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- 07/01/16--16:24: _Why are al.com and ...
- 07/05/16--10:27: _Luther Strange soug...
- 07/05/16--16:17: _Is Donald Trump's r...
- 07/07/16--13:15: _How does Mike Hubba...
- 07/08/16--10:57: _With Alabama taxpay...
- 07/08/16--14:39: _Mike Hubbard receiv...
- 07/11/16--09:12: _The trial of former...
- 07/12/16--12:06: _Pre-trial hearing f...
- 07/13/16--08:15: _Here's flip side of...
- 07/13/16--10:10: _Your donations allo...
- 07/14/16--12:58: _The process that le...
- 07/15/16--12:42: _Newsbud, a new vent...
- 07/18/16--14:45: _Judge Madeline Haik...
- 07/19/16--10:50: _I was arrested one ...
- 07/20/16--12:31: _Ashley Madison cust...
- 07/21/16--08:30: _As Robert Bentley b...
- 07/22/16--10:35: _About the only news...
- 07/25/16--08:42: _Sovereign immunity ...
- 07/25/16--12:20: _With the Republican...
- 07/26/16--06:28: _Dispute over trust ...
Just imagine how little prison time Hubbard's own lawyers will ask for. Will they ask for two days of probation, with no time served? Hubbard lawyer Bill Baxley has called the recommendation "absurd" -- as in absurdly harsh. This is a rare instance where Baxley and I agree on something; I also find the recommendation to be absurd -- absurdly lenient. In fact, it makes one wonder if Attorney General Luther Strange ever was serious about punishing Hubbard and using him to set an example that would discourage corrupt conduct in other public officials.
Perhaps most disturbing, there already seems to be an effort in the mainstream media (MSM) to portray the sentencing recommendation as tough -- when it is anything but tough. You expect Baxley to whine about the recommendation; that's pretty much what he's paid to do. But why is the MSM trying to convince the public of something that clearly is not true?
At al.com, columnist John Archibald penned an item titled "Prosecutors seek stiff jail term for former House Speaker Mike Hubbard." First, Hubbard likely will be going to a state prison, not a county jail, so the headline has accuracy problems. But then we have this manure from the body of Archibald's column:
A sentencing memorandum filed tonight in the Hubbard case – in preparation for Hubbard's July 8 sentencing on 12 ethics convictions – asks for an 18-year base sentence, split to serve five years in state prison. That would be followed by 13 years of probation.
The state is asking Lee County Circuit Judge Jacob Walker to use his gavel as a hammer, not only to punish Hubbard for his serious crimes, but as a deterrent to other public officials.
The 18 years is less than the 20-year maximum Hubbard could face on each charge, but is equal to the number of years he spent in the Legislature. The five years is the maximum that can be given as a split sentence – which is time he would have to serve -- but is also the length of time he served as Speaker.
These four paragraphs are so full of horse feces, I don't know where to begin. For several months now, Archibald and compadre Kyle Whitmire actually have been behaving like objective, capable journalists. But this makes it seem their right-wing overseers have said, "Time to pull in the reins, boys. It's bad enough that one of our white, beloved, Riley-Inc. legislators has been convicted, now it's our duty to con the public into thinking "Hubby," we mean Mike, could be facing an insufferably long punishment."
Hubbard could face 240 years behind bars, and the state wants him to get five -- and that would be asking Judge Jacob Walker to "use his gavel as a hammer"? Archibald and Baxley must be sipping from the same bottle of Old Grand-dad.
And what is this nonsense about the 18 years being "equal to the number of years [Hubbard] spent in the Legislature" and the five years is "the length of time he served as Speaker"?
That's "fitting," Archibald wants us to believe. It's pure bulls--t, I'm telling you.
This is about criminal activity, of which Hubbard has been convicted by a jury of his peers. We are talking about felonies. It has zero to do with the time Hubbard spent in the legislature or as Speaker. It blows the mind to think Archibald figures the public will fall for such garbage.
Brian Lyman, of the Montgomery Advertiser, is trying to spread the same manure with a story titled "Prosecutors: Give Hubbard big sentence, big fine." From Lyman, who notes that prosecutors want Hubbard to pay more than $1.6 million in fines and restitution:
In a motion filed Thursday evening, prosecutors asked Lee County Circuit Judge Jacob Walker to sentence Hubbard, convicted June 10 on 12 felony ethics charges, to a total term of 18 years. The state wants Hubbard to serve five of those in prison, with the remaining 13 years spent on supervised probation.
