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- 05/28/15--04:05: _How badly does Alab...
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- 06/01/15--12:22: _Order released toda...
- 06/02/15--04:25: _Author who revealed...
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- 06/03/15--04:17: _Mark Fuller was the...
- 06/04/15--04:11: _Here's how the "bre...
- 06/08/15--04:13: _Having sex with a c...
- 06/09/15--04:16: _The secret lives of...
- 06/10/15--04:16: _Mark Fuller joins a...
- 06/11/15--04:20: _Late judge B. Avant...
- 06/14/15--16:18: _Whether the topic i...
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- 06/16/15--08:20: _What was Rob Riley'...
- 06/17/15--04:15: _Much of $3.5-millio...
- 06/18/15--04:30: _Did Alabama officer...
- 06/22/15--04:05: _Alabama GOPer Rob R...
On top of that, Riley has claimed to be morally opposed to gambling, even though his connections to the gaming industry, via a company called Crimsonica, apparently date to at least 1985.
Want further proof that Rob Riley has a fractured relationship with the truth? Just check out court papers and published reports about the defamation lawsuit he and fellow GOPer Liberty Duke filed against my wife and me. Both Riley and various attorneys connected to the case (mostly from Riley's own firm) demonstrate an uncanny ability to twist the truth beyond recognition.
We will examine this subject in a series of posts, starting today with perhaps Rob Riley's most widely circulated lie about his lawsuit against me, my wife, and the Legal Schnauzer blog. This whopper comes from an article Campbell Robertson wrote about the case at The New York Times.
Robertson tracked down Riley for an interview and came away with this pearl:
Mr. Riley said Mr. Shuler’s refusal to engage with the legal process had given the judge the leeway to make a final ruling.
“If someone can continually ignore the judge just by saying, ‘You don’t have jurisdiction over me,’ then the whole system breaks down,” Mr. Riley said, adding that Mr. Shuler could not plead ignorance of the legal process. “This is not the first time Roger Shuler has been in court.”
These two paragraphs contain so many falsehoods that I'm struggling to keep track of them with one hand:
(1) Riley claims I refused "to engage with the legal process"; the public record shows that is false--My wife, Carol, and I engaged the process by filing a Motion to Quash Service because a deputy from Shelby County, Alabama, conducted an unconstitutional traffic stop to "serve" us with the Riley/Duke complaint. (See motion at the end of this post.) Our motion, under the law, put the burden on Riley/Duke to prove that service was conducted properly, and the record indicates they never did that.
(2) Riley claims Judge Claud Neilson had "the leeway to make a final ruling"; more than 200 years of First Amendment law show that is false--Neilson's three primary rulings--granting Riley/Duke a temporary restraining order, preliminary injunction, and permanent injunction--all are wildly contrary to U.S. Supreme Court precedent. That is perhaps most clearly spelled out in a foundational case styled Near v. Minnesota, Erwin Chemerinsky, one of the nation's foremost First Amendment scholars, has shown in scholarly articles and legal briefs that all three remedies Riley/Duke sought are unconstitutional. And that means Neilson had no "leeway" to grant them. In fact, experts quoted elsewhere in the Times article state that Neilson's actions were unlawful.
(4) Riley makes light of our claims that the court did not have jurisdiction over us; in fact, a recent U.S. Supreme Court ruling helps show our claim was correct--In Rodriguez v. United States, a ruling issued on April 21, 2015, the nation's highest court found that a traffic stop prolonged beyond the time for an officer to complete his traffic-based inquiries is "unlawful," especially where there is no reasonable suspicion of any criminal activity connected to the vehicle. That has been the law for years, but Rodriguez drives it home in the context of law enforcement's use of a drug-sniffing dog. A traffic stop long has been considered a seizure under the Fourth Amendment, and the court found in Rodriguez:
Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been completed. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention . . . but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket. . . .
Without additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded.
Alabama officer Mike DeHart never even hinted that he had suspicion of criminal activity connected to our automobile, so he had no grounds to prolong the traffic stop by giving us court papers. By law, he had to allow us to depart, but he did not do that, making the stop unconstitutional and service unlawful. That means the court, despite Rob Riley's smart-alecky comments to The New York Times, did not have jurisdiction over us. And that has profound legal implications, which we will discuss in detail shortly.
For now, we know that Team Riley/Duke does not have much to show for its dubious defamation lawsuit. My reporting never has been found to be defamatory at trial, because there was no trial. That's because Riley/Duke did not ask for a trial and they did not seek a jury to hear their claims; instead, they wanted Neilson to act as a one-man censor, in violation of First Amendment precedent, as set out in a case styled Bernard v. Gulf Oil Company, 619 F. 2d 459 (Fifth Cir., 1980).
(Hmmm . . . wonder why Riley and Duke did not want a jury to hear their case. How odd.)
Rob Riley has proven, as if we didn't already know, that he and his legal minions have a hard time staying in touch with the truth. More evidence of that is coming up.
(To be continued)
|U.S. District Judge Mark Fuller|
That tip pretty much came true late today as Fuller announced that he will resign his lifetime appointment in the Middle District of Alabama, effective August 1. The resignation will take effect almost one year after Fuller was arrested on charges of beating his wife in an Atlanta hotel room last August.
Here is what our source wrote in an e-mail at 8:48 a.m. on May 21:
I suspect from rumblings I am hearing that now that the Siegelman case is off their plate that they are going to be letting Fuller go.
The source's words proved to be prescient, but they also raise at least two glaring questions:
* Was the resignation Fuller's idea or did the judicial and political establishment, under fire from groups that take violence against women seriously, force him out?
* Just how connected is the resignation to the Eleventh Circuit's May 20 ruling that denied Siegelman's most recent appeal? After all, Fuller was the trial judge in the Siegelman case, and his actions have been widely criticized by an array of legal experts.
The answer to the first question, in my view, clearly is yes. It's likely that powerful individuals in the judiciary and Congress informed Fuller that he was heading for impeachment--and that could lead to revelations about ugliness in his past that, so far, has been kept under wraps. That could prove embarrassing to high-profile GOP politicos, such as U.S. Senators Richard Shelby and Jeff Sessions, who supported Fuller's appointment, It also could prove embarrassing to those in the George W. Bush administration who pushed to get Fuller on the bench.
The second question is much more intriguing--and more difficult to answer. Our source's words could mean several things:
(1) The Eleventh Circuit, as a scheduling matter, simply wanted to get the Siegelman ruling out the way before focusing on the Fuller issue. The two were connected only in terms of timing;
(2) The Eleventh Circuit, and perhaps unknown political figures, came to an agreement to force Fuller out in exchange for upholding the Siegelman conviction;
(3) Option No. 2 was important because corruption connected to the Siegelman prosecution is so ugly that public confidence in the judicial system would be destroyed if it ever came to light;
(4) The best way to keep that unsightly story under wraps was to get rid of Fuller and keep Siegelman in prison, even though the record shows the former governor and codefendant Richard Scrushy were convicted of a "crime" that does not exist under federal law.
I suspect that some combination of items 2, 3, and 4 is in play, and that should sicken any American who gives a hoot about justice. It hints that an innocent man--one that powerful figures know is innocent--is being kept behind bars as part of a cover up. It hints that Siegelman's most recent appeal was not decided on the merits but on what certain individuals saw as the politically expedient path. Most troubling of all, it hints at obstruction of justice, of shadowy figures acting behind the scenes to rig an appellate ruling--and that points to possible criminality.
Getting Mark Fuller off the federal bench is a step in the right direction. But the story is far from over; we see signs that the corruption he helped spawn is far from over.
In fact, Riley said of Hastert: " I can’t imagine him not doing everything he could to protect kids."
The praise went both ways, with Hastert making a trip to Alabama to endorse Riley during the 2002 gubernatorial primaries.
That's the same Hastert who was indicted last week on federal charges that he lied to the FBI about $3.5 million he agreed to pay to an undisclosed person to "cover up past misconduct." Multiple news outlets, citing anonymous sources, report that Hastert was paying a former male student to keep quiet about allegations of sexual abuse from Hastert's time as a teacher and wrestling coach in Illinois. According to an indictment, Hastert made withdrawals totaling $1.7 million to evade detection by banks.
In other words, a man who was two heartbeats away from the presidency now stands accused of paying hush money so a victim would not out him as a child molester.
And Bob Riley claims Dennis Hastert "understands kids"? I guess it depends on the meaning of the word "understands." How dark a meaning can that word hold?
The Riley quote comes from an October 2006 interview with The Cullman Times, as Riley was running for re-election as governor. Riley was asked about U.S. Rep. Mark Foley (R-FL), who had just stepped down amid allegations that he had sent sexually explicit Internet messages to underage male Congressional pages. Hastert reportedly sat on information about Foley for months, and his eventual resignation as speaker apparently was tied to the scandal.
Various news outlets now are reporting that the married Hastert was rumored to be involved in gay relationships during his political career in Washington, D.C.
Q: Do you see any repercussions in either your re-election campaign or the election or re-election bids of Republicans in general in Alabama as a result of the controversy surrounding former U.S. Rep. Mark Foley?
A: At a national level there may very well be some repercussions. Personally, if there was ever any attempt to cover it up those responsible should resign. I’ve known Dennis Hastert for many years. He’s a good friend. He’s a family man. He was a high school coach, and he understands kids. I can’t imagine him not doing everything he could to protect kids.
Bob Riley thought Dennis Hastert would do everything he could to "protect kids"? Again, that must depend on some unusual definition of the word "protect."
Maybe Riley's words were a form of political back scratching. After all, Hastert said nice things about Riley during the 2002 governor's race. From a Troy Messenger report:
In his endorsement, Hastert noted Riley’s record of voting with groups such as the Christian Coalition, National Rifle Association and National Right to Life Committee.
"Bob is a natural leader and consensus builder who will serve this state well," Hastert said. "If Bob Riley is half the governor that he is a Congressman, Alabama’s best days are ahead of it."
Note that Hastert essentially is praising Riley's "family values." This praise came from a man who now stands accused of paying hush money to keep his past as a child molester under wraps. Earlier in his endorsement, Hastert had praised Riley for his honesty, even though the governor would go on to be indisputably linked to GOP felons Jack Abramoff and Michael Scanlon.
As it turns out, Bob Riley apparently didn't know Dennis Hastert any better than Hastert knew him.
Someone apparently did know Hastert intimately and made an odd phone call during one of the Speaker's appearances on C-SPAN. That call might have been a tip off about what eventually was to come out of Dennis Hastert's closet. Here is a video from that C-SPAN appearance:
We don't have precise numbers on that question, but our research indicates a case like the one involving Fuller--who announced on Friday he is stepping down, effective August 1--happens only about once a decade, in what might be called "the modern era."
For some broad historical perspective, we turn to a 1993 study titled "Why Judges Resign: Influences on Federal Judicial Service (1789 to 1992)." It states:
This study focuses on the 188 judges who, over the last 200 years, resigned from the bench for stated reasons other than age or health.
