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(From Montgomery Advertiser)
Here is the central issue in the Siegelman appeal: May a court consider acquitted conduct to increase a sentence within the statutory range of the offense for which the defendant was convicted? That is precisely what U.S. District Judge Mark Fuller--who since has resigned from the bench in the wake of a wife-beating scandal--did in the Siegelman case. And it's a big reason Siegelman is not scheduled for release from federal prison until August 8, 2017.
To a considerable extent, he is being held now based on charges of which a jury acquitted him. A number of constitutional and legal groups have filed briefs in the case, arguing that such an outcome violates a defendant's Sixth Amendment right to a jury trial and violates the Right to Popular Sovereignty inherent in the U.S. Constitution.
Based on news reports about a similar 2014 case, two of the Supreme Court's most conservative justices--Antonin Scalia and Clarence Thomas--appeared ready to side with Siegelman, a Democrat. Liberal justice Ruth Bader Ginsburg, who joined Scalia and Thomas in a 2014 dissent, also appeared ready to side with Siegelman.
If Scalia, Thomas, and Ginsburg voted to hear the Siegelman case--as seems likely--that means no other justice provided a fourth vote needed to hear the case. SCOTUS announced that Obama appointee Elena Kagan did not participate in deliberations because, as solicitor general, she had written a brief urging the high court to uphold the Siegelman convictions.
If this scenario played out behind the scenes, that means two liberal justices--Clinton appointee Stephen Breyer and Obama appointee Sonia Sotomayor--could have provided the fourth vote needed to hear the Siegelman case. But they apparently did not do it.
That raises this question: If Democrats are the party that champions constitutional rights, what kind of rights are Breyer and Sotomayor supporting--especially on an issue where even Antonin Scalia and Clarence Thomas see constitutional problems?
Here's another question--Hillary Clinton has powerful ties to both the Bill Clinton and Barack Obama administrations. What does this outcome say about her priorities regarding civil rights? Should she be pressed about this issue on the campaign trail? Could this cause Democrats who truly care about constitutional protections to support Bernie Sanders?
The 2014 case was styled Jones v. United States. Here's how the Stanford Daily summarized the facts and legal issues surrounding the case:
The case arose in Washington, D.C. Three men, Joseph Jones, Desmond Thurston and Antwuan Ball, were charged with, among other things, running an “open-air” drug market — essentially a conspiracy to distribute large amounts of drugs. If convicted on that charge, the men would effectively be held liable for all of the drugs dealt by the entire “organization,” much more than any of the men had personally distributed. The jury, however, did not convict on the conspiracy charge, and instead merely found the men guilty of distributing the relatively small amount of drugs that each had personally dealt— between two and 11 grams of crack cocaine. . . .
Nevertheless, the judge accepted the government’s argument and sentenced the defendants as if they had conspired to distribute more than 500 grams of crack, even though they had been specifically acquitted of those charges. The defendants therefore received sentences varying from 15 years to almost 19 years, sentences nearly four times the length of the next highest sentences imposed for similar convictions.
How did that sit with Scalia, Thomas, and Ginsburg? Not well, as the Stanford Daily reports:
The Court, however, denied certiorari, but not without dissent. Justice Scalia published a vigorous dissent, insisting that it was time for the Court to put an end to this practice. First marshaling precedent, Justice Scalia explained that any fact that increases the penalty to which a defendant is exposed is essentially an element of a crime, and therefore must be proved to a jury, not a judge. The Court has also held that a substantively unreasonable sentence is unconstitutional and must be set aside. It follows, then, according to Justice Scalia, that “any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.” Because the defendants argued that their sentences were only reasonable if the conspiracy was considered relevant conduct that could increase the Guideline penalty, the Sixth Amendment was implicated. Justice Scalia then closed by insisting that the Court should have taken this opportunity to “put an end to the unbroken string of cases disregarding the Sixth Amendment.”
Justice Scalia was not alone in his dissent. In fact, criminal cases can often lead to unusual lineups of Justices, and this case was one such example. Joining Justice Scalia in his dissent from denial of certiorari were Justices Thomas and Ginsburg. Given just one more vote, then, the Court would have granted certiorari to resolve this important issue.
Dissents from denial of certiorari are rare, and no such dissents were forthcoming in the Siegelman case. But three justices, from a wide range of political perspectives, have already made it clear where they stand on the issue.
(From Mother Jones)
"It is hard to believe we live in a country where justice is just a game.” Bob Dylan
"U.S. Citizens do not have a constitutional right not to be framed": The U.S. Solicitor General, January 4th, 2010, in an argument to the U.S. Supreme Court defending Iowa law enforcement in a civil suit by two men who spent 25 years in prison for a crime they didn't commit. They were intentionally framed.
Today, the U.S. Supreme Court gives its stamp of approval to the practice of allowing judges to add years to a defendant's sentence for matters a jury found the defendant innocent!
We criticize North Korea, China and other countries for human rights violations while turning a blind eye to our own.
Today's U.S. Supreme Court decision is so extraordinarily shocking and is an example of America's democratic hypocrisies.
116 former state Attorneys General and The Constitution Project argued that a jury decision is final, that the U.S. Constitution gives the people, speaking through a jury, the final decision on guilt or innocence. The U.S. Supreme Court has thumbed its nose at justice."
Don E. Siegelman
Governor of Alabama, 1999-2003
|Gov. Robert Bentley and Rebekah|
Articles in The New York Times and Gawker focus on Bentley's plan to use funds from BP oil-spill grants to refurbish the state's beachfront mansion, which has been in a state of disrepair since being struck by Hurricane Danny in 1997. The articles particularly focus on allegations that Bentley is dipping into state coffers to fix the mansion because he lost his own beach properties in a divorce from First Lady Dianne Bentley, which ended a 50-year marriage among reports that the governor and Mason had become unusually close.
The Times article, titled "Alabama Governor’s Use of Oil Spill Funds for Mansion Draws Criticism" and written by Alan Blinder, was published on July 11. Gawker followed up yesterday with a piece by Jordan Sargent titled "Alabama Governor Will Take His Post-Divorce Blues to a State-Funded Beach House."
Blinder, of The Times, sets the stage with his report from Montgomery:
In a capital where almost anything can turn contentious, there has mostly been a consensus on a matter of housekeeping for close to two decades: A rehabilitation of a ramshackle governor’s mansion on the gulf coast would be political folly.
So when Gov. Robert Bentley’s office acknowledged last month that Mr. Bentley, a second-term Republican, was renovating the home with up to $1.8 million that BP gave the state after the 2010 oil spill in the Gulf of Mexico, it was something of a jolt, particularly because the property in Baldwin County is intended only as a retreat for governors.
Mr. Bentley, who cannot seek a third consecutive term, is making no apologies for the decision, which provoked debate about BP’s payouts after the spill; questions about what a state short of cash is doing supporting an executive escape; and testy posts on social media by the governor and the state auditor, a fellow Republican.
“If this were a house in the woods in North Alabama, nobody would think anything about it,” Mr. Bentley said in an interview last week. “It just sounds more elaborate when it’s on the beach. But it’s a state-owned property, and it is our responsibility to repair state-owned properties.”
The Republican auditor would be Jim Zeigler, who has made it a habit to raise thorny questions about Bentley's actions. Writes Blinder:
State officials, citing security concerns, have been reluctant to disclose details of the renovation. Many of the plans were contained in a handsome portfolio that architects presented to Mr. Bentley, who said he wanted the project completed in time for a Memorial Day event for veterans.
But the governor forcefully denied Mr. Zeigler’s assertion on Facebook that he sought upgrades to the property only after a divorce in which he lost two beach houses.
“We’ve been working on this for a long time. All right?” Mr. Bentley said with a trace of anger as he gestured toward the plans, which were dated Aug. 27. Mr. Bentley’s wife, Dianne, filed for divorce on Aug. 28; the couple had been separated since January, according to a court document. (The governor’s office disputed the separation date, which was included in Dianne Bentley’s divorce complaint, and said Monday that the couple lived together until late August.)
Mr. Bentley made a similar case on Twitter in December, when he said Mr. Zeigler was “lying” and complained about news outlets publishing the auditor’s allegations. Mr. Zeigler, for his part, stood by — and often repeated — his charge.
Gawker, with its motto "Today's Gossip is Tomorrow's News," takes an "in yo face" approach to the story. While The Times discreetly sidestepped any mention of an extramarital affair, Gawker's approach is much less delicate. After all, this is the Web site that reported before on the Bentley/Mason scandal with the headline: "Alabama Governor Robert Bentley Won't Say Whether He Fucked a Staffer."
|Alabama beach mansion|
Alabama Governor Robert Bentley had a poor 2015, having divorced from his wife of 50 years in the midst of a widespread rumor that he’d had an affair with a key aide. Bentley has something to look forward to this year, though: a newly rebuilt beach house. But about that. . . .
The distastefulness of a state governor souping up a beach house via funds nominally dedicated to repairing a vital environmental region after a historically damaging disaster is obvious to everyone involved. . . .
But it is on the beach, and that specific detail has piqued the interest of one official close to the money: state auditor Jim Ziegler. Ziegler’s theory is that Bentley isn’t fixing the mansion because of a responsibility to the state or so that, as Bentley states, it can be used for events that will foster economic growth in Alabama. Instead, in a statement written before Christmas, Ziegler offered that Bentley’s interest in the mansion stems from the fact that the governor lost possession of two beach homes in the divorce from his wife.
Ouch! And the scorching words don't end there. Sargent sums up Bentley's mess thusly:
Bentley now has to refute not only that he’s immorally diverting money, but that he’s doing it for a deeply personal reason. The governor attempted to provide evidence contrary to Ziegler’s theory to the Times, saying that his office has been working on refurbishing the beach retreat for “a long time.” To that end he showed reporter Alan Blinder plans dated August 27. That date is especially curious because, as Blinder notes, Bentley’s wife filed for divorce one day later.
In a separate statement to AL.com, a Bentley spokesperson said that the governor recently purchased his own property on the same peninsula that houses the rundown governor’s mansion. Maybe that is so, but it doesn’t obscure an unchangeable fact as Bentley moves on from the twin loss of his previous beach homes: one plus one equals two.
Murphy and Carol appeared on a TV report about the Blessing of the Animals
on St. Francis of Assisi Day
Today marks the 12th anniversary of the death of Murphy Abigail Shuler, the beloved miniature schnauzer for whom this blog is named. Murphy died unexpectedly on her 11th birthday, and my wife, Carol and I still miss her like she passed yesterday.
Ironically, Murphy's death and birthday came on January 14, one day after Carol's birthday, January 13. You might say that, for us, all kinds of mixed emotions are wrapped up in those two days on the calendar.
If something good comes from this blog--a more educated public about injustice, more awareness about our broken and dysfunctional court system, support for victims of court-related corruption--the credit for that should go to Murphy. Without her, I don't think I ever would have been inspired to write a blog.
How could a dog inspire a blog. I tried to put the answer to that question into words with a post back in October 2011:
I am convinced that the distinctive title is a major reason this blog has resonated with more people than I ever dreamed possible.
In fact, an individual who has been the subject of quite a few posts here recently told me, "You know, people ask me all the time about Legal Schnauzer. And I think that title is one reason. It seems to connect with people."
Needless to say, those words warmed my heart. That's because this blog never has been about the anger, frustration, and fear we've experienced at the hands of our broken justice system--although those certainly are key elements to the story. At the risk of becoming overly ethereal, Legal Schnauzer has been, for the missus and me, like a divine calling.
It really is inspired by Murphy Abigail Shuler, the miniature schnauzer who was a guiding light in our lives from the day we adopted her in March 1993 until her death on January 14, 2004. She was with us, literally, through the first four years of our trip through legal hell. She is with us, spiritually, today.
What did Murphy mean to us? I tried to address that in a post titled "Lessons from our pets":
I don't pretend to know the answer to weighty questions about our pets. But I know what my wife and I hope--and believe. A heaven without Murphy and our other animal friends would not seem, well, all that heavenly.
