and watch your beloved Crimson Tide play. Then, imagine that up in Paul Bryant Jr.'s box, one of his cronies is making a statement like this:
Can you imagine this many people pay us to watch n-----s beat up on each other?
Would that make you want to vomit, at least a little bit? Would you want to vomit a bit more when you learn that Bryant Bank pretty much excludes blacks from its lending practices? Would Bob Riley's ties to a racist secret society--and his threatening words in the video below--make you want to vomit in projectile fashion?
|Paul Bryant Jr.|
While Republicans have come to dominate statewide offices in Alabama, that does not apply in the state's largest metropolitan area. Democrats have dominated Jeffco judicial races lately, and those Democrats increasingly have dark skin. In fact, the presiding judge in the county, Houston Brown, is black. In recent years, a number of well-funded Republicans, with support from elite law firms, have lost to relatively unknown black, Democratic challengers.
That probably displeases Bryant, and it almost certainly displeases Riley--whose son heads up the white suburban Riley Jackson law firm, and whose son-in-law is a partner at the corporate, right-leaning Bradley Arant. In the 2012 elections, the Riley Jackson firm provided financial support to white Republican Pat Thetford, who lost by about 17,000 votes to black Democrat Carole Smitherman. In fact, Democrats won every judicial race on the ballot--by margins ranging from roughly 5 percent to almost 14 percent. In other words, none of the races was particularly close, and judges in Alabama's most populous county increasingly have dark skin.
How can conservative forces fight such an unpleasant trend? Why, by intruding on Matt Pitt's ministry and trying to convince its thousands of potential young voters to support white, conservative candidates--even though Pitt has stated a number of times that he intends to build an inclusive ministry that crosses racial, denominational, and political boundaries.
Has Alabama come a long way from the days when Martin Luther King wrote his Letter From the Birmingham Jail? The answer is yes. With people like Bryant Jr. and Bob Riley still in positions of influence, does Alabama have a long way to go? The answer to that question also is yes.
How far does Alabama have to go? To help answer that question, we invite you to view the video of Bob Riley below, and then read Letter From the Birmingham Jail, below that. Are Bob Riley, and people like him, the ones to move Alabama forward--to help the state, and Birmingham, fulfill their massive untapped potential? I think the answer, to most reasonably objective minds, will be clear.
|The shooting of Walter Scott in South Carolina|
The black man is Walter Scott, of North Charleston, South Carolina. That's the same Walter Scott who was unarmed and fleeing when a police officer fatally shot him in the back on April 4. The white man is Ted Rollins, of Greenville, South Carolina. He is the former CEO of Campus Crest Communities, a company that received roughly $1 billion in support from Wall Street investors before Rollins was forced out last November as the company stock floundered amid signs of mismanagement.
Rollins belongs to one of the nation's wealthiest families, the folks behind Atlanta-based Rollins Inc., the umbrella company for Orkin Pest Control and other highly profitable enterprises.
Where does child support enter the picture? According to published reports, Scott was behind on child-support payments when Officer Michael Slager stopped his vehicle in traffic because of an inoperable brake light. Family members say Scott probably ran because he feared Slager would conduct a records check, see the child-support arrearage, and take him to jail. Here is how one report described Scott's likely state of mind when Slager pulled him over:
[Scott] had been arrested multiple times in the past on contempt-of-court charges stemming from child-support obligations he had missed, and he knew all too well the criminal repercussions he was facing: arrest; a few rushed minutes in court, at best, without a lawyer and without the presumption of innocence (because it would be a civil proceeding); jail time; and another mark against him on his permanent record.
How much was Walter Scott behind on child support? Accounts vary, but Associated Press reported that he was behind by at least $7,500, although no bench warrant was set for his arrest. NBC reported that Scott owed $18,104, and a bench warrant had been issued in January 2013.
Whichever set of numbers you go with, Walter Scott was a paragon of fatherly virtue compared to Ted Rollins. In December 2011, we wrote a post titled "Ted Rollins, CEO of Campus Crest Communities, is a deadbeat dad." That's because Rollins had been almost three years behind on payments to his ex wife, Birmingham resident Sherry Carroll Rollins, and their daughters--Sarah and Emma Rollins.
Court documents and interviews with Sherry Rollins indicate Ted Rollins still is behind by a six-figure sum, and we see no sign that ever will be paid. We also see no sign that a South Carolina court, which ordered the payments, will make Ted Rollins pay.
How far behind was Ted Rollins in his court-ordered payments? That question is not easy to answer because Rollins v. Rollinshas a convoluted and unsavory history, with Ted Rollins receiving one unlawful favor after another. In 2001, Sherry Rollins initiated divorce proceedings in Greenville, South Carolina, where the family lived; adultery was among the grounds cited in her divorce complaint.
|Ted Rollins, former CEO of |
Campus Crest Communities
Ted Rollins then proceeded to sue Sherry Rollins for divorce in Shelby County, Alabama, and Judge D. Al Crowson took the case, even though black-letter law (see Wesson v. Wesson, 628 So. 2d 953, Ala. Civ. App., 1993) says that cannot happen when lawful jurisdiction has been established elsewhere.
Here is what court records, from two states, show about Ted Rollins' arrearage on child support, alimony, and attorney fees:
* In February 2002, a South Carolina court ordered Ted Rollins to pay $4,500 a month during the pendency of the divorce case;
* A contempt order issued in October 2002, found that Ted Rollins was behind in court-ordered payments by $70,410--$50,000 in attorney fees and $20,410 in family support.
* From the date of the contempt order to the final order of divorce in Alabama (on July 18, 2005), was 33 months. If you multiply $4,500 over 33 months, you find that Ted Rollins owed $148,500. When you add the $70,140 arrearage that apparently never was paid, you get a total of $218,910.
* After she and her children were forced to flee to Alabama, Sherry Rollins states that she received a $100,000 payment from the state of South Carolina. Why that figure? She has no idea.
* What about the remaining $118,910 that a South Carolina court ordered Ted Rollins to pay? Court records show it has never been paid, suggesting Ted Rollins still is a deadbeat dad, to the tune of more than $100,000.
Let's return to our comparison of Walter Scott and Ted Rollins. Scott apparently owed somewhere between $7,500 and $18,140 in child support. He had been arrested and sent to jail multiple times--three times, according to this report--on contempt-of-court charges for failure to pay child support.
For the purposes of this post, let's pick a mid-range on the Scott numbers and assume he owed $12,820. After being under a contempt order for almost three years, Ted Rollins owed $218,910. That is roughly 17 times the amount Scott owed.
Was Ted Rollins jailed multiple times for failure to pay child support? No. In fact, we see no record that Rollins was jailed even once for failure to make court-ordered payments over a 33-month period. Public records indicate Rollins still owes more than $118,000. Is anyone going to make him pay it or send him to jail if he doesn't? We see no sign of it.
Did Walter Scott have reason to be fearful about what likely would happen to him the day Officer Slager pulled him over? An article titled "Why was Walter Scott running?" provides insight:
Not only did Scott's own experience suggest that arrest and jail time can result from child-support debt, but the statistics tell us the likelihood is high that a black, working-class man like him would get thrown in jail for such a reason.
In South Carolina, at least one in eight people in jail are there on contempt-of-court charges related to late or unpaid child-support orders. Nationally, as many as 50,000 parents may be in jail on those charges, though the exact number is uncertain, mainly because "contempt of court" is a general charge that does not only apply to child support cases. The best available data suggest that a majority of these jailed parents are black fathers.
"On top of all the other things that go through your head as a black man in an encounter with a police officer," says Jacquelyn Boggess, the Co-Director of the Center for Family Policy and Practice and an expert on child support, "you have to be thinking about your child support debt, because that's one of the big reasons that black men spend time in jail."
Ted Rollins owed roughly 17 times what Walter Scott owed in payments related to child support--and the orders came from the same state, South Carolina. (You can view the contempt order for Rollins at the end of this post.) Public records indicate Rollins still owes more than $118,000 in such payments, and no one seems interested in making him pay it.
Is Ted Rollins worried about being pulled over for a broken brake light? Is Ted Rollins worried that a police officer will tase him? Is Ted Rollins concerned, in the least, that he will land in jail for failure to pay child support? Does Ted Rollins stay awake at night, worried that a cop will fatally shoot him in the back?
We can't read Ted Rollins' mind, but our guess is that the answer to all of those questions is no.
Does Rollins plan to pay the six-figure sum he apparently still owes? The answer to that question also appears to be no.
Were Walter Scott and Ted Rollins treated equally under the law? We think you can reach your own conclusions on that question. It isn't a close call.
|Wind Creek Casino in|
If that sounds like a "something for something" deal--known under the law as a quid pro quo--that's because it probably is. If you recognize a quid pro quo as the central element in federal bribery laws, that's because it is.
Does that mean tribal officials and state legislators could be engaging in bribery if the Poarch Creek plan moves forward? Does that mean officials on both sides of the deal could find themselves facing prosecution and lengthy federal prison terms?
Our review of applicable statutes and case law indicate the likely answer to both questions is yes.
