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Coleman claims in his missive, which you can read at the end of this post, that I defamed Akbar by reporting on a letter that Alabama lawyer Jill Simpson wrote to Robert Bauer, counsel for President Barack Obama's 2012 re-election campaign. Simpson wrote the letter in response to a bizarre rant from GOP election guru Karl Rove on a Fox News program.
Rove took an unrelated question and turned it into an attack on Simpson, Bauer, and former Alabama Governor Don Siegelman. So Simpson stated in her letter to Bauer that she thought Rove became unhinged because he feared she was about to reveal damaging information about his personal life. In fact, Simpson wrote, she did have damaging information because her research had turned up evidence that Rove and Akbar had a sexual relationship at some point.
Are Simpson's statements true? She doesn't provide extensive details in the letter, but she does note that Akbar had placed an ad at the Grindr gay-sex Web site, stating that he "was looking for bisexual sex with men who were Republican, political, and loved to discuss politics and philosophy and just wanted to hang out and chill with them." (We will have more about the Akbar ad, and his rather extensive criminal history, in an upcoming post.)
Simpson is an attorney who has testified under oath before Congress about the Siegelman prosecution. She has come under regular attack from political figures on the right, but I'm not aware of anyone who has been able to prove that her sworn statements about the Siegelman matter were false.
I took her statements in the Bauer letter seriously and reported on them accurately, in a straightforward fashion, That means my work was protected by the "neutral reportage privilege," which has grown from a long line of First Amendment cases that date at least to the early 1970s.
The Alabama Supreme Court adopted the neutral reportage privilege in a case styled Wilson v. Birmingham Post Co., 482 So. 2d 1209 (1986). In Wilson, the state high court cited Edwards v. National Audubon Society, 556 F. 2d 113 (2nd Cir., 1977). (Ironically, Wilson involved two people I worked with at the now-defunct Birmingham Post-Herald--Editor Angus McEachran and reporter Kathy Biele.)
Edwards, perhaps the best-known case on the neutral reportage privilege, grew from a New York Times article on statements from an Audubon Society editor about scientists who supported the continued use of the insecticide DDT. Such scientists, the Audubon editor wrote, often make false statements about the society's bird-count totals, leading to the editor's conclusion that they are "paid to lie."
Times journalist John Devlin wrote an accurate, straightforward article about the editor's statements, and the scientists wound up suing the newspaper. A trial court found for the scientists, but the appellate court reversed, finding that Devlin's reporting was protected by the neutral reportage privilege. From the Edwards ruling:
At stake in this case is a fundamental principle. Succinctly stated, when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Medina v. Time, Inc., 439 F.2d 1129 (1st Cir. 1971). What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.
The contours of the press's right of neutral reportage are, of course, defined by the principle that gives life to it. Literal accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made.Time, Inc. v. Pape, supra. . . .
It is clear here, that Devlin reported Audubon's charges fairly and accurately. He did not in any way espouse the Society's accusations: indeed, Devlin published the maligned scientists' outraged reactions in the same article that contained the Society's attack. The Times article, in short, was the exemplar of fair and dispassionate reporting of an unfortunate but newsworthy contretemps. Accordingly, we hold that it was privileged under the First Amendment.
A 1996 article from Fordham Law Review, borrowing from the Edwards ruling, sums up the elements of the neutral reportage privilege as follows:
First, the media must report the charges neutrally and accurately. Second, the charges must have been made by a responsible and prominent speaker. Third, the subjects of the accusations must be public figures. Finally, the charges must be newsworthy.
Let's briefly review these four elements in the context of my report on Simpson's letter:
(1) My report on the Simpson letter can be read here. I quote directly from the letter, and a full copy of the letter is embedded in the post. My reporting clearly was an accurate portrayal of her charges, and there is nothing in the post to suggest that my work was anything but neutral.
(2) Simpson is a prominent and knowledgeable speaker, who once served as a Republican operative under Rove. Her willingness to testify under oath before Congress goes to her history of responsible conduct.
(3) Rove, Akbar, and Bauer--by virtue of their deep involvement in political activities--unquestionably are public figures.
(4) At the core of Simpson's letter is this question: Why did Karl Rove use an appearance on Fox News to attack her and a key member of President Obama's re-election campaign? What were Rove's motivations? Rove helped George W. Bush get elected president twice (2000 and 2004), and he raised record numbers of campaign dollars for the 2012 Mitt Romney campaign against Obama. Anything involving Karl Rove's motivations clearly is newsworthy--it's hard to imagine that Rove himself would deny that.
In summary, my post meets all four elements of the neutral reportage privilege. That means it is protected from a defamation lawsuit, and Ali Akbar had no case. Perhaps he knows that because he never followed up Baron Coleman's threatening letter with a lawsuit.
|Foster Friess (center), with Ali Akbar|
and right-wing blogger Robert Stacy McCain
Maybe Akbar and his allies decided it would be best to go after Simpson in some sort of deceptive fashion--rather than going the straightforward (but likely baseless) lawsuit route?
Does Foster Friess, the devout Christian conservative businessman who helped bankroll Akbar's bloggers club, endorse this sort of shady, underhanded thuggery? Does Friess, who claims on his Web site that the private sector is the answer to most of America's challenges, endorse abusive use of the justice system?
This much is clear: If Ali Akbar is engaging in underhanded tactics now, it would not be his first experience with such activities.
(To be continued)
|Ali Akbar's ad at the Grindr gay-sex trolling app|
We've presented evidence that members of a right-wing bloggers club might have been involved in, or at least had knowledge of, my unlawful incarceration. Would it be a surprise if members of the group, called the National Bloggers Club (NBC), engaged in such underhanded activity? Given that the club president has a history of engaging in underhanded activity--including some that might be described as downright sleazy--the answer probably is no.
NBC president Ali A. Akbar threatened to sue me for reporting accurately and fairly about a letter Alabama lawyer Jill Simpson wrote to Obama re-election counsel Robert Bauer in 2012. In the letter, Simpson wrote that her investigation turned up evidence that Akbar and Republican electoral guru Karl Rove had engaged in a homosexual relationship. Under the "neutral reportage doctrine,"Akbar had no case for defamation against me--and his lawyer Baron Coleman, of Montgomery, Alabama, should have known that.
Threatening baseless lawsuits is pretty underhanded in itself. But that is a mere blip on the radar compared to the other shady stuff in Akbar's background, which includes trolling for gay sex online--plus multiple criminal convictions, including felonies.
Let's start with the online trolling because that's what prompted Simpson to take a closer look at Akbar. She obtained a copy of an ad Akbar placed at Grindr, a geosocial networking application "geared toward gay, bisexual, and bi-curious men." According to Simpson's letter, Akbar's ad stated that he "was looking for bisexual sex with men who were Republican, political, and loved to discuss politics and philosophy and just wanted to hang out and chill with them."
How is this for irony? The NBC reportedly received seed funding from Foster Friess, a wealthy Wyoming businessman. How wealthy is Foster Friess? Reports vary, but assets in his investment-management firm total $15.7 billion, while The Wall Street Journalreported his personal net worth at $530 million. Friess is touted as an "active patron of religious and conservative causes," and he perhaps is best known for backing the 2012 presidential run of the virulently anti-gay and anti-choice Rick Santorum. Friess appears to be setting the table for a 2016 Santorum run at the White House.
How forward-thinking is Foster Friess? Not very. In an interview with MSNBC's Andrea Mitchell, Friess was asked about contraception. "This contraceptive thing, my gosh, it’s so . . . inexpensive," Friess said. "Back in my day, they used Bayer aspirin for contraceptives. The gals put it between their knees and it wasn’t that costly."
The National Bloggers Club is not Friess' only foray into the right-wing media. He invested more than $3 million to get Tucker Carlson's Daily Caller Web site off the ground. On his blog, Friess touts a study that shows crime goes down as the sale of guns increases. Santorum is not the only anti-gay candidate to draw Friess' support. The investment guru also has thrown money at Wisconsin Governor Scott Walker, who has consistently opposed same-sex marriage. For good measure, NBC blogger Robert Stacy McCain seems to consider "lesbian feminists" to be a major threat to American culture.
|One of Ali Akbar's various mugshots|
How did Ali Akbar rise to a prominent role in the Republican media galaxy, despite his criminal record? That also is hard to figure, given the GOP's stance as the supposed "law and order" party.
According to a report at the progressive Web site Breitbart Unmasked, (BU) Akbar was convicted in 2007 of theft of property and in 2008 of credit-card abuse. Both charges, in Texas, were felonies.
Borrowing from public records, BU describes the theft case as follows:
Five MP3 Players, Twenty CD’s, Three Camcorders, Two DVD Players, One Back Massager (How ghetto is this thief?) One Clock, Four Shirts, Two Belts (WTF?) and a Piece of Luggage, which had the value of over 1500.00 USD but less than 20,000.00 USD. This theft was obtained pursuant to one scheme or a continuing course of criminal conduct which began on or about November 1st 2006, and continued until on or about November 29th 2006. In other words, he was stealing from this person more than once, and over a course of time that lasted almost a full month before it came to an end.
That's quite a crime spree--and the ugliness doesn't end there. BU reports that Akbar also was charged with burglary of a vehicle, but that charge was dropped in a plea bargain that resolved his theft and credit-card cases.
How many other unattractive qualities does Ali Akbar possess? Well, let's consider that he likes to brag about his ties to the Alabama political/legal communities and issue thinly veiled threats based on his access to powerful friends. That's exactly what he did to Jill Simpson, in apparent retaliation for her letter to Robert Bauer. (By the way, how did Akbar develop such contacts in Alabama? Perhaps from Karl Rove, who is known to make his Alabama home base at the Montgomery law firm of Capell Howard?)
In a post dated October 24, 2013 (one day after my arrest), right-wing blogger Stacy McCain referenced the Simpson/Bauer letter and its allegations regarding a homosexual relationship between Ali Akbar and Karl Rove. Akbar piped up in the comments section and stated the following:
There's no alleged affair. It's made up an (sic) irresponsible to print. I'm a human fucking being and Jill Simpson should lawyer up buddy. Tell her not to worry about coming to Texas. I can come to Alabama. I'll dine with the Governor and then spend the afternoon cashing in favors with Alabama lawyers.
Since current Governor Robert Bentley almost certainly would want nothing to do with Ali Akbar, the reference must be to former Governor Bob Riley, who owes his two terms in office largely to the Karl Rove and Jack Abramoff political machines. (By the way, that hints that Akbar is chummy with Riley's son, Rob Riley, who just happened to file the dubious defamation lawsuit that led to my incarceration.)
|Foster Friess (center), with Ali Akbar|
and Robert Stacy McCain
And who are these lawyers who owe favors to Ali Akbar? Could they be from Capell Howard, Karl Rove's favorite Alabama law firm?
Public records show that Ali Akbar has a history as a thief, a burglar, and a credit-card abuser. His comment regarding Jill Simpson strongly suggests that he's not above abusing the Alabama legal system.
(To be continued)
What to make of this criticism? I'm going to file it under the "that's easy for you to say" category. I'm also going to show you what it's like to interact with an Alabama attorney while you are in jail.
Why are White and Robertson more or less full of it? First, I feel sure they have no idea what it's like to try to hire an attorney--an endeavor that is tough as a free person--when you are behind bars. You must meet with someone in a tiny room, for a limited time, while you are wearing an orange jump suit with attractive accessories--handcuffs and shackles. Second, White and Robertson neglect to mention that I met with two attorneys while in jail, so I clearly was open to hiring one. Despite that, Robertson erroneously reported that I refused to consider legal assistance. Third, my critics seem to assume that hiring a lawyer, any lawyer, always makes things better. My experience, and that of many people I've reported about at Legal Schnauzer, has been contrary to that assumption.
White and Robertson never seemed to consider how a bogus incarceration trampled my due-process rights. I was arrested because of a civil matter--alleged contempt of court for violation of a temporary restraining order and preliminary injunction--that involved zero allegations of criminal actions. As even White admits, my arrest runs contrary to First Amendment law that has been around in this country for more than 200 years. If we, in fact, have a right to hire an attorney of our choosing in a civil matter--and the due-process clause of the Fourteenth Amendment holds that we do--then we surely have a right to seek an attorney when we are not illegally behind bars. My choices were limited to lawyers who were willing and able to come to the Shelby County Jail, which probably ruled out 98 percent of the lawyers in Alabama--not to mention 100 percent of lawyers from other states.
Despite the obstacles, I met with two lawyers while in jail. One of them, Austin Burdick of Bessemer, I had communicated with previously via phone and e-mail. He seemed like a reasonable fellow with a solid approach to the case, but I was concerned about possibly being stuck with a major bill that I could not pay. The other, David Gespass of Birmingham, was like a character who fell off a train carrying the Ringling Bros. and Barnum & Bailey circus.
I had two meetings with Gespass, the first of which went OK and the second of which did not go well at all. That, in large part, is due to a letter Gespass sent me (with a copy to my wife, Carol, since Riley had made her a party to the case) between the meetings. I had a number of concerns with Gespass' letter, which you can read at the end of this post, mainly because I had researched much of the relevant law before I was arrested. (See here and here.) When Gespass failed to address my questions in an honest and straightforward fashion, I called an abrupt end to the meeting--essentially telling him to "get the hell out of here." I was left with the impression that David Gespass was not about representing my best interests; his mission seemed to involve protecting Rob Riley and the interests of the Alabama legal profession.
Let's take a look at a few key points from the Gespass letter. If you ever are involved in a legal matter--hopefully it won't involve an unlawful incarceration such as mine--you are likely to receive such a letter. When that day comes, I hope this analysis might help you determine whether you are dealing with a competent, caring lawyer--or one who is striking poses.