Have you ever wondered about the special senses animals have? For 11 years, I knew that Murphy could see and hear and smell things in a way that I could not. But I also suspect she could sense our Creator in a way that I could not.
Many times I wonder exactly what my mission is in this time and place. I hope I'm a fairly decent husband, son, and brother, and I like to think I'm considered a reliable employee and coworker. I hope a few people consider me a friend worth having.
|Murphy and her mom at Gulf Shores, Alabama|
But I think Murphy knew exactly what her mission in this life was. And I think she sensed that from a higher power every day. Without that kind of connection from above, I don't know how she could live with the faith and trust that she displayed on a daily basis.
We humans struggle to discern our missions. And even when we think we've found them, we are easily distracted, easily turned in other directions. My sense is that Murphy never veered from the path she was meant to be on.
Aside from all that heavy stuff, Murphy was just a ball to have around. She was a source of constant amusement and playfulness, so much so that we developed the habit of creating songs for her--as I tried to explain in a post titled "Songs for Murphy":
Maybe our favorite "Murphy Song," appropriately enough, came from a band whose roots are firmly planted in Tuskegee, Alabama. It was inspired by the Girl's solid little build. We've read that some miniature schnauzers weigh in the 10- to 12-pound range. But that wasn't our girl. She was 18 to 20 pounds of solid muscle. "Murph, you're built like a brick s--thouse," one of us said one day. That prompted us to try our version of this Commodores classic:
And so, while this day always brings sadness, it also brings a sense of playfulness, thankfulness, joy, and hope. In that spirit, we share a song that will forever make us think of Murphy--and it never fails
to make us smile:
The journalist in question is al.com's John Archibald, who wrote "Why Mike Hubbard is like Don Siegelman." Archibald is no stranger to shallow, nonsensical analysis, so it's not a surprise that he would tackle this subject and screw it up. But you would think he might at least remember his own words from February 2014, in a post titled "This country is about to have a throwdown over abusive cops and courts."
Archibald's Hubbard/Siegelman commentary is goofy from the outset because there are almost no similarities between the two politicians and their criminal cases:
* Hubbard was indicted while in office and has refused to step down from his post, even temporarily, despite pleas from members of his own party; Siegelman was not in office when he was indicted.
* Hubbard's indictment appears to be lawful--it was filed inside the relevant statute of limitations and cites language that matches that from the state ethics law upon which it is based; the federal government filed an indictment against Siegelman almost one full year after the statute of limitations had lapsed, and the former governor was convicted based on jury instructions that match neither the statutory nor case-law language. In essence, Siegelman and codefendant Richard Scrushy were convicted of a "crime that does not exist."
* Hubbard was indicted by a state attorney general (Luther Strange) who is a member of his own party. Siegelman's indictment and prosecution were driven by members of the opposing party. Alabama attorney Jill Simpson swore in an affidavit, and testified under oath before Congress, that GOP operatives targeted Siegelman for political reasons--not because he had committed a crime.
His main gripe seems to be that neither Hubbard nor Siegelman has admitted guilt. (I'm not a Mike Hubbard fan, but he hasn't even gone to trial, and he's entitled to plead not guilty and try to prove that in court. Under those circumstances, it would be nutty for him to admit fault.) Here is the key point Archibald seems to be making:
If we know one thing at all by now it is that Mike Hubbard will serve Mike Hubbard first. He will cling to the power he believes he rightfully claimed for himself from the Democrats and all the forces marshalled against him. He will hold to that power as long as he has fingernails to sink into it. Because he is just like every other politician who grabs hold and cannot let go.
He's just like those he ridiculed when he himself staked a claim to public service.
Like convicted Democratic former Gov. Don Siegelman.
They both refuse to acknowledge fault. They both refuse to accept responsibility. They point and blame, because they always used government as a way to service themselves privately instead of using it provide the public service they promised.
Archibald seems to be saying we have a justice system that always gets it right--that all prosecutors, lawyers, judges, and jurors are fair, honorable, serious, perceptive, and knowledgeable. This system, Archibald seems to assert, is infallible--and anyone who is indicted or found to be guilty under it has a duty to admit guilt.
That's a far cry from what Archibald wrote roughly one year ago. On that occasion, Archibald was understandably disturbed about the case of Sureshbhai Patel, a grandfather from India who was body slammed and partially paralyzed by Madison police officer Eric Parker. (We will be addressing the latest outrages in the Patel case soon.) Here is what Archibald wrote last February:
I've been asked a lot lately, in the wake of the gay marriage debate, what the next great civil or human rights battleground will be. And I think this is it.
Justice. And all that means.
It is the use of force by police. It is the fairness of justice for the rich and the poor alike. The battle is simmering now, in places like Ferguson and Madison, and more quietly in courts like those in Childersburg and Clanton, where the smallest of traffic offenses can lead to jail time for those who cannot pay immediately.
It was by far the most insightful piece I've seen from John Archibald, and I praised him for it publicly. Archibald correctly stated that our justice system is deeply flawed--and the law-enforcement and legal/judicial types who make it "hum" often have dubious motives.
So why should Don Siegelman admit guilt because of the findings from a court system that Archibald admits is a long way from infallible? Why should Mike Hubbard admit fault before he's even tried by such a system?
Do you just quietly take the IRS's word and start trying to figure out how you are going to pay $5.6 million--or maybe start thinking about what life will be like in federal prison? Or do you fight back--telling IRS officials they are wrong and offering proof that you do not owe back taxes?
Any rational person is going to fight back--realizing that our government entities can, and do, make mistakes.
But Don Siegelman and Mike Hubbard are supposed to just quietly take whatever the court system gives them? I don't buy it--and John Archibald's own words indicate he doesn't buy it either.
It's not a stretch to say my dad could fix most anything. I remember him taking an aged Dodge Rambler, which was dead on our driveway, and giving it years of new life. He also built extraordinary grandfather clocks--from scratch, as best I could tell. When he needed a place to put his clocks together, he built his own woodworking shop in our backyard.
I participated in the shop-building project, helping with the foundation, the framing, and the roofing. Until then, I thought hay hauling was the dirtiest, hardest job on the planet. My roofing experience convinced me that job, especially on a hot day, was just as brutal as hauling hay.
It's not that my father passed along his mechanical gifts to me. I had no idea how to build a woodworking shop; he had to show me how to do everything. And I wouldn't even know where to begin on building a grandfather clock.
But my dad did pass along an appreciation for craftsmanship. And I was reminded of that with news Monday about the death of Eagles guitarist, singer, and songwriter Glenn Frey, at age 67.
That's strange because my dad and Glenn Frey seemingly had nothing in common. Frey was the guy with long hair who co-wrote (with Jackson Browne) and sang "Take it Easy," the Eagles' first hit. My dad was a crewcut guy for almost all of his adult life.
I feel certain my dad had no clue who Glenn Frey and the Eagles were--even though their albums were featured regularly on the stereo turntable in my bedroom. I was born in 1956 and was old enough to appreciate quite a few bands from the '60s--the Beatles, Beach Boys, Dave Clark Five, Guess Who, Grass Roots, Three Dog Night, and Creedence Clearwater Revival. But I began to actually understand music (at least a little) in the '70s, And that decade belonged to the Eagles.
I came to consider "Take it Easy" as almost the perfect pop song. I loved the Eagles harmonies and their ability (thanks largely to Bernie Leadon's banjo and pedal steel) to merge country and rock. And when the Eagles added guitarists Don Felder and Joe Walsh to harden their sound, that led to the monster albums "One of These Nights" and "Hotel California," cementing the Eagles as a band for the ages.
The Eagles started as four guys (Frey, Leadon, drummer Don Henley, and bassist Randy Meisner) who were committed to democratic principles--with all four guys singing lead and having an equal say in band decisions. Frey and Henley quickly realized that wasn't going to work, so they gradually took over the band.
Henley, because of his soulful, raspy voice, a gift for lyrics, and an impressive solo career, became the band's best-known member. ("He could sing the New York City phone book and make it sound good," Felder once said.) Henley also became a stickler in the studio, meaning it could take years for the Eagles to produce a record. Bandmates called Henley "Sonic Bat" because of his ability to hear the slightest mistake in a song. (From that nickname, came another--"Guano," which is Spanish for bats--t.)
Even after launching solo smashes such as "Dirty Laundry,""Boys of Summer," and "End of the Innocence," Henley could identify the real leader of the Eagles. "The Eagles are Glenn's band," he said. "They always will be."
That's because Frey essentially was the band's "head coach." He co-wrote and sang the first hit, pretty much settled on the band's name, established the band's low-key concert style, handled personnel decisions (some of which led to painful exits) and developed themes for albums and many individual songs.
With the plaintive, haunting "Desperado," Frey and Henley established themselves as a songwriting team of the highest order. In essence, they became America's version of Lennon and McCartney.
How did Frey and Henley work? The Eagles best-known song, "Hotel California," provides a clue. The lyrics--"On a dark, desert highway, cool wind in my hair; warm smell of colitas rising up through the air; up ahead in the distance, I saw a shimmering light; my head grew heavy and my sight grew dim; I had to stop for the night"--came mostly from Henley. But Frey developed the song's theme--of a man driving through the desert, until he sees the lights of Los Angeles in the distance, and pulling into the mythical Hotel California as fatigue takes him.
Felder wrote the music for "Hotel California", and the song stands as one of the great collaborative pieces ever.
As the "MC" of Eagles concerts, and a primary spokesman in the press, Frey was quick with a quip. He could poke fun at his uber-serious songwriting partner--"Nobody can suck the fun out of a room like Don Henley." He also could poke fun at himself--"People think Jackson Browne and I wrote 'Take it Easy.' But Jackson pretty much had the song ready when he got stuck on the lyrics. I said, "How about, 'It's a girl, my Lord, in a flatbed Ford, slowing down to take a look at me"? Jackson said, 'Yeah, that's good.' And that's how I got a credit on the song; I wrote one line." (That quote is from the History of the Eagles documentary. I might not have it exactly right, but I'm pretty sure I've got the gist of it. I just know that I guffawed when I heard it."
Frey was ambitious and driven, and he could get nasty with bandmates who weren't of the same mindset or questioned his tactics. All three members who left the band--Leadon, Meisner, and Felder--departed in the wake of disputes with Frey. When the Eagles regrouped in 1994, after what Frey called a "14-year vacation," he (with some assistance from Henley) tried to rearrange the group's business structure so that the two of them would get bigger shares and Felder would be pushed aside as a partner. When Felder continued to ask questions about Manager Irving Azoff and the band's finances, Frey booted him out of the band--and years of nasty litigation ensued.
Felder probably wound up with a nice settlement, but he was forced out of a band for which his entrance marked an explosion in popularity--and he wrote the music for what would become the band's signature song. Was Frey driven by control, power, and greed? It looks that way to me--and I'm a big Frey fan. Frey and Henley should have been grateful for Felder's contributions to the bands, and respectful of the role he had earned as partner. Instead, they (mainly Frey) strong-armed him out of the band.
Was Glenn Frey a driven leader who sought the best from those around him? Yes. Could he be a charming, insightful, and funny guy? Yes. Was he generally graceful and honorable under fire? Nope. Was he a musical genius? Based on his solo output, the answer probably is no. He was a very good, but not quite great, musician; any "genius" tag related to the Eagles belongs with Henley.
Was Frey a craftsman? Absolutely, and insight on that comes from Timothy B. Schmitt, who left Poco in 1977 to replace Meisner as the Eagles bassist. Poco was--and still is--a very good band, with a career that spanned more than six decades and produced hits like "Good Feeling to Know,""Keep on Tryin',""Rose of Cimarron,""Crazy Love," and "The Heart of the Night." But the band has never come close to the heights the Eagles reached.
Someone once asked Schmitt about the difference between the two bands, and he said, "There is a level of craftsmanship with the Eagles songs that we didn't have with Poco."