That study was conducted 22 years ago, and it showed a rate of less than one federal-judicial resignation per year. According to my math, if you draw that rate out to 2015, you get 207.68 resignations in American history. (My math can be iffy; that's why I was a journalism major. Feel free to correct my numbers in the comment section.)
A 2012 law-review article from the University of Pennsylvania brings us closer to the current day, focusing on the years 1970 to 2009. It also looks at judges who resigned in that 40-year period over allegations of misconduct. Here is what we find out, with some gory details included:
Four judges resigned after allegations of misconduct. Otto Kerner and Herbert Fogel resigned in the 1970s. In 1993, Robert Collins was convicted of bribery and imprisoned; he resigned after an impeachment resolution was introduced in Congress. In 2008, Edward Nottingham resigned in the midst of a Tenth Circuit investigation into allegations that he had told a prostitute to lie about the nature of their relationship.
Another intriguing case from the 40-year period involved impeachment, retirement, and resignation over allegations of misconduct. It apparently does not count as a strict resignation, but the allegations were dandies:
In 2009, Judge Samuel Kent was convicted and imprisoned on charges stemming from sexual misconduct with two subordinates. Although ineligible for a pension, he initially attempted to claim retirement on disability, which the Fifth Circuit denied. After his impeachment, Judge Kent attempted to submit a resignation to take effect a year later; when Congress proceeded toward trial, he resigned effective June 30, 2009.
Fuller's resignation will take effect almost exactly one year after his arrest for battery of his wife in an Atlanta hotel room last summer. The beating reportedly grew from an argument that started when Fuller's wife accused him of having an extramarital affair with a law clerk.
We've had four federal-judicial resignations over a 40-year period, so that makes the math pretty easy (even for a journalism major)--cases like the one involving Mark Fuller happen about once every 10 years, in what we will call the "modern era."
What judge does Fuller most resemble in relatively recent history? Our vote would go with the notorious Samuel Kent, from the Southern District of Texas. Here is what Above the Law wrote about the august Judge Kent in 2009:
Will he stay or will he go? For the longest time, Judge Samuel Kent (S.D. Tex.), the federal judge who pleaded guilty to obstruction of justice in connection with his molestation of two female court employees, has been playing games about his departure from the bench. But now he has finally raised the white flag, resigning effective on Tuesday, June 30.
The Houston Chronicle provides more details about the Kent case. His chief accuser was a woman named Cathy McBroom:
The odds favored her silence.
Cathy McBroom, a twice-married federal court case manager with a high school degree versus a formidable federal judge, a towering mercurial man who ruled like a king over Galveston’s lone U.S. court.
U.S. District Judge Samuel Kent seemed untouchable, appointed by a U.S. president, approved by Congress to serve for a lifetime. His sentencing Monday — two years after McBroom first accused him of attempting to sexually assault her — brought both vindication and sorrow. . . .
Kent admitted to sexually molesting both McBroom and his former secretary Donna Wilkerson and pleaded guilty to obstruction of justice for lying to judges who investigated his misconduct. Wilkerson came forward after the judge’s first indictment in August. . . .
[McBroom] said the incident that prompted her to action — though it was not the first time Kent attempted to assault her — came in March 2007 when McBroom was summoned to Kent’s Galveston chambers. She says the judge, a foot taller and 150 pounds heavier, forced his mouth on her breast and pushed her head toward his crotch with an explicit and obscene oral order. She fled in tears.
It was a crime, she thought. Yet calling the cops seemed unthinkable.
“I felt like as a federal judge, he had everyone in his back pocket. Who could I report this to?”
Congratulations, Mark Fuller. You will go down in judicial infamy with Judge Samuel Kent. That is some "fine company," indeed.
That means Fuller was facing serious consequences when he announced his resignation last Friday, in the wake of his arrest last summer on domestic-abuse charges. From an article by Alyson Palmer at the Atlanta-based Daily Report:
When U.S. District Judge Mark Fuller of Alabama tendered his resignation on Friday, his fellow judges apparently were preparing to send his case to a national judicial body for consideration of possible impeachment by Congress.
On Monday the Judicial Council of the U.S. Court of Appeals for the Eleventh Circuit issued an order saying the conduct of Fuller, who was arrested on domestic abuse allegations in Atlanta last summer, "might constitute one or more grounds for impeachment." The order referred the matter to the Judicial Conference of the United States, which has the ability to send a judicial discipline matter to the House of Representatives for impeachment.
U.S. Circuit Judge Gerald Tjoflat acted as chief judge in the Fuller matter. Ironically, Tjoflat also served on a three-judge panel that denied initial appeals in the Don Siegelman case. Fuller is best known for overseeing the Siegelman trial, which has come to be seen by many legal experts as perhaps the most notorious political prosecution in U.S. history.
Tjoflat also served on a panel that corruptly denied an appeal of my unlawful termination at the University of Alabama's Birmingham campus (UAB). Evidence shows I was fired from my job of 20 years for writing accurately on this blog about Fuller's unlawful actions in the Siegelman case. UAB's own IT investigator showed that I never wrote my blog on work time or equipment, and the university's own grievance committee found I should not have been terminated. In fact, no evidence was presented at the grievance hearing that I should have been disciplined at all. But then UAB president Carol Garrison went against her committee and upheld my termination anyway.
During my lawsuit, U.S. District Judge William M. Acker Jr. violated black-letter law by granting UA summary judgment even though no discovery ever was conducted in the case. In fact, a discovery schedule was not even set. Despite that clear violation of procedure and case law, Tjoflat's panel used a "Do Not Publish" opinion to deny my appeal.
In other words, Gerald Tjoflat now is acting like a tough guy against Mark Fuller. In fact, Tjoflat is a dubious character who has acted for years as Fuller's enabler.
Is Tjoflat now trying to quietly clean up some of the stink that he helped create? Sure looks that way from here.
What lies ahead for Fuller? Alyson Palmer provides some insight on that:
Friday's letter from Fuller to President Barack Obama, saying the judge would resign effective Aug. 1, would appear to moot the question of impeachment as a practical matter. But Monday's order signifies that judicial leaders within the Eleventh Circuit were willing to hand down the most significant disciplinary consequence within their arsenal.
|Gerald B. Tjoflat|
An August police report said Fuller's then-wife accused him of assaulting her at the Ritz-Carlton hotel in downtown Atlanta. He later agreed to a domestic violence intervention program and alcohol and substance abuse assessment to resolve the resulting misdemeanor battery case against him. Fuller's Atlanta criminal defense lawyer has said that Fuller made no admission of guilt and that, upon completion of the program, the case against him would be dismissed and his arrest record expunged.
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Who looks best from this sordid mess? That might be Wayne Madsen, a D.C.-based investigative journalist who first reported in fall 2006 on Hastert's predilection for youthful male wrestlers. Madsen also reported in the same time frame that Hastert's sexual preferences were well known among the D.C. gay community.
Here we are in 2015, with Republican politicos expressing shock about last week's indictment, charging Hastert with lying to the FBI and violating banking laws to withdraw money for keeping his "misconduct" a secret. But Wayne Madsen broke the story, at least the crux of it, almost nine years ago.
We now know, from numerous sources, that the alleged "misconduct" mentioned in the Hastert indictment involved the homosexual molestation of a young wrestler decades ago--this from a Congressman who consistently voted against gay rights during his career.
Speaking of Republican hypocrites on gay issues, that brings us to U.S. Circuit Judge (and Alabama native) Bill Pryor. Madsen wrote in 2009 on his subscription-only site, The Wayne Madsen Report (WMR), about Pryor's connections to 1990s gay pornography, stating that the judge's secret made him a reliable and blackmailable "gatekeeper" for conservative interests on the Eleventh Circuit, which covers Alabama, Georgia, and Florida. Who might be pulling Pryor's strings on the appellate bench? Well, his campaign manager in a run for Alabama attorney general was Karl Rove, and the two reportedly remain close.
I picked up on the Pryor story in fall 2013 and produced a series of posts, along with a full-frontal photograph, that took the story national, perhaps viral. Above the Law, the most widely read law blog in the country, even picked up on the story.
It probably is widely assumed that I broke the Bill Pryor/gay porn story, but it originated with the following item four years earlier on Wayne Madsen's Web site. (We've received permission to use certain articles from the subscription site.)
June 15, 2009 -- Is there a closet door closed at the 11th Circuit Court of Appeals in Atlanta?
William H. ("Bill") Pryor, Jr., the former Attorney General of Alabama who was involved in the political prosecution by the Bush administration of Alabama Democratic Governor Don Siegelman and who squeaked by U.S. Senate confirmation after being nominated by George W. Bush to the 11th U.S. Circuit Court of Appeals, appears to have a little something in his "closet." Pryor was confirmed by the Senate in 2005 in a 53-45 vote, his nomination being secured by a bi-partisan agreement between Senator John McCain and thirteen "Gang of 14" senators to force an "up or down" vote on three stalled Bush federal court nominees. Pryor was 43 when he was sworn in as a federal judge.
According to WMR sources in Alabama, Pryor, who now acts as a gatekeeper on the 11th Circuit for the Bush interests in Florida, Alabama, and other states in the jurisdiction, advertised himself during his younger days on a gay website called "Bad Puppy." There are also rumors from informed sources that naked photographs are held by some top Republicans and conservatives as an insurance policy that Pryor rules the correct way on issues on the 11th Circuit bench.
Wayne Madsen is a polarizing figure in the world of journalism. He seems to have developed enemies on the left and on the right.
I've found that journalists who have bipartisan enemies are usually the sort who take on tough stories and report accurately about them. Madsen clearly was way ahead of the pack on the Dennis Hastert story. We will provide ample evidence of that in an upcoming post.
(To be continued)
|UAB football at Legion Field|
After all, I saw the UAB football program grow from its earliest days under Coach Jim Hilyer, and I saw it reach bowl status in Division I under Watson Brown. During my sportswriting days, I covered SEC games all over the Southeast. But some of the most entertaining football games I've ever seen were UAB games in the aging but still intriguing confines of Legion Field. I've still never seen a quarterback who could launch a prettier pass than UAB's Darrell Hackney. And his missiles to receiver Roddy White, now a standout with the Atlanta Falcons, were beautiful in their strength and precision.
My response to the reader's question grew too long for the comment box, so I decided to turn it into a post. Here is how that exchange went, and my response includes material that would not fit in the comment section:
Q: Hey Schnauzer, how do you feel about yesterday's news that UAB is getting its football program back.
A: I was glad to see it, on the surface, because a university of that size in Birmingham, AL, should have a D-1 football program. UAB recruited players primarily in Alabama, Mississippi, Georgia, and Florida, so those are important scholarship opportunities for kids who largely get bypassed by the SEC.
I say "on the surface" because I heard a lot of "ifs, ands, and buts" in Ray Watts' talk, and I don't think either he or key members of his administration can be trusted. The way I heard it, if fund-raising goals are slow in being reached, the plug could be pulled again, maybe 4-5 years down the road.