Before addressing the legal nuts and bolts, I must note Gespass'"professional demeanor." He spent much of his time, at least in our second meeting, twirling a pencil up in the air and catching it. I don't think I've seen anyone do that since third grade. Here I was, deprived of my freedom for the first time in my life--with a few serious issues on my mind--and Gespass looks like a grade-school kid killing time outside the principal's office. I thought, "This guy has ADD, Peter Pan Syndrome, or he just doesn't give a damn about my plight." I was tempted to grab the pencil out of the air and jam it down his throat--except I didn't have a free hand. Maybe that's why they make "prisoners" wear handcuffs during meetings with lawyers.
Now, on to the various issues raised in Gespass' letter:
* Were my wife and I lawfully summoned to court? -- In the third paragraph, Gespass provides critical legal information that was totally news to me. That, of course, is because Riley had asked for the case to be unlawfully sealed, which kept us in the dark about simple procedural matters. Gespass states that, according to his review of the court file, Carol and I faced rulings against us before we ever were served with the Riley/Duke complaint--and before a summons had even been issued. In fact, Gespass flat-out states that the temporary restraining order (TRO) and preliminary injunction, which caused me to be incarcerated, were "issued before service was effected." In other words, the court took extraordinarily unlawful actions against Carol and me before it ever had jurisdiction over us--just as I've argued all along.
Quoting Gespass: "The hearing on the preliminary injunction was on September 30, it [the injunction] was issued on October 4, and the summons was not issued until October 16." A summons is pretty important in a lawsuit; as the name implies, it's the document that "summons" a defendant to appear in court. You can get a more full picture about the importance of a summons by checking out Rule 4 of the Alabama Rules of Procedure. A summons is the document that generally begins the issuance of "process" on the defendants in a lawsuit. It's what really gets a case rolling; without it, a civil complaint is just a document sitting in a court file, with nothing happening--and the defendants have no reason to appear in court.
We supposedly were "served" via an unconstitutional traffic stop on September 29, less than 24 hours before the injunction hearing. But Gespass states in his letter that the file showed no service on that date--or any other date. Gespass indicates the material we received that day did not include a summons--and that's because no summons was issued until October 16. If that's the case--and Gespass said in our first meeting that he was going to contact Riley's law firm in order to review the sealed file--we had no reason to appear because the court had not ordered us to appear.
* A lawyer contradicts himself -- In the same paragraph, Gespass proceeds to admonish us, stating: "One could argue that you are entitled to a new hearing, since you were not able to defend at the first one, but that still does not excuse failure to comply with a court order or to seek reconsideration." This is pure nonsense. How are we supposed to comply with a court order when we--in Gespass' own words--had never been served in the case, when we'd never received a summons to go to court? Gespass admits there was no lawful reason for us to appear in court, but then he slaps our hands for not going.
* A lawyer protects a corrupt judge and deputy -- At the end of the third paragraph, Gespass addresses a Motion to Quash I had filed because Deputy Mike DeHart conducted an unconstitutional traffic stop in a bogus attempt to "serve" us court papers. Saith Gespass: "Incidentally, the motion to quash was also denied, and, I believe, correctly so." When I asked Gespass to explain this sentence, he fumbled for an answer, and that's when I told him to get the hell out of my sight.
This sentence from Gespass' letter is utter BS, on multiple levels. First, a Motion to Quash cannot be summarily dismissed. Under Alabama law, a motion challenging service puts the burden on the plaintiffs to prove service was properly completed, and that requires a hearing. (Again, I had researched this before I ever was arrested; in fact, I posted about this very issue on the morning of my arrest.) No such hearing was held--and I know because we never received notice of one--so the motion could not have been denied, "correctly so." In Gespass' own words, we had not been served and had not received a summons, so the court had no authority to even address our motion to quash--in fact, under the facts and the law, we had no reason to file anything with the court, no reason to even acknowledge the court's existence. The record shows, according to Gespass, that legitimate service had not even been attempted, much less "effected."
* A lawyer turns into a schoolmarm -- In the fourth paragraph, Gespass addresses a hearing on a Motion for Contempt and notes that court records show we were sent notice by both certified mail and first-class mail. Gespass then proceeds to lecture us thusly: "You should understand that you are not free to ignore court orders, even if they violate constitutional rights. Your remedy is to seek to have them set aside through the court process. If you do not do so, you have to accept the consequences of your failure, as well as the consequences of being found wrong on the constitutional questions." Now, let's examine Gespass' words in the context of what he's already stated in his letter:
(1) He says that court records show the TRO and preliminary injunction were issued before service was completed. That meant the court had no jurisdiction over us--that is from Gespass' words, not mine--so how could the TRO and preliminary injunction be lawful? They can't be--they are void, probably a nullity.
(2) Gespass says a summons was not issued until October 16. He doesn't say that it was served on us, just that it was issued on October 16. Judge Claud Neilson's Order on Petitions for Contempt says the hearing in question was heard on October 17. That's one day after a summons was issued, but not served. How we can be forced to appear at a hearing when we have not been served with a summons for the case? We can't.
(3) By Gespass' own words, service could not possibly have been completed until October 16--and given that the summons was not issued until that date, it's extremely unlikely that service could be completed that quickly. The chances of us being served prior to the October 17 hearing were virtually zero.
(4) Here are the facts: October 16 was one week before my arrest, on October 23. Carol and I know that during that week, we picked up nothing via certified mail, we were served with noting via a sheriff's deputy, a process server, or anyone else. According to Gespass' letter--which is based largely on court records that he had seen, but we had not--we never were lawfully served. Deputy Mike DeHart's bogus traffic stop was on Sept. 29--and aside from the Fourth Amendment issues raised by the stop--Gespass says a summons was not issued in the case until October 16. That means the material DeHart gave us did not include a summons, the very document that calls a defendant to court. Even giving DeHart way more leeway than he deserves, we had no legal reason to go to court--because we were not lawfully summoned to court, either on September 30 or October 17
How to summarize what we've learned so far? Numerous Web reports--from right-leaning sites to supposedly objective mainstream sites--have claimed I "ignored a court order" and deserved to be held in contempt. In fact, we never were lawfully summoned to court, and the record (combined with the facts as we know them) show we never were served at all. Again, those are from David Gespass' words, not mine.
And yet, I was brutalized inside my own home, doused with pepper spray, and hauled to jail for a five-month stay--based on the orders of a court that had no jurisdiction over me--and had not even lawfully summoned me to appear.
In an upcoming post, we will address the second page of David Gespass' letter, along with some curious public comments he made about our case.
(To be continued)
|Bob Riley and Masonic leader|
Frank W. Little
Riley's father, Eustace Riley Jr. (grandfather of Birmingham attorneys Rob Riley and Minda Riley Campbell), was a KKK Grand Dragon in the small Clay County community of Ashland, according to our sources. The Rileys also have long-standing ties to the CCC, Sons of Confederate Veterans, and United Daughters of the Confederacy.
The CCC's Web site reportedly inspired Dylan Roof, who is charged with nine counts of murder from a mass shooting in June at the historically black Emanuel A.M.E. Church in Charleston, S.C. Roof apparently was heavily influenced by such symbols as the Confederate battle flag, and the Charleston shootings have sparked racial and cultural tensions. At least five people were arrested when white-supremacist and African-American groups clashed on July 18 outside the South Carolina State House, where the Confederate battle flag recently was removed. Members of the KKK played a prominent role in the skirmish.
Riley now heads a lobbying firm called Bob Riley and Associates, with offices in Birmingham and Montgomery. He has started a Scholarship Granting Organization (SGO), which provides money for students to attend private schools. Riley's SGO is one of a dozen created under the Alabama Accountability Act, a controversial school-choice law passed by the Legislature in 2013.
Why would Riley favor the use of tax credits from public-school revenues to help send kids to private schools? One answer might be money. The law allows an SGO to keep 5 percent of the maximum $25 million in tax-credited donations. Critics say more than $1 million could wind up in Riley's pocket each year.
Riley also might favor private schools because of his family's ties to white-supremacist groups. This was an issue several times while Riley was governor. It was widely reported in fall 2006 that Riley was a member of the Grand Lodge of Free and Accepted Masons of Alabama, a secret society governed by documents that forbid membership to "negroes or other inferior races." Birmingham radio hosts Russ and Dee Fine were fired after reporting on Riley's ties to a racist group.
In one report, Riley claimed he had not attended a lodge meeting since he was in his 20s, and he did not know the head of the masons in Alabama. That doesn't make much sense in light of a widely circulated photo of Riley with Grand Master Frank W. Little,
because of differences with his board of directors and Gov. Riley over his support for civil-rights preservation projects. Here is how the Southern Poverty Law Center (SPLC) described the resignation of Lee Warner in a winter 2004 report:
This August, the executive director of the Alabama Historical Commission, which owns and oversees major historic sites in the state, was forced to resign his position after what were described as conflicts with commissioners and Gov. Bob Riley over the director's support for civil rights preservation projects.
The episode was only the latest of the last several years in which museum professionals and preservation officials from around the South have come under sometimes severe pressure from neo-Confederate activists and their sympathizers, occasionally including harassment and various kinds of threats.
In case after case, members of groups like the League of the South and the Sons of Confederate Veterans have agitated against these professionals in a bid to push versions of history that mainstream curators and historians agree are bunk. . . .
And in Alabama, Lee Warner, the former Alabama Historical Commission executive director, told a reporter that many of Riley's appointees to the commission had opposed his plans to create a museum at the old Greyhound bus station, where Freedom Riders were badly beaten in 1961, and to memorialize the 1965 Selma-to-Montgomery civil rights march.
Also in 2004, Riley supported a Business Council of Alabama plan to merge Confederate Memorial Day with Jefferson Davis' Birthday. The plan met strong resistance from Confederate heritage groups, who said the plan would eliminate "the one holiday especially set aside to honor Alabama's Confederate Veterans."
Word of opposition to Riley's plan hit the press on February 23, 2004. Four days later, Riley announced he was dropping the plan.
Why the swift turnaround? Our sources say the Confederate groups knew about Riley's ties to hate groups, especially his father's status as a Grand Dragon in the KKK, and they threatened to go public with the information if he did not cave to their demands.
The Riley family's ties to the Ku Klux Klan have remained out of the public spotlight--until now.
While records show a summons was issued on October 16, according to Gespass, we never were served with it. The record also shows that we were not served during an unconstitutional traffic stop that Officer Mike DeHart conducted on September 29--and that's probably because the documents he handed us did not include a summons, meaning they were of no legal consequence. Since no other efforts (real or fake) were made to complete service, the record indicates we never were served.
The summons is the document that officially starts a lawsuit. It must be in a form prescribed by the law governing procedure in the court involved, and it must be properly served on, or delivered to, the defendant. If the prescribed formalities are not observed, the court lacks authority to hear the dispute.
Were the prescribed formalities followed? Not according to Gespass. Here is the third paragraph from his letter:
First of all, both the temporary restraining order [TRO] and preliminary injunction (the latter is now in effect, but both say the same things) appear to have been issued before service was effected. The hearing on the preliminary injunction was on September 30, it [the injunction] was issued on October 4, and the summons was not issued until October 16. However, I would assume the preliminary injunction order was included in the service materials you threw away. One could argue that you are entitled to a new hearing, since you were not able to defend at the first one, but that still does not excuse failure to comply with a court order or seek reconsideration. Incidentally, the motion to quash was also denied, and, I believe, correctly so.
As we explained in a post yesterday, the last three sentences of that paragraph are utter bunk--because Gespass shows in the first two sentences that the court had no authority to hear the case.
Do we have only Gespass' words to show there was no summons? Nope. One of Riley's own documents--Petition to Hold Respondents in Contempt, dated October 4, 2013--indicates the same thing. Item No. 4 in the petition, which begins at the bottom of the second page, states:
On September 30, 2013, the court held a hearing on the Petitions for Preliminary Injunction. Respondents did not attend the hearing even though they were provided notice of said hearing. That notice, contained in the TRO, was flagged when Respondents were served with it, which should have drawn Respondents' attention to the TRO and the date of the hearing on the Petitions for Preliminary Injunction.
First, the court record shows we were not served with the TRO. Second, a defendant is not called to court because a document is "flagged" with "the date of the hearing" (whatever that means). A defendant is called to court when he receives a summons--and the record shows a summons was not issued until October 16, and we never were served with one.
Countless news accounts of my incarceration--even some that were well reported and generally accurate--claimed I "ignored a court order" and hinted that my arrest was somehow justified (at least a little) because we did not appear in court. Now we know that Carol and I never were summoned to court, that we had no lawful reason to be there.
Many questions remain about the flagrant corruption surrounding the Riley case, and here is one of the biggest: If the court did not issue a copy of a summons and the complaint for deputies to serve, who did give it to them? The evidence suggests that someone connected to Riley and Duke gave copies of the complaint directly to the sheriff's office--and deputies went through the charade of "serving" them, knowing there was no summons and no authorization from the court. In other words, the plaintiffs and law enforcement conducted a nifty end run around the judicial process.
What can we take from all of this? Well, the latest information removes all pretense of lawfulness surrounding my arrest and incarceration. When the court appeared to have some authority over the matter, that gave at least a hint of legitimacy to the deputies' actions. Without court authority, however, cops become common thugs--especially in a civil matter, such as this.
That means I was the victim of a felony assault, trespassing, kidnapping, obstruction of justice, deprivation of constitutional rights, conspiracy . . . there is no telling how long the list might get. And these are criminal matters.
It's long been clear that Carol and I have strong civil claims connected to all of this. But now, it appears to have jumped into heavy-duty criminal territory--with Rob Riley and Liberty Duke at the center of it.