Who drove that craftsmanship? Don Henley certainly played a role, but the leader--the man who set the standards high--was Glenn Frey.
I, and millions of other fans, long will be grateful for what Glenn Frey brought to our lives. I think even my dad would have appreciated Frey's determination to get things right.
Frey is best known as the co-writer and/or lead singer on major singles, such as "Tequila Sunrise,""Already Gone,""Lyin' Eyes,""New Kid in Town,""Heartache Tonight," and (of course) "Take it Easy."
But he also took the lead on LP tracks that made all seven of the Eagles' studio albums such treasures. One of my favorites is a song from the band's third album, "On the Border," and it wasn't even written by a member of the Eagles. Tom Waits wrote "Ol' 55," but with Frey on lead vocals and piano--plus classic Eagles harmonies, it's a song that has stayed close to my heart for almost 45 years. Here are the Eagles performing "Ol' 55" live:
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Siegelman associates have been seeking documents about the case, especially regarding the supposed recusal of then U.S. Attorney Leura Canary, for roughly 10 years. Alabaster attorney John Aaron filed a Freedom of Information Act (FOIA) request in 2006 and followed up with a lawsuit in 2009. Aaron learned that more than 1,000 documents exist related to the Canary recusal, but the government has refused to turn them over.
Joseph Siegelman filed a FOIA request last year with the DOJ's Office of Professional Responsibility (OPR), but the request was denied. Joseph Siegelman now has filed a lawsuit, which appears to go well beyond the Canary-recusal issue. (Please see full lawsuit at the end of this post.) From a report at WAFF in Huntsville:
The son of former Alabama Governor Don Siegelman is suing the Office of Professional Responsibility, a branch of the United States Department of Justice. Siegelman is serving a federal sentence for bribery and conspiracy at Oakdale Prison in Louisiana.
Siegelman’s son, Joseph Siegelman, is suing for records obtained during the Office of Professional Responsibility’s, or OPR’s, investigation into Siegelman’s prosecution and conviction. The OPR investigates Department of Justice attorneys accused of professional misconduct.
The filing states that the OPR opened an investigation after multiple national media outlets reported on the Siegelman case and raised questions about the prosecution. These outlets reported prosecutors placed undue pressure on witnesses, communicated with the jury, communicated privately with the judge, and withheld evidence from the defense.
Could Joseph Siegelman's lawsuit produce devastating information about the prosecution? According to WAFF, the answer appears to be yes:
The lawsuit also notes an article written by the Project On Governmental Oversight. That article mentioned a letter summarizing the OPR investigation. That letter reportedly includes admissions from “several” officials who acted improperly.
In June 2015, Joseph Siegelman filed a Freedom of Information Act, or FOIA, request for the OPR findings. The OPR denied that request based on an exemption for inter- or intra- agency memos or letters, an exemption for personal privacy interests, and an exemption for records compiled for law enforcement.
Joseph Siegelman says the OPR is wrong in [its] reasoning and is illegally withholding the information. He has requested a trial before a federal jury. Don Siegelman’s release date is set for August 8, 2017.
From the Joseph Siegelman complaint:
On December 11, 2014, the Project On Government Oversight (“POGO”), an independent nonpartisan non-profit organization, published an article entitled, “Justice Department Downplays Evidence of Politics in Probe of Governor.” The article discussed a letter sent from the Office of Legislative Affairs of the DOJ to the Honorable John Conyers on June 3, 2010 which purported to summarize the findings of OPR’s investigation.
In that letter, the DOJ admits that “several” of its officials involved in the Siegelman case acted improperly.
Among those officials was the Assistant U.S. Attorney (“AUSA”) in charge of the Siegelman prosecution who communicated directly with the campaign manager of Mr. Siegelman’s gubernatorial opponent. The letter discusses an email from the AUSA to the campaign manager informing him that the AUSA “and a small group of like-minded conservative prosecutors” within the U.S. Attorney’s office were pursuing Siegelman.
Joseph Siegelman, the former governor's son and an attorney with The Cochran Firm in Birmingham, is suing the U.S. Department of Justice (DOJ), seeking documents about his father's prosecution. Multiple lawyers, using a variety of legal routes, have sought such documents for roughly 10 years. But the government, which seems particularly sensitive about items related to the supposed recusal of U.S. Attorney Leura Canary, has refused to turn them over.
The new effort from Joseph Siegelman focuses heavily on a letter that the DOJ's Office of Professional Responsibility (OPR) prepared for U.S. Rep. John Conyers (D-MI). Adam Zagorin, of the Project on Governmental Oversight (POGO), wrote an article that mentioned the letter--and we reported on it in December 2014 and January 2015. The title of Zagorin's article is "Justice Department Downplays Evidence of Politics in Probe of Governor."
The government might have downplayed evidence of a political prosecution, but the Conyers letter makes clear the evidence is there. (See full letter at the end of this post.)
In his federal complaint, Joseph Siegelman states that the DOJ admits in the Conyers letter that several of its officials "acted improperly" in the Don Siegelman case. The complaint goes on to state:
Among those officials was the Assistant U.S. Attorney (“AUSA”) in charge of the Siegelman prosecution who communicated directly with the campaign manager of Mr. Siegelman’s gubernatorial opponent. The letter discusses an email from the AUSA to the campaign manager informing him that the AUSA “and a small group of like-minded conservative prosecutors” within the U.S. Attorney’s office were pursuing Siegelman.
The identity of the assistant U.S. attorney remains unknown, for now. But the campaign manager in question was identified more than a year ago as Rob Riley. From our original report on the subject:
A federal prosecutor communicated with prominent Alabama Republican Rob Riley during the investigation of former Democratic Governor Don Siegelman, according to a report released yesterday.
Riley was serving as campaign manager for his father, Bob Riley, who was Siegelman's chief political opponent at the time. The revelation seems to support claims that Siegelman supporters have been making for years--that unlawful political motivations played a pivotal role in the prosecution.
Adam Zagorin wrote the article, titled "Justice Department Downplays Evidence of Politics in Probe of Governor," for Project On Government Oversight (POGO). The information about Rob Riley is included in a letter, dated June 3, 2010, from Assistant Attorney General Ronald Weich to U.S. Representative John Conyers (D-Mich.), who was then chair of the House Committee on the Judiciary. (See full letter at the end of this post.)
A Justice Department internal affairs unit, the Office of Professional Responsibility (OPR), was critical of several government attorneys involved in the Siegelman case, but concluded that the evidence "did not establish that political motivation played a role" in the case.
OPR's conclusions do not square with evidence that a chief prosecutor was communicating with Rob Riley during the Siegelman investigation. From our report:
Here is Zagorin on the communications between a member of the prosecution team and Rob Riley:
"In 2002, during the Justice Department’s investigation of Siegelman’s administration, a federal prosecutor emailed the son and campaign manager of Siegelman’s principal Republican opponent updating him on the confidential probe, according to a Justice Department document obtained by the Project On Government Oversight and reported here for the first time.
"In the email, the prosecutor said he had been “thwarted” after starting an investigation “into the Siegelman administration.” He added that it was “frustrating for me and a small group of like minded conservative prosecutors” to “fight the tide in order to do the job we are sworn to do.”
Perhaps most disturbing is this: It does not appear OPR bothered to interview Rob Riley--or the prosecutor. Was OPR interested in getting at the truth? Doesn't look like it, as Zagorin makes clear:
In listing the people OPR interviewed, the Justice Department letter summarizing the probe does not name Rob Riley, the son of and campaign manager for Siegelman’s political rival Bob Riley and the recipient of the “like minded conservatives” email. As a result, it is unclear whether OPR contacted him.
The DOJ letter also offers no indication of why the prosecutor emailed Riley in the first place, and on whose instructions, if anyone’s. Nor does it say whether Riley replied or took any subsequent action. It does not explain how the “small group of like minded conservative prosecutors” fit into the picture, or why the prosecutor injected his own political leanings and those of his colleagues into the matter.
“I do not recall receiving the email in 2002, but I had nothing to do with the U.S. Attorney’s Office pursuing charges against Don Siegelman,” Rob Riley told POGO, noting that the contact would have occurred more than a decade ago. “I also do not recall being contacted by OPR one way or the other.”
Rob Riley has a habit of issuing such oily, limp-wristed responses when he is pressed with tough questions. Let's see, where have we heard them before?
Maybe Joseph Siegelman's lawsuit will put Rob Riley under the kind of pressure he's never experienced before.
I joined Andrew Kreig, attorney and journalist with the Washington, D.C.-based Justice Integrity Project, for a discussion last week about inconsistency in the courts on the Peter B. Collins Show (PBC) out of San Francisco.
The issue began to take shape when SCOTUS refused on January 11 to hear the latest appeal in the case of former Alabama Governor Don Siegelman. Attorneys for Siegelman argued that trial judge Mark Fuller improperly based sentencing, in part, on conduct for which the defendants were acquitted. That, Siegelman argued, interfered with his Sixth Amendment right to a trial by jury.
Antonin Scalia and Clarence Thomas, two of the court's most conservative justices, had indicated in a dissent from a 2014 case (joined by liberal justice Ruth Bader Ginsburg) that they were ready to take on that very issue. Assuming those three voted to hear the Siegelman appeal, that means a yes from only one other justice was needed for the court to accept the case. But no other support was forthcoming, not even from Obama appointee Sonia Sotomayor.
Consider the irony when SCOTUS, one day after refusing to hear the Siegelman case, released Hurst v. Florida, which involved almost the identical judge-vs.-jury question present in Siegelman. Here is how the Orlando Sentinel described the issues in Hurst:
By an 8-1 vote the U.S. Supreme Court declared Florida's capital sentencing scheme unconstitutional, saying in death penalty cases juries – not judges – must spell out at least one reason why the defendant should be put to death.
Under the old system, jurors listened to evidence then voted on whether to recommend life in prison without the possibility of parole or death. Their decision did not need to be unanimous.
The final decision was left to a judge.
In Tuesday's majority opinion, Justice Sonia Sotomayor wrote that by having the judge make the final decision, Florida was violating a defendant's right to be tried by a jury of his peers.
The test case involved Timothy Lee Hurst, who was convicted of murdering his boss in a Pensacola Popeye's restaurant in 1998.
The U.S. Supreme Court did not convert his sentence of one of life in prison. It merely threw out his death sentence. He is still a convicted murderer. It's now up to the state to figure out what sentence to mete out and how to do it.
Yes, you read the highlighted section above correctly. Sonia Sotomayor, who apparently voted not to hear the Siegelman case, wrote the majority opinion finding that Florida's capital-sentencing scheme was unconstitutional because it "was violating a defendant's right to be tried by a jury of his peers."
From the PBC Web site, which includes links to audio of our discussion, and notes a number of Siegelman-related issues that were raised:
In the Siegelman case, now-disgraced Judge Mark Fuller sentenced the former governor for acts the jury had acquitted Siegelman of. In the recent death penalty case, styled Hurst v. Florida, the Supreme Court overturned Hurst's death sentence and struck down part of Florida's capital punishment system because the judge unilaterally imposed the death penalty after the jury merely recommended by 7-5 vote that Hurst be executed.
We discuss how this principle should have been applied to the Siegelman appeal, which was based on Fuller's over-sentencing of Siegelman.
We also talk about President Obama's failure to pardon or commute Siegelman's sentence, and the former governor's recent stretch in "the hole" after prison officials abruptly cut off an interview he was doing with a substitute host on the Thom Hartmann radio show. We discuss the new documentary expected this summer that recaps the layers of injustice in this case, which will be narrated by Martin Sheen.
Is consistency supposed to matter in our courts of law? Consider Rule 35 of the Federal Rules of Appellate Procedure, which addresses the circumstances under which en banc review can be conducted. The rule holds that such a full-panel review is appropriate when it "is necessary to secure or maintain uniformity of the court's decisions."
Rule 10 of the U.S. Supreme Court holds that "certiorari review is properly considered when "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter."