The sentence would match Hubbard’s 18 years in the Alabama House of Representatives. The five-year prison term would match his tenure as speaker.
The state also wants the Auburn Republican to pay more than $1.6 million in fines and restitution.
Notice that Lyman uses the same meaningless BS that Archibald used about "18 equals Hubbard's time in the Legislature," and "five matches his time as Speaker." Did this pair of "journalists" work on their stories as a joint homework assignment? Did one plagiarize the other? Are they going to consult a Quija board next?
To be sure, criminal sentencing is a complex topic, including guidelines that judges apparently do not have to follow -- with prison overcrowding, which is particularly severe in Alabama, affecting the whole process.
Judge Walker will conduct a sentencing hearing on July 8, one week from today. In my view, Hubbard should get the minimum of 24 years, and I think he deserves to serve all of that behind bars. But since a split sentence and probation is likely in play, Hubbard should get at least 10 years behind bars, with 14 years of probation.
Anything less than that should produce outrage from the public. Here is the prosecution's sentencing recommendation:
Should we believe the "tough guy" rhetoric in Strange's sentencing motion, and the "Oh, My God, this would be a stiff sentence" malarkey that spewed forth from mainstream media (MSM) outlets al.com and the Montgomery Advertiser? No, we should not, because it's all a crock.
In fact, the absurdly lenient sentence recommendation from Strange's office makes it seem the Hubbard prosecution was just for show all along. It also adds credence to charges from Hubbard supporters that the whole thing was a political prosecution, designed to help eliminate one of Strange's strongest opponents from the 2018 governor's race.
If Hubbard ever goes to prison at all, he likely will be out not long after a new governor is inaugurated in January 2019. Based on the sentencing recommendation, it appears Strange wanted Hubbard tied up just long enough to miss the governor's race.
How do we know the proposed five-year incarceration is laugh-out-loud lenient? Consider the case of Deann Stone, former director of federal programs for the Alabama Department of Education. A jury convicted her in October 2014 on five ethics counts involving use of her position to provide more than $10 million in grant money to Information Transport Solutions, where her husband, Dave, was employed. Dave Stone was convicted of aiding and abetting his wife on each count.
This is from a December 2014 press report about the AG's sentencing recommendation:
The state attorney general's office is asking a judge to give a former state education official and her husband 50-year sentences in an ethics case involving millions of dollars.
The attorney general is seeking the sentence for 51-year-old Deann Stone and 55-year-old Dave Stone of Wetumpka. Deann Stone is the former director of federal programs for the state Department of Education. . . .
The attorney general's office is asking that the Stones get 10 years on each count and that the sentences run consecutively.
Why would the same AG (Luther Strange) who wanted the Stones to serve 10 years behind bars for each count want Mike Hubbard to serve less than six months for each count on which he was convicted?
To be sure, no two criminal cases are alike, and we see obvious differences between the Stone and Hubbard cases. We also see similarities, and one could make a reasonable argument that corruption in the Hubbard case was worse than that in the Stone case. A few points to consider about the two cases:
* The Stone case involved $10 million, but it's not clear how much of that directly benefited the Stones; the Hubbard case involved about $1.6 million of personal gain;
|Deann K. Stone|
* Hubbard was an elected official, holding what many consider the most powerful political office in Alabama. Mrs. Stone worked for the state, but she did not hold elective office;
* Both Hubbard and the Stones faced possible penalties of two to 20 years on each count.
Did Strange's recommendation of 50 years for each of the Stones carry much weight in the courtroom? Nope. Montgomery County Circuit Judge Johnny Hardwick sentenced each of them to two years. From an article about the actual sentence:
The judge said Deann Stone should have stepped aside from the grant awarding process because her husband's employer was representing applicants, but she didn't. Instead, he said the Stones exchanged emails about the grant process.
The Stones sound a bit like Mike Hubbard and Bob Riley, don't they? But it's hard to imagine the couple was even close to being that sleazy.
So, Luther Strange wants us to believe he's really socking it to Mike Hubbard? The Stone case tells a different story. The Hubbard sentence recommendation would have to improve to be a slap on the wrist.