With that hanging out there, how is Bill Clark going to attract and retain top-notch assistant coaches? How is the coaching staff going to recruit and keep top-notch players? If I'm Bill Clark, I have major concerns about moving forward under Ray Watts' leadership--and the "leadership" of a Board of Trustees that probably still is out to kill or handicap the program.
All of the qualifiers in Watts' talk make me think that perhaps only the "method of execution" has been changed. The original plan was a quick death by chopping off the head. The new plan might be more gradual, by slowing choking the program to death.
Aside from all the dark possibilities going forward, UAB fans should take time to celebrate. They stood up, led by the writings of UGA Prof. John Knox and legislative pressure from Rep. Jack Williams, and truly embarrassed both the board and the UAB administration. Their voices were heard, and they didn't go away quietly. Good for them.
I hope the public remembers this: There is no question UAB can have a successful football program at D-1. Watson Brown has already proven that. Before Gene Bartow retired as athletics director, and administrative dysfunction took over, Brown built a really nice team. The Blazers of the Darrell Hackney, Roddy White, Steel Shield era would have been a real threat to beat Alabama or Auburn, on the right day. During that general time frame, UAB did beat LSU and Mississippi State from the SEC.
The Blazers also went nose to nose in the same conference with very good teams from other metro areas--schools like TCU, Louisville, Cincinnati, East Carolina, South Florida, SMU, Tulsa, Central Florida, Memphis, and more. UAB has been left behind during conference realignment in a watered-down C-USA--and that happened probably because of weak leadership on the Birmingham campus.
To get back where UAB really belongs, it needs to get the kind of forward-thinking leadership that will seek membership in a league like the American Athletic Conference (AAC), where many of the teams noted above now reside. As a university, UAB has very little in common with the schools it now shares space with in C-USA. The Blazers need to get their competitive legs back under them and move toward the AAC. When UAB has real leaders, it is an extremely attractive partner with other "brand name" metro schools. Blazer sports teams got left behind only because school "leaders" shrugged their shoulders and let it happen--all the while, the Tuscaloosa-driven board of trustees also was dragging down the Blazers.
A note of caution: The rebuilding process for UAB football is likely to be difficult. Momentum from last year's surprising 6-6 season has been lost--almost all of the players and coaches who made that happen are gone. Some 1-11 and 2-10 records might be part of the rebuilding process, and if fans give up during those tough times, it will be an excuse for another round of "pull the plug on the Blazers."
If UAB fans are serious about having football, and a comprehensive student experience the sport represents, they need to recognize that the struggle is just beginning. They need to hang in there with their financial support and physical presence, even when losses start piling up early. They need to continue to push for Ray Watts' ouster, with strong UAB input on naming his successor. And with the leadership of folks like John Knox and Jack Williams, they need to push for reform of the UA board.
In many ways, Fuller was the face of a "justice system" that went badly off the tracks during the George W. Bush administration--and has remained off track under Barack Obama and his hapless attorney general, Eric Holder. Our system is designed to prosecute crimes, but under Bush, it began to prosecute people--especially those who happened to be Democrats.
Fuller played a central role in the most notorious political prosecution of the period--and perhaps in American history--when he presided over the case of former governor Don Siegelman in the Middle District of Alabama. Siegelman remains at a federal prison in Oakdale, Louisiana, for a crime he did not commit--for a "crime," in fact, that does not exist under U.S. law.
But this is where the Mark Fuller story becomes breathtakingly dark. Under judges like Fuller, and prosecutors of the Bush Department of Justice, it's not just a matter of innocent people winding up behind bars. Such a broken system allows individuals with genuine ties to criminality to operate with impunity.
Take, for instance, another former Alabama governor--Republican Bob Riley. He has indisputable ties to GOP felon Jack Abramoff, the architect of perhaps the most brazen political crimes to ever take place on U.S. soil. In fact, Abramoff admitted in his book that he helped funnel $20 million of Mississippi Choctaw gambling money into Alabama to help Riley "beat" Siegelman in the 2002 governor's race--an election marked by the mysterious overnight disappearance of Siegelman votes in heavily Republican Baldwin County. This supposedly was due to a "computer glitch," but retired Auburn University professor and researcher James Gundlach said a technical problem could not produce such a result without human intervention.
Have Bob Riley or his associates been seriously investigated for any of this? Doesn't look like it. The signs of criminal activity are everywhere, but we no longer prosecute crimes--we prosecute people. And Bob Riley is the kind of white, conservative insider who has been allowed to operate above the law.
How do we know? In 2008, Huffington Post's Sam Stein wrote an article about U.S. Sen. John McCain (R-AZ) and his investigation of the Abramoff scandal. The article, titled "McCain Withheld Controversial Abramoff Email," shows how McCain took steps to protect one of his political allies. That ally's name was Bob Riley. From the Sam Stein piece:
On the stump, Sen. John McCain often cites his work tackling the excesses of disgraced lobbyist Jack Abramoff as evidence of his sturdy ethical compass.
A little-known document, however, shows that McCain may have taken steps to protect his Republican colleagues from the scope of his investigation.
In the 2006 Senate report concerning Abramoff's activities, which McCain spearheaded, the Arizona Republican conspicuously left out information detailing how Alabama Gov. Bob Riley was targeted by Abramoff's influence peddling scheme. Riley, a Republican, won election in November 2002, and was reelected in 2006.
What was that information? It was an e-mail from Abramoff to fellow GOP felon Michael Scanlon. And it shows that they didn't "target" Riley to be harmed by their criminal scheme; they "targeted" Riley to take part in it. (The e-mail can be viewed at the end of this post, along with an on-target cartoon submitted by reader Michelle Looney.) Writes Stein:
An official with the Mississippi Choctaws "definitely wants Riley to shut down the Poarch Creek operation," Abramoff wrote, "including his announcing that anyone caught gambling there can't qualify for a state contract or something like that."
The note showed not only the reach of Abramoff, but raised questions about Riley's victory in what was the closest gubernatorial election in Alabama history.
The impact on Alabama politics did not end with the controversial 2002 race. Writes Stein:
Siegelman soldiered on after the 2002 loss, running again for governor against Riley in 2006. By then, the extent of Riley's connection to Abramoff was still unknown. Moreover, Siegelman was still under investigation for allegations of bribery. The inquiry, detailed in an extensive 60 Minutes report last night, raised many ethical red flags, mainly over political interference from the Bush administration, specifically Karl Rove. On June 22, McCain issued his Senate report without mentioning Riley's name. And one week later, Siegelman was convicted without the Abramoff email ever being made public.
"If you had a document that showed something that had not been reported about the financial reports and the direct expectations for that money," said a source familiar with the case, "that certainly would have called into attention the government's case against Siegelman."
The bottom line? Riley had John McCain, in the U.S. Senate, covering up his ties to Jack Abramoff. And he had Mark Fuller, on the federal bench, taking care of his prime political opponent--Don Siegelman.
This is the real story behind Mark Fuller. Yes, he is a bad guy who beat his wife in a private setting. But his behavior in the public setting was just as bad--and much more far reaching. That's where he used taxpayer dollars and a lifetime appointment to trample the U.S. Constitution.
Did Mark Fuller abuse his wife? Yes. Did he also heap abuse on our democracy? Absolutely.
He should pay for both crimes, not just one. But we see signs that his resignation largely is designed to short circuit any inquiry that could shine much-needed light into dark corners of the federal judiciary.
|(Cartoon submitted by Michelle Looney)|
It took a federal indictment last week for the story to become national news. But it actually broke almost nine years ago, thanks to the investigative work of D.C.-based journalist Wayne Madsen. In fact, Madsen provided details that the mainstream press still seems afraid to touch.
How does a story of national importance stay under wraps so long? For one thing, the Wayne Madsen Report (WMR) is a subscription Web site, and quite a few of its stories likely don't get out from behind the pay wall. Also, Madsen seems to draw ire from partisans on the left and the right--not to mention a number of mainstream journalists--probably because of his willingness to tackle stories that insiders would rather stay out of sight.
Madsen saw the Hastert story brewing way back on September 30, 2006. From his WMR post on that date:
Congressional sources told WMR that Hastert, while working from 1964 to 1980 as a popular history/government teacher and wrestling coach at Yorkville High School, in Yorkville, Illinois -- a suburb of Chicago -- was the subject of persistent rumors about inappropriate contact with male members of his high school wrestling team. The culture of the times usually resulted in such alleged behavior being covered up by public and parochial school authorities. However, the rumors were enough for his Yorkville constituency to reject him when he ran for an open seat in the Illinois House of Representatives in 1980. However, Hastert lucked out when another sitting Republican House member who represented the three-seat district had a stroke and declined to run for re-election. The GOP machine bosses selected Hastert as the replacement candidate.
Madsen followed up on October 2, 2006, with a report about Hastert's role in the Tom Foley (R-FL) scandal, involving sexually charged electronic messages to under-age males serving as Congressional pages:
In August 2004, the GOP House leadership, which included Speaker Dennis Hastert, then-Majority Leader Tom DeLay, and Majority Whip Roy Blunt, took no action against Republican Rep. Mark Foley of Florida for his repeated salacious contact by email with underage male teens even though a heterosexually-married Republican congressman resigned over trolling gay web sites for 'younger men.' In August 2004, one-term Republican Rep. Ed Schrock of Virginia resigned after it became public that he was surfing gay and dating web sites in search of younger men for sex. Schrock, a political ally of his Virginia Beach constituent TV evangelist Pat Robertson and a retired U.S. Navy Captain, resigned after he was outed by a Washington, DC web site.
It is now being reported that the House Page Board chairman John Shimkus (R-IL) actually enabled Foley to meet an underage pages for dinner dates after the House GOP leadership were aware of Foley's inappropriate communications with the teens."
How deep did the GOP cover up go? Madsen addressed that question, and it includes some very big names in Republican circles:
The House GOP leadership that now stands accused of covering up the scandal includes the GOP members of the House Page Board, Representatives John Shimkus of Illinois and Shelley Moore Capito of West Virginia; House Speaker Dennis Hastert; Majority Leader John Boehner; Majority Whip Roy Blunt; and National Republican Congressional Committee chairman Tom Reynolds, who reportedly received $100,000 from Foley campaign coffers after he was first informed of the allegations against the Florida Republican.
Hmmm . . . John Boehner, of Ohio . . . Roy Blunt, of Missouri. Those names certainly are familiar to most anyone who pays the slightest attention to political news. Hastert has rubbed shoulders with heavy hitters for quite a while. In a post dated October 7, 2006, Madsen provided disturbing insights into Hastert's personal life:
The rumors about another top GOP member of the House being involved in sexual encounters with young "men for hire" are confirmed to WMR by well-placed sources in Washington's gay community. The member in question is House Speaker Dennis Hastert, whose "alternate" life style is the primary reason for him and his staff covering up the scandal involving ex-Florida GOP Rep. Mark Foley and his lewd messages sent to underage male congressional pages. Hastert's penchant to receive anal sex is well-known to our sources in DC's gay community. Additionally, Hastert's reported extremely small penis is the subject of many jokes among Washington's gay circles.