Like many Alabamians, our knowledge of federal bribery statutes grew from the 2006 prosecution of former governor Don Siegelman and former HealthSouth CEO Richard Scrushy, which ended with convictions that were wildly contrary to law. The issue took center stage again in 2011 with the federal bingo/vote-buying prosecution, which netted a handful of guilty pleas and zero convictions.
In both of those cases, the defendants mostly were Democrats, with Republicans pushing for convictions--when they weren't touting their own lofty ethical standards. Now, it's Republicans who are pushing various gaming initiatives as possible solutions to Alabama's budget woes.
Wouldn't it be ironic if Republicans--who for years have claimed to be morally opposed to gambling--wound up in the federal cross hairs over a proposal based on . . . gambling? It could happen because the Poarch Creek proposal, on its face, raises serious questions about bribery.
To be sure, federal bribery law is a complex topic, covered by three primary statutes and decades of case law designed to provide clarity on various elements of the crime. On top of that, federal statutes tend to be written in such a way that even experts have a hard time figuring out what they mean.
While the law is murky, we think it's clear that Creek officials and Alabama legislators could be walking into a brier patch--with no clear exit signs.
The applicable statute in this case probably would be 18 U.S.C. 666 (federal funds bribery), which was at the heart of the Siegelman prosecution. The guiding case law in that instance was McCormick v. United States, 500 U.S. 257 (1991), which addresses bribery in the context of a campaign contribution.
Based on the limited information we have at the moment about the Poarch Creek proposal, campaign contributions do not appear to be in play. That means another case, Evans v. United States, 504 U.S. 255 (1992), likely would play a key role. An article on the 666 statute at Rutgers Law Reviewstates that Evans is the primary case cited in instances that do not involve campaign contributions.
Evans revolved around a Georgia county commissioner who accepted $7,000 in cash from an undercover FBI agent posing as a real-estate developer who wanted land rezoned for a residential development. The commissioner was convicted of extortion under the Hobbs Act, and courts have found that the same principles apply to bribery cases under 666.
The U.S. Supreme Court upheld the convictions in Evans, stating (citations omitted):
Viewing the evidence in the light most favorable to the Government, as we must in light of the verdict . . . , we assume that the jury found that petitioner accepted the cash knowing that it was intended to ensure that he would vote in favor of the rezoning application and that he would try to persuade his fellow commissioners to do likewise. Thus, although petitioner did not initiate the transaction, his acceptance of the bribe constituted an implicit promise to use his official position to serve the interests of the bribegiver.
In affirming petitioner's conviction, the Court of Appeals noted that the instruction did not require the jury to find that petitioner had demanded or requested the money, or that he had conditioned the performance of any official act upon its receipt. . . . The Court of Appeals held, however, that "passive acceptance of a benefit by a public official is sufficient to form the basis of a Hobbs Act violation if the official knows that he is being offered the payment in exchange for a specific requested exercise of his official power. The official need not take any specific action to induce the offering of the benefit."
Once the high court established that a public official need not initiate the transaction, it then shined additional light on the elements of bribery:
We reject petitioner's criticism of the instruction, and conclude that it satisfies the quid pro quo requirement of [McCormick], because the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense. We also reject petitioner's contention that an affirmative step is an element of the offense of extortion "under color of official right" and need be included in the instruction. As we explained above, our construction of the statute is informed by the common-law tradition from which the term of art was drawn and understood. We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.
Evans teaches three key points: (1) A public official need not initiate the questionable transaction; (2) The bribery offense is completed when the official receives payment in exchange for his agreement to perform specific official acts; and (3) The prosecution need only show that the official received payment to which he was not entitled, and he knew the payment was made in return for official acts.
Much remains unknown about the Poarch Creek proposal. But published reports indicate the following:
* Poarch Creek officials, unhappy with a plan that would expand gaming at non-Indian facilities, initiated discussions with unknown legislators;
* Tribe officials made it clear they could cover the state-budget deficit of about $250 million;
* Tribe officials want exclusive gaming rights in exchange for the $250 million.
Does that mean multiple parties are going down for bribery? It's much too early to say that. For one thing, we see no signs that a payment has been made, so a possible offense likely has not been completed. For another, the Obama administration has such a dismal record on justice issues that it's questionable whether the DOJ would bat an eye at even a blatant case of bribery in Alabama.
But this much seems clear: Based on a clear reading of Evans, and published reports about the Poarch Creek proposal, parties on both sides are playing with fire--and the evidence of potential bribery already appears to be stronger than was present in the Siegelman and bingo cases.
|The Newseum Institute's First Amendment Center|
at Vanderbilt University.
Looked at another way, retired Alabama Circuit Judge Claud Neilson, who ordered my incarceration on the request of Republican political operatives Rob Riley and Liberty Duke, made the most grossly unlawful First Amendment ruling in our nation's history.
Looked at a third way, one might say that Rob Riley (an attorney) is the most ignorant lawyer on matters of free speech that our country ever has produced.
How extraordinary is all of this? I'm probably the only person in American history, journalist or non-journalist, to be incarcerated under such circumstances. And it happened in Alabama. That's certainly something in which our state can take pride. Perhaps the state needs a new motto--"Alabama: Nobody tramples constitutional rights like we do."
My incarceration, it turns out, is even more historic than I thought it was. For that discovery, we owe thanks to Gordon T. Belt, former library manager at the Newseum Institute's First Amendment Center, a nonpartisan think tank housed at Vanderbilt University in Nashville, Tennessee, and in Washington, D.C., Belt currently is director of public services for the Tennessee State Library and Archives and editor/publisher of a blog called The Posterity Project.
While at the First Amendment Center, Belt wrote an article titled "Jailed and subpoenaed journalists--a historical timeline." It shines new light on the unprecedented nature of my incarceration, and we will examine the article closely in a moment.
We already have shown that I am the only journalist since 1900 to be jailed because of a preliminary injunction that runs contrary to more than 200 years of First Amendment law. That post was based on a 2013 report from Fox News, which showed that only two journalists had been jailed from 1900 to 2006 on purely civil matters, and one of the cases involved a defamation claim that actress Judy Garland brought against a New York City gossip columnist. In both of those cases, reporters were jailed for failing to disclose sources during depositions.
My incarceration, which started on October 23, 2013, and ended on March 26, 2014 (155 days). is the only one in the 2000s involving civil matters. Adding me to the two journalists jailed over civil matters in the 1900s, that adds up to three such incarcerations in the past 115 years.
But my case becomes even more extraordinary when you consider it involved a preliminary injunction, which case law predating the end of the Revolutionary War shows is an unlawful prior restraint in a defamation case. That principle is most famously stated in a 1931 U.S. Supreme Court case styled Near v. Minnesota, 283 U.S. 697 (1931).
Near is considered the "foundational case" on prior restraints in U.S. law, meaning most lawyers are intelligent enough not to bring cases that would run afoul of it--and most judges are competent enough not to issue rulings that run contrary to it. But in Rob Riley and Claud Neilson, I obviously was dealing with a pair of legal "scholars" who are too dense or too corrupt (or both) to bother abiding by one of the most famous cases in First Amendment jurisprudence.
To make matters even more astounding, I never had a lawful opportunity to challenge the preliminary injunction. I was given less than 24 hours notice of a hearing on the matter, which is way short of the notice required by Alabama law. But contrary to numerous reports on my case, I did not ignore a court order; I filed a Motion to Quash service because Alabama deputy Mike DeHart handed me the complaint during a traffic stop that clearly violated the Fourth Amendment.
I was awaiting a ruling on that motion--and preparing to challenge the injunction as unconstitutional--when Deputy Chris Blevins entered our home, without showing a warrant or stating he had one, and arrested me. The arrest came only after Blevins had knocked me to a concrete floor three times and directed pepper spray into my face, violating state and federal law because he did not state his purpose for being on our property, never showed he had lawful authority for being there, and used excessive force to execute an arrest that was unlawful on its face.
As for Gordon Belt's article on jailed and subpoenaed journalists, it starts in 1735 and runs through 2006. The oldest case involves a German-immigrant publisher named John Peter Zenger, who defied a government order to reveal his sources for criticism of New York's Colonial Governor, William Cosby. One of the most recent cases involved reporting on the BALCO investigation, a federal probe of alleged steroid use by athletes, including former San Francisco Giants slugger Barry Bonds.
Belt covers roughly 60 cases, over four centuries, and reports none like my case--none where a journalist was jailed because of a preliminary injunction in a defamation case, violating clear First Amendment precedent.
A defamation lawsuit, of course, does not have to involve a journalist. A regular citizen can file a lawsuit alleging that another regular citizen committed libel (written word) or slander (spoken word) against him. Has an American judge ever thrown a non-journalist citizen in the slammer for violating an unlawful preliminary injunction? In other words, has an American judge ever punished a non-journalist citizen with incarceration for publishing (either orally or in writing) material that had yet to be found defamatory at trial?
My research has not turned up such a case, and I find it unlikely that one exists. After all, most citizen v. citizen defamation cases probably involve material that was published in relative isolation. Since the non-journalist likely does not publish on a regular or ongoing basis, it's hard to imagine any judge punishing him without a trial on the merits. Since the lawful remedy for proven defamation is money damages, it's unlikely even the most incompetent judge would resort to the unlawful remedy of incarceration, without a trial.