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Was it al.com, the largest mainstream outlet in my home area? No. Was it a progressive site that had followed the constitutional issues raised by my unlawful arrest, related to alleged defamation of another GOP operative (Rob Riley), in October 2013? Nope. Was it a Web site with special interest in digital communications or the rights of bloggers and Web publishers? No siree.
It was the The Daily Caller, a news and opinion Web site launched in 2010 by conservative commentator Tucker Carlson and Neil Patel, a one-time adviser to former Vice President Dick Cheney. Is The Daily Caller an objective source of news on the Garrison case? Not exactly. One of its contributors is president of something called The Rule of Law Defense Fund. And her name is--you guessed it--Jessica Medeiros Garrison. (I'm not making this up: A Republican is president of an organization that purports to defend the "Rule of Law." Try not to guffaw.)
Does The Daily Caller ("The DC") reveal this little conflict of interest to its readers? Nah. Is the conflict reflected in the Web site's coverage? Oh yes, and we will explain in a moment.
Speaking of conflicts, they don't end there. Who spent more than $3 million to help The Daily Caller get off the ground? That was retired Wyoming investment guru and Republican mega-donor Foster Friess, according to Washington Post media writer Erik Wemple, Politico's Dylan Byers, and others.
That's the same Foster Friess who, Breitbart Unmasked (BU) reports, provided seed funding for the National Bloggers Club (NBC), a consortium of down-scale right-wing pundits, such as Robert Stacy McCain, Aaron Walker, John Hoge, and John Patrick Frey. BU reports that Friess also helped fund Karl Rove's American Crossroads. (Speaking of Aaron Walker, I have a bizarre story about him. See note at the end of this post.)
President of the NBC, of course, is Ali A. Akbar, he of the multiple felony convictions and a tendency to troll for gay sex on the Grindr geosocial app. Akbar threatened a lawsuit against me for reporting on the contents of a letter that Alabama attorney and whistleblower Jill Simpson wrote to Robert Bauer, counsel for President Barack Obama's 2012 re-election campaign.
The Simpson letter included allegations that Rove and Akbar had engaged in a homosexual relationship. Simpson's investigation of the matter came after she received a copy of Akbar's Grindr ad, which said he was looking for sex with "men who are Republican, political, and love to discuss politics and philosophy." I don't know about the philosophy part, but Karl Rove certainly seems to qualify under the rest of that description.
Case law dating back roughly 45 years shows that Akbar had no valid defamation claim against me. But he enlisted Montgomery lawyer Baron Coleman to send me a threatening letter, dated October 26, 2013, which was three days after Alabama deputies beat me up inside my own home, doused me with pepper spray, and hauled me off to jail for a five-month stay.
For good measure, The Daily Caller also lists Ali Akbar as a contributor--and that brings us back to Tucker Carlson's little toy and the "journalism" it practices.
How do we know The DC broke the story about Jessica Garrison's default judgment? You can check out the site's story here, which is dated April 13, 2015. That's before I knew about the judgment, and it was one day before al.com reported on it. (If you see a note revealing to readers that Jessica Garrison writes for the site, please let me know; I haven't found one.)
Bloggers under the Ali Akbar umbrella took note of the story. You can read a couple of their takes here at Hogewash and here at The Other McCain.
This provides a classic example of how the right-wing noise machine works. You have The Daily Caller breaking the story about the default judgment in the Garrison case, while members of Ali Akbar's National Bloggers Club quickly weigh in. (Gee, I wonder how The DC found out about the Garrison default judgment. Oh, that's right, Garrison works for them--and the site didn't tell us. That's objectivity you can trust.)
So we have two entities in the right-wing media orbit--The DC and the NBC-- taking a special interest in the Garrison story. And what, or who, ties both of them together? It's Foster Friess, who provided start-up funding for both.
* The story does not mention that the $3.5 million was awarded in a DEFAULT judgment. That means it was not based on the merits of Garrison's claim; it was based on the fact I did not appear at key junctures in the case because I did not receive notice of depositions, hearings, etc.
* The story does not mention that I didn't receive notice because my wife and I were forced to move due to a legally questionable foreclosure on our home, right on the heels of my unconstitutional jail stay in the Riley case.
* The story mentions neither the foreclosure nor the wildly unlawful nature of my arrest, in violation of more than 200 years of First Amendment law. Is that because right-wing interests connected to The Daily Caller were involved in, or at least had advance knowledge of, both the foreclosure and the arrest?
* The story states that Garrison and Attorney General Luther Strange vehemently denied my reports of an extramarital affair. The story does not say that their denials came at a hearing where no opposition was present. It does not say that their denials came without any cross examination, with no depositions, production of documents, or any other form of discovery. It also does not say that Jessica Garrison's divorce file remains sealed in Tuscaloosa County, for no apparent lawful reason.
* The story refers to my reporting on Garrison and Strange as "flimsy accusations." Oh, but wait, Jessica Garrison works for the outfit that produced the story. Did Tucker Carlson's team reveal that to its readers? Nope. Can't get much more "fair and balanced" than that.
* Has The DC followed up with reports about my efforts to have the default judgment overturned? Has it reported on my Motion to Vacate, which cites numerous cases that show the judgment is due to be set aside? Has it reported that my motion drew no written response from Garrison attorney Bill Baxley? Has it reported that much of the Garrison default judgment is based on allegations regarding her son that I did not even report? Hah, are you kidding? The DC has ignored all of that. (After all, Jessica Garrison works for them.)
Do Foster Friess and Ali Akbar have a vested interest in such sloppy and shallow reporting on the Garrison judgment? Does The Daily Caller have other conflicts of interests that might explain its reporting?
We will examine those questions in an upcoming post.
Note: Aaron Walker is one of the more interesting members of the National Bloggers Club. A Yale-educated attorney who lives in Virginia, Walker's blog is called Allergic to Bull. He used to blog under the name Aaron Worthing, until his real identity was revealed in the course of the many legal proceedings that have accompanied the right-wing feud with Brett Kimberlin. Walker first came to my attention when he was a leading force behind "Everybody Draw Mohammed Day," an effort apparently to fire back at, or provoke, Islamic religious sensibilities.
Walker claims that he and his wife lost their jobs because of his outing during the course of the Kimberlin battle. I certainly can empathize with that kind of thing, although I'm not sure Kimberlin caused the job loss.
Walker wrote five posts about my incarceration, and they proved to be a mixed bag. He correctly acknowledged that the temporary restraining order (TRO) and preliminary injunction leading to my arrest were unlawful. But in another post, he pointed to me as the mysterious "RogerS" behind Kimberlin's RICO lawsuit and more or less accused me of committing a crime--the unauthorized practice of law. Walker also apparently tried to gather intelligence about various legal cases to which I've been a party and came up mostly with information that is wildly inaccurate. He claims to have found an anonymous source to reveal the "inside baseball" version of my problems with our criminally inclined neighbor, Mike McGarity.
(Not surprisingly, Walker made no effort to report on McGarity's criminal history, which we've revealed here, here, here, here, here, and here, Walker also chose to ignore the ugly history of McGarity's lawyer, William E. Swatek, which includes a suspension of his license and a criminal trial for perjury. We've covered that subject here, here, here, here, and here.)
On the McGarity post, almost everything the source told Walker is false--so Walker either was duped or he didn't try very hard to find someone who actually knows what he is talking about. Heck, Walker could have contacted me; I've been out of jail since March 26, 2014. Or he could have checked public records that are on file in the Alabama court system.
At one point, Kimberlin brought second-degree assault charges against Walker, and Walker was arrested in court for "incitement" while arguing the case. (Maryland has some strange laws, including provisions for "peace orders," which are new to me but have played a prominent role in the various Kimberlin cases.)
Walker has called me a hypocrite for allegedly supporting Kimberlin's efforts to silence him via "peace orders," while decrying Rob Riley's efforts to silence me via a TRO/preliminary injunction. Walker seems to miss several points: (1) Analysts on the left and right have stated that Riley's actions against me represent prior restraints under the First Amendment. No one seriously doubts that I was the victim of unlawful court actions, which Rob Riley requested; (2) I don't know if Kimberlin's efforts regarding peace orders against Walker are lawful and supported by facts--and I've made no claim about them one way or another. Peace orders, it seems, are a strange provision of Maryland law, and I have not researched them or analyzed their propriety in the Kimberlin cases; (4) Walker and others in his blogging group claim I am a supporter and advocate of Brett Kimberlin. The truth? Of the 2,903 posts I've written at Legal Schnauzer,exactly one has been about Brett Kimberlin--and that was the result of a trusted source asking me to report on the subject. I've had one brief phone conversation with Kimberlin, and that is the extent of my personal communication with him.
Here is the theme of my one post about Brett Kimberlin: I admire his spunk and tenancity, his willingness to fight back against a conservative onslaught. Too few liberals, in my view, are willing to take on such battles--in fact, many of them are wusses. Brett Kimberlin might have shortcomings, as we all do, but being a wuss is not one of them.
That was pretty much it. Did I claim to know anything about peace orders, and Kimberlin's apparent use of them? Did I claim that Kimberlin's legal arguments were solid, while Walker's were not? The answer to both questions is no. I tried to paint a general picture of an ideological online feud and show that at least one liberal has the cojones to fight back.
The whole contretemps apparently started when an overzealous blogger named Seth Allen ("Socrates" was his screen name) started stalking and harassing Kimberlin. That led Kimberlin to file a lawsuit, and Walker offered to provide Allen with legal help. Activists from both the left and right started piling on, and before long, a full-scale ideological gang war was in session.
I was very much an outsider in all of this, not even paying much attention, until someone decided (inaccurately) that I must be the "RogerS" who was encouraging Kimberlin to file a RICO lawsuit. Next thing you know, Alabama deputies are dragging me off to jail, and I'm a regular topic of discussion for Aaron Walker and other right-wing bloggers.
In following this long-and-winding story, it's hard not to notice that Aaron Walker seems to be the "Gladys Kravitz of the blogging world." The Seth Allen-Brett Kimberlin dispute did not involve him, but Walker stuck his nose in it anyway. "Everybody Draw Mohammed Day," to any semi adult, was a pointless, stupid idea--the digital equivalent of soaping someone's windows--but Walker got involved in it anyway. Walker had every right to report on Brett Kimberlin's background, and to take issue with Kimberlin's politics, but court documents indicate Walker and others took their distaste for Kimberlin and turned it into a jihad that included stalking and harassment. Walker also had every right to report on my case and criticize me in any number of ways, but he jumped on the bogus "RogerS" train and essentially accused me of a crime I didn't commit. He then cited multiple anonymous sources, which is fine, but they provided an avalanche of false information--much of which could have been proven false with a check of public records, or by contacting me.
The notion of Aaron Walker as a "Gladys Kravitz" kind of character brings me to a point that hits close to home. On October 28, 2013, Walker wrote a post titled "Down Deep Into Roger Shuler's Paranoid Mind." If you scroll to the comments section, you see that the second item reads as follows:
SPQROctober 28, 2013 at 12:37 PM
David Schuler (sic)?
Why would the commenter ask this? Apparently, it's because Walker's original headline was "Deep Down In David Shuler's Paranoid Mind." It's possible that Walker originally referred to me as "David Shuler" throughout the post, but it's hard to tell about that.
As for the headline, you can check the URL, which still appears as:
I know from experience that you can change the headline on a blog post, but the URL will reflect the original headline--at least in the Blogger format that Walker and I both use. That means Walker's original headline referred to me as "David Shuler."
Why is that interesting? Well, I have a brother named David Shuler, who is a lawyer in a state other than Alabama. In fact, I've referred to him (not by name) in at least one post, probably more. Here is the one reference I know of for sure:
We certainly do not think all lawyers are awful people. We actually know some who are honorable. In fact, such lawyers--Don Siegelman, Paul Minor, Wes Teel--have been central characters in many of our posts, as victims of bad apples in their own profession. Some noble lawyers--Jill Simpson, Scott Horton, Andrew Kreig--have been consistent sources of insight and inspiration for this blog.
I was not predisposed to dislike lawyers. Heck, my youngest brother is a lawyer--in a state other than Alabama--and I've always thought of him as an upstanding guy.
Why did Aaron Walker refer to me as "David Shuler"? Was it just a "slip of the keyboard," signifying nothing? Or maybe it means something else. Maybe Aaron Walker and David Shuler, as fellow members of the legal tribe, have communicated with each other for some reason. What would they have to talk or e-mail or text about? Maybe Aaron "Gladys Kravitz" Walker just could not keep his nose out of my personal business. Maybe Aaron Walker's history of stepping in doo-doo that could easily have been avoided is repeating itself.
Walker already refers to me as "paranoid," so I might as well play the part. Doesn't it seem strange that, of all the incorrect names he could have chosen for me, the one that came out just happened to be David--and I have a lawyer brother by that name? Isn't it also curious that my brother's name has several variants--Dave, Davy--but Walker spit out "David," which is the version my brother always has gone by.
Could I be way off base on my Aaron Walker/David Shuler angle? Sure. But I do know that lawyers tend to stick together--and I know that their professional loyalties can sometimes outweigh other loyalties, such as to a blood relative, a brother. I also know that, through bar directories and such, lawyers have many avenues for looking each other up. Again, whether they are based in Vermont or California, they all are members of the same club.
I know this for sure: Aaron Walker's slip-up on a headline has given me quite a bit to think about.