In July , Hastert was hospitalized at Bethesda Naval Hospital for cellulitis, a bacterial skin infection. In the Feb. 7, 2003 issue of AIDS Treatment News, doctors reported that they saw 'a large increase in aggressive, antibiotic-resistant 'staph' (Staphylococcus aureus) skin infections in gay men in some areas -- and a separate epidemic in certain prisons. Symptoms include boils or blisters; treatment can be difficult, and sometimes requires hospitalization. One HIV doctor in Los Angeles who used to see about one case a year is now seeing two a week. In the past this infection occurred mainly in hospitals.' The reports of serious skin infections among gay men was also reported in the Los Angeles Times on Jan. 27, 2003.
On October 9, 2006, Madsen wrote about Hastert's unusual relationship with chief of staff Scott Palmer, a story that had drawn the attention of Lawrence O'Donnell at Huffington Post:
There is also much focus on the relationship between House Speaker Dennis Hastert and his chief of staff, 56-year old Scott Palmer. Hastert and Palmer, Hastert's longtime unmarried adviser, live together in a DC townhouse along with Hastert's Deputy Chief of Staff, Mike Stokke, while Hastert's wife Jean lives in Yorkville, Illinois and stays at a hotel when she visits Washington. [Mrs. Hastert even stayed at a hotel, instead of her husband's townhouse, when she traveled to Washington on Valentine's Day in 2007].
WMR has also learned of additional Senate links to the Pagegate scandal. There is much focus on GOP Sen. George Allen's predominantly white male staff. There is also interest in the activities of a senior GOP Senator from a Rocky Mountain state. [That senator turned out to be Larry Craig (R-ID) who resigned in 2009 after he was arrested for trying to engage in homosexual activity with an undercover vice cop in a men's room at Minneapolis International Airport].
Madsen hinted that Hastert and other Republicans were involved in dark activity on an international scale:
WMR's State Department sources have also reported that the visits of Hastert and other congressional leaders and staff members to certain Southeast Asian nations and the Northern Marianas should come under the scrutiny of the House Ethics Committee, now officially investigating 'Pagegate.' The Northern Marianas became infamous in the scandals involving Tom DeLay and Jack Abramoff because of the presence in the US slave labor territory of Asian children being used as prostitutes. Conveniently, Foley co-chaired the House Caucus on Missing and Exploited Children, which would have had authority to investigate charges of child prostitution in the Northern Marianas.Hastert visited Vietnam, along with Palmer, in April of this year and spent three days in the country. Hastert, along with Illinois GOP Rep. Ray LaHood, canceled a visit to Thailand and Vietnam in January 2006. Hastert was also in Thailand in January 2002."
Moving to present day, Madsen notes in a post dated March 29-31, 2015, that other journalists long have scoffed at his reports on Hastert:
Our in-depth reporting on Hastert and "Page-gate" and the pederasts within the GOP received a harsh reaction in the DC media. Wonkette, a blog then written by the current reporter for The Guardian newspaper Ana Marie Cox, wrote this about our reporting: "The problem is, Wayne Madsen just makes shit up. We hear from well-placed sources that no one is having sex with Dennis Hastert. Scott Palmer may be remarkably close to his boss, but he’s not blind." Cox, whose Wonkette reports contained a number of unusual references to anal sex, earned the nickname, "Anal Marie Cox." By attacking the messenger, Cox, like so many of her fellow whitewashers in journalism, was rewarded with her present gigs at The Guardian and GQ magazine.
WMR stands vindicated by the federal indictment of Mr. Hastert.
Wayne Madsen, indeed, stands vindicated. To put it bluntly, he kicked the rear end of most everyone in journalism on the Hastert story. I'm sure a letter of apology from Ana Marie Cox is in the mail at this moment.
Meanwhile, much remains unknown about the Hastert scandal, so Wayne Madsen is likely to have more opportunities to break big news.
Yes, in this case, the lawyer was a woman, and the client was a man--but our research indicates the roles usually are reversed. Either way, such relationships apparently happen in the law with alarming frequency, and they often lead to poor outcomes for clients and career derailment for lawyers.
The Web site Above the Law (ATL) broke the story of an attorney-client relationship gone awry in the Midwest. Allison Bergman had spent roughly 15 years at Lathrop Gage, a Kansas City, Missouri, firm with some 320 lawyers. For about 10 years during that time, she had a personal relationship with the president of a company her firm had represented for more than 100 years.
Kansas City Terminal Railway (KCT) started an internal investigation in 2012, firing Bergman and president Chuck Mader at the same time. KCT also terminated its relationship with Lathrop Gage, costing the firm about $400,000 a year. Bergman left the law firm shortly thereafter, and a disciplinary complaint followed.
These sorts of issues seem to erupt at law firms, big and small, all over the country. Here is how a 2012 article at Huffington Post put it:
Reliable numbers are hard to come by, but according to one nationwide survey of attorneys, 7% admitted to personally having a sexual relationship with one or more clients, and 32% admitted to having colleagues who carry on such affairs. It's so common today that there are actually law review articles with titles like "The Legal Profession's Dirty Little Secret"!
The "dirty little secret" definitely extends to Alabama. I am aware of a male lawyer in Shelby County who had an extramarital affair with his Chilton County client in a divorce case. The client had been married to a prominent Central Alabama businessman, and court records indicate she was the victim of infidelity, domestic violence, and other forms of marital misconduct.
In a high-dollar divorce action with the facts on her side, she should have come out of the mess in solid financial shape. Instead, she lost most everything she owned, and the "justice system" treated her in a hideously unconstitutional fashion.
Was the woman targeted for abuse because the legal tribe feared she might reveal damaging information about one of its members?
If that was the case, the tribe was too late because she already has revealed the information to me--in writing.
How can one married lawyer--with a long, documented history of unethical conduct--take advantage of a female client who is on a financial, personal and emotional precipice? What can be the frightening fallout for the client, the one with whom the lawyer is supposed to have a "fiduciary relationship" of supreme trust?
We will examine those questions in a series of upcoming posts.
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|Bill Pryor at badpuppy.com|
We've seen it in Alabama with the rise to power of U.S. Circuit Judge Bill Pryor. We are seeing it now in the fall of former U.S. House Speaker Dennis Hastert. We are likely to be hearing more about it in the coming days as Hastert appears in court today and his case unfolds--probably with stories of more victims and various politicos who helped cover for the speaker.
Concerns about blackmail prompted Alabama law enforcement officials to open an investigation when they received a tip, not long after Gov. Fob James appointed Pryor attorney general in 1997, that nude photographs of the new AG had appeared at the gay-porn Web site badpuppy.com. Investigators tracked down the photos and their source--in Monroe, Louisiana, where Pryor attended college. Investigators also conducted surveillance on Pryor's residence in Montgomery and noted a number of late-night male visitors, including one who went on to become a well-known national political figure.
As it turned out, Pryor's secret life actually helped his professional career. According to multiple press reports, certain Republicans hold copies of the porn photos to help ensure that Pryor pushes for favorable outcomes on cases before the U.S. Eleventh Circuit Court of Appeals. In other words, Pryor's dalliance with gay porn makes him vulnerable--particularly since he almost certainly did not disclose it in his Senate confirmation process--and the very conservatives who put him in power use that to make the Eleventh Circuit even more corrupt than it already was.
As for Hastert, an article written after his recent indictment indicates Capitol Hill insiders are abuzz about the possibility that the speaker was ethically compromised because of his secret life. An article from 2011 suggests Hastert's sexual secrets long ago caused him to fall victim to blackmail--on the international stage.
The recent article, titled "Hastert Questions Consume Capitol," comes from The Hill and reporter Scott Wong. Writes Wong:
House Republicans are questioning whether anyone tried to use former Speaker Dennis Hastert’s dark secret against the Illinois Republican during his two decades in Congress.
The Capitol has been abuzz about the Hastert allegations this week, and several GOP lawmakers are raising the specter of whether anyone demanded political favors in exchange for their silence.
“Was there any undue influence able to be imposed based on the knowledge of a secret that could damage him?” asked one House GOP lawmaker, who requested anonymity to discuss the sensitive issue. “That’s sort of the scrutiny we all have to endure, and as you look retrospectively now at what we know: Was there an appropriate filter?
“It doesn’t have the same kind of stench to it from a political influence standpoint,” the lawmaker added. “That said, everything starts somewhere.”
Other lawmakers, quoted by name, voiced even stronger concerns:
The fact that the former Speaker put himself in a position where he could have been blackmailed is “nauseating,” remarked freshman Rep. Martha McSally (R-Ariz.). For Congress, “certainly it’s a black eye all the way around.”
Rep. Ted Yoho (R-Fla.), too, is worried Hastert had been “compromised” while serving as Speaker — a powerful job that put him second in line to the presidency.
“Not that our founders were saints, but you’re giving payouts like that, you’re getting blackmailed. It compromises you,” Yoho said in an interview.
“When you become compromised, how does that influence somebody’s decision-making knowing they’ve got something held over their head, someone saying: ‘Yes, you will vote this way.’ ”
An article from four years ago suggests Hastert already has been blackmailed. Brad Friedman published the piece, titled "FBI Whistleblower: Hastert, Burton, Blunt, Other Members of Congress 'Bribed, Blackmailed'", on May 25, 2011, at Huffington Post. Friedman focuses on the deposition of FBI whistleblower Sibel Edmonds, and she unleashes damaging information about a number of GOP politicos, including former U.S. Rep. Dan Burton (R-IN) and former U.S. Rep and current U.S. Sen. Roy Blunt (R-MO). But the most alarming allegations involve Hastert.
Here is Friedman's overview of the revelations from Edmonds' testimony:
The under-oath, detailed allegations include bribery, blackmail, espionage and infiltration of the U.S. government of, and by current and former members of the U.S. Congress, high-ranking State and Defense Department officials and agents of the government of Turkey. The broad criminal conspiracy is said to have resulted in, among other things, the sale of nuclear weapons technology to black market interests including Pakistan, Iran, North Korea, Libya and others.
Even as many of these allegations had been previously corroborated to varying extents, by a number of official government reports, documents and independent media outlets (largely overseas), not a single major mainstream media outlet in the U.S. has picked up on Edmonds' startling claims since her deposition has been made fully available. . . .
Though Edmonds was careful to not "discuss the intelligence gathering method by the FBI," she notes in her deposition that her claims are "Based on documented and provable, tracked files and based on...100 percent, documented facts."