A major problem with the Hubbard case all along is that the AG probably is as corrupt as the defendant, maybe more so. The sentencing recommendation in the Hubbard case indicates Luther Strange is playing games with taxpayer dollars, something he seems to do a lot. In fact, it might be the "legacy" he leaves behind.
|Pam Bondi and Donald Trump|
The case might also involve tax fraud, which could explain Trump's reluctance to release his tax returns.
The allegations by Boston-based attorney J. Whitfield Larrabee, outlined in complaints to U.S. attorneys in New York and Florida, stem from a $25,000 campaign contribution from Trump, just before Bondi dropped an investigation of Trump University. (See complaints at the end of this post.)
Larrabee, who also alleges that Trump might have engaged in election-law violations, made his complaints to Robert L. Capers, U.S. attorney for the Eastern District of New York, and Christopher P. Canova, acting U.S. attorney for the Northern District of Florida.
Here is how Larrabee describes events from fall 2013 that led to his call for a criminal investigation one week ago:
There is probable cause to establish that on September 17, 2013, Donald Trump bribed Pamela Bondi, the Florida Attorney General, in violation of Sections 200.3 and 200.11 of the New York Penal Code, which prohibit the bribery of public servants, by his giving and her receiving of a bribe valued at over $10,000.
According to Bondi’s political consultant Marc Reichelderfer, several weeks prior to September 13, 2013, Bondi spoke to Trump and personally solicited a campaign contribution from him. It is very likely that this solicitation used the interstate telephone system. At the time Bondi solicited this campaign contribution, numerous complaints against Trump University and Trump Institute had been filed and were under review by the Florida Attorney General’s office.
Bondi's office gave the impression that it was taking complaints against Trump University seriously and was possibly going to join a formal investigation. Writes Larrabee:
On September 13, 2013, the Orlando Sun Sentinel reported that a spokesman at the office of the Attorney General of Florida announced that it was conducting a review of the allegations in a New York lawsuit against Trump University. At the time of the review more than 20 Florida residents had filed complaints, alleging fraud and other unfair business practices, with the Attorney General’s office against Trump University and the Trump Institute. Trump actively participated in promoting these businesses, he had a financial interest in each of these ventures, and it was in his financial and legal interest that the Florida Attorney General refrain from joining in or bringing litigation against, Trump, Trump University and the Trump Institute. . . .
In transferring $25,000 to the political committee supporting Bondi, it is very likely that the funds were transferred by the mails, and, through the use of interstate banking facilities, touched upon the interstate system of wires and fiber optic cables. In the unlikely event that the transfer of funds was made in cash and in person, it would require at least one of the parties to travel across state lines, an alternative basis to establish a violation of The Travel Act.
The highlighted sections above point to wire and mail fraud. As for possible bribery, Bondi's approach to the Trump University matter apparently changed once the $25,000 campaign donation arrived:
On September 17, 2013, a political group backing Bondi's re-election, called And Justice for All, reported receiving a $25,000 contribution from the Trump Foundation.
On or before October 17, 2013, Jeane Meale, a spokeswoman for Bondi, indicated that Bondi's office would take no action against Trump University. Although her office conducted very little if any investigation of the complaints against Trump University and the Trump Institute, Bondi in fact elected not to join in New York litigation against Trump University, and her office made no further effort to initiate litigation against Trump University or the Trump Institute.
A timeline of events suggests Trump and Bondi engaged in unethical and illegal conduct, Larrabee writes:
Evidence strongly indicates that Bondi’s decision not to initiate or participate in litigation against Trump University was given in exchange for Trump’s contribution based on the short time period between the receipt of the political contribution and the announcement of Bondi’s decision not to participate in the New York litigation. No more than 30 days after the $25,000 payment was made, Bondi’s spokeswoman announced that Bondi would take no action against Trump University and its affiliates. The timing of these events is substantial evidence of a quid pro quo in which Trump gave money to a political committee supporting Bondi’s in exchange for Bondi’s agreement not to take any action against Trump University.
This could go well beyond a standard bribery case. Election-law violations, and much more, appear to be in play. Larrabee explains:
Under the laws of the United States and Florida, it is unlawful for a charitable foundation to contribute funds to a political action committee, and it is unlawful for a political action committee to accept such a contribution.
As a 501(c)(3) organization, the Trump Foundation is strictly prohibited from making financial or in-kind political contributions. Notwithstanding this prohibition, Trump arranged for the Trump Foundation to make a $25,000 contribution to a political committee supporting Bondi. The Committee, with Bondi’s knowledge and agreement, accepted this donation.
