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Mike Hubbard
(From wiat.com) |
The Mike Hubbard trial, on the surface, was about 23 charges of Alabama Ethics Law violations -- with a Lee County jury finding Hubbard guilty on 12 counts. But from a big-picture view, it was about the kind of mindset that has come to hold back many areas of the Deep South, not to mention other states where Southern thinking tends to hold sway. We are thinking of Great Plains or Midwest states, such as Missouri, Oklahoma, Kansas, Wyoming, Idaho, and Utah.
What is this mindset all about? We have broken it into two parts -- one called "The New Confederacy," and the other called "Conservative Tribalism." Both were on display in the Mike Hubbard trial.
"The New Confederacy" includes individuals who tend to self-identify as "patriots," even though they reject fundamental tenets of the U.S. Constitution. These modern-day confederates tend to especially reject the Fourteenth Amendment guarantees of due process and equal protection, which became part of America's constitutional landscape after the Civil War.
From 1866 to 1868,
Southern states bitterly opposed ratification of the Fourteenth Amendment. The Hubbard trial showed that many Southerners, especially elites, still despise the principles of the Fourteenth Amendment.
Consider Hubbard's lawyer, Bill Baxley. He described several of the counts against his client as "mumbo-jumbo" or "gobbledygook." Baxley made little or no attempt to dispute the prosecution's version of the facts. Instead, he argued there was no crime -- essentially claiming the law does not apply to Mike Hubbard.
In the roughly 16 years my wife, Carol, and I have fought judicial corruption in Alabama, we've seen lawyers and judges repeatedly show utter disregard for the Fourteenth Amendment. Many times I've said to Carol something like, "These people just make up their own law. You can get an order, check the applicable law at a law library, and find it's 180 degrees from what the judge ruled. It's like they want to live in the United States, but they don't want to abide by the U.S. Constitution."
I probably could provide more than 100 examples where we've been on the front row to watch the trampling of the Fourteenth Amendment. But one example should suffice.
All of our legal problems flow from the date a criminally inclined individual named Mike McGarity moved next door to us. McGarity, his kids, and his guests started trespassing on our front yard with regularity, essentially turning it into the neighborhood playground, without asking what we thought about the use of our own yard. When I informed McGarity multiple times that we did not want him, or anyone connected to him, coming on our property, his response was, "I'm going to sue you for harassment."
Never mind that harassment is not a tort for which one can sue -- and it's hardly harassment to tell someone to stay off your property. This was McGarity's mindset; he either was ignorant of trespassing law or he thought it didn't apply to him. We're talking about a pretty dim bulb here, but the guy had owned property before, so he had every reason to understand the basic notion of property rights.
When my warnings only drew threats from McGarity, I consulted an attorney named Bill Lewis, and he made it clear that McGarity was violating both criminal and civil law -- trespassing by a person is a crime; an intrusion by a person, thing, or substance can be a tort. Lewis said a civil case might cost $10,000 or more, so it didn't make much sense to go that direction, especially since McGarity was committing a crime. Lewis said he would write a letter to McGarity, explaining the criminal statute, and stating that McGarity would receive no more warnings. Lewis said he hoped that would take care of it, but it would be up to us to swear out a criminal complaint with the sheriff if the trespassing continued, and we wanted it stopped.
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| Mike McGarity |
McGarity continued to trespass, along with a cast of thousands, so we felt we had no choice but to swear out a complaint. We met with an attorney in the Shelby County DA's office, she filled out paperwork for the complaint, and we took it to the clerk's office to be sworn. (Note: The attorney we met with was
Lara McCauley Alvis, who recently was elected as a circuit judge in Shelby County. At the time, I think she was fresh out of law school.)
McGarity pleaded not guilty and refused to discuss a settlement, which District Judge Ron Jackson had encouraged us to reach, so the case went to trial. McGarity was charged with criminal trespass (third degree), which is not even a misdemeanor under Alabama law; it's a violation.
The issues at hand are covered under Code of Alabama 13A-7-4, and the offense has two components:
(1) "A person commits the crime of trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises."
(2) "A person enters or remains unlawfully in or upon premises when he is not licensed, invited or privileged to do so."
Law doesn't get much simpler than this, and these two issues were easily resolved at trial. The trial transcript shows that McGarity admitted he had knowingly entered upon our premises. As for the second part, it helps to have some definitions. My research indicates that being "licensed" to enter premises refers to someone who has a professional reason to be there -- a fireman, meter reader, police officer,
Being "privileged" to enter premises refers to someone who tries to address an unexpected occurrence. For example, if your hat flies off your head and lands in my yard, you have a right to retrieve it. If your dog gets loose and winds up on my yard, you have a right to retrieve him. If you see someone on my property who appears to be in medical distress, you have a right to come and check on him.