Here is the key information from Edmonds' deposition about Hastert:
Dennis Hastert:"[S]everal categories. The acceptance of large sums of bribery in forms of cash or laundered cash ... to make it look legal for his campaigns, and also for his personal use, in order to do certain favors ... make certain things happen for foreign entities and foreign governments' interests, Turkish government's interest and Turkish business entities' interests. ... other activities, too, including being blackmailed for various reasons. ... he used the townhouse that was not his residence for certain not very morally accepted activities. ... foreign entities knew about this, in fact, they sometimes participated in some of those not maybe morally well activities in that particular townhouse that was supposed to be an office, not a house, residence at certain hours, certain days, evenings of the week."
Hastert used a townhouse for "certain not very morally accepted activities," and foreign entities knew about?
Those concerned about blackmail in the Dennis Hastert story might be too late. It looks like it already has happened. And one can only wonder, at this point, how many of his allies in the U.S. House knew about it.
You have a lifetime appointment and pretty much can't be fired, no matter how poorly you do your job. You make good money, with excellent benefits, and you tend to work in relatively new, clean, comfortable, and uncrowded buildings. You have a light workload, compared to your state-court brethren, and those dupes often have to work in old, nasty, crowded facilities. Appellate courts will hear some of your cases, but they don't really review your work--and even if they do, who cares, they can't fire you or even do much to discipline you for getting cases wrong.
You get to wear a robe, people call you "Your Honor," and they rise when you enter the courtroom. You get to sit high above lawyers--many of whom are smarter than you and make more money than you, but they still have to kiss your fanny. You don't have to run for re-election, so you never have to ask people for money--unless you come to enjoy taking bribes--and you can be an utter asshole to people and almost never have to worry about the consequences.
Many cases on your docket involve allegations of discrimination on the job or in public accommodations, and if you can stand the tedium of listening to the same old arguments and facts all the time, you can ride the wave to a cushy retirement--or your death, whichever comes first
Come to think of it, you really don't have to even listen--court reporters are there to take down every word. Best of all, you don't even have to do the most important part of your job--writing orders and opinions. It's well known that clerks "ghost write" many of those for federal judges. You don't even have to research the law--very few court cases are decided on the actual law, and if a tricky issue comes up, you can get a clerk to do the scut work. More often than not, you can ask lawyers to do the research for you.
You can commit all kinds of crimes while wearing your robe, and the chances are astronomically high that you will get away with them. As for lawsuits, you are "immune" from them for anything you do in your "official capacity."
So how can anyone with three brain cells screw up this dream job? Well, a few people are stupid enough to do it, with Mark Fuller from the Middle District of Alabama being the latest example. He is set to resign on August 1, in the fallout from his arrest for beating his wife.
And that brings us to the one thing that can cause potential problems for a federal judge. When the robe is off and you are outside your "official capacity," it's a good idea to be on respectable behavior. You can still get away with a lot, but it's best not to grope women (or men) in the workplace. It's best not to loudly make racist, sexist, or homophobic statements. It's a good idea not to hit your spouse or get involved in barroom brawls. And you'd be wise to steer clear of alcohol, illegal drugs, prescription painkillers and other mind-altering substances.
|Jack T. Camp|
What kind of person can screw up a job where you almost can't screw up? Well, we know Mark Fuller is that kind of person. And our research shows that, since 1970, at least five other federal judges have proven to be that kind of person. How did these five other dudes (like Fuller, they all are males) get in trouble? How did they join Fuller in a judicial "hall of infamy"? Here are a few details:
Otto Kerner Jr.
* Where he's from -- Illinois, on 7th Circuit Court of Appeals (1968-1974)
* Who nominated him -- President Lyndon B. Johnson
* How he screwed up -- Kerner was charged with taking bribes related to race tracks in the Chicago area, while he was governor of Illinois--prior to his nomination to the federal bench. The bribery charges were dismissed, but he was convicted of mail fraud, conspiracy, and perjury. He was sentenced to three years in federal prison, and facing almost certain impeachment, resigned as U.S. judge.
* Where he's from -- Eastern District of Pennsylvania (1973-1978)
* Who nominated him -- President Richard M. Nixon
* How he screwed up -- A combination of influence peddling and heavy drinking brought down Fogel. At the time of his resignation, he was being investigated for lining up a $52-million building contract for his uncle. Fogel wound up facing four counts of drunk driving and spent time at an alcohol-rehab center in Atlanta. Friends said the boredom of being a federal judge contributed to his drinking problem.
* Where he's from -- Eastern District of Louisiana (1978-1993)
* Who nominated him -- President Jimmy Carter
* How he screwed up -- Collins was the first black to be appointed to a federal judgeship in the Deep South and the first federal judge to be convicted of taking a bribe. He was convicted in 1991 of taking money to influence his sentencing of a marijuana smuggler. He spent five years at several federal prisons, including the Federal Prison Camp at Montgomery, Alabama.
* Where he's from -- District of Colorado (1989-2008)
* Who nominated him -- President George H.W. Bush
* How he screwed up -- Nottingham had "zipper issues." His troubles started when it was revealed in his divorce case that he had spent $3,000 on strippers in one night and had used an Internet dating site. One complaint alleged that he viewed pornographic Web sites on the government computer in his chambers. Finally, two former prostitutes claimed Nottingham was a client of an escort service, and one of the prostitutes said he had instructed her to lie to federal investigators about their relationship. According to news reports, Nottingham's nickname among "working girls" was "Naughty."
Jack T. Camp
* Where he's from -- Northern District of Georgia (1988-2010)
* Who nominated him -- President Ronald Reagan
* How he screwed up -- Camp had sex and drug problems, and we've reported on his case several times here at Legal Schnauzer. Camp pleaded guilty to three criminal charges after he was arrested for attempting to buy drugs from an undercover FBI agent. At the time of his arrest, Camp was in the company of an exotic dancer he reportedly had met at an Atlanta strip club. According to news reports, Camp became infatuated with the stripper when she performed a lap dance for him. She had a federal conviction from a drug-trafficking case, but Camp reportedly paid her for sex and they then would smoke marijuana, snort cocaine, and take painkillers together.
|B. Avant Edenfield|
And that leads to this question: Was Birmingham-based appellate judge Bill Pryor involved in the apparent conspiracy? After all, part of the reported fallout from Pryor's ties to 1990s gay pornography is that his once-secret history made him vulnerable to blackmail, meaning he would help ensure that certain cases turned out certain ways. It's not hard to imagine Pryor taking steps to protect corrupt members of the Birmingham divorce bar, ensuring that the flow of big, easy bucks to their law firms did not end.
Aside from Pryor's possible involvement, we know for sure that corrupt handling of two hunting-club lawsuits--both filed by retired Cumberland Law School taxation professor Joseph W. Blackburn--did not end with Edenfield. He had help in the cover up from members of the Eleventh Circuit. In fact, evidence suggests appellate judges upheld Edenfield's unlawful trial-court findings while not even conducting a serious review.
In other words, the three-judge appellate panels were both corrupt and lazy, apparently doing no real work to make sure Edenfield ruled correctly. The record indicates they knew he did not rule correctly, and they wanted it to stay that way--while exerting as little energy as possible. Here is background on the two cases from a September 2012 post:
So what is the public to make of instances where federal appellate judges do no work at all on a case before them? That apparently is what happened on a pair of lawsuits that originated in Birmingham, alleging that corrupt lawyers and judges used a hunting club as a place to fix Jefferson County divorce cases.
Joseph W. Blackburn, a professor of taxation at Samford University's Cumberland School of Law, was involved in both cases, first as a plaintiff and then as an attorney representing other alleged victims of hunting-club fraud. Both cases were unlawfully dismissed by federal judges in the Northern District of Alabama, with the plaintiffs denied an opportunity to conduct discovery that might have proven their cases.
That is suspicious in itself. But a foul odor really becomes noticeable when you realize the cases went before the U.S. Eleventh Circuit Court of Appeals in Atlanta--and both were dismissed without an opinion, with no explanation whatsoever.
How could two appeals be dismissed without an opinion? Was it because the issues at hand were so simple and straightforward? Not exactly:
These were companion lawsuits, both alleging gross corruption in Alabama domestic-relations courts. They level charges of serious misconduct against some of the best-known divorce lawyers in Alabama, essentially stating that their successful practices are built largely on cases that are fixed.
Hunting Club Case No. 1 was dismissed on a variety of technical grounds, and District Judge B. Avant Edenfield took 30 pages to describe the complex set of circumstances involved in the case. Hunting Club Case No. 2 was dismissed on pretty much identical grounds, with U.S. Magistrate Judge Robert Armstrong mostly parroting Edenfield's ruling.
Are we to believe that a 30-page trial-court finding can be adequately handled on appeal when the Eleventh Circuit issues no opinion? Are we to believe it's a mere coincidence that the appellate court does the same thing on the second hunting-club case?
You can check out the two appellate rulings at the links below, one issued in fall 2008 and one issued in fall 2010:
Opinion in Blackburn v. Calhoun, et al (Hunting Club Case No. 1)
Opinion in Powell, et al v. Gorham, et al (Hunting Club Case No. 2)
Is it proper to handle appeals in such slipshod fashion, barely applying a rubber stamp? No, it is not. The Eleventh Circuit used to have Rule 36-1, which allowed for affirmances without opinions. That rule, however, was rescinded in 2006, as we explained in our earlier post:
According to a memorandum from Clerk Thomas K. Kahn, the change was made on the grounds that “only a min[u]scule portion of appeals are currently terminated in this manner.”
Since 2006, the Eleventh Circuit has had no provision allowing an appeal to be disposed of without an opinion. And yet, two cases were handled in exactly that fashion--one in 2008, the other in 2010--and they just happened to be cases that alleged serious misconduct among Alabama lawyers and judges.
Even when Rule 36-1 was in effect, if we are to believe Clerk Thomas K. Kahn, only a "minuscule portion" of appeals were terminated without an opinion. So how could the two hunting-club cases be terminated in that manner, even after Rule 36-1 had been rescinded? And how could there be no opinion when summary judgment was not supported by the record, and the judgment clearly was entered based on reversible error?
I can think of only one answer: The Eleventh Circuit knew it could not issue an opinion under the law that could justify the corrupt trial-court dismissals--so it chose to issue no opinion at all.
Allegations in the two hunting-club lawsuits leveled charges that, if proven, probably would have led to the disbarment and possible incarceration of prominent Alabama divorce lawyers Charles Gorham, Rick Fernambucq, and Steve Wright (among others, including multiple judges). Do those attorneys act in ways that honor their profession, or have they turned our courts into glorified casinos--with lawyers being the winners, and certain litigants (especially women, children, and minorities) the losers?
Thanks to the late judge Edenfield, and the members of the Eleventh Circuit, the public probably will never know.
|UAB football at Legion Field|
Author Charles J. "Chuck" Dean doesn't exactly say that; in fact, he doesn't actually say much of anything--other than UAB has a medical center, it saves lots of lives, and that's a good thing. That, Chuck declares, is UAB's "true calling." After all, the headline reads: "UAB's true calling isn't football. It's saving lives."
How is that supposed to enlighten anyone in the al.com audience, other than to make it clear that Chuck Dean is a master of the obvious statement? It is one of those vapid articles that seems to have no point other than to generate rage--and lots of digital clicks and comments--among UAB supporters and those who would like to see the Birmingham campus return to its status as an extension center.