Research indicates only one citizen in American history has been victimized by such a flagrantly unlawful ruling--and that citizen is me.
In the wake of unrest in Ferguson, Missouri; New York City; and other locales following the police-related deaths of Michael Brown and Eric Garner--plus the body-slamming assault on Indian grandfather Sureshbhai Patel in Madison, Alabama; the shooting of Walter Scott in South Carolina; and the unexplained death of Freddie Gray in Baltimore--citizens are questioning the actions of law-enforcement officials in public settings.
My experience shows that citizens also should take a critical look at officers when they are in a private setting--inside someone's home, perhaps yours.
We have addressed this issue several times in recent weeks. (See here and here.) But it is so important--especially in an age where law-enforcement officers seem to routinely violate the rights of citizens--that we would like to drive home a few more points.
Many Americans probably are familiar with language in the Fourth Amendment--that we are to be free from "unreasonable searches and seizures." The nation's high court, in Payton v. New York 445 U.S. 573 (1980), found that warrantless entry into a private home automatically runs afoul of that notion. From the Payton opinion:
It is a "basic principle of Fourth Amendment law" that searches and seizures inside a home without a warrant are presumptively unreasonable. . . . It is one thing to seize without a warrant property resting in an open area or seizable by levy without an intrusion into privacy, and it is quite another thing to effect a warrantless seizure of property, even that owned by a corporation, situated on private premises to which access is not otherwise available for the seizing officer.
The court then turned its attention to situations where people, not things, are being seized:
As the late Judge Leventhal recognized, this distinction has equal force when the seizure of a person is involved. Writing on the constitutional issue now before us for the United States Court of Appeals for the District of Columbia Circuit sitting en banc, Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970), Judge Leventhal first noted the settled rule that warrantless arrests in public places are valid. He immediately recognized, however, that "a greater burden is placed . . . on officials who enter a home or dwelling without consent. Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment."
I was snatched from home, had pepper spray directed into my face, and hauled off for a five-month stay in jail (contrary to 200 years worth of First Amendment law) by an officer who never showed a warrant and never told me he had a warrant. To make matters even more dicey for law enforcement, prosecutor Tonya Willingham was ordered in court to turn over any warrants related to my case, and she said she didn't have any.
Tragically, Michael Brown, Eric Garner, Sureshbhai Patel, Walter Scott, Freddie Gray, and others were not safe from police officers while in public places. I was "fortunate" to only be roughed up and not killed. But I was not safe from a police officer while I was inside my own home--and substantial evidence suggests Officer Chris Blevins had no lawful grounds to be there.
|Alabama deputy Chris Blevins|
We can't blame Officer Blevins for the actions of an incompetent or corrupt judge on the bench. But we can wonder why neither Officer Blevins nor Ms. Willingham could produce a warrant--when they had multiple opportunities to do so.
Blevins should know the findings in a landmark constitutional case such as Payton. And he certainly should know that Alabama statutory and case law prohibit an officer from entering a dwelling without stating his purpose for being there. (See Livingston v. Browder, 285 So. 2d 923, Ala. Civ. App., 1973). Video of my arrest, played in open court, shows that is exactly what Blevins did.
Blevins had every reason to know the constitutional protections of individuals inside their homes--and yet he plainly violated them.
Americans are right to be outraged by what happened in Ferguson, Missouri; New York City; Madison, Alabama; North Charleston, South Carolina; Baltimore; and so on. But they would be wrong to think that unlawful police force cannot be used against them. I know, for a fact, that it can be used against you--even when you are inside your own home.
We invite you take a look at the photo of Chris Blevins above. That's the face of police thuggery in Alabama.
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Inside Alabama Politics (IAP) also reports that a television show hosted by Montgomery-based journalist Bill Britt has been forced to change stations and time slots, apparently because Hubbard has warned potential advertisers to steer clear of the show.
Could Hubbard face legal repercussions for such actions? Well, if a quid pro quo ("something for something") deal is proven with the Poarch Creeks, it almost certainly would amount to a violation of federal bribery laws. Hubbard already faces a 23-count indictment for alleged violations of state ethics laws, hence the need for someone to pay escalating legal bills.
If Hubbard is proven to have scared away advertisers on Voice of Alabama Politics, Britt likely would have a strong civil case for tortious interference, which could result in significant damages. Britt has been perhaps Hubbard's most dogged and consistent critic, writing dozens of investigative pieces at Alabama Political Reporter about Hubbard's apparent inclination to use his political office for personal gain.
Senate President Pro Tem Del Marsh has sponsored a bill that would address the state's budget shortfall by creating a lottery and casino gaming at several dog tracks. Have the Poarch Creeks promised to pay Hubbard for assurances that the Marsh bill does not pass in the House. If such a corrupt deal is proven, Hubbard's legal woes might just be starting. Reports IAP:
It’s widely rumored on Goat Hill that Hubbard has already negotiated a secret deal with PCI which would allow the tribe to continue its gambling monopoly in Alabama. That should come as no surprise, since Hubbard has long-standing financial ties to PCI. Another rumor circulating this week was the PCI have offered to pay Hubbard’s legal defense bill, for assurances Marsh’s bill doesn’t pass the House.A corrupt deal with the Poarch Creeks could help cost Hubbard his freedom, which already is on shaky ground. A scheme to interfere with Bill Britt's business relationships could cost Hubbard big bucks. Reports IAP:
It was widely reported after the 2010 election cycle by publications such as Politico, the Birmingham News, AL.com and The Montgomery Independent that $550,000 in campaign contributions from PCI were laundered through the Republican State Leadership Committee in Washington into political action committees in Alabama controlled by Hubbard.
The political commentary show, Voice of Alabama Politics, has moved from its Sunday morning time on ABC, to Sunday evening on Alabama Cable Network.Hubbard's connections to the Poarch Creeks also are a part of this story, according to IAP:
“Speaker Hubbard has used his considerable political influence to warn people off of advertising on our show because he wants to muzzle anyone who will report or speak about his leadership,” host Bill Britt told his viewers this week.
The V can now be seen every Sunday at 6:30 PM on Charter Cable channel 80 as well as every Sunday morning on YouTube.
Britt, a constant critic of Speaker Mike Hubbard, when asked by IAP if it was his understanding Hubbard directed the Poarch Creek Indians to stop advertising on The V, he responded, “that is what I was told as to why they pulled their advertising. Jim Barton (a principal with the lobbying firm Barton and Kinney LLC, who represent the PCI) delivered the message from Hubbard to the tribe is my understanding.”
Duke filed an affidavit denying the allegations, but a check of court records in Shelby County, Alabama, shows Riley did not file a similar affidavit. In fact, the record indicates Riley never made a sworn statement denying the allegations.
(Note: I remain under a permanent injunction, issued by retired Circuit Judge Claud Neilson, and that prevents me from providing specifics here about the allegations. The injunction is unlawful and not supported by facts because the information in question never was found to be defamatory at trial. That's because there was no trial. To make life a bit simpler, I will abide by Neilson's order. Anyone not familiar with specifics in the case can check out a New York Times story on the subject. Also, Liberty Duke's affidavit can be read at the end of this post, and it addresses the specifics.)
Speaking of the Times article, it states that both Riley and Duke denied the allegations in my reporting. But reporter Campbell Robertson doesn't bother to state that only Duke filed a sworn statement on the matter; Riley never did.
The Times is not alone in making this omission. A number of news outlets made the same mistake, including some whose reporting otherwise was excellent. Al.com, the largest news organization in the state, also reported that Riley denied the allegations--without noting that his denials never were under oath. A few Web sites reported that Riley and Duke filed affidavits, but that is not true--the court record shows no Riley affidavit was filed.
Why would Liberty Duke file an affidavit, while Rob Riley did not? Does it have something to do with Riley's status as a lawyer, while Duke is a mere lobbyist? To help answer that question, we turn to the ugly history of our old "friend," William E. Swatek, who surely stands as one of the sleaziest lawyers in Alabama history.
In the course of an employment case involving a former Pelham police officer, opposing counsel caught Swatek surreptitiously tape recording them during a break in depositions. Swatek stated under oath in a bar investigation that the recording was his client's idea, and he knew nothing about it. The actual recording produced evidence that showed Swatek was lying, that he actually had planted the recorder and determined how best to use it. Swatek faced a criminal trial on perjury charges and was acquitted--even though a transcript from the recording showed he clearly was guilty. (You can view the transcript at the end of this post.)
Swatek had his law license suspended for 60 days, but the acquittal on a felony criminal charge allowed him to avoid disbarment.
The bottom line? A lawyer, such as Rob Riley, can face serious repercussions for lying under oath--including the loss of his license to practice law. For a regular citizen, such as lobbyist Liberty Duke, the potential repercussions are much less severe. In fact, as we noted in an earlier post, perjury almost certainly is the easiest crime to get away with in the United States. It hardly ever is investigated, perpetrators are extremely unlikely to face prosecution, and we suspect the conviction of a regular citizen is likely to produce little in the way of serious punishment.