What does this tell us in light of the high court's recent handling of the Hurst and Siegelman cases? The lesson seems to be this: Consistency matters on paper; in real life, not so much.
Those rankings come even though major elements of the AM story have barely been touched in the press. We plan to change that in 2016. In fact, we maintain that the most important aspects of the AM story still are be uncovered.
The New York Post seems to be of a similar mindset. In late October, it published a story titled "The storm isn't over yet for Ashley Madison cheaters." That headline gets to the heart of an AM issue that largely has gone uncovered.
Who are the Ashley Madison paying customers? Who are these people, the ones willing to cough up cash in hopes of lining up a partner to help cheat on their spouses? Are these "cheaters" (to borrow an NY Post term) from the fringes of society. Are they borderline criminals or sociopaths, the types known for failing to abide by societal norms?
Our examination of AM lists from two states--Alabama and Missouri--suggests the answer to those last two questions are a solid no. In fact, we've found that many AM customers would be considered among our nation's "best and brightest," enjoying status as true elites.
We're talking doctors, lawyers, engineers, accountants, dentists, chiropractors (lots of chiropractors), military leaders, law-enforcement officials, wealth managers (lots of wealth managers, especially in the "old money" areas of Birmingham), CEOs, COOs, Sr. VPs, and much more.
Who are these elites who seem drawn to cheating, and what do their dalliances with AM say about their values and ethics? We intend to examine those questions closely in the early weeks of 2016.
Meanwhile, what are others saying about the Ashley Madison story? This is from USA Today:
Hackers who stole customer information from the cheating site AshleyMadison.com dumped nearly 10 gigabytes of data to the dark web this year, fulfilling a threat to release sensitive information including account details, log-ins and credit card details, if Avid Life Media, the owner of the website didn't take Ashley Madison.com offline permanently.
In August, the group who hacked into Ashley Madison, doubled down, posting what appears to be another 20 gigabytes of data — including the CEO's emails.
Analysis of the email addresses in the databases show that most come from webmail providers, said Robert Hansen, vice president of WhiteHat Labs at the computer security company WhiteHat Security, which independently studied the data.
The top most-used domains were Gmail.com, with 8.7 million, Yahoo.com with 6.6 million, Hotmail with 6.2 million and Aol.com with 1.2 million, Hansen found.
Surprisingly, there were at least 13,000 addresses from military and government emails with .mil and .gov addresses.
Here is Wired's take:
The breach of AshleyMadison.com, a site that touted itself as the premier platform for married individuals seeking partners for affairs, was loud and flashy and deserves the award for brazenness. Exactly one month after their hack of the cheating site went public, the hacker or hackers behind the breach made good on a threat to release sensitive company data, dropping more than 30 gigabytes of internal company emails and documents, as well as details and log-in credentials for some 32 million accounts with the social networking site. The data included names, passwords, addresses, and phone numbers submitted by users of the site. Although many of the personal account details were fabricated by users to remain anonymous, the hackers also released seven years worth of credit card and other payment transaction details, which exposed the real names and address of many customers. Reality TV star Josh Duggar was among those exposed by the breach. The company has been hit with several lawsuits from irate customers who accused the cheating site of being negligent in protecting their data.
Perhaps the essence of the Ashley Madison story can be found in a 2013 Newsweek article titled "Wall Street Loves a Cheater." The story was written roughly two years before the hack, but it speaks volumes about the way financial elites viewed a site whose motto is "Life is short; have an affair." From the Newsweek piece:
Headlines in tabloids and even so-called respectable newspapers – think of the Anthony Weiner sexting scandal – and gossip television shows underscore America's fascination with unfaithfulness. In recent years, websites devoted to relationships, including match.com and JDate, have become publicly traded companies (the latter's parent company's ticker symbol: LOV). America has plenty of "sin" businesses – gambling, liquor and cigarette companies are pillars of the New York Stock Exchange. Even the American Association for Retired People, better known for tips on arthritis and prostate screenings, reports a steep drop in the percentage of members who think nonmarital sex is wrong – to 22 percent in 2009, from 41 percent a decade earlier. "Ashley Madison is attracting people who may have always been inclined to cheat," says Peggy Drexler, an assistant professor of psychology in psychiatry at Weill Medical College at Cornell University. "But the site is also providing a previously unavailable opportunity to those who might in years past have chosen not to cheat. . . . "
American investors who get in on Ashley Madison would join a clutch of Canadian hedge funds that have already made a killing, raking in over $90 million in cash dividends since 2009, Biderman says. But like a cheating spouse, those Canadian investors don't want their identities known. Ashley Madison"is a remarkably good business," says one money manager at a Canadian asset management firm with $1 billion in assets who declines to name himself or his firm, citing fears of a public backlash. He says his firm has made 25 percent a year on its stake since investing in 2008. "It's recurring, has high margins, high free cash flow, requires little capital, has a rock-like balance sheet and is exceptionally well run by its passionate CEO."
That "passionate CEO," Noel Biderman, resigned in August after the site was hacked in July. E-mails leaked from the hack show that Biderman himself had engaged in multiple affairs, suggesting he was a bit too passionate for his own good. The company now is awash in lawsuits, totaling more than $500 million, and the litigation figures to drag on for years.
Maybe the company wasn't so well run after all.
That means there will be multiple Alabama angles as the Ashley Madison story plays out in 2016. According to a report at Business Insider,Alabama leads the nation in per-capita spending on Ashley Madison.
Who are some of those big spenders? We will be shining light on that question in the weeks ahead.
|Bill Upton, president of Vulcan Steel Products|
William D. "Bill" Upton Jr. is president of Vulcan Steel Products, which is based in the Birmingham suburb of Pelham. Upton sued his wife, Linda S. Upton, for divorce in 2010 and received a stunningly favorable judgment, even though he admits in court papers to having sex with Gincie Walker, a young woman the Uptons had fostered for roughly a decade and who called Bill Upton "daddy" for years.
Bill Upton and Gincie Walker now are married and live in Mountain Brook. Linda Upton also has remarried and lives in the Shook Hill home she and Bill Upton shared for more 30 years, as he (along with significant help from Linda and her parents) built a business empire.
It's common for a wife/mother and children to receive the marital residence in a divorce, especially where the husband/father has admitted to flagrant marital misconduct. But Linda Upton lost custody of all her non-adult children--all have special needs, and she raised them from early ages--even though we can find nothing in the record to indicate she was found to be an unfit mother. Linda also wound up paying Bill Upton for his share of the marital home, even though he was the party in the much stronger financial decision--and he was the party who admitted to marital misconduct.
Why did a court, headed by private judge Gary Pate, look favorably upon Bill Upton, even though he admitted to behavior that comes close to meeting the definition of incest? Court documents describe Bill Upton as a multimillionaire, and that might have been one factor in his favor. Also, George R. Fernambucq, of the Birmingham firm Boyd Fernambucq and Dunn, represented Bill Upton. Fernambucq's name has been prominently mentioned in at least two lawsuits that allege widespread "hunting-club corruption" in Alabama divorce courts.
Did Bill Upton's association with Fernambucq help him in Jefferson County court, no matter what Upton had admitted to? It almost certainly didn't hurt.
|Gincie Walker Upton|
Bill Upton filed for divorce, but court documents show it was his own egregious behavior that precipitated the breakdown of the Upton marriage. A Motion for Relief from Judgement, dated March 1, 2013, includes the following language under "4. Gincie Walker is William D. Upton's girlfriend." The Q and A is taken from "Defendant's Exhibit 4, William D. Upton's Deposition, p. 64." (The Motion for Relief from Judgment can be read at the end of this post.)
Q: Is Gincie Walker the only time you've had sexual intercourse with anyone during your marriage other than Linda [Upton]?
A: [William D. Upton Jr.] Yes.
Linda Upton's Motion to Alter or Amend, filed on December 17, 2012, contains the following language. (The motion can be read at the end of this post.)
1. The Husband openly admits his infidelity with a mental patient/former sibling of the minor children, who are now constantly exposed to their father's romantic relationship with the woman and who are clearly suffering as a result of this Court's Order awarding primary custody to the husband; who has never been the primary care-giver of the children.
Why does the document refer to Gincie Walker as a "mental patient." Here's how we explained it in an earlier post:
Gincie Walker had grown up in an abusive home in Shelby County before settling into the Upton family when she was about 11 years old. Linda and Bill Upton have one biological son and had adopted or fostered a number of special-needs children over about a 20-year period. Court records state that Gincie Walker has multiple-personality disorder, and she was in her mid to late 20s when the affair with Bill Upton started; she now is in her early 30s.
The Uptons never officially adopted Walker, but they parented her throughout adolescence and well into early adulthood. Sources state that she was treated as, and seen as, the Uptons' daughter.
A reasonable person could conclude that Bill Upton preyed on a foster daughter who had a severe mental disability. And yet, an Alabama court granted him custody of other children.
How could this happen? What were its repercussions?
We will address those questions in upcoming posts.
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|The shooting of Laquan McDonald in Chicago|
McDonald, a 17-year-old black male, died in 2014 when a Chicago police officer shot him 16 times--even though video now shows that McDonald was moving away from officers, not toward them, at the time he was shot. Police apparently wanted him for questioning about a series of car break-ins.
Shuler, my wife of 26 years, is a 56-year-old white female with a spotless personal and professional record--except for one or two bogus black marks that political forces in Alabama caused because she was married to a journalist/blogger who reported uncomfortable truths about the state's ruling elites. Shuler was valedictorian of her high-school class and made straight A's throughout college.
Not exactly the type to be assaulting a police officer--and that's because she didn't. But then, neither did Laquan McDonald.
Carol Shuler, thankfully, survived her encounter with rogue cops. Deputies from the Greene County Sheriff's Department--about six of them, plus Sheriff Jim Arnott himself--were on hand when at least three of them surrounded Carol and brutalized her during an unlawful eviction, leaving her with a shattered left arm and heavy bruising. With the help of intense physical therapy, she is recovering, but caregivers have said her injury was so severe that she probably will regain only 75 percent usage of her left arm, at best.
Laquan McDonald did not survive--his life snuffed out much too soon, in a hail of police gunfire. But here perhaps is the thing Laquan McDonald and Carol Shuler most had in common. Cops on the scene, apparently aware that citizens had been the victims of gross police misconduct, immediately concocted bogus narratives of "assaulting a police officer."
Consider, for example, the behavior of Jim Arnott. Here's how we spelled it out in a post titled "Missouri Sheriff Jim Arnott shows that his immediate tendency is to lie when confronted with police brutality." From that post:
Carol was trying to enter our apartment to retrieve some of our belongings, as she had been told she could do. Specifically, she was trying to get our cat's litter box and was headed to the front door for that purpose, when a deputy jumped her. I saw the whole thing from about 15 feet away, while seated in the driver's seat of our automobile, which was parked in the driveway. Arnott saw it from a vantage point about 10 feet closer than mine.
And what was the sheriff's immediate reaction to seeing one of his deputies brutalizing a 55-year-old woman who was trying to get her cat's "latrine"? Arnott's response was to lie. He pointed at Carol and said, "She assaulted a police officer."
That statement is absurd to anyone who witnessed the event. And it's even more absurd when you consider that Carol wound up with a severely broken arm that required surgery, and there is no indication that any of the half dozen or so officers on hand--armed with at least one assault rifle and numerous handguns--suffered the slightest scratch.
What are the implications of having a sheriff make such bogus claims against you? Well, it goes way beyond a mere inconvenience, as we described earlier:
Because of Arnott's lying eyes--and lying tongue--(Carol) apparently was going to be charged with assaulting a police officer. The deputy who drove her to the jail told her she was facing a felony and likely a $100,000 bond.
At some point, Carol (likely in shock; she would receive treatment with oxygen) announced that her arm was killing her. Someone finally took notice, decided this might be serious, and had her transported to Cox North Medical Center, a few blocks from the jail.