The space for Chuck's op-ed might have been put to better use with an article titled "10 ways to shave your genitals while driving a locomotive."
After reading Chuck's article, my instant reaction was, "This might be the single worst piece of horse excrement I've ever read at al.com--and that is saying something." But then I remembered Chuck's May 21 piece about the U.S. Eleventh Circuit's ruling to uphold the convictions in the case of former Alabama governor Don Siegelman. I quickly decided that the UAB football piece might be bad, but it can't top the Siegelman article when it comes to ignorant, lazy journalism.
The headline on Chuck's piece from three weeks ago set a somber tone: "Don Siegelman is staying in prison and that's the right but sad decision." I remember reading that headline and thinking, "Oh boy, this is going to be a meaty piece, with Chuck telling us exactly how the Siegelman court got it right."
But these few paragraphs pretty much sum up Chuck's take on a case that many legal analysts have called perhaps the worst political prosecution in memory:
Former Gov. Don Siegelman will be staying in prison on public corruption charges. And he won't be seeing his sentence reduced either.
That is what a federal appeals court in Atlanta ruled Wednesday sinking Siegelman's hopes for a new trial or at least some time shaved off the remaining two years of his original six and a half year sentence.
When I heard the news my first reaction was a yawn. I think I'm like a lot of you. I was done with the Siegelman thing a long time ago. It's still hard for me to get my head around the fact that this case is now into its second decade.
What do we learn from this? Chuck is bored. In fact, he's so bored that he simply doesn't care that boatloads of facts and law show that a citizen in his state--the former governor, no less--was shipped to federal prison because of a "crime" that does not even exist under the law.
Not only is Chuck bored, he's lazy, too lazy to look up any of the ample meat and potatoes surrounding the Siegelman case--which also involved a former CEO (Richard Scrushy) from one of the best-known corporate entities in Chuck's market. Does Chuck cite anything from the record, or anywhere else, to support his claim that Siegelman and Scrushy went to prison under lawful circumstances? Nope, not a single thing.
Hey Chuck, do you remember Watergate, the case in the 1970s where a few determined reporters and editors brought down the Nixon White House and taught a generation of Americans that you had better keep a close watch on our nation's institutions--and the authority figures who run them? If you don't, Watergate taught us, those authority figures are likely to turn your cherished institutions into playrooms for their own crooked agendas. Do you remember that, Chuck?
You now seem to be saying, "Ah, the hell with it. Let authority figures do whatever they want. It's too much effort to keep an eye on them. If a federal judge--or a group of federal judges--says something is so, it must be so. I'm too bored to question authority, and I hope my readers won't question it either."
That's the kind of thinking that apparently led to today's UAB football article. Again, Chuck doesn't actually say much of anything in the column--but the headline and general tone hint that UAB has a strong medical center, so that should preclude it having a football team, or offering a comprehensive undergraduate experience.
Now, let's consider some of the universities that have major medical centers, and football programs of longstanding, right on their campuses. Let's see . . . we have Florida, UCLA, Ohio State, Utah, Louisville, Arizona, Miami, Kentucky, Cincinnati, Missouri, Washington, Duke, Michigan, Stanford, Vanderbilt, Minnesota . . . well, you get the idea. Lots and lots of universities have football stadiums in the shadows of their medical centers. Some of those universities even are in the vaunted SEC. And quite a few of them are regular contenders for football championships--winning on the gridiron, while also saving lives.
It can be done, and it has been done for years. Chuck, I guess, was too bored to look that up.
We recently discovered information that might answer both of those questions--and it involves Neilson's connections to Birmingham attorney Bill Baxley.
The Riley lawsuit and a similar one from fellow Republican operative Jessica Medeiros Garrison, according to multiple sources, were part of a coordinated effort by legal and political elites to shut down my reporting on this blog. In fact, the two lawsuits were filed within roughly one month of each other--and they are the only two defamation cases I've faced in almost 37 years as a professional journalist. The Garrison case led to a $3.5-million default judgment, which I am seeking to overturn--and a hearing to vacate it is set for Thursday (June 18) in Jefferson County Circuit Court.
How best to explain all of the unseemly alliances that are present here? We invite you to follow us on this brief trail of nasty Alabama intrigue:
* Who represents Jessica Garrison in her defamation lawsuit? That would be Bill Baxley.
* Who represents Sonny Reagan, the former deputy AG who was forced to resign from the Attorney General's Office over allegations that he had leaked grand-jury information from the ongoing criminal investigation in Lee County? That would be Bill Baxley and Rob Riley.
* Who has represented House Speaker Mike Hubbard, former Governor Bob Riley, and Minda Riley Campbell before the Lee County grand jury? That would be Rob Riley.
* Who, according to e-mail evidence, received leaked grand-jury information from Sonny Reagan? That would include Rob Riley, Bob Riley, and Mike Hubbard.
* And who, once again, has been Reagan's chief attorney? That would be Bill Baxley.
As you can see, an unholy alliance has formed between Bill Baxley and members of the Riley political cult, especially first son, Rob Riley. Baxley, on paper, is a Democrat, and the Rileys are Republicans. But the Alabama political scene is filled with strange bedfellows who, despite having different political affiliations, share the goal of catering to elites and protecting the state's corrupt legal, political, and corporate culture.
So who should wind up overseeing Rob Riley's lawsuit against me--and unlawfully ordering me to jail for five months? That would be one of Bill Baxley's old buddies, retired Judge Claud Neilson.
One case they worked together is styled Carson v. State. Another is styled Lee v. State. You can click on the links and see their names, side by side. By 1976, Neilson was a circuit judge, and he ruled in Baxley's favor in a case styled Moore v. State. How many cases did they work together? How many times did Neilson, rightly or wrongly, rule in Baxley's favor? We don't know, but the connection between them is obvious and documented.
Does that mean Baxley helped arrange for Neilson to handle the Riley/Duke lawsuit against my wife and me? Does that mean Baxley helped ensure that Neilson would repeatedly cheat us--on behalf of Baxley's comrade, Rob Riley? Does that mean Baxley, Neilson, Riley (and perhaps others) were part of a conspiracy to obstruct justice and deprive me of my civil rights? Did Bill Baxley play a major role in making sure I wound up in jail, contrary to more than 200 years of First Amendment law?
I will let readers make up their own minds about those questions. You can rest assured my mind already is made up.
Here is another question to ponder? Bill Baxley once was known as a crusading young attorney general who stood up to the Ku Klux Klan, sought justice for victims of race-based violence, and generally behaved as a courageous progressive voice against oppression and thuggery. How did he become a lawyer who now seems to stand up mainly for white, elitist, right-wing, corporate interests?
How did that transformation happen? We will take a closer look at that question, including some disturbing information from a Baxley family member that shows how "Bulldog Bill Baxley" was neutered. Baxley, our source says, has struggled with a number of personal demons, and his enemies obtained evidence of Baxley in a number of situations that . . . well, let's just say that evidence helped turn him into a lap dog for conservative interests.
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Our guess is that Blankenship will hear oral argument and issue a ruling at a later date. But it should not be a complicated matter to decide.
Attorney Davy Hay, of Prattville, has filed a Motion to Vacate Default Judgment on my behalf, and he lays out multiple grounds for reversal. (You can view the motion at the end of this post.) Perhaps most importantly, default judgments have long been disfavored under Alabama law "because such judgments preclude a trial on the merits."Oliver v. Sawyer, 359 So. 2d 368 (Ala., 1978).
Bill Baxley, attorney for Garrison, has filed no written response to our motion, so it will be interesting to see what argument he makes directly to the court. If his client has a solid case for defamation, you might expect her to welcome a trial on the merits.
Despite whatever arguments Baxley comes up with, the facts and law already point to the default judgment being void, based on a case styled Abernathy v. Green Tree Servicing, (Ala. Civ. App., 2010). Abernathy focuses on the notice required for parties seeking default judgments. From the ruling:
Abernathy contends, among other things, that Green Tree did not provide her with appropriate notice of its November 12, 2009, application for a default judgment and that, as a result, the trial court erred when it entered the November 13, 2009, default judgment. Specifically, she argues that Rule 55(b)(2), Ala. R. Civ. P., required that her attorney be given three days' written notice before the entry of the November 13, 2009, default judgment and that the failure to provide such notice constitutes reversible error. We agree.
The court then turns to the language in Rule 55(b)(2):
If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application.
That indicates the party against whom default is sought must be served and receive actual notice of the application--just putting the document in the U.S. mail and hoping it's received does not appear to be good enough. Evidence shows I never received notice of the Garrison default application, largely because I was unlawfully incarcerated due to the Rob Riley case for five months, and immediately upon release, walked into a foreclosure that forced my wife, Carol, and me to move from our home of almost 25 years. Our address changed during all of that upheaval, and the record indicates Baxley knew it had changed. But he moved forward with the default-judgment process anyway, even though it was clear I never received actual notice, as required by law.
What is the legal fallout from that? The Abernathy case spells it out:
Rule 55(b)(2) relegates the entry of the default judgment to the court in all other cases. This portion of the rule provides for three days notice prior to entry of default judgment, when the defendant has once appeared." (Emphasis added.) The failure to provide the notice of the application for a default judgment as required by Rule 55(b)(2) renders the default judgment "void, and not merely voidable,"Bracknell v. S.E. Belcher, Inc., 517 So. 2d 588, 591 (Ala. 1987), and "requires a vacation of the default judgment,"Southworth v. University of South Alabama Med. Ctr., 637 So. 2d 896, 898 (Ala. Civ. App. 1994).
Under the law, which we know often is ignored in Alabama courtrooms, Jessica Garrison's $3.5-million, get-rich-quick order is "void," which "requires a vacation of the default judgment." Bill Baxley surely will squawk about it, but his client's default judgment should be dead on arrival Thursday morning.
What actually happens will say a lot about Judge Don Blankenship, and whether he stands for the proposition that justice is possible for regular folks in Jefferson County, Alabama.
|Carol Shuler, from her Facebook page|
News coverage has focused on my five-month incarceration and Judge Claud Neilson's repeated violations of First Amendment precedent that led to it. But I'm not aware of any reporter, mainstream or otherwise, asking this question: Why was Carol Shuler included in the lawsuit, and is there any evidence to suggest she should have been a named defendant?
The answer to the second part of that question is a resounding no. At the time of the Riley/Duke lawsuit, there was nothing on Legal Schnauzer to suggest Carol played any role in it. She didn't write it, she didn't edit it, she didn't administer it. She knew how to get into my e-mail account, to which the blog is based. But she had never gone beyond that; she had no idea how to reach the composing/editing page, which is the nerve center for any blog--at least those, like mine, that use the Google-based Blogger format.
It's not that Carol couldn't write a blog; she's plenty smart enough to write a gem-dandy blog--and she proved it by keeping Legal Schnauzer alive while I was in jail. I tried over the jailhouse phone to explain to her how to maneuver around in the composing/editing function--but a lot of that, she figured out on her own.