I will let readers come to their own conclusions about those questions. But this much is clear: The well-publicized "denials" in the Riley/Duke lawsuit are not all that strong, especially when you consider that the central character--Rob Riley--never denied the allegations under oath.
|Officer Chris Blevins (left) and yours truly after Blevins had finished|
"protecting my constitutional rights"
The shooting of Walter Scott in North Charleston, South Carolina, has taught us--among many unfortunate lessons--that law enforcement officers can have only the slightest acquaintance with the truth.
One of the most comprehensive articles we've seen on the subject is from Daily Kos, titled "Breaking down 5 lies of Officer Michael Slager in the shooting death of Walter Scott."
I know from personal experience that Michael Slager hardly is the only liar among those who wear uniforms and badges--who can come at citizens with all sorts of weaponry.
Take, for example, Chris Blevins, the Shelby County, Alabama, deputy who entered my home on October 23, 2013, (without showing a warrant, stating he had a warrant, or stating his purpose for being there) and proceeded to knock me to a concrete floor three times and spray mace in my face. This was all over a purely civil matter--an alleged contempt of court involving a preliminary injunction that violated more than 200 years of First Amendment law.
There was not the slightest hint of a criminal allegation against me, but my encounter with Officer Blevins--inside my own home--left me with a swollen eye, a puffy face, and bruises, cuts and abrasions all over my arms, legs, and back. For good measure, Officer Jason Valenti threatened to break my arms while helping Blevins put handcuffs on me.
To summarize, Chris Blevins helped throw me in jail for five months, violating fundamental law that predates the end of the Revolutionary War. But guess who appears in a new video that promotes the Shelby County Sheriff's Office and its "Code of Ethics"? Yep, our guy Chris Blevins is front and center in a video that almost certainly was filmed in response to a string of police-misconduct cases that started last summer with the shooting of Michael Brown in Ferguson, Missouri.
Blevins is the third "performer" in the video (which can be seen at the link near the end of this post), and with a look of utmost seriousness on his face, he touts his commitment to protect:
. . . the weak against oppression or intimidation, and the peaceful against violence or disorder. And respect the constitutional rights of all to liberty, equality, and justice.
The words that come from Blevins' mouth in the video would be laughable if they weren't so absurd. In fact, I would even laugh at them if I had not been on on the receiving end of his efforts to "protect" me.
What's the truth? Blevins applied oppression and intimidation; he did not protect me from them. Blevins brought violence and disorder to my previously peaceful life. Blevins joined an effort to take away my liberty and deprive me of equality and justice.
Chris Blevins, it seems clear, is cut from the same cloth as Michael Slager. They both lie to such an extent that they probably can no longer even recognize the truth.
Want proof? I would invite you look at the side-by-side photos of Blevins and me at the top of this post. My photo is evidence of what can happen to you when someone like Chris Blevins tries to "protect your constitutional rights."
Code of Ethics video for the Shelby County Sheriff's Office
It also adds to evidence that we never were lawfully served with the Riley/Duke complaint, and the court had no jurisdiction over either of us--even though Judge Claud Neilson ordered me incarcerated for five months.
A log of service attempts has a deputy admitting that he conducted surveillance on our house for approximately two hours prior to the traffic stop. The log shows that deputies tried to serve us 10 times in a six-day period--from Sept. 24, 2013, to September 29, 2013. This shows the extraordinary lengths the Shelby County Sheriff's Office took to serve court papers on behalf of Rob Riley, son of former Governor Bob Riley.
Would the Rileys consider this a proper and effective use of taxpayer dollars? The answer apparently is yes.
More importantly, Officer Mike DeHart seems to admit that, when conducting his traffic stop, he violated our Fourth Amendment right to be free from unreasonable searches and seizures. It also appears that DeHart more or less confesses to a crime.
My wife and I are white, but these issues raise the specter of race-based stops that created the phrase "driving while black." Even famous black males, such as comedian Chris Rock, have experienced the dangers of driving while black. Rock has started taking photos with his cell phone to help document such encounters with police.
As for our case, the full log of service attempts can be viewed at the end of this post. It shows attempts being made at almost 8 p.m. and 9 p.m., well after dark. On both occasions, deputies shined lights in our house for lengthy periods of time, the kind of behavior that would get a regular person arrested as a prowler.
An officer, maybe DeHart, makes an entry at 12:34 p.m. on 9/29/13 (a Sunday), stating he conducted surveillance on our house for roughly two hours. At 1:43 p.m. on the same date, DeHart makes the following entry:
Conducted a pretext traffic stop on the Shulers' blue Nissan after observing it roll thru stop sign at MacIan/Keith Drive; Stop was at North Shelby Library; warning issued for traffic violation and both parties were served with papers, which they discarded in the parking lot as they left.
DeHart is mistaken about several things here. One, he handed me a copy of papers, but he did not give papers to my wife, Carol. So, DeHart's own words show that Carol was not lawfully served. Two, DeHart apparently does not know the definition of a pretext traffic stop, meaning he did not lawfully serve me either.
The Web site knowmyrights.org addresses pretext stops and Whren v. United States, 517 U.S. 806 (1996), the primary U.S. Supreme Court (SCOTUS) case on the subject. Here is how knowmyrights.org defines a pretext traffic stop:
A "pretext" or "pretextual" stop is a stop in which the officer detains the citizen for a minor crime (i.e. traffic offense) because the officer actually suspects the person of involvement in another, more significant crime (i.e. drug possession).
That definition is in keeping with Whren, which involved an officer who stopped a vehicle, on the surface, for a traffic violation--but the real reason for the stop was suspicion of illegal drug activity. In fact, a search subsequent to the traffic stop turned up crack cocaine, and SCOTUS found the pretext stop was legal because it's real purpose was to seek information about a suspected crime, the illegal distribution of drugs.
|Comedian Chris Rock|
The ruling in Whren v. U.S. demonstrates how easy it is for officers to [conduct pretext stops]. There are numerous minor infractions for which officers can legally pull over a car -- dirty license plate, broken tail light, changing lanes without signaling, loud muffler, etc. As such, officers frequently choose which cars to pull over based on suspicions that something more serious might be going on. Police officers make this decision based on age, race, and appearance. This is unconstitutional, but impossible to prove.
Chris Rock knows all about that.
Whether you agree or disagree with the finding in Whren, it's clear Officer DeHart's actions in our case creates problems. By definition, a legitimate pretext stop involves suspicion about a crime, one more significant than a traffic offense. But DeHart's own actions and words prove that he never suspected a crime, significant or otherwise, was connected to our car. That means DeHart did not conduct a lawful pretext stop under Whren, and he violated our Fourth Amendment rights.
Things could get even dicier for DeHart. The log of service attempts shows that DeHart was so desperate to serve us that he scoped out our house for two hours. Then, with tens of thousands of vehicles on the road in North Shelby County, DeHart just happened to pick out for a traffic stop the one for which he had court papers. Of all the cars on the road, DeHart just happened to notice ours "rolling through a stop sign."
Does that pass your smell test? It sure doesn't pass mine?
Could it point to criminal actions on the part of Officer DeHart? We will address that question in an upcoming post.
|Missouri House Speaker John Diehl|
John Diehl resigned from the Missouri Legislature in the wake of a Kansas City Star report that provided details about his relationship with Katie Graham, an intern and college freshman at Missouri Southern State University. Diehl, who is married and has three sons, faces no criminal allegations, but he admitted the text messages call into question his fitness for leadership. From a report at Yahoo!
Diehl acknowledged "making a serious error in judgment by sending the text messages" to the intern, who no longer works at the Capitol.
"I'm going to do what's best for the (House) body and the (Republican) caucus, and step aside out of my office," Diehl said in an interview with The Associated Press and reporters from three other media outlets.
"I made a mistake," Diehl said. "It's one that calls into question my ability to lead."
Does a 23-count indictment--plus an ongoing grand-jury investigation that could lead to additional charges against Hubbard and others--say anything about the Alabama speaker's ability to lead? Apparently not.
|Intern Katie Graham|
(From Daily Mail)
The discovery of the text messages between Diehl and the intern follows a decision by Missouri Southern State University to end its Capitol internship program more than a month prematurely.
Richard Miller, dean of the School of Arts and Sciences at Missouri Southern, told The Star that the school pulled its four interns out of the state Capitol this spring after an unspecified incident. Yet Miller, citing student privacy laws, declined to be more specific about what led the university to end the internships.
Missouri Southern has held a legislative internship program for the past 20 years, sending students to the United Nations in New York City and Washington, D.C.
“This is the first time we have pulled all the interns,” Miller said. “Usually, when something happens, it is a problem with the interns themselves, but that was not the situation this year.”
The Star obtained the text conversations and contacted Diehl about them three weeks ago. After some apparent misdirection from Diehl and his staff, the newspaper published key sections of the texts on Thursday. From TheStar report:
Screenshots of the text messages between Diehl and the intern are punctuated throughout with emoticons and emojis — cartoonish faces that smile or wink. They paint a picture of playful sexual innuendo.
Her: “You better take care of me.”
Diehl: “Like how?”
Her: “I’ll bet you’ll figure it out.”