Bland died after three days in a Texas jail, and authorities claim she committed suicide--a finding her family, understandably, does not buy. (A grown woman can hang herself with a flimsy trash bag? Seems hard to believe.) I managed to survive my five-month stay in the Shelby County, Alabama, jail, but the similarities between the Bland traffic stop and the two I experienced are enough that . . . well, I hardly slept last night, and I doubt I will do much better tonight.
What is the key similarity? The Bland dash-cam video shows that the Texas officer provoked the whole thing. She should have gotten away in about five minutes' time with a warning for allegedly not signaling while making a lane change. But the officer's hyper-sensitivity and stubbornness turned a simple matter into a national story--and a tragic death.
I witnessed similar law-enforcement behavior on two occasions, as Alabama officers sparked incidents where evidence suggests they had no lawful grounds to stop me at all.
The key sequence in the Bland video begins at the 8:40 mark, as trooper Brian Encina approaches her stopped car after writing up a warning in his vehicle. Encina notes that Bland seems irritated, and she matter-of-factly responds that she is irritated--because the only reason she changed lanes was because she saw the officer approaching rapidly in her rear-view mirror and thought he needed to get by. (You can view the video at the end of this post.)
Encina then asks Bland to put out her cigarette, and she objects--noting, correctly, that she's in her car and she doesn't have to put out her cigarette. Encina immediately asks her to step out of the car, and when Bland (again, correctly) states that there is no lawful reason for her to step out of the car, Encina opens the door and starts reaching for her, says he's going to drag her out, and even threatens her with a taser. From there, the encounter turns really ugly, with Bland placed in handcuffs, even though it's hard to see evidence of her committing any crime.
This is very much like my first experience in Alabama, with officer Mike DeHart. My wife, Carol, and I were stopped at the North Shelby County Library, after DeHart claimed he had witnessed me roll through a stop sign (while making a left-hand turn at a "T" intersection). I immediately told DeHart I had not rolled through that stop sign, but he took my license and registration and returned to his vehicle. He came back to us and handed me a warning and returned my license and registration--meaning the traffic stop, by law, was over.
But DeHart didn't let it end there. He handed me a stack of papers and smugly said, "Mr. Shuler, you've been served." I looked at the papers, saw the names Rob Riley and Liberty Duke, and quickly realized DeHart had stopped us only to "serve" a complaint in a lawsuit. The whole story about rolling through a stop sign was a lie. As DeHart walked back to his vehicle I called him a "fraud" and a few other choice words. I got out of my vehicle, went to his patrol vehicle (where he was sitting with the windows up) and let him know in loud, clear, and colorful language that I knew he was a liar and a cheat.
As I was walking away, DeHart got out of his vehicle and directed me to spread my hands across the trunk of our car. I ignored him and opened the door to get back in our car. Like Ms. Bland, I wasn't about to let a corrupt cop treat me like a criminal when I hadn't violated any law. I think DeHart uttered something about "disorderly conduct," which is complete BS--and I knew it.
I tried to shut the door to our car, but DeHart blocked the door with his hip, reached for his handcuffs with one hand and reached for me with the other. He would have arrested me, but Mrs. Schnauzer had what I call an "Exorcist" moment. She started screeching, screaming, and seething to the point that I thought her head was going to start spinning. She made a motion to get out of the car as if she was going to jump on DeHart. With parents and children heading into the front door of the library not too far away, DeHart seemed to realize that creating such a scene was not a good idea, and he let us go.
Was I angry, like Ms. Bland? Yes. Did I have a right to be angry, like Ms. Bland, in the face of a lying, cheating law-enforcement officer who was trying to provoke me? Yes. Did I break any laws? No, and neither did Ms. Bland.
My second encounter came on the night of my arrest, October 23, 2013, when officer Chris Blevins drove at a high speed down our driveway and tried to block me from entering our garage. He failed to block me, so I drove on in, and Blevins exited his vehicle, came to the edge of our garage, and asked me to step outside.
As happened in the Bland case, Blevins gave me no lawful reason that I had to leave my own home. He showed no warrant, didn't say he had a warrant, said nothing about why he was even on my property. I said I wasn't coming outside and instructed him to get out of our house (the garage is under our house, part of the structure). Blevins came in and proceeded to beat me up, knocking me to a concrete floor three times, dousing me with pepper spray, and placing me in handcuffs before dragging me out of the garage--all over alleged contempt of court in a civil matter (the Riley/Duke lawsuit).
I hope Sandra Bland's family gets to the bottom of what really happened to her in Texas. I hope to someday get to the bottom of what happened to me in Alabama. Both cases present clear evidence of civil wrongs--and I suspect criminal actions are involved, as well.
A tweet from April 15 of this year suggests right-wing media maven Ali Akbar and his lawyer, G. Baron Coleman of Montgomery, Alabama, have inside information about who is responsible for my incarceration, the foreclosure (probably unlawful) on our home, and the dubious lawsuits that bookended both actions.
This could have serious implications for Coleman's legal career. Rule 8.3 of the Alabama Rules of Professional Conduct requires a lawyer to report misconduct to a tribunal or other authority with the power to investigate. Lawyers (Rob Riley and Jessica Medeiros Garrison) launched both lawsuits in question, and if Coleman knows they were bogus or filed for improper reasons, he has a duty to report that. Instead, he is making light of the subject on Twitter.
If Coleman was involved in a scheme to deprive my wife, Carol, and me of our freedom and our home--or if has been helping to cover up such activity--that could call for the involvement of criminal authorities. At the very least, the tweet reveals Akbar and Coleman to be juvenile (make that infantile) nitwits who apparently resort to online taunting because they have nothing creative or intelligent to say.
You can read the first part of the Twitter conversation at the beginning of this post, and the second part is at the end.
Akbar starts the festivities by tweeting about Matt Osborne, the editor of Breitbart Unmasked, and me--with a reference to a $3.5-million default judgment against me in the Garrison case. The default judgment, by law, is due to be overturned, and that process is ongoing, but it's anyone's guess what actually will happen.
Removing extraneous comments from a couple of other folks, here is the conversation between Akbar and Coleman:
Akbar: Matt Osborne sure helped Roger Shuler out. Hahaha. $3.5 M libel mishap. Idiots flock together.
Coleman: The last three year's of that guy's life is a fine example of what not to do.
Akbar: His whole existence.
Coleman: He's judgment-proof, has nothing. No reason to bother fighting it. $1 might as well be $10 million to him.
What help was Matt Osborne supposed to have provided related to the Garrison lawsuit? I have no idea. What have I done in the last three years that, in Coleman's mind, is a "fine example of what not to do"?
I've written a blog about legal and political corruption in Alabama and beyond, and none of my reporting ever has been found false and defamatory at trial. In other words, I've abided by the First Amendment right to a free press, only to be arrested inside my own home, with no sign or mention of a warrant--which means my five-month incarceration was the result of a kidnapping.
Baron Coleman doesn't support the First Amendment? He enjoys making light of kidnappings, false arrests, and police abuse? That's how it looks from here.
Then we learn that Coleman has knowledge about our finances, stating that we have "nothing." How does he know that? Has he, or someone he knows, gained unauthorized access to our banking information?
How's this for irony? Both Akbar and Coleman make frequent references to their supposed faith, claiming to be serious Christians. Coleman wears his Catholicism on his sleeve and speaks out against abortion rights, apparently on moral grounds. But what kind of morals and ethics do Akbar and Coleman really have?
Many theologians consider the Golden Rule, as stated in Matthew 7:12, the most profound passage in The Bible--going to the very heart of the Christian message. From The King James Version:
Therefore all things whatsoever ye would that men should do
to you, do ye even so to them: for this is the law and the prophets.
In other words, act toward others as you would like them to act toward you. Public records and reports show Akbar has been convicted of multiple felonies and has trolled online for gay sex via the Grindr app, so we know he's a phony and a scam artist. But one tends to expect more from Coleman, a lawyer who spouts his righteous rhetoric on radio, television, and online.
But Coleman, like Akbar, appears to be an empty vessel. On his Twitter account, Coleman reveals that he has five children and a wife. That brings this question to mind: "Mr. Coleman, how would it feel if your loved ones had been tormented, harassed, and abused, as mine have been? What if someone had stolen everything you had ever worked for, putting your wife and children at threat of starvation? Would that be amusing to you? Would you be pleased to go on Twitter and find that others are having a good chuckle because your loved ones have been victimized?
"In other words, Mr. Coleman, is your professed Christianity just a facade? Does the conversation that flows from Ali Akbar's tweet reveal who you really are?"
We've already shown that Baron Coleman isn't worth a crap as a lawyer. Now we know that he isn't worth a crap as a human being.
|Phillip Sims, with his Confederate flag|
Phillip Sims recently drove to his job at Turner Industries in Decatur, Alabama, with the Confederate battle flag on his truck. A plant supervisor took him outside and advised him to remove the flag from his truck. "I hate to be the one to tell you that," the supervisor reportedly said, "but if you don’t, I’m gonna have to fire you." Sims refused to remove the flag, and he was fired.
The story does not end there, according to WHNT of Huntsville:
[Sims] says the company has called him three times since Monday morning offering to rehire him if he’d just take the flag off his truck. But now, Sims says it has just gone too far and he stands by his actions. “I’m unemployed now but I still feel that I made the right decision,” says Sims.
Apparently, Phillip Sims is not too bright, at least when it comes to workplace law. With the demise of unions, which never were strong in the South to begin with, most workers have almost zero protections on the job. Alabama, like every state but Montana, is an at-will employment state. That means workers can be fired "for a good reason, a bad reason, or no reason at all."
The only exception is that employers cannot violate federal discrimination laws. Based on photos of Phillips Sims, he appears to be an able-bodied white male under the age of 40--one who happens to favor cowboy hats and giant belt buckles. That means he likely does not fall into any protected class (by age, gender, age, disability, etc.). Without a union--and I'm guessing Sims is a Republican who does not support unions--he has zero protections on the job.
So, why stand up for the Confederate battle flag anyway? "It’s a statement of our heritage and it’s just my right to have it, and I don’t think that I should just give it up because somebody told me I had to," Sims said. Well, unemployment now is part of your heritage too, so good luck with that.
As for discrimination, Turner Industries reportedly has fired one other employee for the same infraction, so that means the company isn't discriminating on the Confederate flag issue--it's firing everyone who makes a show of the flag at work. If Phillip Sims tries to get his job back through the legal process, he will be "sh-t out of luck."
Is that harsh? Yes. Is it fair? Not necessarily. But that's apparently how many Americans--especially the ones who vote for anti-union Republicans--want it. So the message to guys like Phillips Sims is, "Enjoy your flag while you fill out job applications."
Here's another tough lesson for young Mr. Sims: His statement that he has a "right" to display the flag implies that he thinks the First Amendment right to free expression will protect him. But in workplace terms, the First Amendment only prohibits the government from stamping out free speech. That means the First Amendment protects only state and federal employees in the workplace--and that's as long as their speech involves matters of public concern.
For example, I had every right to start Legal Schnauzer--a blog about corruption and injustice in our legal system, a matter of clear public concern--while I was a state employee at UAB. In fact, I never would have started the blog if I had worked at Radio Shack, Wal-Mart, Regions Bank, or any other private employer.
But here's another harsh reality, even for government employees. Don't assume your employer is going to follow the law or a court will uphold the law. Little did I know that UAB, a university that supposedly stands (at least a little) for integrity and high ideals, would fire me in violation of the First Amendment. Little did I know that, when I challenged my termination in court, a federal judge named William M. Acker Jr. would let UAB get away with breaking the law.
In a "charming" display of "honesty" right out of an Orwell novel, Acker told me to my face--in open court--that he was going to cheat me. And he did exactly that. My speech, via this blog, was constitutionally protected, but I'm still out of a job--thanks to a handful of corrupt individuals at UAB and an equally corrupt federal judge. (You can read Acker's vow to cheat me in a court transcript at the end of this post. On pages 14-15, he not-so-subtly suggest that I read up on a writ of mandamus, which is an interlocutory appeal, asking a higher court [the U.S. Eleventh Circuit, in my case] to force a trial judge to follow the law.)
In so many words, Acker was telling me, "I'm going to rule against you on every tiny detail, at every turn, and I'm going to force you to waste time and and huge amounts of money to repeatedly go to the Eleventh Circuit in an effort to force me to uphold the law--that's the law that I took an oath to uphold, but I'm going to piss all over it in your case. And you can't stop me." In fact, I could not stop him because his crooked federal cronies protected him.
How evil is that? It's about as evil as the UAB management types who repeatedly lied under oath in court documents submitted during the case.
All of these folks seem to think its easy--even fun--to get away with scams like that. Perhaps they will learn differently someday.
And that reminds me of another lesson for young Mr. Sims: You were lawfully fired at Turner Industries, and you brought it on yourself, but there is plenty of time for you to someday be the target of a real screw job in the workplace. How will you feel then?
I can tell you how I feel now. If someone were to bludgeon to death Judge Acker, the corrupt lackeys at UAB, and whoever was pulling all of their strings (Rob Riley and company), I would want to be right there to cheer. And if someone were to take all of their carcasses and run them through a tub grinder, I would cheer that too.
By the way, I have a friend who says certain hard-nosed federal contractors have been known to initiate heart-to-heart discussions with certain individuals who cause them displeasure. During the discussions, the contractors let the person know that he could wind up being passed through a tub grinder, a large and loud device that chops objects into little bits.
That, my friend says, tends to resolve a lot of problems. I'm starting to have fantasies about certain people facing a grim fate via a tub grinder--and it makes me smile.
So there you go, Mr. Sims. That's what a real workplace screw job feels like. I bet there's one waiting in your future.
Meanwhile, Mr. Sims has told the press that he has no regrets about standing up for the Confederate flag. That's good because his job is long gone--and it ain't coming back.