That's where X-rays showed Carol's arm was broken so badly that it would require a trauma surgeon, not an orthopedist, to repair it. She now has roughly 10 screws and multiple titanium plates that probably will stay in her arm as long as she lives. But Jim Arnott's immediate reaction, upon seeing his officers assault Carol, was to claim she had assaulted them.
In December 2014, the department officially recorded the shooting as a justifiable homicide.
"McDonald committed aggravated assault against the three officers, finally forcing Officer Van Dyke, in defense of his life, to shoot and kill McDonald," according to a report of that determination.
One report claims McDonald "battered" three officers. Another claims that Officer Jason Van Dyke, who fired the 16 shots, was "injured." From the Tribune article:
Again and again in reports, Van Dyke's account is supported by the other officers at the scene, each one describing the teen as a threat to the veteran cop. Four officers claimed that McDonald advanced toward Van Dyke, even though the video shows him walking away. Two others said he turned or raised an arm toward him
How police viewed the shooting, though, was clear. In the report that closed the investigation, filed in March, a detective offered this terse assessment.
"Criminal attacked officer," the report says, "that officer killed criminal."
Chicago cops viewed Laquan McDonald as a thing, a sub-human, one against whom they could easily lie--as proven by video of the shooting below.
Cops in Springfield, Missouri, apparently viewed Carol Shuler the same way. They apparently were not bothered in the least to arrest her, handcuff her, and send her to jail--for a "crime" she did not remotely commit. And if her arm had not been broken, she probably still would be in jail because I could not have possibly paid the $10,000 required for her release.
Much of the reporting on police misconduct has focused on the racial angle--and that's understandable given that black Americans clearly have suffered from cop abuse for decades. But the Laquan and Carol stories provide another side to the issue.
They tell us that cops, when they need to protect one of their own, are willing to look beyond race. When you are abused by a cop, other cops are prepared to lie and heap more abuse on you--without regard for the color of your skin.
|U.S. Judge Myron Thompson|
Myron Thompson, nominated by President Jimmy Carter in 1980, wrote in a 2012 opinion that jury instructions in federal bribery cases long have been filled with murky, inexact, confusing language. Thompson, writing in an opinion for the Alabama bingo trial (U.S. v. Milton E. McGregor, et al), said the problem goes beyond the case that sent Siegelman and codefendant Richard Scrushy to prison. Thompson said federal appellate courts and the U.S. Supreme Court have for years done a poor job of defining the line that marks legal and illegal transactions between public officials and campaign donors.
Thompson offered the jury instructions he crafted for the bingo case, which resulted in zero convictions, as an example of what should be consistently used across the country. Thompson even called on the nation's highest court to clarify the law, perhaps by using his suggested instructions.
It's now roughly three years later, and we've seen no clarity from the U.S. Supreme Court. Meanwhile, Siegelman remains in federal prison for "crimes" that might exist under the flawed jury instructions of former federal judge Mark Fuller--but do not exist under the actual law.
Why is this issue profoundly important? Because we have a political system that relies on campaign contributions--and First Amendment law that guarantees donors the right to support the candidate of their choosing. This is how we explained it in a July 2012 post about Thompson's opinion:
In fact, public records show that the federal bingo trial resulted in no convictions mainly because Thompson presented clear, detailed jury instructions that dovetail with actual law.
It's not, of course, that public officials accused of bribery, extortion, and the like always should go free. But the standards for convictions in the context of campaign contributions, Thompson writes, must be strict so as not to conflict with First Amendment guarantees. Courts, however, have repeatedly used poorly defined terms that make it impossible for public officials, campaign donors, and the public to understand the line between lawful conduct and a federal crime.
How would Thompson help clear up a messy situation? From our 2012 post:
In his opinion, Thompson cites the jury instruction he used in the Alabama bingo trial and shows how it fits with, and illuminates, the case law that has come to govern such issues. Here is the key component of the jury instruction Thompson says should be used consistently in public-corruption cases. It focuses on the definition of a "quid pro quo" (this for that), which must be present under the law for actions to be criminal:
"Therefore, the solicitation or acceptance by an elected official of a campaign contribution does not, in itself, constitute a federal crime, even though the donor has business pending before the official, and even if the contribution is made shortly before or after the official acts favorably to the donor.
"However, when there is a quid pro quo agreement, orally or in writing, that is, a mutual understanding, between the donor and the elected official that a campaign contribution is conditioned on the performance of a specific official action, it constitutes a bribe under federal law. By this phrase, I mean that a generalized expectation of some future favorable action is not sufficient for a quid pro quo agreement; rather, the agreement must be one that the campaign contribution will be given in exchange for the official agreeing to take or forgo some specific action in order for the agreement to be criminal. A close-in-time relationship between the donation and the act is not enough to establish an illegal agreement."
Fuller's jury instruction in the Siegelman case fell woefully short of the kind of clarity Thompson seeks. Here is how we have described it:
Fuller's jury instruction did not require an explicit agreement as outlined in McCormick, much less one that had to be stated orally or in writing. Fuller let the jury believe that an agreement could be implied or inferred. The Eleventh Circuit inexplicably allowed the unlawful jury instruction to stand--and the U.S. Supreme Court refused to review the matter.
Appellate courts simply have not done their jobs on the Siegelman case, causing a massive misuse of public funds that should draw Congressional review.
How badly have the nation's highest courts botched this issue, which can (and has) sent innocent individuals to prison?
Consider the Eleventh Circuit: Its own rules (Rule 35, Federal Rules of Civil Procedure) state that the purpose of en banc review is "to secure or maintain uniformity of the court's decisions" or to address panel decisions that are in "direct conflict with precedent of the Supreme Court or of this circuit." The three-judge panel's ruling in Siegelman clearly conflicts with McCormick, it conflicts with the circuit's own findings in U.S. v. Davis, 30 F.3d 108 (11th Cir., 1994), and it destroys any semblance of uniformity on the pertinent law. But the full Eleventh Circuit declined review.
Consider the nation's highest court: U.S. Supreme Court Rule 10 states that certiorari review is properly considered when "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter." The Eleventh Circuit's finding in Siegelman conflicts with McCormick, with Davis, and with similar rulings in other circuits. So why did the Supreme Court punt on Siegelman? To be sure, certiorari review is at the court's discretion; it's not a matter of right. But perhaps we no longer need a Supreme Court if it is not going to hear critically important cases that so clearly meet its own criteria.
Thompson nails the key issue with this paragraph from his bingo opinion:
It is often true that “unexamined assumptions have a way of becoming, by force of usage, unsound law."McCormick, 500 U.S. at 280 (Scalia, J., concurring). In the public-corruption context, courts have been particularly lax in the use of certain words–-explicit, express, agreement, promise, and quid pro quo-–that should have clear legal meanings. Imprecise diction has caused considerable confusion over the scope of federal corruption laws as applied to campaign contributions. Uncertainty in this area of law breeds corruption and chills legitimate political speech.
To what kind of "corruption" is Thompson referring? It's not absolutely clear, but I believe he's saying that confusing language in the law encourages prosecutors to bring dubious charges and judges to give jury instructions that can lead to bogus convictions. No other reference to corruption makes sense in Thompson's statement. I believe he is pointing squarely at prosecutorial and judicial corruption--and perhaps dishonest political figures (can we say "Karl Rove"?) who might push like-minded prosecutors to use flawed law to take out enemies on the other side of the political fence.
Steve Feaga wants us to believe everything was fine and dandy with the jury instructions in the Siegelman case. Informed Americans should not buy it. And a federal judge with 35 years of experience provides a detailed explanation of why the law, in its current state, is so bad--and so dangerous to our political process.
|Ted Cruz and gay real-estate executive Mati Weiderpass|
Wayne Madsen, an investigative journalist based in Washington, D.C., reports that Cruz's run the the White House appears to be driven by stunning hypocrisy. Cruz questioned Donald Trump's "New York values" and has consistently condemned homosexuality. But the Cruz campaign seems to have a fondness for New York and the financial support of homosexuals.
Can this story get any more curious? Yes, it can. A dead body was found a few months ago at a luxury Central Park townhouse that was the site for a Cruz fundraiser.
The Wayne Madsen Reporter (WMR) is a subscription Web site, but we have received permission to report certain items from the site. The full Cruz article, dated February 1-2, can be read at the bottom of this post. Here's how Madsen sets it up, providing insight into a powerful group of gay money men known as the "Lavender Mafia":
Ted Cruz and Marco Rubio appear to have more things in common than merely their Cuban heritage. After Donald Trump launched a blistering attack on GOP presidential hopeful Cruz, Cruz responded by questioning Trump's "New York values." Trump cautioned Cruz by saying that while the junior senator from Texas claimed he did not care for New York values, he certainly was willing to accept New York campaign contributions. An examination of Cruz's financial support from New York yields close connections between the Christian evangelical, who has condemned homosexuality as a sin, and some of New York's top gay financiers and real estate moguls, all of whom are also major supporters of Israel. And one other "problem" for Cruz: there is a dead body involved.How does the dead body come into play? Madsen explains:
After staking his political career on bashing equal rights for gays, including pushing for a constitutional amendment allowing states to ban gay marriage, on April 20, 2015, Cruz and his wife Heidi, a Goldman Sachs executive, were feted at a reception at the 230 Central Park South mega-townhouse of one of Manhattan's most well-known gay entrepreneurs, Ian Reisner, who was joined by his one-time partner, Mati Weiderpass. Reisner is a co-founder of Parkview Developers and a former managing director of the Bank of America and derivatives trader for Salomon Brothers. Weiderpass is a military veteran and former marketing manager for Swatch. At the reception, Reisner, who, as of last year, was a registered Republican, handed Cruz a check for $2700, the maximum amount permitted under federal election law. Reisner and Weiderpass previously donated to former New York Mayor Rudy Giuliani's presidential campaign. Among Reisner's and Weiderpass's circle of friends is Ken Mehlman, the former Republican National Committee chairman who is also gay.
The mid-town reception was not the only Cruz connection to New York's Wall Street gay community. Cruz has stated that openly-gay San Francisco investor Peter Thiel, is a good friend of his. Other gay New York businessmen also attended the political bash at the Reisner townhouse.
Six months [before the fundraiser], a 23-year old bar manager named Sean Verdi had been found unconscious in a bathtub in Reisner's townhouse, the very same private apartment where the Cruz reception was held. Verdi's social media pages referred to his fondness for parties in New York and Florida.
A half hour after emergency medical personnel arrived at Reisner's residence, Verdi was pronounced dead, reportedly from a drug overdose of a combination of cocaine and Ecstasy. The New York City medical examiner later concluded that Verdi died from acute intoxication from the ingestion of alcohol, ketamine, MDMA [Ecstasy], and ethylone. Reisner and Verdi, along with two other men, left the Bar-Tini Ultra Lounge in Hell's Kitchen, where Verdi served as manager, on the evening of October 29, 2014, for Reisner's townhouse. After Verdi became sick, Reisner claimed he put Verdi into the shower and then into the bathtub, where he was later found unconscious the next morning. The incident was publicized in the New York media, however, Cruz and his wife still agreed to attend a political reception at a location where an extremely suspicious incident had taken place a half-year earlier. After Verdi's death, Bar-Tini went out of business.
The financial support of Cruz did not sit well with many influential New York gays, who tend to be liberal. Writes Madsen:
After liberal gays found out about the Cruz reception, they immediately castigated Reisner and Weiderpass, even organizing a boycott of their gay-oriented businesses, which include the "Out NYC" hotel in Hell's Kitchen and the Pavilion nightclub and Sip-n-Twirl bar, both gay entertainment locales; the Blue Whale restaurant; and the Botel hotel in Fire Island Pines on Long Island. The Fire Island resort has been a longtime center for the production of gay porn and drag queen shows. Reisner's liaison to the Fire Island business community is Omar Sharif, Jr., the gay grandson of the late Egyptian actor. Reisner's plans include opening an Out Hotel in Chicago in Boy's Town, the gay entertainment district that, in the past, attracted such notable politicians as former GOP Representative Aaron Schock, then-congressman Rahm Emanuel, and an Illinois state senator named Barack Obama.