Diehl: “I dunno. You have always been disappointed;)”
Her: “I just have high expectations, I guess. Thus far, you’ve done pretty well (an emoji blows a kiss)”
Diehl: “:). I kinda want to hear what you are expecting”
Then, shortly after, he types: “You will be in good hands :)”
At one point Diehl texts her “God I want you right now,” to which she replies “I wish you could have me right now.”
In another exchange, she sends a picture of herself in a bikini and Diehl responds: “Damn girl . . . ”
Shortly after he writes: “I want to see more” followed by a smiling emoji.
Another exchange centered on Diehl texting that he was “Laying in bed looking at your pic :)”
She responded: “Mmmmm why can’t I be there :)”
Another week later, last Friday, [Diehl's] staff offered to deliver records for both his personal cellphone and another cellphone paid for by his law firm, Husch Blackwell. Those records took several days to produce. They showed just six text messages sent from the intern to Diehl.
While they were presented as evidence that no significant text exchange with the intern occurred, they show only a log of conventional text messages.
Yet the texts obtained by The Star and presented last month to Diehl show conversations over Apple’s proprietary iMessage platform. Texts on iMessage wouldn’t show up on a cellphone record unless they were sent or received when no Wi-Fi or mobile Internet connection is available.
Neither Diehl nor his staff ever mentioned that he regularly uses iMessage to send texts until asked by The Star on Tuesday.
In other words, Diehl tried to hide the damaging messages until a newspaper reporter caught on to his game and trapped him in a corner. That raises these questions, from an Alabama perspective: (1) Does Mike Hubbard use the iMessage platform, and if so, have prosecutors checked it for messages? (2) What about Hubbard allies who have been connected to the Lee County grand jury--including former Governor Bob Riley; his children, lawyers Rob Riley and Minda Riley Campbell; lawyer Bill Baxley; and former Attorney General staffers Sonny Reagan and Gene Sisson? Do those folks use iMessage, and has law enforcement checked any messages on the Apple platform?
It's obvious John Diehl is not an honorable guy; he tried to hide his ugly secret and only resigned when a newspaper nailed him with evidence he could not refute.
Does a similar fate await Mike Hubbard, and perhaps some of his associates, in Alabama?
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The motion now is set to be heard at 9:30 a.m. on June 4 in Room 600 of the Jefferson County Courthouse. Attorney Davy Hay, of Prattville, is representing me in the case.
Bill Baxley, of Birmingham, represents Garrison, the former campaign manager for Attorney General Luther Strange. Baxley also has represented a number of individuals in the ongoing grand-jury investigation in Lee County, with indicted House Speaker Mike Hubbard at its center. In at least one instance, Baxley co-represented a party in Lee County with Rob Riley, who filed a dubious defamation lawsuit that led to my five-month incarceration.
Blankenship's order postponing the hearing can be viewed below. At this point, I can only assume the postponement was due to a scheduling snafu:
The bottom line? U.S. Magistrate Charles S. Coody screwed up both the facts (and lied about doing it) and the law on an issue that is central in the Siegelman case--that the defendants apparently were denied their constitutional right to an impartial prosecutor. In fact, Coody laid the foundation for U.S. District Judge Clay Land's refusal last December to release Siegelman from prison, pending oral argument before the Eleventh Circuit in January. A ruling on that appeal has yet to be issued.
We already have shown how Coody failed to review Canary-related documents because he did not even order them. We also have shown that Coody proceeded to lie about what he had done. While Coody clearly cannot be trusted on matters of fact, he also has problems with matters of law.
For example, Coody denied Siegelman's discovery request largely because the former Alabama governor had "pointed to no prejudice he had suffered as a result of Canary's involvement"--even though Siegelman presented actual evidence, thanks to whistleblower Tamarah Grimes, that Canary failed to abide by her recusal.
What's the problem with Coody's finding? Well, under the law, "no prejudice" is not the proper issue. Coody used the wrong legal standard.
Let's take a brief trip through key legal documents to show where the judge went wrong. This is from Coody's order, dated June 27, 2012:
Siegelman points to no prejudice he suffered as a result of Canary's communications. He provides the court with no credible evidence that the United States Attorney directed, managed, influenced or controlled any aspect of the prosecution of the case.
In this instance, however, Siegelman is seeking discovery regarding Canary's communications--and he does not have to show actual prejudice. The real standard, on a discovery matter, is governed by a case styled Bracy v. Gramley, 520 U.S. 899 (1997). It is a U.S. Supreme Court case that has been cited in many lower-court rulings, including Arthur v. Allen 459 F. 3d 1310 (Eleventh Circuit, 2006). It is grounded in a 1969 U.S. Supreme Court case styled Harris v. Nelson, 394 U.S. 286 (1969).
This is from Bracy, citing the actual standard that governs Siegelman's discovery request:
In Harris, we stated that "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry."
As Siegelman's lawyers showed in an appellate brief, the defendant more than met the standard of providing "specific allegations." That meant Coody had a "duty" to "provide . . . for an adequate inquiry." But he did not do it; in fact, he lied about what he had done.
What does all of this mean for Siegelman's appeal? It shows how easy it would be to get at the truth--assuming the court wants to get at the truth. From the appellate brief:
Here, Siegelman not only provided specific allegations, but also actual evidence, which the Magistrate Judge and Judge (Mark) Fuller ignored, that discovery would have yielded facts supporting his new-trial claim. In addition to the emails showing Canary’s ongoing involvement, Siegelman’s discovery request was supported by Grimes’s letter to the Attorney General, in which she wrote that Canary “directed some action” in the case, made “suggestions” to Franklin, and wrote “all the press releases” issued under Franklin’s signature. . . . The district court could have sought testimony or evidence from Grimes—but did not. Siegelman also pointed to the FOIA suit, which turned up more than 500 pages of responsive documents relating to Canary’s disqualification. . . . The district court could have ordered the government to turn over these documents—but did not.
Most importantly, the district court could have ordered the government to disclose post-disqualification communications between Canary and the prosecution team regarding the Siegelman case—but did not. . . . A simple, targeted email search using terms such as “Leura” and “Canary” with “Siegelman” and “the Big Case” would have quickly answered whether Canary’s ongoing involvement was as extensive as Grimes claimed; if necessary, any responsive emails could have been reviewed in camera. Instead, the Magistrate Judge ordered no Canary-related discovery, based on his conclusion that Siegelman had “pointed to no prejudice he suffered as a result of Canary’s” involvement. . . . But a showing of prejudice is not required for a discovery request, which is proper if the defendant can provide “reason to believe” that his new-trial claim would be substantiated “if the facts are fully developed.” Arthur, 452 F.3d at 1247 (emphasis added). This error alone requires reversal, so that Siegelman’s discovery request can be evaluated under the proper standard. See Koon v. United States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”)
Until now, Charles S. Coody has been a relatively unknown player in the Siegelman drama. But we've shown that Coody's errors of fact and law require reversal--and a legitimate inquiry into Leura Canary's recusal.
Will the Eleventh Circuit ensure that Coody's errors are corrected? Or will the appellate court simply try to cover up for him?
What happens when a court takes action against defendants over which it does not have personal jurisdiction? Specifically, what happens when defendants challenge service as improper or invalid, and plaintiffs fail to prove otherwise?
A case styled Ex parte Trust Company of Virginia (Ala. Sup. Ct., 2012) addresses those questions and illustrates the importance of making sure defendants are properly served with a complaint. If service is not proven to be proper, or "perfected" as judges like to say, the court essentially has no authority to act.
That means Alabama judge Claud Neilson had no authority to send me to jail on a contempt-of-court charge for allegedly violating a preliminary injunction and temporary restraining order (TRO) in the Riley/Duke case. Of course, we already have shown--and analysts from all corners of the political spectrum have agreed--that Neilson's orders were unlawful on First Amendment grounds. But now we know Neilson's actions were worse than unlawful; they were void because he had no authority to make them.
How do we know? Let's consider the words from Ex parte Trust Company of Virginia. That was an estate case in which the Trust Company of Virginia (TCVA) had been appointed conservator of property owned by a woman named Amy Falcon Morris. Ms. Morris had been declared incapacitated in 2008, and when she died in 2011, an Alabama probate court issued several orders against TCVA. The trust company filed a motion to vacate those orders, which the trial court denied. TCVA then sought an interlocutory writ from the Alabama Supreme Court, directing the lower court to vacate the orders for lack of personal jurisdiction.
The TCVA case is right on point with what happened to us. We filed a motion to quash service after Alabama deputy Mike DeHart conducted an unconstitutional traffic stop to give us court papers in the Riley/Duke case. TCVA filed a motion to vacate and we filed a motion to quash, but the issue is the same--we both challenged service, and the Alabama Supreme Court makes it clear what is supposed to happen in such cases:
TCVA argues that the probate court lacked personal jurisdiction over TCVA because TCVA was not named as a party in the probate proceeding and was not served with notice of the proceeding in the probate court. We observe that TCVA maintains that it was never served with process of the proceeding in the probate court or provided with proper notice of that proceeding. This Court has held: . . .
"When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally."Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983).