These issues become particularly troubling in light of our reports from earlier this week (see here and here) about a letter from attorney David Gespass, who reviewed the Riley/Duke file when it was sealed. The file showed, Gespass stated, that no summons was issued in the case until October 16, 2013, long after Officer Mike DeHart had allegedly "served" us via an unconstitutional traffic stop. The file also showed that as of October 31, the date of Gespass' letter, we had not been served--by DeHart or anyone else. (For the record, there were no other service attempts after the DeHart episode on September 29, so that means we never were served--with or without a summons.)
We will address the legal implications of all this in a moment, but first, let's look at the invasive nature of Alabama deputies' actions against us--and the information comes from the sheriff department's own records.
What did deputies do on our property while trying to "serve" us (even though no summons had been issued) from September 24 to September 29, 2013? Why were deputies so frantic during this six-day period, given that Alabama law generally allots at least 120 days (four months) for service of process in a civil case?
Let's look at what the log reveals. And keep in mind that each visit that we witnessed involved two or three deputies and multiple vehicles. On at least one occasion, they parked an SUV at an angle blocking our driveway, as if to ensure that dangerous criminals could not escape the premises.
(The full log can be viewed at the end of this post. The Gespass letter also can be viewed at the end of this post.):
* On 9/24/13 at 12:36 hours--Deputies look inside our garage-door windows.
* On 9/24/13 at 15:44 hours--Deputies again look inside our garage-door windows.
* On 9/26/13 at 19:56 hours (after dark)--Deputies checked the power meter at the back of our house, opened our mail box to check for mail, and again looked inside our garage-door windows. Being after dark, this was one of multiple occasions in which they shined lights in our windows.
* On 9/26/13 at 20:50 hours (after dark)--This was at almost 9 p.m., and deputies again shined lights in our windows.
* On 9/28/13 at 10:44 hours--Deputies again look inside our garage-door windows.
* On 9/28/13 at 19:11 hours--This probably was after dark or near dark. More looking in the garage, more shining of lights in our windows.
* On 9/29/13 at 12:34 hours--Deputy admits on log to conducting surveillance on our house for approximately two hours. (Do they do this in investigations of a potential drug-trafficking ring? Probably not, and this involved civil papers that were nowhere near the deadline for service.) More looking in the garage.
I'm not an expert on the law that governs process servers (deputies or otherwise) in the course of their work. And I understand that they have a right to knock on the door in an effort to get attention. But do they have a right to walk all around your house (front and back), to look inside your windows repeatedly (sometimes with flashlights), to check your power meter, to check your mailbox, to come multiple times after dark?
Do citizens have at least some expectation of privacy, on their own property, when they are the targets of process servers?
In a country where we seem to treasure "Second Amendment remedies," is it wise to allow this kind of invasion on private property? How many citizens would have taken a pistol or rifle and shot one of these deputies at some point in this process?
I'm a liberal, and I'm not particularly fond of guns--although I'm becoming more and more fond of them with each passing day. Would I blame a citizen who took matters into his own hands against this kind of wildly invasive activity? No, I wouldn't.
Am I starting to see the value of "Second Amendment remedies," especially when cops and the courts have proven they won't protect your rights? Yes, I am.
That brings us back to the shocking revelations in the David Gespass letter. A summons is an extremely important document in any civil case; it's the piece of paper that starts a lawsuit. If a summons has not been issued and served on defendants, the court has no authority to hear the case.
At the time of all this activity on our property, there was no lawsuit, and without a summons, deputies had nothing to "serve." That means they had no legal authority to be on our property--converting their actions from "law-enforcement work" to regular criminality. They probably committed criminal trespass, criminal surveillance, and possibly other state-law violations. Tampering with our mailbox likely constitutes a violation of federal law.
Essentially, we were being terrorized by packs of criminals for six days--all under the guise of "serving" us with a lawsuit that did not exist, with no summons call us to court or creating court authority to hear the case.
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Agent Keith Baker's affair with a court reporter became known during the 2011 bingo trial, where VictoryLand owner Milton McGregor was among several high-profile defendants. At the same time, an assistant U.S. attorney told federal judge Myron Thompson that Baker had carried on "an inappropriate relationship with a female courtroom deputy" during the Siegelman trial in 2006.
The Advertiser obtained records that show more than 8,000 text messages sent and received by Baker during the bingo investigation are missing from his phone and from backup computer servers at FBI headquarters in Virginia. Defendants were able to retrieve a few messages from Baker's phone, and one of them suggested the FBI agent had communicated with Governor Bob Riley in late 2010.
The new revelations probably explain Baker's mysterious absences from the courtroom during key junctures in the bingo trial. They also add to the substantial string of stories that raise questions about Baker's character. For example, the Montgomery Independent reported that Baker and another FBI agent harassed former deputy attorney general Bob Caviness in the week's leading to Caviness' suicide in November 2010--all because the agents mistakenly suspected Caviness was trying to help McGregor during the bingo probe.
Does that sound like Baker took an objective approach to his investigative work? No, it does not. Is it possible that Baker violated the due process rights of McGregor and other defendants, who supposedly are guaranteed a disinterested prosecution team under the U.S. Constitution? Yes, it is.
Baker now works as an investigator in the Alabama Attorney General's Office. Both Baker and the AG's office declined interview requests, the Advertiser's Josh Moon reports.
How did all of this come to light? Moon explains:
Details of Baker’s affair and an alleged cover-up are contained in thousands of pages of previously-sealed motions, orders and transcripts from closed hearings and in-chambers conferences, all of which were recently made public when a federal judge granted the Montgomery Advertiser’s motion to unseal those records. The Advertiser filed that motion last September after learning of the sealed records during its reporting on the history of gambling in Alabama.
Those records highlight a three-month-long fight — a sort of secret trial-within-a-trial — between prosecutors and the team of defense attorneys, who were representing the nine defendants in the case, over whether to allow Baker to be questioned in open court about the affair.
Here are a few of the many questions raised by Moon's report:
* The two bingo trials resulted in zero convictions, and one legal analyst called the outcome "one of the most remarkable setbacks nationally" for federal prosecutors in decades. But three defendants--Ronnie Gilley, Jarrod Massey, and Jennifer Pouncy--pleaded guilty. In light of the Baker revelations, should the court review those guilty pleas?
* The Siegelman trial resulted in convictions for the former governor and codefendant Richard Scrushy, former CEO of HealthSouth. Should those convictions now be reviewed, were they possibly tainted by Keith Baker's extracurricular activities?
* Was there, in fact, an attempt to cover up Baker's misdeeds? If so, who was involved, and what form did the cover-up take?
* Does the Baker text message that references a conversation with Bob Riley confirm what many have believed all along--that the former governor played a major role in pushing for the bingo prosecution?
* Can things get any worse for Attorney General Luther Strange? In recent months, he has forced out assistant AG Sonny Reagan and investigator Gene Sisson for leaking grand jury information related to the investigation of House Speaker Mike Hubbard (R-Auburn) in Lee County. Now, it looks like another member of the AG's staff has a history of engaging in unethical activities.
* What if the FBI retrieves all of the messages from Baker's phone, and they reveal that the bingo prosecution was a sham from the outset? Should the U.S. Justice Department conduct an investigation of phones and computers used by all government investigators and prosecutors during the case? Should a similar investigation be conducted related to the Siegelman case? What if Keith Baker represents the tip of a massive iceberg of corruption, which originated when George W. Bush officials were in charge of the DOJ?
Are the sexual escapades of a government investigator important in the context of a federal investigation and trial? This, from Josh Moon's report, helps answer that question:
After learning of Baker’s transgressions — and then being told by Assistant U.S. Attorney Louis Franklin that Baker also had an inappropriate relationship with a female courtroom deputy during former Gov. Don Siegelman’s trial — Thompson let his displeasure be known.
“It is a very serious matter ... and it does compromise the proceedings, at least in appearance, and can compromise it in substance,” Thompson said from the bench during one of the closed hearings. “If a witness was having an affair with my court reporter, I’ll tell you right now, that court reporter would not be working for me tomorrow. Now that’s how serious it is.
“And that’s in a courtroom. A grand jury proceeding is just so serious, because there’s no judge presiding. The integrity is just — it’s paramount.”
As for the missing text messages, Thompson allowed an FBI information-technology expert to be questioned by both sides in a closed hearing:
Jason Amos, then an IT specialist for the FBI, testified that FBI-issued cell phones are backed up by a server, which meant that any text message Baker sent or received on his FBI Blackberry should have also been duplicated and stored at FBI headquarters.
Baker testified that when he received the request to provide his text messages for the times related to his investigation, he realized they were gone. A check on the FBI servers revealed the copies were also missing for that period of time.
Baker’s more than 8,000 text messages were the only ones Amos said he could say for certain were missing from any FBI agent in the country, although he added he wouldn’t necessarily know of missing messages unless asked to pull records for specific agents. While messages did sometimes go missing, Amos said the other agents he checked during that span experienced no issues and that there had been no changes to the system that would have prompted or corrected an issue with the servers.
The FBI was able to retrieve time stamps on the missing messages, and they revealed that some of the missing messages went to and from former Sen. Scott Beason, who was a government witness in the case.
Of the few messages that were retrieved, what about the one that referred to Bob Riley?
Despite the missing messages, the defendants were able to get some messages from Baker’s phone. Of the 10 messages Thompson allowed into the record, one exchange in particular stood out to the pro-gaming faction.
On Nov. 6, 2010, Baker messaged the court reporter: “Just talked to Gov Riley,” he said.
“You love it,” she replied. Then, four minutes later: “Hope you are having fun.”
“I’m having fun,” Baker replied.
McGregor’s attorneys, who never got an opportunity to question Baker about the message, believe it could be the smoking gun link tying the former governor to the investigation. But government attorneys denied that, saying the text was an innocent, tongue-in-cheek joke by Baker, who had been on the field at Auburn’s homecoming football game and shook hands with Riley at one point.
For his part, Riley has denied any involvement in the case, and during an interview with the Advertiser last year, Riley said the allegations “simply are not true.”
All of this raises more than just ethical questions for Alabama taxpayers; it also raises concerns about finances. According to Moon, reports from various sources show the state has spent more than $9 million on an anti-gambling crusade that Riley launched in 2008, and Strange continued upon his election in 2010.
Now, it looks like the whole process might have been tainted with corruption.
Both Baker, lead agent on the case, and court reporter Mallory McCutchin (she was Mallory Johnson at the time, but since has taken back her maiden name) knowingly subverted the grand-jury process, attorney Jim Parkman said.
According to recently unsealed documents, Parkman suggested the matter be referred to George Beck, U.S. attorney for the Middle District of Alabama, for a grand-jury investigation. "This is a crime," said Parkman, who represented former State Sen. Harri Anne Smith (I-Slocomb).
VictoryLand owner Milton McGregor perhaps was the most high-profile defendant in the two bingo trials, which produced three guilty pleas and zero convictions--proving to be one of the most embarrassing outcomes for federal prosecutors in recent memory.
During a closed-door meeting with U.S. Judge Myron Thompson, federal prosecutor Justin V. Shur tried to downplay the significance of the e-mails between Baker and Johnson. But Parkman was not buying it:
In reading the text messages, Your Honor, Mr. Shur pointed out certain things, but he left out two things that are the most important in here. He just skipped over it like it didn't even exist.
Now, the first one is very clear . . . where Ms. Johnson sends a text message to [Baker], "Don't repeat anything I told you about the grand jury today, please." The response is even more interesting, "I never do."This hadn't been a one-time thing. She has been telling him things about this grand jury and testimony. It is obvious by the words in here that she has been leaking information to him.
Why is this important? Parkman explains, referring to Baker's sworn testimony during a Saturday hearing on the text-message issue:
The importance of this is two-fold. A, it gives him information that he's not entitled to, to either correct with witnesses or to investigate further for the Government's side. Number two, this is a crime. Number three, I was there Saturday, and . . . I did not hear him tell this Court under oath, "Yes, we talked about grand jury stuff." I did not hear him tell you that. That is perjury. There is no other way around it.
And I'm saying to you that I totally agree with you, the good old boy network is in place. They know about this.
Again, look at what she says.
"Did you get my text about the S. G. J. three?"
Answer: "I did. That's a lot of stuff."
Baker: "Is that the last two days?"
"Yep. You've got to read it too."
Parkman, it seems, can't believe what he is reading--and that draws his attention to Bob Riley:
Since when do we start giving grand jury information from a court reporter . . . to investigators? And what's troubling to me is, there have been a lot of innuendos in this case about a relationship, not from me, and I didn't think much of it at first, a lot in here about Governor Riley and his work. [Baker is] going to see Governor Riley in here after he has access to all the grand jury information. So what's up with that?
Parkman clearly sensed something smelly about the whole scenario:
Now, I don't know, and I'm not that smart, but I'll tell you this, when I saw this, this was appalling to me after [Baker's] testimony. You may not think so, Your Honor, but I tell you what, when you have an F. B. I. agent get on this stand and swear under oath to you nothing's going on about this thing and it's right here . . .
So I think this is more serious than what's just the Government going, "Oh, it's just a love affair." I don't mind a love affair, have at it, but when it involves my client and this investigation and this case and lying to your face, I think that it's more serious than that.
What should be done about it? Parkman had some clear ideas:
Now, here's my response of what we need to do. I think it needs to be taken -- I think serious consideration. . . .
Number two is, I think that you should get with, because this is secret in here, there's nothing we can do about it as lawyers, but I think you should get with George Beck, the new U. S. Attorney, and at least begin a process of a grand jury investigation with regard to charges. I'm sorry to say that, but this is serious stuff, especially in light of what I brought to the Court's attention about some rumors in the past. I don't like rumors, but I will tell you that something more may come to light . . . about that. That may not be a rumor anymore.