Aside from that, Legal Schnauzer has been my baby, in toto, from the outset. There is nothing in the blog to suggest that anyone else is responsible for its existence or its content. Carol has supported my efforts to expose the judicial corruption we've witnessed in various court cases--and to also examine dubious court action in cases involving other people, such as Don Siegelman, Paul Minor, Sherry Rollins, Bonnie Cahalane, and many others, I occasionally bounce ideas off her, and she is very helpful at pointing out typos and other glitches that need to be corrected. But her contribution and responsibility begin and end mainly with the fact she is my wife--that's it.
The plaintiffs tried to pull some laughable linguistic tricks in order to justify including Carol in their complaint. That can be seen in an Order on Petitions for Contempt, dated October 21, 2013. The order, which can be viewed at the end of this post, is signed by Judge Neilson. But evidence in the case indicates almost every order was written by attorneys from Riley's own law firm. The likely author of this order is Jay Murrill, from the Riley Jackson firm.
Assuming we are correct about that, let's consider some of Mr. Murrill's handiwork. It can be found in the last paragraph on page 3 of the order:
The testimony and evidence presented at the Oct. 17, 2013, hearing also showed that Respondent Carol Shuler is involved, to some degree, with "Legal Schnauzer," a forum website on which the aforesaid contempt took place. "Legal Schnauzer" purports to be a joint enterprise between Respondent Roger Shuler and Respondent Carol Shuler; it describes itself as "one couple's fight against injustice" and entries thereon reference "our reporting." Thus, there is evidence to conclude that Respondent Carol Shuler has also demonstrated a willful, continuing failure or refusal to comply with the TRO and Preliminary Injunction, though perhaps to a lesser degree than Respondent Roger Shuler.
What a crock of unadulterated horse feces. Let's take each of Murrill's points as they come:
* Legal Schnauzer"purports to be a joint enterprise" between my wife and me? -- There is not a single word on the blog, or anywhere else. to support that. Down the right-hand column on the front page, is a small "About Me" box, which provides author information--about my background, plus a link to my full profile. Below that, is my e-mail address for anyone who wishes to contact me, the author. Nowhere does it suggest that anyone other than me writes, edits and produces Legal Schnauzer. Nowhere does that section mention Carol Shuler, and nowhere does it suggest that anyone other than me is responsible for the blog's content.
* The blog describes itself as "one couple's fight against injustice." -- Murrill is really grasping here. That phrase is part of the blog's tagline because--surprise, surprise--Carol has been intimately involved in various court cases that largely evolved from a neighbor's continued trespass onto our property, which we jointly owned. The tagline says that Carol has been a major part of the story; it does not say, or suggest, that she plays any role in producing the blog. Consider this, which apparently is beyond Jay Murrill's comprehension: Tennis great Andre Agassi wrote an autobiography called Open in 2009, and it frequently mentions his wife, fellow tennis great Steffi Graf. (In fact, her career was even more outstanding than his.) The story, to an extent, is about Andre Agassi and Steffi Graf. But Andre Agassi wrote the book, and if someone had a problem with its content, they would need to address it to him or his publisher. The notion of suing Steffi Graf for something Andre Agassi wrote in Open is absurd and probably would result in sanctions for any lawyer who tried it. But Jay Murrill, at Rob Riley's apparent insistence, used that very trick with Carol.
* Entries at Legal Schnauzer reference "our reporting" -- Is Murrill just ignorant? Well the phrase "our reporting," which I do use here at times, is a form of what grammarians call the "royal we." It's a technique where a singular person uses a plural pronoun to refer to himself because . . . well, heck, I guess it just sounds better. In my mind, rightly or wrongly, I use the "royal we" at times because I am writing both in my voice and as the voice of an entity--a blog called Legal Schnauzer. It's not unusual to see an editorial writer refer to "our reporting," meaning his reporting (or that of a colleague), along with that of the newspaper he represents. Is use of the "royal we" an effective grammatical technique? I'm sure that could be debated. Am I using it correctly? That could be debated, too. Does anyone seriously think it means this blog is a joint reporting effort, that anyone other than me is involved? I doubt that anyone, other than Jay Murrill, thinks that. And as a lawyer, he should have enough education to know better.
So what is the real reason that Rob Riley sued my wife for an alleged tort with which she was not remotely involved? It's hard to see where there was any legal advantage to it. If Riley hoped to use Carol to get at "inside information" about me or the blog, the husband-wife privilege probably would have blocked that. In other words, communications between Carol and me are largely confidential under the law, and that likely would have been a dry hole for Riley--at least with a legitimate judge on the case, which Neilson was not.
That's not to say there wasn't a sinister and improper reason for including Carol as a defendant. But it certainly did not have anything to do with the law. Evidence suggests it was part of a terrorism effort to which Carol and I have been subjected now for roughly 15 years. It points, in my view, to motivations behind the Riley/Duke lawsuit that are even nastier and darker than most of the public can even imagine.
(To be continued)
|How could this photo of Jessica Medeiros Garrison|
and Luther Strange possibly be defamatory?
A hearing on a Motion to Vacate the judgment is set for 10 a.m. Thursday (June 18) in Room 600 at the Jefferson County Courthouse. We've shown that the judgment is due to be reversed on multiple legal and factual grounds. But a copy of Judge Don Blankenship's order shows the judgment, to a considerable degree, is based on false information. It also apparently is based largely on comments left at my blog, even though well-settled law states that bloggers and other Web-based publishers are not liable for comments left at their sites.
Where did the false information come from? Blankenship's order indicates it came from testimony that Garrison and Strange provided at a hearing on March 9, for which I never received notice and did not appear, leading to the default. (The full order can be viewed at the end of this post.)
The most glaring falsehood involves testimony from Garrison, claiming I reported that Luther Strange is the father of her son. But I never reported that. In fact, I interviewed Garrison's former husband, Tuscaloosa businessman and school-board member Lee Garrison, and he told me he is convinced the child is his biologically. Based on the Lee Garrison interview, I never reported, or suggested, that the father was anyone other than Lee Garrison.
Blankenship's order contains language that perhaps can best be described as "absurdist." Strange apparently claimed in his testimony that I had engaged in defamation by publishing a photo of him and Garrison, cropping out a third person who was not mentioned in the accompanying article. Unbelievably, the court agreed that the photo--which indisputably was characterized accurately as including Luther Strange and Jessica Garrison--was false and defamatory. How can that be? Well, it can't, under the law, and Blankenship made no effort to find law that supports such a nonsensical notion. Editors have been cropping extraneous people out of photographs for decades; it's done for purposes of clarity and says nothing about the relationships of people left in the picture.
How off the wall is this court order--and the testimony upon which it apparently was based? Well, let's consider this section for starters:
A hearing was held on March 9, 2015 before the undersigned to prove damages. At that hearing, the Court heard testimony and received documents into evidence. The Plaintiff [Garrison] was present at the aforementioned hearing accompanied by able counsel. Neither the Defendant, nor any party purporting to represent the Defendant appeared at the hearing.
The Court first heard testimony from the Plaintiff. She testified that the Defendant [me] had written, in a blog dubbed Legal Schnauzer, several misleading and inappropriate comments concerning her and Alabama Attorney General Luther Strange. The comments suggested that the Plaintiff received preferential treatment from the Attorney General because the two were engaged in an ongoing extramarital affair; and that the Attorney General was the father of the Plaintiff's minor son. The Court received evidence offered by the Plaintiff which included the aforementioned comments. The Plaintiff testified that the comments were false. The Plaintiff further testified that the comments contained in the blog were embarrassing, hurtful, and degrading. She testified further that the comments made it difficult to perform her job. She works with a national organization, The Republican Attorneys General Association. She stated that since the comments posted to the blog have now become widely known, she constantly suffers from embarrassment and anxiety. She testified that she worries about how the comments could later affect her minor son. The Court finds the comments defamatory.
The wording of the order is unclear in a number of places, but let's take a shot at figuring out what it means:
(1) Only once does Garrison clearly refer to material I had written. And she claims that was "misleading and inappropriate." Even if that is a correct characterization, it doesn't come close to the standard of being false and defamatory.
(2) Garrison seems to claim that comments to my blog suggested Luther Strange had fathered her child. Even she seems to acknowledge that I never reported that.
(3) Again, this is not clear, and the court, in essence, is translating Garrison's words. But Garrison seems to say that comments on the blog regarding Luther Strange and her son are false--and that the comments were hurtful, embarrassing, and degrading, and they made it hard for her to do her job. Garrison does not clearly say that anything I reported is false; in fact, she does not clearly say (according to the order) that my reporting about an extramarital affair is false.
(4) Garrison says comments on my blog have caused her anxiety, and she worries about their later effect on her son. But she never says that anything in my reporting has led to such anxiety and worry.
Now, let's turn to Luther Strange's testimony. We should note that Strange seems to have no problem showing up for court when he knows the opposing party won't be present and he won't face uncomfortable questions. Strange, you might recall, was a no-show when it appeared he might have to answer questions under oath at a hearing on a liquor license for the VictoryLand casino in Macon County. From the Garrison court order:
The Court also heard testimony from the Attorney General of the State of Alabama, Luther Strange. The Attorney General testified that the Plaintiff, a lawyer licensed to practice law in the State of Alabama, worked in his unsuccessful bid for Lieutenant Governor in 2006; and his subsequent successful bid for Attorney General in 2010 and his re-election to that post in 2014. During the Attorney General's testimony, the Court received additional documents, which turned out to be more disparaging comments contained in the blog alluded to above. The evidence also contained a photo of the Attorney General's campaign staff. That photo was photo shopped, as printed in the Legal Schnauzer, to appear as a photo of the Attorney General and the Plaintiff alone. The Attorney General testified that the comments and photo posted to the blog, concerning his relationship with the Plaintiff, were false. The Court finds the Comments and the photo defamatory.
Again, we'll take a shot at trying to figure out what this means:
(1) Like Garrison, Strange apparently made no claim that anything I had reported was false. His problem, it seems, is with comments left at the blog.
(2) As for the language about the photo, it's almost hard to discuss that with a straight face. First, the court claims the picture was "photo shopped," but I don't even own a copy of the PhotoShop program and have never "photo shopped" a single picture on Legal Schnauzer. Did I crop the photo to take out an extraneous third person who was not mentioned in the accompanying article? I don't remember, for sure, if I did or not. But I do vaguely recall seeing a version of the photo where there was a fairly short, stocky young fellow to Garrison's right. I might have cropped him out because: (a) I didn't know who he was; and (b) He had nothing to do with the article. Neither the caption nor the story made any implication that Garrison and Strange were alone. How a photo that accurately displays two people posing in front of a privacy fence can be defamatory . . . well, it almost makes the brain explode. In fact, I'm not sure a photograph, unless it has been wildly doctored, can even be defamatory, under the law.