We made the same argument in our motion to quash. (See motion at the end of this post.) In the TCVA case, the trial court conducted a hearing on the service/jurisdiction issue. In the Volkswagenwerk case, three hearings on the issue were conducted, apparently because it involved complex issues of international service.
Either way, Alabama law requires a hearing for both parties to submit evidence, with the burden of proof on plaintiffs to show that service was performed properly. In our case, I was arrested and thrown in jail before ever receiving notice of a hearing--and, in fact, the record shows that no hearing was held, and Riley/Duke never were required to meet their burden.
What does it mean when plaintiffs fail to meet their burden once service has been challenged? The Alabama Supreme Court spells it out in TCVA. Ms. Morris' son, as administrator of her estate, was given an opportunity to prove service had been perfected. But he came up well short:
Mr. Morris, as administrator of the estate opened in the probate court, has not alleged any facts before this Court that would prove that he served the conservatorship, nor has he contested TCVA's allegation as to the absence of service of process. It is axiomatic that a court does not obtain personal jurisdiction over a party upon which service of process has not been perfected and proper notice has not been provided. Because there is no evidence before this Court that the conservatorship ever received service of process or proper notice, the probate court does not have personal jurisdiction over the conservatorship, and its orders directed to the conservatorship are void and due to be vacated.
Like Mr. Morris, Riley and Duke never met their burden to show that service of process was perfected and proper notice was provided. That means Judge Claud Neilson never obtained personal jurisdiction over my wife and me--and all of his orders directed to us are void and due to be vacated.
Is this profound? Well, I lost five months of my freedom because of an order from a judge who had no authority over me. My wife lost her husband for five months--and some might say that's not such a bad thing--but she also was terrorized for five months, fearful that she too would be arrested.
This adds more evidence to my claim that my arrest amounted to a state-sanctioned kidnapping--all because I write a blog that made a few powerful people uncomfortable.
I invite you to step into our shoes and ask yourself, "How would I feel if this was done to me and my family? How would I feel if a rogue judge ordered me or someone I care about to be kidnapped?"
|Mike Hubbard mailer from the 2014 campaign|
During the 2014 election, Alabama House Speaker Mike Hubbard (R-Auburn) touted his Christian faith as a reason voters should re-elect him, even though he faced a 23-count indictment for alleged felony violations of state ethics laws. One pro-Hubbard mailer featured a photo of the Holy Bible with a compass--and a tag line that states: "Faith Is His True North."
Was that a reference to Mike Hubbard or to Jesus Christ himself? Sometimes, in right-wing Alabama politics, it's hard to tell where the candidate ends and the deity begins.
This much seems clear: The behavior of Hubbard, and various lawyers connected to him in the Lee County grand-jury investigation, is anything but Christ-like. In fact, it might be enough to test the gag reflex for any person of genuine faith.
What is most gag-inducing at the moment? Well, there is a close race for that "honor," but our vote goes to an apparently coordinated effort by various lawyers to use attorney-client privilege for purposes of gaining inside information about the criminal probe. Our research indicates the "crime-fraud exception" might help pierce the attorney-client privilege and produce additional damaging information against Hubbard--and perhaps some of the lawyers who appear determined to disrupt the grand jury's work.
Two members of Attorney General Luther Strange's office--Sonny Reagan and Gene Sisson--have been forced out amid allegations that they leaked grand-jury information to pro-Hubbard forces. Bill Britt, of Alabama Political Reporter, wrote in late April that Birmingham lawyers Rob Riley and Bill Baxley likely were among those participating in the Reagan/Sisson schemes.
How does the attorney-client privilege scheme work? Here is how we described it last December:
Britt reports that Rob Riley and others are taking extraordinary steps to undermine the investigation. At the heart of the scheme is a game of legal musical chairs, with Rob Riley and Bill Baxley representing multiple clients in an apparent effort to use attorney-client privilege as a way to get inside information.
The idea seems to be that Riley and Baxley can use their status as lawyers for multiple clients in the case to obtain inside information--and the attorney-client privilege will provide a shield to help them get away with it. The inside information, it apparently is hoped, will help their clients avoid criminal convictions--and maybe avoid prosecution altogether.
Attorney-client privilege, however, is not absolute--and a provision known as the crime-fraud exception might throw a wrench into the plans involving Riley and Baxley. What is the crime-fraud privilege? It is described in Rule 502 of the Alabama Rules of Evidence. Section (d)(1) of the rule states:
(d) Exceptions. There is no privilege under this rule:
(1) FURTHERANCE OF CRIME OR FRAUD. If the services of the attorney were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
How might this play out? Well, we know that Special Prosecutor Matt Hart already has subpoenaed Rob Riley to testify before the grand jury, and Riley lawyer William Athanas has fought it. (See Athanas letter to Hart at Exhibit J from the following link.)
Athanas, from the Birmingham firm Waller Lansden Dortch and Davis, cites Rules 1.6 of the Alabama Rules of Professional Conduct as primary grounds for his position that Riley should not be called to testify. But Rule 1.6 appears to be in line with the crime-fraud exception, including the following language (citations omitted):
First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(d). Similarly, a lawyer has a duty under Rule 3.3(a)(3) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(d) to avoid assisting a client in criminal or fraudulent conduct. . . .
If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw . . .
E-mail evidence in the case indicates Rob Riley was among those who received leaked grand-jury information from Sonny Reagan. That points to likely obstruction, which would trigger the crime-fraud exception and require Rob Riley's testimony. Similar circumstances also could require Bill Baxley's testimony.
Curiously, Athanas points to advice from Tony McLain, general counsel for the Alabama State Bar, to buttress his argument that Riley should not be forced to testify. That raises at least two questions:
(1) Is the Alabama State Bar trying to protect Rob Riley, perhaps due to his status as the son of former Governor Bob Riley?
(2) Is Tony McLain familiar with the very rules he is supposed to uphold?
The bottom line? Mike Hubbard might use The Bible in an effort to maintain his seat of power, but when you examine his actions and the actions of those connected to him . . . well, it's hard to see anything holy about that.
The ruling from the U.S. Eleventh Circuit Court of Appeals can be read at the end of this post. We will have an analysis of the court's findings tomorrow.
Here is how the Montgomery Advertiserdescribed today's ruling, which came on the heels of oral arguments in January:
A federal appeals court Wednesday denied former Gov. Don Siegelman's bid for a new trial, saying he relied on arguments that judges rejected in an appeal from his co-defendant in their 2006 trial on bribery and corruption charges.
Siegelman argued that the district court should have considered whether then-U.S. Attorney Leura Canary, who recused herself from Siegelman's investigation in 2002, had honored the recusal. Former HealthSouth CEO Richard Scrushy made the same arguments in his motion for a new trial, citing emails from a whistleblowers in which Canary suggested a gag order be placed on Siegelman during the trial; forwarded an email on its coverage and approved a staffing decision.
The three-judge panel rejected Scrushy's argument in 2013, writing "there is no evidence that Canary's emails influenced any decisions made by the U.S. Attorney's office in prosecuting Scrushy." In the former governor's case, the court wrote that it had to follow its decision on Scrushy.
"Regardless of whether Canary possessed a stronger conflict of interest with respect to Siegelman, our determination in Scrushy that there was no evidence that Canary influenced the prosecution team , , , binds Siegelman on this appeal," the opinion said.
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In the process, a three-judge panel virtually ignored perhaps the single most important issue raised on the Siegelman appeal--that, under the law, the former governor is entitled to discovery on whether former U.S. attorney Leura Canary abided by her supposed recusal in the case.
How did the Eleventh Circuit paper over this inconvenient truth? By essentially saying, "Well, we screwed Scrushy on this issue, so in order to be consistent, we have to screw Siegelman, too."
The panel didn't actually use those words. Instead, they used a fancy legal term called "law of the case." But when considered in the context of numerous erroneous rulings in the Siegelman matter, "law of the case" pretty much means, "We've made huge numbers of mistakes in this case, so we've got to keep right on making them."
How's that for postmodern American justice? Ain't it grand?
Ironically, the appellate ruling came just two days after our most recent post showing that a U.S. magistrate in Montgomery, Alabama, made unlawful rulings on discovery issues in the case--and lied about it in court documents.
Is Siegelman out of options? Technically, the answer is no. He could seek an en banc hearing of the full Eleventh Circuit (minus Birmingham-based Bill Pryor, who has enough conflicts in the matter to sink the USS Missouri.) He also could seek review from the U.S. Supreme Court, which already has declined to hear the case once. A presidential pardon is not out of the question. But the grim truth is this: The federal judiciary and the Obama Department of Justice (DOJ) are deeply invested in covering up scandalous actions in the Siegelman case, so it's hard to see help coming from either of them.
What if the public became enraged enough to conduct street protests, around the country, similar to those recently seen in Baltimore? The Siegelman fiasco merits that sort of outrage, but large numbers of Americans have moved on to other concerns--like when will Bruce Jenner officially become a "she."
As for the Eleventh Circuit's ruling yesterday, the appellate judges clearly based their Siegelman finding on the wildly deceitful actions of Charles Coody, a U.S. magistrate in the Middle District of Alabama. The panel judges also provided cover for their corrupt colleague. Neither of those moves should surprise anyone.