As for "invited," that's pretty obvious: It applies to someone who knows he is on friendly terms with the owner/occupants of the premises and has reason to believe he is welcome.
McGarity never claimed he had been invited to enter our property, and he never claimed to be licensed or privileged. In essence, he confessed to the crime, but Judge Jackson still acquitted him. (Bet you didn't know that could happen in an American court; well, it can, and it has.)
For some reason, the court focused on only one instance of McGarity trespassing, even though our complaint said we had witnessed him trespass on multiple occasions. McGarity admitted he had received Bill Lewis' warning letter via certified mail, but he said he wasn't sure of the date it arrived -- that it might have come after the one trespassing incident the court considered.
Here is what Jackson said to Carol and me:
"I'm going to find that you had to give written warning, and there is reasonable doubt about whether the warning was received prior to the trespass. Therefore, I am going to acquit. But Mr. McGarity, you certainly are on notice now, and if you return here on these issues, the result might be different."Jackson said this as if he was trying to be a thoughtful, even-handed judge. But the acquittal allowed McGarity to sue us for malicious prosecution, which is a tort that essentially means a case was brought without probable cause. Heck, testimony showed that we had not only probable cause, we had actual cause -- McGarity admitted to breaking the law as charged.
So was Jackson's ruling legally sound? Not even close. Jackson held that we had to give McGarity written warning. In fact, Alabama case law holds that we had no responsibility to give McGarity a warning at all. (This makes sense under the concept of private property, one of our most cherished American ideals. If a homeowner or occupant had to give a warning to keep unwanted individuals off his premises, we essentially would have no private-property rights. Someone could place a massive tent on your front yard and host a party for thousands, and when confronted, say, "Hey, you didn't warn me not to do this, so I lawfully can use your land for whatever I want.")
What is the real law, which Judge Jackson ignored? This is from a case styled
Chambers v. City of Opelika, 698 So. 2d 792 (Ala. Crim. App., 1996):
The appellant has cited no authority for his position that to be guilty of criminal trespass the intruder must be aware that he or she had no license or privilege to enter or to remain on the premises. There is authority, however, that states that when those premises are private and not open to the public, there is no requirement that the prosecution prove that a prior written or verbal warning was given to the intruder.
Under the Fourteenth Amendment, we were entitled to due process, which means (in part) having an impartial arbiter. That Jackson could not get this simple law right indicates he was somehow compromised. We also were entitled to equal protection, to have Alabama law applied to us as it would be to anyone else. That obviously did not happen.
The bottom line? Under the law, we had no obligation to warn McGarity, either verbally or in writing. And he admitted under oath that we had warned him multiple times verbally. In other words, we went over and beyond what the law calls for in an effort to resolve this problem, and we still got screwed because Jackson found we had to provide written warning -- which we did, but McGarity claimed he had not received it prior to the one trespassing incident the court considered. (The truth? McGarity almost certainly received the written warning from Bill Lewis that day, and McGarity got pissed and went on our yard to try to figure out a way to run a fence up to the street, between the properties. That was a problem, of course, because McGarity had built his fence on our property, taking up about 400 square feet of our back yard -- and extending the fence, in a straight line, meant it would cross our driveway. Ooops. For some reason, Bill Lewis' office could not find the returned certified-mail receipt, so we (the prosecution) could not prove when McGarity received the warning.)
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| Bill Swatek: Would you want this guy for your lawyer? |
One moment from the McGarity trial reminds me of the Hubbard case. Just as Bill Baxley made the nutty claims that the charges against Hubbard were "mumbo-jumbo" and "gobbledygook," McGarity's lawyer, Bill Swatek, claimed our property (our private residence) was "open to the public."
That, of course, is pure rubbish. But Swatek could not win the case by citing actual law, so he decided to make stuff up -- as any "new confederate" would. Swatek, McGarity, and Jackson are perfect examples of new confederates. They want the advantages of living in the United States, but they do not want to follow U.S. law; they want to make up law to favor themselves. Essentially, they want to live in a shadow country, without any "rule of law" to follow. They want any law to be flexible, favoring white, conservative elites -- even though McGarity hardly is an elite; he's one of the dumbest people I've ever met, and Swatek isn't much better.
How's this for irony? Swatek's son, political consultant Dax Swatek, and Hubbard have been compadres for years. So there you have it . . . connections between our court travails and the recent Hubbard case.
What about our concept of "conservative tribalism"? We will address that in an upcoming post.