Louis Franklin, assistant U.S. attorney for the Middle District of Alabama, knew about the affair between agent Keith Baker and court reporter Mallory Johnson (nee McCutchin) for at least 11 days before revealing it to chief prosecutor Justin V. Shur, who was deputy chief of the Public Integrity Section at the U.S. Department of Justice (DOJ).
The prosecutorial team then tried to cover up the matter by filing a motion in limine, seeking to make the subject of extramarital affairs off limits during questioning of "any government witness." Only when McGregor's lawyers refused to agree to such a stipulation did the affair became known to all parties.
What picture does this paint of Louis Franklin, who also played a central role in the Don Siegelman prosecution--especially after the supposed recusal of U.S. Attorney Leura Canary? It indicates Franklin hid critical information, even from his own DOJ superior. And once Shur finally knew about the Baker affair, the government's reaction was not to be forthcoming. Instead, it tried to permanently hide the information via a motion in limine.
How did the prosecution's attempted cover up take shape? Here is how the McGregor defense team describes it in the unsealed motion:
The reasonable inference is that Government counsel [Franklin] learned of it, on or about May 13, from Agent Baker or from the Court Reporter. Why would either of them have told him on May 13 and not long before? The only reasonable inference is that they told him because they feared they had been caught--because just two days before that, on May 11, Mr. McGregor filed his witness list, and it included the name of the court reporter.
How ugly is this? From the McGregor motion:
It is fair to infer, at least unless the government explains otherwise, that this is what happened: Government counsel [Franklin] was affirmatively trying to keep Agent Baker's secret a secret even from Mr. Shur, and that counsel felt compelled to tell Mr. Shur only when there seemed a real danger that the defense already knew.
The McGregor team repeatedly uses the word "fraud" to describe Baker's actions. And the same word apparently applies to McCutchin. Multiple defense attorneys state in the unsealed documents that she falsely certified on transcripts that she "was not in any manner interested in the results" of the case. In fact, of course, she was engaged in a sexual relationship with the chief government investigator, tainting much of the evidence in the grand-jury process--and the resulting indictments. From the McGregor motion:
When Agent Baker failed to the tell the Court (or, according to the Government, to tell the prosecutors) that the Court Reporter's certification was a misrepresentation, and failed to tell the Court or others of his own actions that had tainted the Grand Jury process, he withheld material information that he had a duty to disclose. He also, quite likely, affirmatively misled his supervisors, his co-workers, and his wife; but whether or not he made affirmative false statements, he was party to an intentional deception through the Court Reporter's misleading certification, and through failure to disclose under circumstances where disclosure was required. In other words, he engaged in an egregious pattern of deception and fraud . . . . He ignored the interests of justice . . . in order to pursue his own personal agenda.
The impact of that deception likely still is being felt because of Baker's missing text messages, which could shed considerable light on the government's cover up--and who exactly was involved:
Agent Baker's secretive affair helps explain another aspect of the case, which is why [his] "text messages" from the period of January through mid-June 2010 are missing. . . . The evidence of the affair provides an explanation, and this evidence makes it more probable that Agent Baker intentionally deleted his text messages from this period in order to cover his tracks.
After reading the unsealed documents, a reasonable person must wonder how U.S. Judge Myron Thompson ever let this case go to one trial, much less two. In fact, the McGregor lawyers note the double standard that apparently was in play:
If the shoes were on the other feet, someone would be prosecuted. Imagine if a target's lawyer was having an affair with the grand jury court reporter, and if the court reporter nonetheless certified that she had no interest whatsoever in the outcome of the matter, and if the target's lawyer knew of that false certification. The Government's outrage would be off the charts, and people would be prosecuted. Yet when it is the Government's agent who engages in such egregious and deceptive conduct, the Government contends that it is irrelevant.
|Keith Baker (far left), from the Facebook page|
of his wife, Sandra Sargent Baker
Did Baker have a sexual relationship with the courtroom deputy in the Siegelman trial, as he did with court reporter Mallory Johnson (nee McCutchin) in the bingo case? Did Baker also have an affair with a juror in the Siegelman case? With how many women from the courtroom did Baker carry on affairs during perhaps the two most high-profile federal prosecutions in modern Alabama history?
The answers to all three questions are not clear. But it does seem clear that Baker is quite the active fellow when it comes to women and courtrooms--and rumors about his activities were so rampant that Myron Thompson, judge in the bingo case, vowed to investigate.
We don't know what Thompson ultimately found out, but he clearly considered the Baker/McCutchin affair a serious matter in the bingo case. And Thompson wanted to know more about Baker's possible dalliances in the Siegelman case. Does that mean the Siegelman convictions could be due for a review, based on widespread speculation about Baker's misconduct--of some variety--during the trial? That remains to be seen, but our inspection of the unsealed documents indicates Thompson was deeply concerned about Baker's apparent history of putting his sexual appetite ahead of justice matters while in court.
The Montgomery Advertiser, in breaking the story about the Baker/court reporter affair in the bingo case, reported that the FBI agent also had an "inappropriate relationship with a female courtroom deputy" during the Siegelman trial. We took that to mean a sexual relationship, in our reporting on Monday, but review of the documents indicates that was not explicitly stated in closed-door meetings between Thompson, defense lawyers, and prosecutors. It appears, however, that Baker engaged in some sort of misconduct with the deputy--and it likely was sexual in nature. Participants in the private bingo-trial discussions also were aware of rumors about a possible affair between Baker and a juror during the Siegelman case, but they appeared to reach no definitive conclusions about that.
How did Baker's behavior in the Siegelman case become a hot topic during the bingo-trial discussions? It started with comments from attorney Jim Parkman, representing former State Sen. Harri Anne Smith (I-Slocomb). Parkman started rolling with a mix of homespun humor and serious inquiry. From the transcripts:
MR. PARKMAN: My question for Mr. Baker goes into what is his mindset during the time of this investigation. Is he thinking about sweet thing over here, or is he thinking about this case? And these text messages are not important to try, as far as I'm concerned, necessarily with regard to having an affair. We know that happened.
But my question goes towards is it happening during hours that he's working? Is it happening during hours that he's involved in the investigation? Or is it happening during times that he's sitting in a truck listening to telephone calls out there, and he's text messaging sweet thing over there at the time he's supposed to be listening to the case? So that's number one.
With that, Parkman dives headlong into Siegelman territory, drawing immediate reaction from Judge Thompson and other defense lawyers:
MR. PARKMAN: Number two is, and I hate to say this, but I'm going to say it because nobody else has. Mr. Baker's actions were brought up again in another case, in the [Siegelman] case. Now let me tell you what that tells me.
THE COURT: Were you all aware of that?
MS. [SUSAN] JAMES: Yes, Your Honor.
THE COURT: Okay. I mean, I feel like if his actions in the [Siegelman] case, they are of concern to me from what I have heard, but what I've heard is hearsay, which I will reveal to you, just as, you know, judges talking. But if it's true, it is of deep concern.
If he, and I'm going to say it because I've heard it, if he was e-mailing Judge Fuller's court reporter during that proceeding, are you aware of that, that he may have been e-mailing her? If that's true, your concerns have serious merit.
MR. PARKMAN: Thank you, sir. Mine is a little different. I appreciate you letting me talk.
THE COURT: I don't know if that's true or not, but that's something that I, in light of what's happened today, definitely want to look into.
Louis Franklin joins the conversation, correcting Thompson on the female courtroom figure in question. Franklin took over the Siegelman prosecution after the supposed recusal of U.S. Attorney Leura Canary:
MR. FRANKLIN: Two issues, Judge. It was his courtroom deputy.
THE COURT: It was his courtroom deputy, yes. Are you aware of that?
MR. FRANKLIN: I am aware of that.
THE COURT: Okay. Then you know -- I heard it as hearsay, I did not hear it as fact, but in light of what has happened here, it's something we definitely -
MR. FRANKLIN: Right, but there are two issues, Judge. I want to make sure they don't get confused because the lawyers in this room, what they have talked about is that there were e-mails or messages sent between Agent Baker and a juror. I want to make sure the Court understands -
THE COURT: I really don't know the details, but what I want to do is, Mr. Franklin, I want you to sit down with the lawyers here, get those spelled out, get your facts straight, because I don't want to deal in hearsay other than to say there's something I think we need to look at. But I do think that aside from the issue of the affair, an agent having an affair with an officer of the Court, like my court reporter, is a very serious matter.
MR. FRANKLIN: And, Judge, I don't -
THE COURT: Let me finish. Let me finish. Let me finish.
It is a very serious matter, and it does compromise, no matter whether anything was exchanged about the case at all. It does compromise the proceedings, at least in appearance, and can compromise it in substance.
|Keith Baker (right), from the Facebook page|
of his wife, Sandra Sargent Baker
MR. FRANKLIN: I just want to make sure the Court understands two things. The information that you asked me about, I'm not really sure, I think there were -- I'm not sure there were text messages or phone calls between Agent Baker and the courtroom deputy -
THE COURT: Or a juror or something?
MR. FRANKLIN: No.
THE COURT: Not a juror.
MR. FRANKLIN: Two issues, Judge. One is that allegation. I was aware of that because I did get a note from Judge Fuller advising me of that, and it was put to bed. I don't know what information or the substance was in any of those communications.
But the other issue, Judge -
THE COURT: What other issue?
MR. FRANKLIN: There were two issues. The other one is there was some contact with a juror during the [Siegelman] case, and that has been brought up by at least one lawyer on the other side before. That matter was investigated. That matter proved to be an absolute rumor and not true.
THE COURT: The allegation that Baker and a juror -
MR. FRANKLIN: Yes, that some juror thought he was cute. That the investigation that was done by somebody other than anybody in our office or the F. B. I., revealed that was a rumor that was started by the jury administrator in this courthouse. She has admitted it.
I just wanted the Court to know that because they have painted such a bad picture of Agent Baker. Just to make sure that they don't get mixed up.
How is Franklin's credibility on the Baker/Langer rumors? Well, the transcripts show Franklin knew about the Baker/McCutchin affair for at least 11 days before telling Justin V. Shur, his Department of Justice superior on the bingo case. Even then, the prosecution tried to permanently hide the issue from the court and defense attorneys, via a motion in limine seeking to make questions about extramarital affairs off limits to all government witnesses.
The Baker/McCutchin affair only came to light when attorneys for VictoryLand owner Milton McGregor refused to agree to the government's proposed limitations on questioning.
So what was the extent of Keith Baker's amorous activities during the Siegelman case? We do not know for sure, at this time. But we do know that Louis Franklin likely is not a dependable source of information on the subject.
|William M. Acker Jr.|
Nothing could be further from the truth. In fact, it's debatable whether Fuller is the worst federal judge in Alabama. There is a lot of competition for that "honor," but it might have to go to William M. Acker Jr., an 87-year-old Reagan appointee who has the charming habit of telling parties to their faces, in open court, that he is going to cheat them--and then he does it.
During my employment case against the University of Alabama Board of Trustees and a number of individuals at UAB--where I was fired after almost 20 years on the job for reporting accurately on this blog about Judge Fuller's unlawful actions in the Don Siegelman case (see here and here)--Acker cheated me in a variety of ways.
But No. 1 on the list was his denial of discovery--and failure to set a discovery schedule--even after he had converted the university's motions to dismiss to a motion for summary judgment. Black-letter law shows that Acker corruptly denied discovery, but his actions in other cases prove that he knows his obligations under the law, but intentionally failed to abide by them in the UAB case.
Why is that? For one, discovery probably would have unearthed a treasure trove of e-mails, text messages, and other communications that would have proven I was the victim of discrimination--and I was fired in violation of my First Amendment rights. Two, my termination clearly was driven by someone connected to the administration of then Governor Bob Riley--probably former "first son" Rob Riley--and we've seen evidence that Acker has a history of protecting Rob Riley against allegations of fraud and other malfeasance. (See here and here.)
It's not as if Acker was dealing with complicated law in my UAB case. Rule 56 of the Federal Rules of Civil Procedure (FRCP) requires that discovery be conducted before summary judgment is considered. Controlling case law in the Eleventh Circuit--via a case styled Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988)--makes the same holding. Snook nicely sums up the law as follows:
This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.
How blatant were Acker's actions in granting the university summary judgment without allowing discovery? Rule 26(f) FRCP requires the parties to conduct a discovery-scheduling conference, submitting a written report to the court. Under Rule 16(b) FRCP, the trial judge must issue a scheduling order, setting dates when discovery is to begin and end.
Acker admitted in open court that the case was at summary-judgment stage, and there had been no discovery schedule and no discovery. (Anyone can call up PACER or check the file on public computers at the Hugo Black Courthouse in Birmingham and see that no discovery took place.) This is straight from a court transcript, which can be viewed at the end of this post, as Acker addresses university lawyer Lisa Huggins, on pages 15 and 16:
THE COURT: In your case, I'm going to convert it to a motion for summary judgment and put a submission order out, which would require him to controvert anything that you say in your motion for summary judgment that is dispositive in the way of present condition. He is right that there has been no scheduling order, there has been no discovery.
In the same transcript, Acker admits that I had a right to conduct discovery--in fact, the law says the court is required to grant discovery:
I think he has a point, that the alternative motion to dismiss should be converted to a motion for summary judgment, which might occasion some right by him to invoke Rule 56(f)--I don't know whether he is familiar with that or not; I think maybe he is--which would allow him to poke around into your people to some degree before we get to that.