Will my attorney, Davy Hay, and I be successful in reversing the Garrison default judgment? If the law is applied correctly--and that's a big "if"--the answer is yes.
Aside from that, the default order itself suggests the Garrison lawsuit as a whole rests on a set of very shaky legs.
The answer to all three questions appears to be yes--meaning Officer Mike DeHart probably went beyond just a violation of our civil rights into criminal territory.
We already have shown that DeHart's own words on a log of service attempts in the Riley/Duke case suggest he had no probable cause to believe I had committed a traffic violation and no grounds to stop us at all. Even if he did have grounds to make the initial stop, he clearly violated the law by prolonging the stop beyond its original purpose, with no grounds to do so.
Can this amount to criminal behavior? A recent case from Georgia, styled United States v. House 684 F. 3d 1173 (11th Cir., 2012), shows that the answer is yes. Ironically, Birmingham-based federal judge Bill Pryor, who has curious connections to 1990s gay pornography, wrote the opinion in House.
The case involved Stephen G. House, a former officer of the Federal Protective Service who made it a habit to stop people in traffic for no lawful reason. House wound up being convicted in federal district court on eight counts of willfully depriving a person of the constitutional right to be free from unreasonable seizure by a law enforcement officer, 18 U.S.C. § 242. An 11th Circuit panel, headed by Pryor, upheld most of the convictions. Here is the gist of the case against House:
When the driver of a motor vehicle notices blue lights flashing in the rear view mirror, the driver cannot help but feel a sense of dread. The public reposes a special trust in the peace officers we empower to patrol our highways. That power includes the authority to disrupt the flow of motor vehicle traffic, often traveling at high speeds, and the power to detain a driver and vehicle on the side of a road, which can be a dangerous place. This appeal involves a federal officer with limited authority who repeatedly usurped the power to patrol traffic, violated the civil rights of motorists, abused the public trust, and lied about it in official reports.
Much of the section in yellow applies to DeHart's actions against us. And an April 21 U.S. Supreme decision, styled Rodriguez v. United States, adds to the likelihood that DeHart acted unlawfully. Rodriguez involved an officer who prolonged a traffic stop by calling for a drug-sniffing dog, without reasonable suspicion for doing so. Justice Ruth Bader Ginsburg wrote the 6-3 majority opinion, which even right-wing stalwarts John Roberts and Antonin Scalia joined. Among the key findings in Rodriguez (citations omitted):
Beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop.” Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.
A dog sniff, by contrast, is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.” Candidly, the Government acknowledged oral argument that a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.
Likewise, serving court papers is not part of an officer's traffic mission--and that adds to the dubious nature of DeHart's actions against us.
What about the legal analyst who got it wrong about our traffic stop? That would be Ken White, the Los Angeles-based author of the Popehat blog. White wrote several posts about my arrest in the Riley/Duke case, correctly noting that it was wildly unlawful under longstanding First Amendment precedent. White also discussed the DeHart traffic stop, but the Popehat analysis there was not so accurate. Here is what White wrote:
Maybe you're outraged because the Sheriff violated Shuler's Fourth Amendment rights by pulling him over to serve him with legal papers on behalf of the son of the former governor of Alabama. If you want to be outraged, it should be because under current law it's probably not a violation of his Fourth Amendment rights.
You can thank the Great War on Drugs for that. [Eighteen] years ago the Supreme Court, in one of its innumerable drug cases, ruled that a cop can run a traffic stop on you on a pretext. That is to say, if cops want to question you, or sniff around your car in hopes of developing probable cause to search it, they can follow you until they think you've broken a traffic law, and stop you for it, even if they would normally never bother with that particular traffic infraction. So: is it outrageous that a deputy would follow Roger Shuler until he (allegedly) broke some traffic law, and then stop him and use that opportunity to serve papers on him? Hell yes. Is it legal? Unfortunately, it probably is.
That case from 18 years ago is styled Whren v. United States, 517 U.S. 806 (1996),and we've written about it here several times. Unfortunately, Popehat's analysis goes awry with the "pretext" concept at the heart of Whren. As we explained in a recent post, it helps to know exactly what is meant by a "pretext traffic stop":
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.
It's clear that, by definition, a pretext traffic stop involves suspicion of criminal activity. DeHart never articulated the slightest hint that he suspected criminal activity associated with our car; he wanted to serve court papers--and probably because the case involved Rob Riley--was desperate enough to break the law in the process.
As for Popehat, he addressed our pretext traffic stop in a second post, after a tipster sent him the log of service attempts in our case. (We now have the log, too, and you can view it at the end of this post.) Even Popehat was taken aback by the brazen actions of Shelby County deputies, writing:
One of Roger Shuler's loudest complaints has been that Shelby County Sheriff's deputies pulled him over for the purpose of serving him with papers in Robert R. Riley, Jr.'s defamation suit against him.
Shuler sees that — law enforcement stopping his car and detaining him, however briefly, for the purpose of serving him in a civil case – as a violation of his Fourth Amendment rights against unreasonable search and seizure. In my first post on the subject I pointed out that, regrettably, it probably isn't a Fourth Amendment violation — as part of the Great War on Drugs, the Supreme Court long ago decided that police may make pretextual stops. That is to say, police who wish to ask you questions, or sniff about your car, or otherwise develop probable cause to arrest you or search your car, may stop you for any traffic violation they (purportedly) observe even if under normal circumstances they would not bother to do so. Having stopped you, they may then talk to you and observe you and your car in an effort to develop sufficient cause to take further investigative steps. That doctrine probably allows Shelby County Sheriff's deputies to stop Shuler for a purported traffic violation and, as long as they are lawfully in contact with him, serve him with papers.
What I did not anticipate is how brazen law enforcement has become about this sort of thing. A helpful tipster sent me the Shelby County Sheriff's return of service and log of service attempts. The log generally supports the assertion (admitted by Shuler) that Shuler was evading service of process, which is part of the pattern of nutty pro se conduct that contributed to his trouble. But it also contains this entry describing the eventual traffic stop:
"CONDUCTED A PRETEXT TRAFFIC STOP ON SHULER'S BLUE NISSAN AFTER OBSERVING IT ROLL THRU STOP SIGN AT MAC lAN/ KEITH DR; 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."
Thanks to the United States Supreme Court, law enforcement can feel free to admit that their traffic stops are pretextual. Thanks, War on Drugs!
While we appreciate Popehat's not-so-subtle digs at Shelby County deputies, it's unfortunate that he is wrong about the actual definition of a pretext stop. (He's also wrong about me admitting to avoiding service.) As we showed above, a pretext stop involves suspicion of criminal activity. That was not present in our case, so Officer DeHart did not conduct a legal pretext stop.
The record shows DeHart certainly violated our civil rights and probably committed a crime as well--and nothing about the "war on drugs" excuses that.
CPJ's Sara Rafsky interviewed Riley for an article titled "Censorship in Alabama's Shelby County." It sounds like Riley mostly blew off steam while sidestepping substantive questions, but Rafsky summarized his words with these two paragraphs:
Riley said in a telephone interview he has a right to seek injunctive relief in a defamation case and there is legal precedent for doing so. He said someone who decides "to make up a lie, destroy someone's reputation, that's not journalism."
Riley told CPJ: "Shuler has a history of making up things and writing things that are outlandish lies...I am going to pursue every avenue possible to me in the courts to defend my name, my family and my business. . . . He has no proof this is true. He has just decided to be a cyber-bully and make stuff up and I've had enough."
Let's take a closer look at the first paragraph:
* Riley says he has a right to seek injunctive relief in a defamation case--The truth: No he doesn't. Near v. Minnesota, the "foundational" 1931 U.S. Supreme Court case on the subject, makes it clear that a temporary restraining order and preliminary injunction (Riley sought both) are unlawful prior restraints under the First Amendment. Legal experts ranging from Erwin Chemerinsky on the left to Ken White (of the Popehat blog) on the center/right, have shown that Riley's statement is false.
* Riley says there is legal precedent for seeking injunctive relief in a defamation case--The truth: No there isn't. In its amicus brief to the Alabama court, the ACLU showed that key U.S. Supreme Court decisions prohibiting preliminary injunctions were not presented in the Riley/Duke case, and the injunction itself cites cases that do not support its issuance. (See ACLU brief at the end of this post.) This is from Footnote 4 in the ACLU brief, and we will address this issue further in an upcoming post:
Indeed, not only were these substantial U.S. Supreme Court cases not presented to the Court, the cases cited in the Preliminary Injunction (see p. 2 and n.3) demonstrate that injunctive relief in a defamation case requires a final determination on the merits of the litigation.
Now, let's look at the second paragraph from the CPJ article, where Riley claims that I have "a history of making things up and writing things that are outlandish lies"; he is "going to pursue every avenue possible" to defend his name, family, and business; and I have "no proof this is true."
Riley seems to be frothing at the mouth here, and his statements are so generic that perhaps it would be instructive to consider some followup questions the reporter could have asked:
* If Shuler wrote "outlandish lies" about you, why didn't you file an affidavit stating specifically how Shuler's reporting was false and defamatory? Why did you rely only on an affidavit from Liberty Duke, while you filed no similar sworn statement? Why have you never denied under oath the allegations in Shuler's reporting?
* If you were going to pursue "every avenue possible," why didn't you seek a full adjudication at trial, as spelled out in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973)? There was no trial in the Shuler case because you didn't seek one, correct?
* Why didn't you pursue the avenue of placing your claim before a jury? Why did you allow Judge Claud Neilson to essentially serve as a one-man censor, in apparent contradiction of Bernard v. Gulf Oil Co., 619 F. 2d 459 (1980). Did you want Neilson to act as censor because he has longstanding ties to Birmingham attorney Bill Baxley, with whom you now are working in the ongoing Lee County grand-jury probe? Was Neilson hand-picked to give you favorable treatment and ensure that you would not have to face scrutiny from a jury--or answer uncomfortable questions under oath?
* You claim Shuler "has no proof this is true," but as plaintiffs, the burden is on you and Ms. Duke to prove the allegations are false, correct? Given that, why did you not engage in the discovery process to prove the allegations are false? Why did you and Ms. Duke not sit for depositions, why were there no interrogatories in this case, why did you not turn over relevant documents (e-mails, text messages, phone records, etc.)? Why did you apparently avoid the discovery process altogether?
* If you are confident about the power of your complaint, why did you try to hide it from the public by insisting that the case file be sealed? You claim that Mr. Shuler reported "lies," but as of now, no jury in any legitimate court of law ever has found his reporting to be false or defamatory, correct?
* You complain about Roger Shuler's reporting, but why did you sue his wife, Carol Shuler? Is this just beating up on an innocent party, someone who had nothing to do with your claims? What does this say about your treatment of women in general? Are you just a bully who happens to wear nice suits?
Wouldn't it be interesting if Sara Rafsky conducted a followup interview with Rob Riley and posed these questions (among others) to him? How long do you suppose Mr. Riley would stay on the phone?
(To be continued)
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