Coody is noted for denying Siegelman/Scrushy discovery requests on the Canary issue, after claiming to have reviewed all relevant documents himself in camera--and announcing they provided no helpful evidence for the defendants. Unfortunately, court documents show that Coody didn't even order the Canary documents from the DOJ (totaling some 1,000 pages), so he could not possibly have reviewed them.
How do the Eleventh Circuit judges deal with this slight problem? One, they reference a magistrate judge and his rulings, but they never mention Coody's name. Two, they act as if the Siegelman legal team didn't bring up the Canary discovery issue.
The truth, of course, is that the Siegelman appellate brief puts that issue front and center. This is from "Statement of the Issues" on page 1 of the brief:
1. Whether the participation in Siegelman’s prosecution by United States Attorney Leura Canary, after she had ostensibly disqualified herself from the case due to a conflict of interests, necessitates a new trial, or at least warrants an evidentiary hearing.
Beginning on page 29 of the brief, Siegelman lawyers devote almost three full pages to Canary-related discovery, under the heading, "At a Minimum, Siegelman Was Entitled to Discovery on this Issue." Here is the heart of the argument:
Even if these manifestations of Canary’s continuing involvement were not, by themselves, sufficient to warrant reversal, the district court erred by refusing to order further discovery. When discovery is sought in support of a motion for a new trial, discovery should be ordered “where specific allegations show reason to believe that the [defendant] may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Arthur v. Allen, 459 F.3d 1310 (11th Cir. 2006) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997))
In other words, Siegelman was entitled--under Eleventh Circuit case, backed up by U.S. Supreme Court precedent--to fully develop the facts. And that's because he made specific allegations that Canary's participation violated his constitutional right to a disinterested prosecutor.
How did the appellate panel deal with this central issue? It's a struggle to find it, in footnote 7 on page 13 of the ruling:
We also affirm the magistrate judge’s denial of Siegelman’s related motion for additional discovery on this issue. See Scrushy, 721 F.3d at 1303 n.27.
Again, the court is saying, in so many words, "We butchered this issue for Scrushy, so the law requires us to do the same thing with Siegelman."
That brings us back to the fancy "law of the case" notion. Here's how the court explains it:
As most commonly defined, the law-of-the-case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case .” Pepper v. United States, 131 S. Ct. 1229, 1250 (2011) . . . Importantly, we also have held that the doctrine applies to those issues decided on a co-defendant’s earlier but closely related appeal. See United States v. Bushert, 997 F.2d 1343, 1356 (11th Cir. 1993) (holding that the co-defendants’ prior appeal mooted any subsequent appeal by the defendant under the law-of-the-case doctrine because the defendant’s appeal would have challenged the same joint motion that his co-defendants’ appeal had unsuccessfully challenged).
Does "law of the case" always apply? No, and the court writes:
There are some narrow exceptions to the law-of-the-case doctrine. See United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996) (“We have recognized narrow exceptions to the law of the case doctrine, where there is new evidence, an intervening change in controlling law dictating a different result, or the appellate decision, if implemented, would cause manifest injustice because it is clearly erroneous.”). We conclude that none of these exceptions apply here . . .
This is a classic example of how a corrupt court works. It says that Siegelman could overcome "law of the case" with new evidence, but it denies the opportunity to obtain new evidence--even though Siegelman is entitled to it under the binding precedent of Arthur v. Allen.
Does binding precedent matter in federal cases that arise in Alabama, Georgia, and Florida--the three states covered under the Eleventh Circuit? The obvious answer is no, not when precedent would interfere with the court's predetermined outcome.
A misguided growth program at the Tuscaloosa campus is "unsustainable," according to the report, and the killing of UAB football is the first step toward turning the Birmingham campus into mostly a medical school, with the campus in Huntsville designated for math and science programs only.
Students who want a comprehensive undergraduate experience will have to go to the campus in Tuscaloosa--to help bail trustees out of a spiraling debt.
John Knox, an Alabama native and UAB mathematics graduate, is an associate professor of geography at the University of Georgia. He has shown that UA has "non-current liabilities"--mostly long-term debt--of $951.8 million, up 169 percent in just five years. Knox says the debt bubble likely will burst, leaving a nightmarish mess at the feet of Alabama taxpayers.
How did this happen? Knox traces it to a growth plan that UA President Robert Witt (now chancellor of the UA System) launched in 2003, built largely on recruitment of out-of-state students, with the goal of turning UA into a top-tier research institution. The plan coincides with Paul Bryant Jr.'s rise to power on the Board of Trustees, beginning in 2000--and Knox says it is failing miserably.
Enrollment at the Tuscaloosa campus shot up by 126 percent from 1982 to 2014, while the population of Alabama rose only 24 percent during that period. Where did those students come from? Mostly from out of state, and recruiting students from faraway places is expensive. That was a key factor in fueling the current debt.
With the Witt/Bryant initiative about to implode, a scheme was developed behind the scenes to deal with the debt. Knox received a message several months ago from a UA insider that let him in on the plan. In part, the message read:
"The hidden agenda is to focus UAB as medical school only, UAH as math and science only . . . (board of trustees) presidents have pushed this agenda . . . Deep pockets of trustees allow them to buy whatever they want."
Who provided this insight? Knox explains:
(It was) no less than a former member of the University of Alabama System Board of Trustees responding to my queries concerning Ray Watts and the imminent termination of football (and bowling, and rifle, as it turned out) at UAB. This source is the ultimate insider, who refuses to go public out of deep fear of retaliation.
From that moment forward, I knew that the battle for football at UAB was about much more than athletics. It is a last stand by Birmingham against those on the UA board who wish to crush autonomous public higher education in the Magic City.
In other words, Birmingham and Huntsville are supposed to pay the price for a bone-headed growth plan that originated in Tuscaloosa. Here is more perspective from Knox:
This debt is the result of a growth plan run amok at the Capstone, without any UA board restraint. Current UA System Chancellor Robert Witt created this plan as UA president in 2003, with dreams of UA at last becoming a tier-one research university, growing a larger student body, and serving the citizens of the state.
The plan didn't work. The research university dreams at UA have crashed and burned. Witt's big push barely moved the needle on the national ranking of UA among research universities (UA was a miserable 190th in the nation in research expenditures in 2013). I have recently learned through sources at the Capstone that there will soon be zero "hard money" funding for any college-based research centers or institutes on the UA campus, a tacit admission of failure.
Is there any chance the Witt/Bryant growth plan could work out in the end? Knox says it isn't likely:
How bad is the situation? A respected academic colleague at another flagship university with inside knowledge of the situation in Tuscaloosa gave me his assessment: " . . . a very unsustainable model . . . they are driving 100 mph toward a brick wall."
How can Witt, Bryant, and their Tuscaloosa cronies avoid crashing into the brick wall? By gutting UAB and UAH, Knox reports:
This is where the over 17,000 undergraduates at the Birmingham and Huntsville campuses likely come in. UA needs more in-state undergraduates to maintain the illusion of a commitment to the state of Alabama and keep the state's power-brokers happy. How many more in-staters are needed? A lot—because at the same time, UA is going to have to keep bringing in even more out-of-staters to try to grow its revenues faster than its spiraling debt. Where could UA magically find thousands upon thousands of in-state students to enroll? The perfect solution: Shut down UAB and UAH at the undergraduate level and herd those students to Tuscaloosa. Judging from the current mission statements of UAB and UAH that curiously omit the word "undergraduate," this plan has been in the works for a while. My trustee source confirms this.
A reasonable person might say, "But UAB and UAH have been extraordinarily successful campuses--driving economic growth, bringing in research dollars, offering top-notch educational opportunities in metropolitan centers. No way the UA System could shut them down."
Knox's reply: Don't be so sure about that.
Could a Board of Trustees be so short-sighted and venal as to contemplate the gutting of two universities in order to pay off the irresponsible billion-dollar debt of a third? This is Alabama. Yes.
In summary, the decisions made at UAB during the past six months regarding athletics, by a president servile to the UA board are the beginning of the end of UAB as we know it. Sports will go first, followed by the undergraduate programs.
In doing so, the board is killing the goose that has laid the golden eggs.
|California journalist Joshua Wolf, who was|
incarcerated for 226 days
All of that means Neilson's order sending me to jail likely was the most unlawful First Amendment ruling in U.S. history.
I never set out to make history by being abducted from my own home and thrown in jail. But research shows that is exactly what happened.
The record for longest incarceration of a U.S. journalist belongs to Joshua Wolf, a freelance videographer from San Francisco, who spent 226 days behind bars in 2006-07. Second on the list is Houston freelance writer Vanessa Leggett, who spent 168 days behind bars in 2001-02. No. 3 is yours truly, who spent 155 days in the Shelby County Jail in 2013-14.