These two exchanges show that Huggins is as corrupt as Acker. She's acting like it's a debatable point that the law requires discovery, when it isn't. Even Acker, at that point in the proceedings, more or less tells her that she's full of feces. But this gives you a sense of how desperate Huggins and university officials were to make sure I was not allowed "to poke around into (their) people."
Acker made statements in open court that indicate he had communications with individuals connected to UAB. Someone must have convinced him, at some point, it was best to violate the law and deny me discovery--probably because depositions and requests for production of documents would have shown that Rob Riley, or someone connected to him, was responsible for my termination.
How serious is this? The evidence points to obstruction of justice, conspiracy, and perhaps enough criminality to justify an investigation under the Racketeer Influenced and Corrupt Organizations (RICO) statute. In other words, this gives off a strong whiff of organized crime.
Acker ultimately granted summary judgment to the university, without discovery, and tried to justify it with an order that is shameless and absurd to the point that it would be comical--if it weren't so corrupt. I replied with a Motion to Alter, Amend or Vacate Judgment, citing the exact law that Acker had butchered. (Both documents can be viewed at the end of this post, along with the hearing transcript.) Acker, of course, ignored my efforts to get him to follow the law.
But here is something fascinating: We've examined documents related to other cases Acker has handled, even employment cases similar to mine, and he has consistently ordered and allowed discovery. This provides clear evidence that he knowingly violated the law in my case, and we will spell it out in an upcoming post.
(To be continued)
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|Robert Bryant, after beating by Alabama deputies|
A federal indictment charges Deputy Justin Watson with five criminal counts, including two for deprivation of rights under color of law (18 U.S. Code 242) related to an unlawful traffic stop of Robert Bryant and the beating that followed. Watson faces one count of lying about the incident under oath and two counts of intimidating witnesses, including aiming an unloaded gun at a fellow deputy and pulling the trigger. (See FBI press release at the end of this post.)
The Bryant beating came to light after the murder of Jason Klonowski, who found lawyers and helped pay for Bryant's legal bills. Klonowski also paid for signs and T-shirts to support Bryant and raise questions about the Madison County Sheriff's Office. Klonowski said at a public event in late September 2013 that he would not stop until at least two officers, Watson and Jake Church, were in prison. Less than one month later, Klonowski was found dead on his property, with three bullet wounds to the back of his head. The murder case remains under investigation.
Bryant's beating hits close to home here at Legal Schnauzer for a number of reasons. For one, it started with a traffic stop, for an alleged improper lane change, which federal authorities now state in the indictment was conducted "without probable cause and without reasonable suspicion."
My wife, Carol, and I were subjected to a similar stop in Shelby County. Officer Mike DeHart pulled us over for allegedly rolling through a stop sign, but after giving me a warning and returning my license and insurance documents (indicating the traffic stop, by law, was over), he unlawfully extended the stop by handing me court papers in a defamation lawsuit brought by Republican political operative/lawyer Rob Riley and lobbyist Liberty Duke. DeHart's actions violated a long line of Fourth Amendment case law, most recently spelled out in a U.S. Supreme Court case styled Rodriguez v. United States.
DeHart's actions are particularly egregious because he clearly stopped me to "serve" papers in the Riley/Duke lawsuit, meaning he had no probable cause to make the stop based on a rolling-stop violation that never happened. Also, we now know, thanks to a letter from Birmingham attorney David Gespass, that no summons had been issued in the case at the time of DeHart's bogus stop. That means the court had no authority to hear the case, and DeHart's actions were completely outside judicial boundaries.
The Bryant case also hits home because I, too, wound up being beaten by an Alabama deputy. I wasn't bloodied and beaten with a baton, as Bryant was. But Deputy Chris Blevins knocked me to the concrete floor of my own garage three times and doused me with pepper spray before hauling me to jail for a five-month stay--all from a civil case, based on a preliminary injunction that violates more than 200 years of First Amendment law, apparently without a warrant and without service of a summons in the case.
We also have seen evidence that DeHart and Blevins, like Watson, lied under oath about their actions.
Justin Watson's bogus traffic stop and brutal beating of Robert Bryant is unconscionable. But I would argue that the actions of DeHart and Blevins against me are in the same ballpark. Which is worse, to be bloodied by the side of the road and sent to a hospital, or to be beaten in your own home, sprayed with mace, and sent to jail for five months? We see no reason to arrive at an answer to that question--after all, it's like comparing an airplane crash to a train wreck. Both are horrific.
Here is one major difference between the Bryant beating and my case: We see signs that justice might be done in the Bryant case. And ironically, it largely is being sought for the criminal "deprivation of rights under color of law,"a subject we addressed here about six weeks ago.
We see no signs of justice, so far, in my case. Is that because a lawyer (Rob Riley) orchestrated the whole charade and another lawyer (Judge Claud Neilson) served as Riley's personal rubber stamp? Are federal authorities less likely to pursue a case where members of the legal tribe are at the heart of wrongdoing?
My answer to those questions is a resounding yes. That doesn't mean, however, that Carol and I will be denied justice. But it might take longer than it should, and we might have to consider remedies outside a court system that has consistently cheated us for 15 years.
FBI press release on the indictment of Alabama deputy Justin Watson
When twice meeting with me in the Shelby County Jail, Gespass sang from a different hymnal. He suggested to me that Neilson's actions were "questionable," at worst, never mind that they violated more than 200 years of First Amendment law. Gespass suggested that I needed to resolve the case with GOP operative Rob Riley and lobbyist Liberty Duke "as quickly as possible," even though it was their dubious defamation claim that caused me to be arrested in the first place. In fact, Riley and Duke specifically asked for the unlawful arrests of my wife, Carol, and me, but that didn't seem to bother Gespass in the least.
Why would Gespass say the actions against us were "insane" and "bizarre" to national audiences, but downplay them in his communications with us? I can think of only one answer: Gespass felt compelled to speak truthfully on the big stage, so he would not look like a fool to millions; but on the small stage, he wanted to protect Riley and the interests of the Alabama legal tribe,
We've already shown that, according to Gespass' review of sealed court records, we never were served with the Riley complaint and no summons was issued until after Neilson already had granted a preliminary injunction. In fact, the record shows that we never were served with a summons, meaning we never were lawfully called to court.
That's what we learned from page one of a letter that Gespass wrote to Carol and me, between his visits to the Shelby County Jail. Now, let's take a look at page two. (You can read the full letter at the end of this post.) By the way, you can compare the words of Gespass' letter to his statements in The New York Times and to San Francisco-based radio host Peter B. Collins:
* A trial, what trial? -- In the first paragraph on page two, Gespass writes: "I would think that, since there was no notice of the preliminary injunction hearing, we could ask for, and get, another. Alternatively, we could ask that the preliminary injunction and the final hearing be combined." Notice that Gespass is talking about a "hearing," before a solo judge, even though the law requires that a defamation case be heard at trial, before a jury. Gespass is drawing straight from the Riley/Duke playbook, ignoring First Amendment law and our right to a jury trial.
* Why such a rush? -- Gespass writes: "I do not think the petitioners are expecting money damages, as the complaint alleges you have no resources, but they are asking for costs and attorney fees for the injunctive relief and that can end up being tens of thousands of dollars. Thus, there is something to be said for having this case resolved as quickly as possible at the trial level and appealing the constitutional issues." Now, wait a minute. Riley and Duke could receive tens of thousands of dollars in costs for seeking injunctive relief to which they are not entitled? Gespass told Peter B. Collins' audience that the prior restraint Riley and Duke sought was "insane." But he's telling Carol and me that we could be forced to pay for their "insane" effort to circumvent the law.
And how are we supposed to resolve the case as quickly as possible at the trial level, while appealing the constitutional issues? The general rule is that an issue not raised at trial cannot be reviewed on appeal. Plus, if the case is resolved at the trial level, what is there to appeal? Was Gespass setting us up to get screwed on violations of our constitutional rights? A reasonable person certainly could reach that conclusion.
* Let's skip over discovery -- In the second paragraph, Gespass writes: "Another consideration is how much discovery do you want to engage in. If discovery is conducted, they will want you to identify your source, which I would assume you would not be willing to do unless they were willing to come forward on their own. Obviously, if you do not reveal them, that will weaken your ability to defend the case, and that, too, argues in favor of getting it done quickly, and making constitutional arguments, rather than defending on the grounds that the statements were all true."
Gespass seems to be leaving out a few considerations here:
(a) The burden of proof would be on Riley/Duke to prove my reporting is false, not the other way around.
(b) Gespass talks only of us "defending" the case. He never mentions that Carol and I have valid counterclaims for abuse of process, false arrest, false imprisonment, (all against Riley/Duke) excessive force, false arrest, false imprisonment (against Shelby County law enforcement), conspiracy, and maybe more.
(c) Gespass focuses on supposed threats I might feel from discovery, but how would Riley and Gespass fare? How would they handle questions under oath during depositions about their relationship? How would they handle requests for production of documents, such as e-mails, text messages, letters, phone records? How would they handle depositions from third parties, such as Duke's former husband, who filed for divorce from her? Who really had the most to fear from discovery?
* The constitutional violations here are "highly questionable"? Oh, really? -- Gespass writes, in the third paragraph: "Whether a court can prohibit you from saying anything defamatory about Riley (which the preliminary injunction does), is a prior restraint and highly questionable constitutionally." It's "questionable," Mr. Gespass? You told Peter B. Collins audience that it was "insane"--and we know your characterization then was correct. So why did you chose to dance a soft shoe with me?
* No trial, no jury? -- In the fourth paragraph, Gespass more or less concludes by stating: "I do think that, before any appeal, it is probably necessary to file a motion in the trial court seeking another hearing, asking for the injunction to be lifted or narrowed and alleging that you have not had a fair opportunity to contest the findings. Otherwise, the appellate court may well just say that issues had not been properly raised."
Gespass contradicts himself--and confirms my concerns about not raising constitutional issues at trial. More importantly, he raises the issue of whether I'd had "a fair opportunity to contest the findings." Heck, I had no opportunity to contest the findings at trial. That can only be done in a defamation case via a jury trial, which Riley and Duke did their absolute best to avoid. Gespass does not mention that Neilson's "findings" amount to one-man censorship, which is specifically forbidden under years of First Amendment law.
What overall tone does Gespass set in his letter?
(1) He completely glosses over wrongdoing from law enforcement, including an unconstitutional traffic stop and the fact officers entered our home without a warrant, beat me up, doused me with mace, and threatened to break my arms--all without legal justification.
(2) We are supposed to "defend" the case, but seek no "offensive" strategy to compensate for our injuries.
(3) We are supposed to hurry through trial-court activities, including discovery--which likely would place Riley and Duke in the extremely difficult position of trying to prove my reporting was false, when it never has been proven false at trial.
(4) Actions taken by Neilson--and requested by Riley/Duke--are merely questionable, as opposed to "insane."
(5) Gespass makes no mention that my arrest and incarceration were grossly unlawful, that Riley and Duke sought remedies that are not authorized by law--in fact, they sought remedies that are specifically forbidden under the law.
(6) Gespass does not even offer a clear-cut way to get out of jail. It should have been simple, and appropriate, to say something like, "You are being held contrary to law, and I am going to file an emergency motion to seek your release, so you will have a fair opportunity to both defend yourself and seek damages for the wrongs committed against you and your wife. At this moment, you are a kidnap victim, and the court must release you immediately."
Was David Gespass trying to pull a con game on me, while I was under the duress of being incarcerated, wearing shackles and handcuffs during our meetings? I will allow readers to reach their own conclusions, but you probably can guess what conclusion I've reached.
|Scott Vowell and Henry Lynn|
at Birmningham's Lyric Theatre
First, Sterne Agee and former Chairman/CEO James Holbrook Jr. are named in the 23-count indictment against Alabama House Speaker Mike Hubbard (R-Auburn). Count 17 of the Hubbard indictment alleges that the speaker unlawfully solicited or received a $150,000 investment in his company, Craftmaster Printers, from Holbrook and/or Sterne Agee. Second, Holbrook is the subject of a federal investigation related to his "possible misuse of holding company assets," including airplanes, boats, hunting clubs, and condominiums. Third, evidence suggests that individuals connected to Sterne Agee might have played a role in bookend lawsuits, from Republican political operatives Rob Riley and Jessica Medeiros Garrison, that led to my unlawful five-month incarceration and a dubious foreclosure on our home.
How could Sterne Agee intersect with the Legal Schnauzer story? Well, it starts with an unusually close relationship between J. Scott Vowell, former presiding judge of Jefferson County, and Henry Lynn Jr., former chairman and current chairman emeritus at Sterne Agee. Lynn is one of the firm's longest serving employees. It also involves Birmingham attorney Bill Baxley, who has strong family ties to Sterne Agee and just happens to represent Garrison in her defamation lawsuit against me.
In fall 2013, I received tips from multiple sources that the nature of the Vowell-Lynn relationship was well known among members of the bar in Jefferson County, and it contributed greatly to the corruption that festered on Vowell's watch. Specifically, sources said, the Vowell-Lynn relationship was one reason hunting-club corruption was allowed to run rampant in Jefferson County's domestic-relations court. (Note that the federal investigation of Holbrook relates, in part, to hunting clubs connected to Sterne Agee.)
After retiring from the bench, Vowell helped start the firm of Vowell and Goldsmith, which focuses on alternative dispute resolution, mediation, arbitration, and private judging. Vowell's wife, Cameron McDonald Vowell, is part of the Spain family for which several buildings at UAB are named. Cameron Vowell long has been a booster and powerful player in UAB circles, and our sources say she, too, has a number of unusual relationships in the Birmingham area.