After being taken to task by New York's powerful and liberal gay community for hosting Cruz, Reisner defended the reception by claiming it was to thank Cruz for his unwavering support for Israel. The reception for Cruz was not Reisner's only fundraiser for an anti-gay Republican. The real estate magnate had also hosted a reception for Wisconsin's anti-gay GOP senator Ron Johnson. New York's politically-active gay community is sometimes called the "Lavender Mafia," because of their power and influence. While most of this mafia is liberal, there are those who support conservative causes and candidates. Former Texas Republican Governor Rick Perry, who recently endorsed Cruz, was involved with Texas's influential conservative Lavender Mafia and, as WMR previously reported, Perry himself is a member of that same grouping of conservative but closeted gay politicians.
|Don Hall, former mayor of Hartselle, Alabama|
Don Hall's resignation as mayor of Hartselle, Alabama, took effect on November 30, 2015. The Hartselle City Council accepted Hall's resignation on August 28 and granted him a leave of absence until he officially left office. According to a report at al.com,Hall denied using Ashley Madison. but our research shows he spent more than $400 at the site.
Here is how the Washington Timesreported on Hall's decision to step down":
Local news outlets report that Hall resigned one day after city officials scheduled a meeting to consider what actions they could take after his name appeared on a list linked to the website intended to facilitate cheating. Hall denied using the website and said he doesn’t know how his name got on the list. Hall said he performed all his duties as mayor and would step down because he believed it was best for the city.
Our research indicates Hall has every reason to know how his name got on the list. That's because his credit-card information is present, and it shows seven transactions, totaling $467.14. (See summary of Don Hall's Ashley Madison account at the end of this post.)
Here's how Hall described himself on the site:
Looking for that special person who is not afraid to step out side the box and develop a special discreet friendship. Would love to find someone that would like to share some special time together, not just a one time only . . .
The billing address on the account is as follows:
1803 Hayes St SW Hartselle, AL 35640
That's the same address listed on the Web for the Don Hall for Mayor campaign, which was established in 2012.
Hall has company when it comes to politicians caught in Ashley Madison scandal. The Washington Postreported last August on at least four such cases. Here is al.com's summary of the Post's findings:
Earlier this week, The Washington Post reported the names of other political and public officials whose names were included in the Ashley Madison leak, including Florida state prosecutor Jeff Ashton, Louisiana Republican Party Executive Director Jason Doré, Australian City Councilman Craig Ogilvie and Baton Rouge, La., City Councilman Ryan Heck.
The Washington Post story was published just a few days after the Ashley Madison story broke, and the actual number of political figures on the site probably is several thousand times higher than the five we've highlighted above.
(Note: The summary below lists Hall's account-creation date as 4/22/15, but it shows payments from 2010, 2012, and 2013. Our technical sources said quite a few Ashley Madison customers had more than one account, and that probably explains the date discrepancies in the Hall summary.)
|Marco Rubio, as part of a Chippendales/Village People|
(From Wayne Madsen Report)
Republican presidential candidate Marco Rubio was known to be a "very extroverted homosexual" in high school and college, according to a new report. Rubio has a curious arrest in his background, which has been reported in the mainstream press but has largely been brushed off by his campaign staff. A close Rubio friend, even now, is involved in the gay-pornography business.
Wayne Madsen, an investigative journalist based in Washington, D.C., reports that Republican insiders have said Rubio did little to hide his homosexuality while in high school at South Beach Miami and at the University of Florida.
The Wayne Madsen Reporter (WMR) is a subscription Web site, but we have received permission to report certain items from the site. The full Rubio article, dated January 29-31, can be read at the bottom of this post. The story involves Rubio's 1990 arrest at a park known as a gay pick-up spot, an event his campaign has tried to keep under wraps. From the Madsen piece:
In 1989, a year before Rubio was arrested with his friend Angel Barrios and another unidentified male friend in Alice Wainwright Park in south Miami, ostensibly for drinking beer in a car after closing time in a park known as a pickup locale for gays, Rubio sang and danced in a South Miami High School troupe. The song and dance troupe was based on the Chippendales but with a very gay theme: half Chippendales and half Village People. Rubio omitted his participation in the dance troupe in his biography, "American Son."
Rubio's college career got off to a rocky start, so he apparently turned to other not-so-savory activities, with ties to drugs and gay porn. Reports Madsen:
After flunking out of Tarkio College in Missouri, Rubio returned to Miami where he hung around with his old high school friend Barrios. Barrios started an on-line gay porn business called Flava Works, which is still in business today live streaming sexual acts between black and Latino men.
In order to prepare for the University of Florida, Rubio attended Santa Fe Community College in Gainesville. Republican sources have told WMR that Rubio, Barrios, and two other students shared a townhouse in Gainesville that was known locally as a "coke house," where cocaine was readily available, as were almost non-stop parties in what amounted to an off-campus gay frat house. In 1987, Rubio's brother-in-law, Orlando Cicilia, was busted by the Drug Enforcement Administration (DEA) for his role as a key figure in a cocaine smuggling ring in south Florida.
A photo has surfaced of a man who looks like Rubio at a 1995 "foam party" in South Beach. Rubio claims to have met his wife, a former Miami Dolphins cheerleader, at such an event, but Madsen says that story doesn't add up:
|A man believed to be Marco Rubio at a South Beach|
"Foam Party" in 1995
(From Wayne Madsen Report)
"The scene generally features several hundred scantily clad bodies packed onto a dance floor and writhing to bone-rattling music under strobes and colored lights. Nothing new, right? Until suds come gushing out of a machine suspended over the dance floor. As if on cue, various forms of passionate embrace begin. Kissing. Petting. Rubbing. Because the foam froths up waist high, it acts both as a lubricant and camouflage. Mutual masturbation is an occasional component, generally beneath the cover of foam. As the evening wears on, a few men pair off and sit together in the foam that builds up outside the partitioned-off area."
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That's a lot to be pleased about. But if Manning was No. 1 on the happy meter during last night's game, I might have been a fairly close second.
Why? Well, I was able to watch the game from the comfort of our home--or at least from the pay-by-the-week motel that currently serves as our "home" in the Missouri Ozarks. The last time Denver played in the Super Bowl--at the end of the 2013 season--I watched it from the "cozy confines" of the Shelby County Jail in Columbiana, Alabama.
What was a guy, who (best I can recall) does not even have a speeding ticket on his record, doing in jail? Well, I had committed the "crime" of writing a blog about legal and political corruption in Alabama--especially the kind that white, male elites have used to help turn a beautiful, high-potential state into a low-production backwater. Rob Riley, the attorney son of former GOP governor Bob Riley, has benefited mightily from Alabama's dysfunctional environment, so he filed a defamation lawsuit designed to shut me down.
I challenged the lawsuit on jurisdictional grounds, due to unlawful service, and was set to then pursue First Amendment issues, when deputy Chris Blevins entered our home on October 23, 2013--without showing a warrant or stating that he had one--and I was assaulted (knocked to a concrete basement floor three times), doused with pepper spray, handcuffed, and hauled to jail in the back of a squad car.
My apparent infraction? Contempt of court for failure to remove certain items about Rob Riley and lobbyist Liberty Duke from this blog--even though those items, by law, had never been found to be false or defamatory. In fact, they still--to this day--have never been found to be false or defamatory, under the law, by a jury. But I spent more than five months in jail anyway--finally earning my release on March 26, 2014.
|My mugshot after being roughed up by an Alabama cop|
First, I learned quickly that perhaps the biggest challenge of jail is figuring out how to pass the time. Jails, unlike prisons, are not designed to hold people for very long, so that means there are almost no semi-useful ways to spend your time--no library, no computers, no real recreational opportunities. Your options are pretty much TV (a show not of your choosing, with the volume at ear-splitting levels), eating, sleeping, TV, showering, walking in circles, playing cards, getting into a fight over the TV (or the phones), or TV.
I met probably a couple of dozen guys in jail who also had spent time in prison. Each one said he would much rather be in prison than in jail.
I was excited about Super Bowl 48 for two reasons: (1) All the inmates seemed to agree that was the show to watch, so there were no arguments about the merits of American Idol vs. Housewives of Atlanta; (2) Because of all the commercials and the "halftime spectacular," Super Bowls usually are interminable, taking four to five hours to finish--not counting the hours of pre-game hype.
"Gee, this will be a great way to kill time," I thought. "And since neither Alabama nor Auburn is involved, that reduces the chance for harsh words and possible brawls. Peyton Manning is getting old, so maybe I can sit back and enjoy watching him try to nail down a second Super Bowl before he rides off into the Denver sunset."
What happened? Seattle's defense suffocated Manning and the favored Broncos, jumping to a 22-0 halftime lead. The lead eventually grew to 36-0 before the Seahawks finished off a 43-8 rout, in one of the most lopsided Super Bowls ever.
So much for my dream of having an entertaining way to kill four or five hours in jail. The game was worth watching for little more than an hour. After that, I gave up on hoping Manning could penetrate the Seattle defense and laid down on my bunk, staring at the bunk above me.
Even in our current spartan accommodations--Carol and I have come to call it "The Shiftless Drifters Motel"--watching last night's game was an utter joy, compared to my jail experience of two years ago.
Denver's defense, led by Von Miller and DeMarcus Ware, was impenetrable this time. In fact, the Broncos more or less did to Carolina's Cam Newton what Seattle did to Manning two years ago.
My appreciation for being able to watch the Super Bowl in a state of freedom was not the only reason I was hyped about last night's game. As usual, the state of Alabama was well represented in the game, with eight players who call our state home. The only states with more players--California (24), Texas (14), Georgia (13), Florida (12), and Ohio (10)--have significantly larger populations than Alabama. On a per-capita basis, Alabama had more players in Super Bowl 50 than any other state.
In fact, I even feel a certain kinship with one of the players from Alabama--a quarterback who was one of the most exciting college players I've ever seen live. You might assume I'm talking about Cam Newton, who won the Heisman Trophy while playing at Auburn. But I'm actually thinking of Joe Webb, who played quarterback (and wide receiver) at UAB, and now serves on special teams for Carolina. In fact, he returned one kickoff for 24 yards in last night's game.
The 6-4, 235-pound Webb is from Birmingham, flew under the major recruiting radar, and developed into a dynamic run-pass quarterback threat for UAB. I've seen some awfully good football players live--Bo Jackson, Herschel Walker, Ozzie Newsome, and many more--but Joe Webb will always be one of my favorites. Plus, I got to interview Webb several times, and he always seemed to be a thoughtful, likable guy. In the right offensive system, I still think he could be a standout in the NFL.
According to my fellow inmates, there was at least one guy in our 64-man unit who had done time for murder. He apparently had served his prison sentence for that and was in the Shelby County Jail for a lesser offense. Most of the guys I met in jail were in for probation violations (usually related to alcohol), drug offenses (marijuana, meth, heroin--in that order), DUI, domestic violence, and such.
The really bad dudes--alleged murderers, rapists, child molesters, etc.--were in the unit next to ours. Thankfully, there was a nice thick wall between us and them.
I'm quite sure I was the only person in the jail--at that time, or any other time--who had been arrested for blogging.
Do I have memories of my jail time--or have I tried to block it out, as if it never happened? Oh, I definitely have memories. For one, the vast majority of the inmates were pleasant and likable guys, at least to me, and some of them were uber funny. I really would like to see some of them again, but it seems that once you get out of jail, the thought of seeing those people again is troubling--even if you like them.
I'll never forget the inmate who committed suicide just a few feet from me. And during Super Bowl 48, I distinctly remember thinking, "I can't believe I'm watching the Super Bowl, with a convicted murderer right over there."
The murderer actually seemed like a pretty nice guy. But still, it sure was nice to watch last night's game with Carol. I might not have been as happy as Peyton Manning, but it was pretty darned close.