While I disagree with the courts' actions in the Wolf and Leggett cases, all indications are that those were lawful under a U.S. Supreme Court holding in Branzburg v. Hayes, 408 U.S. 665 (1972), which allows the jailing of journalists who refuse to turn over information related to criminal matters. Here is how we described the Wolf case in an earlier post:
Joshua Wolf (2006)--A free-lance blogger and videographer in San Francisco, Wolf was jailed for refusing to turn over a videotape of a 2005 protest. Wolf taped clashes between demonstrators and San Francisco police during a June 2005 protest by anarchists against a Group of Eight economic conference. Wolf sold footage of the protest to San Francisco television stations and posted it on his Web site. Investigators wanted Wolf's testimony and portions of his videotape that were not broadcast, as part of a probe into possible criminal activity, including an alleged attempt by protesters to burn a police vehicle. Wolf was in prison from August 2006 to April 2007.
Here is how we described the Leggett case:
Vanessa Leggett (2001)--A free-lance writer in Houston, Texas, Leggett was jailed without bond for refusing to turn over research for a book she was writing about the 1997 murder of Houston socialite Doris Angleton. Leggett was in jail from July 20, 2001, to January 4, 2002.
Wolf and Leggett were held longer than I was, but their incarcerations involved reporting on criminal matters and likely were lawful. Mine involved a purely civil matter--a preliminary injunction in a defamation case, which has been a forbidden prior restraint under First Amendment law for more than 200 years.
We've found two other cases of American journalists being incarcerated related to civil matters. Both involved refusal to turn over information about sources during depositions. New York gossip columnist Marie Torre was ordered jailed for 10 days, in a case involving actress Judy Garland. And Belleville, Illinois, editorial writer Richard Hargraves was jailed for three days, in a case involving critical reports of a county supervisor.
How do the numbers stack up? My incarceration was more than 15 times longer than any other for a U.S. journalist in a civil matter.
My incarceration was widely covered in the press, both Web and mainstream. Every serious account I've seen--including those from writers on the opposite side of the political spectrum from me--have stated it was clearly unlawful. Multiple social-interest organizations, including the ACLU and the Reporters Committee for Freedom of the Press, filed court briefs stating it was unlawful.
But my sense is that the general public still does not fully understand the grotesque nature of what happened in Shelby County, Alabama. The comparable events cited above show it truly was off the charts.
In fact, it appears to be unprecedented in American history.
|B. Avant Edenfield|
A prominent Georgia lawyer wrote a glowing tribute of B. Avant Edenfield, calling him a "judge for the ages." Edenfield's legacy will be far from glowing in Alabama, where he ensured that mothers, fathers, and children will continue to suffer from divorce courts that are designed to bring in big, easy bucks for lawyers--while leaving unlucky litigants holding crumbs.
That's not just my opinion. Multiple Alabama lawyers--victims themselves of corrupt divorce courts--have filed federal lawsuits, alleging that certain judges and lawyers gather periodically at remote, woodsy locations to rig divorce cases. Documents in one of the lawsuits allege that hunting-club participants also rigged criminal cases, and we see no sign that the court seriously considered that issue.
One of those lawsuits, filed by retired Cumberland School of Law taxation professor Joseph W. Blackburn, landed before Edenfield, who was specially assigned to hear it from the Southern District of Georgia. Here is how we set the stage in a post from September 2010:
A hunting club in rural Alabama provides the setting for Alabama judges and lawyers to fix divorce cases, according to two lawsuits filed in U.S. district court. Public documents indicate the club also might be involved in fixing criminal cases.
The allegations do not come from a regular citizen; they come from a legal insider--attorney Joseph W. Blackburn, who teaches tax law at Samford University's Cumberland School of Law.
Both lawsuits claim that a hunting club--which sources tell Legal Schnauzer is in Lowndes County, near Hayneville--served as the base for a criminal enterprise under the Racketeer Influenced and Corrupt Organizations Act (RICO).
Note that Blackburn presents a precise location for the hunting club; he wasn't just talking in generalities. Who was behind the alleged ugliness? It included some big names in the Birmingham legal community, and Blackburn named them:
Included as defendants in the lawsuits are Birmingham attorneys Charles Gorham, George Richard Fernambucq and L. Stephen Wright--in combination with "unknown defendants"--who hunted and fished together as controlling members of the hunting club. Judge John C. Calhoun, who lost his re-election bid in 2006, and Judge R. A. "Sonny" Ferguson, who remains on the domestic-relations bench (now retired), also are defendants.
In the first lawsuit, filed in 2007, Blackburn was a plaintiff, claiming he was injured by the corrupt actions of lawyers and judges during his divorce from Sharon Lovelace Blackburn, a federal judge. In the second lawsuit, filed in August 2009, Blackburn serves as attorney for plaintiffs claiming they were victimized in Jefferson County domestic-relations court.
How did the enterprise function? Blackburn explains it, but be forewarned, this is nauseating stuff to read:
According to court documents, Blackburn accuses the judges and lawyers of conspiring to run "a 'good ole white boys' club,' aimed at ensuring that only white males, to the exclusion of everyone else, would run the Jefferson County, Alabama circuit-court system."
The hunting club is at the heart of the illegal activity, Blackburn alleges, and it involves substantial sums of money. Why was the club formed? Court documents provide the answer, stating that "RICO enterprise" aims were to:
(a) stream illegal benefits to any "club" judges;
(b) inflate attorney fee awards--at the expense of hapless litigants--to club lawyers; and
(c) defraud the public, specifically women and minorities, by keeping the club secret from them while insiders benefited from favorable judicial treatment.
If proven, those charges could have sent any number of lawyers and judges to prison. On the civil side, they would have resulted in sizable damage awards for injured plaintiffs. But Edenfield made sure that wouldn't happen by denying Blackburn an opportunity for discovery--butchering simple procedural law in the process.
What happened? Both sides presented "matters outside the pleadings," in the form of affidavits, and that meant that the defendants' Motion to Dismiss had to be converted to a Motion for Summary Judgment--with both sides given a chance to conduct discovery.
We explained the applicable law in the following post, and even showed that Edenfield knew the proper procedure under Rule 56 of the Federal Rules of Civil Procedure--but failed to apply it. (See opinion at the end of this post.)
Both Rule 56 and Eleventh Circuit case law state that summary judgment cannot be granted when the nonmoving party (in this case, Blackburn and the other plaintiffs) have been given no opportunity to conduct discovery. As we explained previously, this is all laid out in a case styled Snook v. Trust Company Bank of Georgia, 859 F. 2d 865 (11th Cir., 1988). From our earlier post:
Snook states, in pertinent part: "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."
Sounds simple, doesn't it? So how could federal judges get it wrong? Well, Edenfield's own words show he intentionally cheated the plaintiffs . . .
How do we know that? Consider this:
The record shows that Blackburn and the other plaintiffs asked for an opportunity to conduct discovery, and they were denied. The record also shows that Edenfield considered at least two "matters outside the pleadings." As we've already shown, that means the motions to dismiss had to be treated under the rules for summary judgment--and discovery had to be conducted. So we've established that Edenfield got it wrong. Now, let's establish that he got it wrong on purpose. To do that, we visit page 24 of Edenfield's ruling. (See the ruling at the end of this post.) In footnote 17, Edenfield writes:
In that the Court is relying on evidence outside the pleadings, it will apply the summary judgment standards set forth in Part II(C) supra.
That tells us that Edenfield was not incompetent; he knew the rule. Unfortunately, it also tells us that Edenfield was a cheat. He unlawfully denied discovery to make sure the hunting-club scheme would not be exposed to the public. He wanted to make sure that lawyers Fernambucq, Gorham, and Wright (and probably others) would not have to sit for depositions or turn over sensitive documents that might have outlined the criminal scheme.
In other words, Edenfield engaged in a cover up. And that has led to untold misery for too many Alabama families. In terms of fixed criminal cases, it might have helped dangerous individuals return to the streets. Did Judge Edenfield care about the everyday people he harmed, or the lives he might have put at risk? Apparently not. It seems clear he found it more important to protect certain members of the legal tribe than to ensure the justice system worked according to law.
Patrick T. O'Connor, secretary of the State Bar of Georgia, wrote the following words in his "tribute" to Edenfield at Atlanta-based dailyreportonline.com:
Despite our close relationship, he never favored me or my clients. If anything, he bent the other way to ensure fairness. For Judge Edenfield, the law was always supreme and, when it came to the law, relationships came second.
Based on Edenfield's handling of the hunting-club case, those two sentences are a crock of pure manure. Perhaps the late judge got some cases right. But in one that mattered a lot to many Alabama families, he was little more than a crook in a snazzy robe. In my experience, a judge who is crooked in one case almost certainly was crooked in others.
The law was "always supreme" for Judge Edenfield? The hell it was. In at least one case, protecting members of the legal tribe clearly was No. 1--and Edenfield's own words prove he ignored the law.
Blankenship now has reset the hearing for 10 a.m. on June 18 in Room 600 of the Jefferson County Courthouse. Attorney Davy Hay, of Prattville, is representing me in the case.
Bill Baxley, of Birmingham, represents Garrison, the former campaign manager for Attorney General Luther Strange. Baxley also has represented a number of individuals in the ongoing grand-jury investigation in Lee County, with indicted House Speaker Mike Hubbard at its center. In at least one instance, Baxley co-represented a party in Lee County with Rob Riley, who filed a dubious defamation lawsuit that led to my five-month incarceration.
Here is Blankenship's order, postponing the hearing for a second time:
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