Based on tips from knowledgeable sources, I began to investigate the Vowell-Lynn story and called Henry Lynn at his Sterne Agee office on August 15, 2013. My line of questioning seemed to fluster Mr. Lynn, and he hung up on me several times. (I have audio of those conversations.) Within minutes after my aborted discussion with Henry Lynn, I checked my blog statistics site and noticed someone (or several someones) from Stern Agee poring over my blog.
|James Holbrook Jr. at Sterne Agee|
Why does this matter? Louis Baxley is Bill Baxley's son. And on August 16, 2013, one day after my conversation with Henry Lynn, I received my first communication from Bill Baxley, threatening to sue me on Jessica Medeiros Garrison's behalf. Baxley alleged that I had published defamatory information about Garrison's relationship with Alabama Attorney General Luther Strange, for whom she had served as campaign manager. Baxley issued a followup letter dated August 19, 2013, so he was in rapid-fire mode for some reason. (See Baxley's August 16 and August 19 letters at the end of this post.)
Let's follow a brief timeline of events:
August 15, 2013--I conduct an aborted phone interview with Henry Lynn, of Sterne Agee, regarding his relationship with Scott Vowell and its impact on Jefferson County Court corruption.
August 16, 2013--Bill Baxley writes a letter threatening to sue me over alleged defamation of Jessica Medeiros Garrison. Baxley's son, Louis Baxley, works at Sterne Agee.
August 19, 2013--Bill Baxley writes a second threatening letter regarding Jessica Garrison.
August 27, 2013--According to a report at Alabama Political Reporter, Garrison files a lawsuit against me on this date.
Was the Garrison lawsuit really about "defamation," or did Bill Baxley file it in retaliation for my inquiries regarding Henry Lynn, Scott and Cameron Vowell, and others connected with Sterne Agee? Was Sterne Agee a particularly sensitive topic because, as we now know, the firm is part of multiple criminal investigations?
For the record, I also was investigating, at about the same time, Jessica Garrison's business connections to Erik Davis Harp, a Tuscaloosa native who was indicted as one of two ringleaders in an offshore sports gambling ring. Based in Panama, the ring reportedly was bringing in $20 million a month and had ties to the Gambino and Genovese crime families before authorities in Queens, New York, stepped in. Was my reporting on that subject making powerful Alabama interests nervous? Do some of those interests have ties to Bill Baxley, and is that why he was assigned to file a lawsuit that, on its surface is about "defamation" of Jessica Garrison, but really is about something else?
A source told me in fall 2013 that my inquiry into the Erik David Harp case, and his ties to Jessica Garrison, was causing alarm among certain Alabama elites--and that continued research on the subject could put my physical well-being at risk. Exactly seven weeks after that warning, an Alabama deputy beat me up in my own home, doused me with pepper spray, and hauled me to the Shelby County Jail for a five-month stay--supposedly because of contempt of court related to Rob Riley's defamation lawsuit.
Deputy Chris Blevins showed no warrant that night, did not say he had a warrant, and did not state his reason for being on my property. A letter from Birmingham attorney David Gespass, after he had reviewed the sealed court file in the Riley case, indicates we had not been served with either the Riley complaint or summons at the time of my arrest. That means the court had no authority to hear the case or issue any orders against me--in fact, there officially was no lawsuit, which makes my arrest a kidnapping.
How could this happen in a society that supposedly is governed by the "rule of law"? We are getting close to some answers about that, but this much is certain: My investigation into Henry Lynn, the Vowells, and Sterne Agee--and Erik Davis Harp-- is continuing. Audio of my conversation with Henry Lynn, plus digital records in the immediate aftermath of those calls, strongly suggest powerful interests found my reporting on sensitive matters to be alarming and most unwelcome.
(To be continued)
|Alabama deputy Chris Blevins|
In Fils v. City of Aventura, 647 F. 3d 1272 (11th Cir., 2011), the appellate court that covers Alabama, Georgia, and Florida found that law-enforcement officers violated Fourth Amendment rights by using substantial force to arrest individuals who were not charged with a serious crime, posed no threat to the safety of officers, and did not actively resist arrest or attempt to flee.
The heart of the Fils case developed when the plaintiffs (Cindy Fils and Nemours Maurice) attended a party at a billiards club in Aventura, Florida. A commotion began inside the club, leading to two arrests and prompting Maurice and Fils to try to serve as peacekeepers. Those efforts apparently failed because Maurice wound up being tased, and Fils was knocked unconscious to the ground after taking a step toward an officer's back. Both Maurice and Fils were arrested, and both filed federal lawsuits, alleging use of excessive force under 42 U.S. Code 1983.
How do constitutional issues enter the picture? The Fils court explains:
The Plaintiffs' excessive force claims arise from the Fourth Amendment's protection "against unreasonable ... seizures."Graham v. Connor, 490 U.S. 386 . . . (1989). An officer's use of force is excessive under the Fourth Amendment if the use of force was "objectively [un]reasonable in light of the facts and circumstances confronting" the officer. . . .The Graham case, decided by the U.S. Supreme Court in 1989, obviously is central to this area of law. And it's three-pronged test takes us back to roughly 6 p.m. on October 23, 2013, when Shelby County deputy Chris Blevins entered the garage underneath our home--without showing a warrant, stating he had a warrant, or even stating his purpose for being on our property--and proceeded to knock me to a concrete floor three times and direct pepper spray into my face. All because I supposedly was wanted on a contempt-of-court charge related to a defamation lawsuit that Republican political operative Rob Riley and lobbyist Liberty Duke had filed.
When determining whether the force used to make an arrest was reasonable for purposes of the Fourth Amendment, "a court must carefully balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests. . . . "And we evaluate whether force was necessary by examining: "`(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight. . . . '" See also Graham . . .
We already have shown that Blevins' entrance into our home probably violated U.S. Supreme Court precedent in Payton v. New York, 455 U.S. 573 (1980). We also have shown that Blevins violated Alabama law by failing to state his purpose before entering our home--and this failure clearly is shown on the dash-cam video of my arrest.
Now, we have the Eleventh Circuit's Fils case, citing the U.S. Supreme Court's three-pronged test in Graham, and that adds to what is slowly becoming a mountain of case law that shows Blevins acted well outside the law. Let's examine the three-pronged test for excessive force and apply it to events in our garage:
(1) What was the severity of the crime at issue? Heck, there was no crime involved. I supposedly was wanted for contempt of court related to a lawsuit, a 100 percent civil matter.
(2) Did I pose an immediate threat to the safety of officers or others? According to Blevins' own incident report (which can be seen at the end of this post), the property on me at the time of my arrest consisted of "$1.43, three blank checks, chapstick, and keys." Sounds threatening, doesn't it? I guess I was going to attack him with a tube of chapstick and my monstrous stash of cash?
(3) Was I actively resisting arrest or attempting to flee? Well, I was inside my own home, and Blevins' own words give no indication I was trying to leave my home. Blevins charged me with resisting arrest, the same stunt officers in the Fils case pulled on plaintiff Maurice. And guess what? Federal judges don't necessarily buy any "resisting arrest" charge that a state deputy might dream up. Consider this from the Fils ruling, which more or less states that the resisting-arrest against Maurice was a steaming pile of horse feces:
Maurice was not resisting arrest or attempting to escape. Although he was charged with resisting arrest, Maurice's version of events shows that he did not ignore any verbal instructions, nor did he attempt to free himself from [the officer's] control once he was on the ground.
Our conclusion is in line with other excessive force cases from this court. Put together, these cases establish that unprovoked force against a non-hostile and non-violent suspect who has not disobeyed instructions violates that suspect's rights under the Fourth Amendment.
Blevins failed all three prongs of the Graham test, and his own words from the incident report show that he used "unprovoked force"--that I was non-hostile and non-violent, and I was inside my own home and charged with no crime. As for disobeying instructions, I wasn't given any instructions--I wasn't told to put my hands up, put my hands behind my back, none of that.
What about the use of pepper spray specifically? The Fils court addresses that by citing a case we already have covered here at Legal Schnauzer. It's styled Vinyard v. Wilson, 311 F. 3d 1340 (11th Cir., 2002), and it shows that the use of pepper spray amounts to excessive force in cases where the three-pronged Graham test is not met. From Vinyard:
As this Court also recently explained in Lee,"Graham dictates unambiguously that the force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight. . . ."
Courts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.
You might not know it from living in Shelby County, Alabama, but longstanding law is supposed to govern an officer's use of force, including his use of pepper spray. Chris Blevins ignored that law, and in the process, ripped my constitutional rights asunder--while I was inside my own home and not suspected of any crime.
Is that what civil rights have come to mean in the US of A? Are we going to allow "officers of the law" like Chris Blevins to behave like thugs and get away with it?
(from USA Today)
about her decision to rescind a job offer to a would-be professor who had criticized Israel in statements on social media.
Chancellor Phyllis Wise's decision to step down last Thursday is the latest chapter in the story of Stephen Salaita, who was offered a faculty position in UI's Department of American Indian Studies only to have it withdrawn when university boosters complained about his statements on Twitter regarding Israel's actions in the Gaza Strip.
UI released 1,100 e-mails last Friday involving the Salaita case and other sensitive campus matters. The evidence showed that senior university administrators, including Wise, had used personal e-mail accounts in an apparent effort to avoid public scrutiny.
Salaita, a Palestinian-American who previously taught at Virginia Tech, filed a lawsuit that now looks like it could be headed to a federal jury, possibly inflicting more embarrassment and financial pain on the university; UI already has spent $843,000 to defend the lawsuit. Professors around the country have criticized UI's actions in the Salaita case, calling it an infringement on academic freedom of speech. Now we have evidence that the university's chief executive and others were using private e-mail accounts to hide communications from those who might seek their release under public-records laws.
How ugly, and expensive, will this get for the University of Illinois? That remains to be seen, but the Salaita case is emitting the kind of foul odor that arose in May 2008 when I was unlawfully terminated from the publications office at the University of Alabama at Birmingham (UAB), after almost 20 years on the job. As I've reported numerous times here, e-mails and other forms of internal (and external) communications almost certainly would reveal who caused my termination and why.
The public record shows that I did not engage in any misconduct or policy violations that remotely would have merited termination--in fact, UAB's own grievance committee found I should not have been terminated, but former director of human resources Cheryl E.H. Locke and former president Carol Garrison upheld my firing anyway. This indicates someone--much like the Illinois boosters who complained about Salaita's tweets--was uncomfortable with my reporting on this blog about the prosecution of former Alabama governor Don Siegelman.
(from Chicago Tonight)
In other words, I was fired because my reporting, which proved to be accurate and way ahead of its time, showed that a federal judge was corrupt and unfit to sit on the bench. There is little doubt that someone connected to former Republican governor Bob Riley engineered my firing because Fuller's unlawful actions were designed to destroy Riley's chief political opponent, Don Siegelman.
The entire country now knows my reporting about Fuller--done on my own time, with my own resources--was on target. But I'm still out of a job. Never mind that I was a government employee, and my speech, like Stephen Salaita's, was protected under the First Amendment.
UAB "caught a break" when my federal lawsuit just happened to fall in the lap of U.S. Judge William M. Acker Jr., an 87-year-old Reagan appointee who told me in open court that he was going to cheat me. Acker then did just that by violating black-letter law to grant the university summary judgment, even though no discovery had been conducted in the case--and no discovery schedule had been set. I notified the court in three separate motions that discovery was outstanding (in fact, it hadn't been conducted at all), but Acker dismissed my case anyway--and that ensured any UAB e-mails that would have proven my case remained under wraps, not unlike the way Chancellor Wise tried to do it at the University of Illinois. The U.S. Eleventh Circuit Court of Appeals upheld Acker's bogus rulings in a "Do Not Publish" opinion that violated its own long-standing precedents.
U.S. Judge Harry D. Leinenweber is hearing Salaita's case, and Leinenweber apparently takes his oath to uphold the law at least somewhat seriously. He already has ruled that UI had contractual obligations when it offered Salaita a faculty position. That means Chancellor Wise's resignation could be just the first of many embarrassments for UI. It means large chunks of taxpayer dollars--plus funds from the university's insurers--could be paid to settle a dispute that never should have happened in the first place. And it means that Stephen Salaita, if he wants to, likely will be gainfully employed at UI long after the administrators and boosters who tried to cheat him have come and gone.
How have UI's actions against Salaita been viewed in academia? Not well, according to a report in the Chicago Tribune:
The harshest criticism against Wise focused on the decision last summer to withdraw a job offer to professor Steven Salaita after he made a series of critical and profane comments about Israel on social media. U. of I. rescinded Salaita's offer for a tenured faculty position in the American Indian studies department weeks before he was scheduled to start teaching.
That decision led to much fallout, including a recent censure by the American Association of University Professors, a prominent professors group, which said U. of I. violated the principles of academic freedom. More than a dozen U. of I. academic departments voted no confidence in Wise's leadership, and faculty across the country have boycotted the campus and canceled events there. Salaita has filed a federal lawsuit alleging breach of contract and violation of his free speech rights.
What does the Salaita case teach us about the UAB cheat job that cost me my career? It's too early to say for sure; the Salaita case remains a long way from a trial date. But this much seems clear: Chancellor Wise's downfall started when several unnamed individuals sought e-mails and other documents under Illinois' Freedom of Information law. In fact, Salaita has filed a state-court lawsuit alleging that UI violated the state's open records law.
Alabama has a similar law--the Alabama Open Records Law--and it's designed to shine light on the communications of public employees in their official positions. That would include UAB employees, perhaps including one or more trustees, who signed off on my termination.
Such an open-records request spelled doom for Chancellor Wise's administrative career at UI. Perhaps a similar request in my case will cause heads to roll at the University of Alabama.
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