Now, it appears Montgomery-based G. Baron Coleman has added to our list of political hacks. As a lawyer, conservative talk-show host, and political consultant, you might say Coleman is a "triple threat" bottom feeder. He is a partner in Spot On Strategies Group, whatever that is.
Actually, we've seen signs before that Coleman is a sketchy character, and we've reported on the subject several times. (See here, here, and here.) But his latest tactic is a real jaw-dropper.
Coleman has been a consistent critic of Alabama House Speaker Mike Hubbard (R-Auburn), who faces 23 counts of felony ethics violations, with a trial date set for March 28. But Hubbard defense lawyers filed a motion dated February 2, and it included an affidavit from Coleman in which he claims to have had 50 to 100 conversations with prosecutor Matt Hart about the investigation and grand-jury activities. (See full motion at the end of this post.)
Coleman admits to activities that are so low they almost make us feel sorry for Mike Hubbard--and I didn't think that was possible.
Hubbard's lawyers argue that the Coleman affidavit proves prosecutors have leaked confidential and privileged information to the media in an effort to destroy the Speaker. They further argue that Hart has perpetrated a fraud on the court and engaged in misconduct that should cause the charges against Hubbard to be dropped.
Circuit Judge Jacob Walker has set a hearing for February 10 to consider charges of prosecutorial misconduct.
Why is the Coleman affidavit such a shocker? For one thing, Coleman never has shown signs of being a Hubbard fan. In a March 2015 column at Alabama Political Reporter (APR), Coleman essentially said Hubbard was a liar, driven by envy and anger. Hubbard was particularly incensed, Coleman wrote, that former Governor Bob Riley seemingly was making millions off Hubbard's reign as Speaker--while Hubbard made do with a relatively paltry salary as a "public servant."
From Coleman's column, which portrayed Hubbard in an extremely unflattering light:
Riley was making what many speculate was millions of dollars off of Hubbard’s time as Speaker, and Hubbard was left with his $70,000 a year Speaker’s salary, his wife’s $145,000 a year job at Auburn University, and an ultimatum from Hubbard’s employer IMG that he either leave politics or lose his job.
That is why Hubbard initially dropped hints and later seethed with rage about his finances. That is why Hubbard repeatedly asked if there was a way he could come work for Bob Riley and Associates. That is why Hubbard threatened to quit and walk away from politics if he couldn’t come up with a way to make more money.
He wasn’t broke. That was a lie. Hubbard’s August 2012 financial statement states Hubbard had a net worth of close to $7.8 million and liabilities of only about $600,000. It is irrational to conclude that with a $7.8 million net worth and a bare minimum of $215,000 a year in combined tax-payer funded salary between Hubbard and his wife, he would need to harass the rich and powerful with requests for business opportunities to avoid financial ruin.
Hubbard’s bizarre behavior was not motivated by greed or poverty; it was motivated by anger and envy.
Second, the affidavit comes from the same Baron Coleman whom Hubbard lawyers sought to subpoena last fall. In a carefully worded motion to quash the subpoena, Coleman more or less said he knew nothing that would help Hubbard's case and called the lawyers' actions an "impermissible and improper fishing expedition."
This is the same guy who now seems to know a lot that could help Hubbard's case and even welcomes the chance to become part of a "fishing expedition," such as an evidentiary hearing focused on Matt Hart? What happened between last September and now to change Baron Coleman's mind so radically? A reasonable person might ask: Was Baron Coleman lying then or is he lying now?
APR Publisher Bill Britt, who has given Coleman space in the publication and had him as a panelist on The Voice of Alabama Politics, is among many Alabama political observers who now are scratching their heads. From a Britt column on the subject:
On February 2, Coleman claimed he had between 50 and 100 conversations with Matt Hart, Chief of the Special Prosecutions Unit. “These conversations were in reference to the Mike Hubbard investigation, and the Lee County Special Grand Jury,” Coleman said in his sworn statement to the court.
Coleman was subpoenaed to testify at the first evidentiary hearing Judge Waker ordered on prosecutorial misconduct on October 26, 2015. In his motion to quash, Coleman said he had nothing to testify to and referred to his subpoena as “nothing more than an impermissible, improper fishing expedition.”
In his motion, Coleman stated to the court, . . . "the Defendant has no basis to know what testimony Coleman could provide. Thus, the Defendants’ subpoena is nothing more than an impermissible and improper fishing expedition designed to get around the rules of discovery in his criminal trial.”
What might be driving Coleman's about-face? Britt attempts to provide some insight on a murky situation:
For over two years, Coleman has been a fierce critic of Hubbard in his writings, on radio, and TV, and a staunch defender of Hart, and the prosecution. Coleman’s perceived turnabout has sent tongues wagging around, not only the State House, but around the entire State.
In his affidavit, he alleges Hart threatened to bring him before a grand jury after it was rumored he had passed along information he claims he received from Hart, to his former law partner, then Rep. Joe Hubbard (D-Montgomery). He claims he came forward, in part, because he was “recently contacted by law enforcement, and met with them in reference to how and why I received grand jury information from the Lee County Special Grand Jury, and with regard to the conduct of Matt Hart in the Hubbard case.”
Coleman’s statements have been welcomed by the Hubbard camp, while he has been roundly denounced by others.
What were Coleman's really dirty actions against Hubbard? That involves the 2014 GOP primary, in which Coleman worked for Sandy Toomer, Hubbard's opponent. Coleman said he used information from Hart to generate a "whisper campaign" against Hubbard. What were the whispers about? That remains unknown.
But they didn't work because Hubbard won handily. Here is the bigger question: Who does Baron Coleman think he is--Karl Rove?
|Judge Jacob Walker III|
The judge in the Mike Hubbard corruption case used to be the primary partner in the law firm that now is helping to defend the Alabama House Speaker. In fact, Judge Jacob Walker's family built the firm that now is trying to earn a not-guilty verdict for Hubbard on a 23-count indictment of ethics-law violations.
When you add this information to the affidavit Montgomery political consultant Baron Coleman filed, claiming possible prosecutorial misconduct, an upcoming hearing in the case should be filled with intrigue. The hearing was set for today (Feb. 10), but has been rescheduled for next Tuesday (Feb. 16). The court gave prosecutors until Feb. 11 to respond to Coleman's affidavit.
A document filed on January 20, 2016, in the Hubbard case shows that two of the lawyers representing the speaker are Phillip E. Adams Jr. and Blake Oliver of the Opelika firm Adams White Oliver Short and Forbus.
A 1998 appellate case shows that Jacob A. Walker III was with the Opelika firm of Walker Hill Adams Umbach Meadows and Walton. Walker, as you can see, was listed in the No. 1 position on the firm's nameplate. That's the same Jacob A. Walker III who, about the time that 1998 case was decided, was appointed to a Lee County judgeship by Governor Fob James.
Walker has been on the bench ever since, earning re-election most recently in 2010. The firm that once bore his name has morphed into--you guessed it--Adams White Oliver Short and Forbus. In fact, the firm has the same address it had back in the '90s--205 S 9th St, Opelika, AL 36801.
A brief history on the firm's Web site indicates that address has been home to what should be called "The Walker Law Firm" since the 1940s. Photographs on the Web show that the firm is housed in The Walker Building.
How did Jacob Walker III land such a pre-eminent place in the legal stratosphere of east Alabama? He did it the old-fashioned way--he was born into privilege. From the firm history:
Adams White Oliver Short & Forbus can trace its roots to the law practice of Jacob Walker, Sr. Jacob Walker, Sr. graduated from Alabama Polytechnic Institute, what is now Auburn University, in 1908 and then attended the University of Chicago Law School. After graduating from the University of Chicago Law School, Mr. Walker, a native of Alexander City, returned to his home town to practice law. In 1915, Mr. Walker moved his young law practice from Alexander City, Alabama to Opelika, Alabama and began practicing law with Reid Barnes. In the late 1930's, Mr. Walker bought a vacant lot next to the Lee County Courthouse and in 1940 constructed a building to house his law practice. In the newspaper article announcing the construction of the office building by Mr. Walker, it was reported that the “blue prints of the new Walker Building indicate that Opelika will have one of its handsomest business structures” in the region and that the plans for the interior were of the “very latest designs for the elegant furnishings to be arranged.” The article continued to explain that the building “will be strikingly beautiful, one of the finest designs of any building in the city. When completed, this will make a wonderful improvement in the courthouse block. ”
In 1948, Mr. Walker was joined in the practice of law by his son, Jacob Walker, Jr., and they began practicing law under the name of Walker & Walker. Phil Adams joined the firm in 1969 and continued to practice law with Jacob Walker, Jr. until Jacob’s retirement in December of 2001. Over the years the firm changed its name but its members continue to practice in the same “strikingly beautiful” Opelika location.
So, let's follow the family trail: Jacob Walker Sr. started a law firm that has held several names over the years; his son, Jacob Walker Jr., joined the practice in 1948; and Walker Jr.'s son, Jacob Walker III, eventually joined the firm and was lead partner until Governor Fob James (a close friend of Jacob Walker Jr.) appointed him to a judgeship.
The current incarnation of the firm is called Adams White Oliver Short and Forbus. And two of its lawyers are trying to keep Mike Hubbard from becoming overly familiar with the Alabama correctional system.
Those two lawyers are practicing before a judge--Jacob A Walker III--whose roots run about as deep as possible in their firm.
Could that be an advantage for the Adams White firm? Could it help keep Mike Hubbard out of prison? Does it represent a glaring conflict for Judge Jacob A. Walker III? Where does Baron Coleman's affidavit fit into this picture?
The answer to those questions appears to be yes. But these might be the most interesting questions of all: Are prosecutors in the Hubbard case aware of Judge Walker's background and his monumental conflict? It's hard to imagine that they aren't.
If that's the case, why haven't they filed a motion for Walker's recusal? And where does Baron Coleman's affidavit fit into this picture?
How are prosecutors serving the public interest if they allow a clearly compromised judge to hear a profoundly important criminal case?
That probably is the most powerful question of all.
We first heard about a "cover charge"in a Think Progress story about a Chicago police officer who plans to file a lawsuit against the estate of a teen-ager he shot and killed. Officer Robert Rialmo claims he shot Quintonio LeGrier seven times because the 19-year-old swung a baseball bat at him. Rialmo claims LeGrier assaulted him and caused him distress. During the incident, Rialmo accidentally shot a neighbor, Bettie Jones, in the chest and killed her.
Melissa Chan, a reporter for Time magazine, picked up on the Rialmo lawsuit, quoting a lawyer, who said, "That's a new low for the Chicago Police Department."
Did Missouri Sheriff Jim Arnott resort to using a "cover charge" when he claimed my wife, Carol, had "assaulted a police officer" during an unlawful eviction at our rented apartment on September 9, 2015, in Springfield, Missouri? Arnott uttered those words after watching from about five feet away while one of his deputies slammed Carol to the ground and yanked violently on her arms in a backward-and-upward direction.
Arnott caused Carol to be handcuffed, placed in the back of a squad car, and taken to the Greene County Jail for booking. During that process, someone finally noticed that Carol was in severe pain and ordered her taken to a nearby hospital for evaluation. X-rays showed that her left arm was snapped in two just above a elbow, a break so severe that it required trauma surgery for repair--and even then, she is expected to have, at best, 75 percent usage of her arm.
Reporter Aviva Shen, at Think Progress, said it is unusual for a police officer to file a lawsuit against the estate of someone he shot and killed--especially when the victim's family already had filed a wrongful-death lawsuit. But a "cover charge," which usually amounts to a bogus criminal charge of assault, apparently happens way more than many of us would like to think. Writes Shen:
Though Rialmo is planning to file a civil lawsuit for his emotional distress, it is not uncommon for police officers to criminally charge victims of brutality with assault, a tactic known as a “cover charge.” New York City prosecutors even charged an unarmed police shooting victim with felony assault, for causing police to accidentally shoot bystanders when they were aiming for him.
An Occupy Wall Street activist named Cecily McMillan was the apparent victim of a "cover charge" in May 2014 in New York City. Aviva Shen also covered the McMillan story for Think Progress:
Occupy Wall Street activist Cecily McMillan has been sentenced to 3 months in jail and five years probation for assaulting a police officer, a charge that sparked outrage and protests earlier this month. McMillan, who said she threw her elbow up behind her instinctively after the officer groped her breast, faced up to seven years in prison for felony assault. The perceived injustice inspired multiple petitions on McMillan’s behalf and close public scrutiny — but could the 25-year-old graduate student’s case help bring attention to others like her?
Despite medical photographs of McMillan’s bruises, including a hand-shaped mark on her breast, Officer Grantley Bovell said McMillan attacked him unprovoked, and prosecutor Erin Choi said McMillan’s claims were “so utterly ridiculous and unbelievable that she might as well have said that aliens came down that night and assaulted her.” Grainy cell phone footage of the altercation makes it unclear whose version of events is accurate.
Shen went on to address the issue of "cover charges":
McMillan’s conviction sparked a flurry of media coverage and a protest in Zuccotti Park. But her predicament is unfortunately quite common. Police often charge victims of brutality with anything from assault to disorderly conduct to discredit their claims of police misconduct. While it is nearly impossible to compile exact statistics on this practice, sometimes called “cover” arrests, video recording has helped expose a number of cases where police have wrongfully charged people or fabricated police reports to justify violence.
|X-ray of Carol Shuler's broken arm|
For instance, another Occupy activist was cleared last year of charges that he “charged the police like a linebacker” after video footage showed cops tackling him as he was trying to get up. In another high profile case, police charged two University of Maryland students with felony assault, claiming they attacked officers on horses after a basketball game. A month later, a video emerged showing the cops beating an unarmed student with batons over a dozen times for no apparent reason.
Perhaps a more accurate term for this nauseating practice might be a "cover your ass charge."
No matter what you call it, evidence strongly suggests Carol Shuler was the victim of a "cover charge" in Greene County, Missouri--winding up falsely arrested and imprisoned, for no reason at all.
Abdul Kallon, a federal trial-court judge from the Northern District of Alabama, has been nominated to fill a vacant seat on the U.S. Eleventh Circuit Cout of Appeals (covering Alabama, Georgia, and Florida), the White House announced yesterday.
Could Obama possibly have made a worse appointment? Given that Clarence Thomas already is on the U.S. Supreme Court and Kallon's dreadful Birmingham colleague, Reagan appointee William M. Acker Jr., is a mere 88 years old, I don't think it's possible.
Obama has a dismal record on justice issues in the South. He has ignored the grave injustice Bush administration officials inflicted upon former Democratic Governor Don Siegelman; he has appointed the ineffectual Joyce White Vance (Northern District) and George Beck (Middle District) as U.S. attorneys, who have turned blind eyes to rampant white-collar and right-wing crime in the state; he has appointed horrible district judges, such as Kallon (in 2009) and Madeline Haikala (in 2013; more on her in upcoming posts.)
Perhaps Obama said to himself, "I've made one screw-up after another on federal appointments in Alabama, so why start making good decisions now?" We do have to admire the president's consistency--he's been consistently awful on important decisions that affect our state.
How could a bright guy like Obama make one dunderhead move after another? For one, Alabama is a red state--and that's not going to change anytime soon--so Obama probably doesn't give his decisions here much thought. Also, I suspect he's taking advice from one of the state's prominent DINOs (Democrat In Name Only), someone like former Clinton-era U.S. Attorney Doug Jones or former U.S. Rep. Artur Davis, who now might best be known as an Ashley Madison customer.
It's a matter of public record that Obama appointed Kallon to the bench in the first place on the recommendation of Artur Davis, who has proven to be one of the most feckless politicians of all time--crashing and burning when he tried to become governor by sucking up to corporate interests while repeatedly insulting his Democratic base.
Seeking political advice from Artur Davis is like asking Bernie Madoff for help balancing your checkbook. It's not likely to end well.
As for Doug Jones, he continues to con people into thinking he believes deeply in civil rights because he prosecuted a KKK bombing case from the 1960s. In fact, Jones (like many lawyers) is a money whore. He charged Siegelman $300,000 for criminal defense and bailed out before the case ever went to trial. All indications are that Jones kept the money, and Siegelman got almost nothing from his representation.
If Jones is involved in the decision to promote Kallon, and I'm betting he is, that explains a lot--maybe everything--about Obama's tendency to appoint worthless "Democrats" from the Alabama legal community.
What's wrong with Jones? Perhaps a better question might be, "What's not wrong with Jones?"One of his legal allies is Rob Riley, the son of former GOP Governor Rob Riley and scion of one of the South's most corrupt political families. The Rileys long have held a fondness for the right-wing Birmingham law firm Bradley Arant (BABC), shuffling some $10 million in state funds to the firm during the last two year's of Bob Riley's Reign of Error. For good measure Riley son-in-law Rob Campbell, married to Bob's daughter and Rob's sister (Minda Riley Campbell) serves as a partner at BABC, when he isn't trying to line up a little flesh on the side, via the Ashley Madison extramarital-affair Web site.
Guess what firm Abdul Kallon worked at before Obama plucked him out of obscurity and plopped him on the federal bench. If you guessed "Bradley Arant," you are a winner.
I'm not just guessing that Kallon is a wretched judge; I've seen his "work product" with my own eyes. He has been the judge in two cases that involved yours truly and my wife, Carol--one was a debt-collection case and one involved an unlawful sheriff's sale of our house in Shelby County.
I made it a practice to read Kallon's rulings closely and then check his work against the actual law. Did he make a correct call at any point in our two cases? I don't remember one.
In fact, Carol and I have come to despise Kallon so much that I wrote a 2012 piece titled "U.S. Judge Abdul Kallon Is the No. 1 Reason I Can No Longer Support Barack Obama." I was an enthusiastic Obama voter in 2008, but I don't think I voted for him in 2012--or if I did, it was only as a protest vote against Mitt Romney. I know this for sure--I never would support Obama for anything again. If a candidate for national office proves that he doesn't care whether our justice system is functional or not, I'm not interested in him.
Here's what I wrote in August 2012, roughly three months before the presidential election:
I could write a 100-page treatise on the reasons I have come to hold Barack Obama in utter contempt. They all have to do with Obama's stupefying failures on justice issues, which were driven home again last week by the resentencing of former Alabama Governor Don Siegelman to almost six years in prison for "crimes" that do not exist under the law.
As a resident of Alabama, I see the Siegelman fiasco as clear evidence that a modern strain of Stalinism has come to the American South. But on an even more personal level, my disdain for Obama can be summed up in two words--Abdul Kallon.
Probably the single most important personnel decision Obama has made in our state was the appointment of the 43-year-old Kallon as a federal judge in the Northern District of Alabama. It's a lifetime job, and unless Kallon meets an untimely demise, he could be handing down rulings for another 40 years or more.
That's a scary thought because my wife and I have had two cases before Kallon--and he butchered them both.
How did Kallon butcher our debt-collection case? A summary is available here.
What about the screw job related to our house? A summary of that is available here. (Video of the actual theft of the full property rights to our own house can be viewed at the end of this post.) The key issue there was a controversial concept called the Rooker-Feldman Doctine, which essentially holds that lower federal courts (other than the U.S. Supreme Court) should not sit in direct review of state-court judgments. There are so many exceptions to Rooker-Feldman that some legal commentators have said little is left of it.
Here are details about how Kallon trampled justice in our case--and it involved something fairly important to us, our home. This might be more hard-core legal analysis than most readers want, but it provides vivid detail to show that Abdul Kallon is not qualified to sit on any federal bench, much less be promoted to the Eleventh Circuit:
Several exceptions exist to Rooker-Feldman, and some of them applied to our case. I feel certain that Abdul Kallon is smart enough to know that. But his actions suggest that granting us relief would have conflicted with the predetermined outcome that had been assigned to our case.
Here are brief looks at four specific issues on which Kallon cheated us:
(1) Mrs. Schnauzer's Claims Regarding the House She Jointly Owns--It was undisputed in our federal lawsuit that my wife is joint owner of our house. It also was undisputed that she was not a party to the state lawsuit our neighbor filed, resulting in a judgment of about $1,500 against me. A U.S. Supreme Court case styled Lance v. Dennis, 546 U.S. 459 (2006) governs, and it holds:
"The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment."
Kallon clearly had jurisdiction to hear my wife's claims that her property interests had been unconstitutionally violated. He unlawfully refused to hear those claims.
(2) My Claims Regarding the House I Jointly Own--It's undisputed that I filed a claim of exemption regarding the notice of levy that had been placed on our house over the $1,500 judgment. It's undisputed that Shelby County Judge Hub Harrington, contrary to procedural and statutory law, conducted no hearing on my claim of exemption. The governing case is styled Dale v. Moore, 121 F. 3d 624 (11th Cir., 1997), and it states that Rooker-Feldman applies only where . . .
"the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state-court proceeding."
I filed a motion stating that our neighbor, Mike McGarity, had not contested my claim of exemption, so by law, the sheriff's sale could not proceed. I cited Rule 69(f) of the Alabama Rules of Civil Procedure and showed that was binding law where no contest had been filed. Harrington conducted no hearing on the matter and allowed the sheriff's sale to proceed, violating my rights to due process and equal protection of the law. . . .
(3) A Final State-Court Judgment? What Final State-Court Judgment?--Rooker-Feldman can be a pain for those who have been treated unlawfully in state courts. But it comes with significant limitations. Perhaps the most important one is spelled out in Nicholson v. Shafe, 558 F. 3d 1266 (11th Cir., 2009):
"Pursuant to the Rooker-Feldman doctrine, lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments."
We were contesting an unlawful sheriff's sale. It did not involve a state-court judgment, final or otherwise. It's questionable whether it even involved a state-court order. If it did, I never was served with one.
By the clear language of Nicholson, my claim was not barred by Rooker-Feldman. Kallon unlawfully barred it anyway.
(4) Inextricably Intertwined?--In some cases, a federal claim can be barred if it is found to be "inextricably intertwined" with a state-court judgment. What does that mean? A case styled Casale v. Tillman, 558 F. 3d 1258 (11th Circ., 2009) spells it out:
"A claim is inextricably intertwined if it would effectively nullify the state court judgment . . . or it succeeds only to the extent that the state court wrongly decided the issues."
My federal claim did not contest the $1,500 state-court judgment. In fact, I did not contest any state-court action. I contested the unlawful actions of Shelby County Sheriff Chris Curry in allowing a sale to proceed, contrary to clear law. I also contested Judge Harrington's unlawful interference in a case that statutorily rests with the sheriff. But neither of those claims had anything to do with whether the $1,500 judgment was or was not correctly decided. And neither would nullify the state-court judgment.
The claims simply stated that if someone was going to try to make a claim on our property, they had to do it as prescribed by Alabama law.
To simplify matters, we invite you to focus on item No. 1 above. Public records show that Carol Shuler was not a party to the state-court case leading to our federal claim. And the law clearly states that the claims of anyone not a party to an underlying state case are not precluded by Rooker-Feldman. It's undisputed that Carol was joint owner of our house, so she had a major property interest in the bogus sheriff's sale.
All of that tells us that Kallon is not just incompetent; he's also corrupt. No judge could be so incompetent as to get item No. 1 wrong. But Kallon got it wrong, and that tells me someone told him our case was to go away quietly, and he went along with it--even if that meant Carol's property rights were trampled.
If Alabama's Republican U.S. Senator's, Richard Shelby and Jeff Sessions, decide to block the Kallon nomination, I would side with them. And I don't agree with Shelby or Sessions on much of anything.
More than likely, the Senate will give Kallon a free pass to the Eleventh Circuit, without taking a serious look at his shortcomings as a judge.
If that happens, I can think of one positive outcome--residents of the Northern District of Alabama will no longer have to worry about Kallon trashing their cases at the trial-court level. They will only have to worry about him, and his equally corrupt colleague Bill Pryor, if they have to file an appeal.
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