Larrabee's complaints might help explain Trump's reluctance to release his tax returns during the campaign season:
There are reasonable grounds to suspect that Trump has committed tax fraud in violation of the laws of the United States in connection with his use of funds from the Trump Foundation. Funds contributed to charitable foundations are tax deductible. If Trump has deducted contributions to the Trump Foundation that were merely reimbursement of the illegal contribution to And Justice For All, then that deduction was fraudulent. In order to determine whether Donald Trump engaged in tax fraud, it is necessary to view the income tax returns of Trump and the Trump Organization. These tax returns have not been made public. If Trump engaged in tax fraud in connection with contributions to the Trump Foundation, or in connection with political contributions made by the Trump Foundation, then it is more likely that Trump’s support for Bondi was corruptly motivated.
|Jessica Medeiros Garrison and Luther Strange|
Lee County Judge Jacob Walker III is scheduled to sentence Hubbard tomorrow, with a hearing to begin at 10 a.m. This much we already know: Essentially, Strange and Baxley agree that the proposed sentence is tough, with Baxley claiming it is overly harsh. But I've had a first-hand experience with Strange and Baxley that leads me to a very different conclusion, one filled with irony and a strong hint that both of these "august attorneys" are dishonest and corrupt -- part of Alabama's problems, not the solutions.
More importantly, their words and actions suggest Alabama's court system remains a disgusting, dysfunctional sham -- one that cuts corners for white conservative elites (even a criminal like Mike Hubbard), while gouging everyday folks.
What colors my view of the $1.6 million the state seeks from Mike Hubbard, who was found by a jury of his peers to have committed criminal acts that repeatedly betrayed the public trust? You might recall that Jefferson County Circuit Judge Don Blankenship imposed a $3.5-million default judgment on me in April 2015, in a defamation case brought by former Strange campaign manager Jessica Medeiros Garrison. So Mike Hubbard might have to cough up $1.6 million related to 12 counts of criminality, while I have a $3.5-million default judgment hanging over my head in a civil matter where the public record shows I committed no wrongful act.
Let me explain: Garrison filed suit in fall 2013, claiming posts at Legal Schnauzer about her extramarital affair with Strange were false and defamatory. Garrison even went to the women's fashion magazine Marie Claireto brag about her $3.5 million default judgment and made the laughable claim that she was standing up for other women who've had something mean written about them in the press. The article was filled with inaccuracies and defamed me in more ways than I can count.
Here are just a few of the problems with Garrison's $3.5-million "windfall":
* A lawyer who reviewed the file said the record showed no one even attempted to serve me with notice of the default-judgment hearing, so it's little wonder I didn't appear. That means Blankenship's ruling, as a matter of law, is void. A scrap of toilet paper has more legal clout than his opinion.
* As a matter of law, my reporting never was found to be false or defamatory. First Amendment law requires that a jury trial be conducted in a defamation case -- that a judge, acting solo, cannot lawfully make a determination that published matter is defamatory. In Garrison's case, there was no trial and no jury, so there could be no finding that my work was false and defamatory. This has been stated many times in case law, including Bernard v. Gulf Oil, 619 F. 2d 459 (5th Cir., 1980), which held: "The essence of prior restraint is that it places specific communications under the personal censorship of the judge."
* Blankenship, who acted as a personal censor in the Garrison case, issued an order indicating almost all of the $3.5 million was granted because Garrison (and maybe Strange) claimed I had reported that her son is the AG's biological child. Unfortunately for Garrison, I reported no such thing. That means there is no legal basis for the judgment, and it largely was the product of perjury on Garrison's part.
|Judge Don Blanenship|
Don't be surprised if something fundamentally dishonest is going on behind the scenes in the Hubbard sentencing. We already know Strange sought 50 years behind bars for defendants in an ethics-law case less than two years ago. But his office has recommended that Hubbard be incarcerated for no more than five years. That is a stunningly lenient recommendation -- and Strange's own previous requests prove it -- so the public already has reason to believe that Hubbard is receiving favorable treatment. Judge Walker does not have to follow the prosecution's recommendation--he can go above it or below it -- so he needs to hit Hubbard with at least 10 years, which would be meaningful punishment for the crimes committed.
Strange and Baxley, in roundabout ways, are telling the public that $1.6 million is a severe punishment for Mike Hubbard following his conviction on 12 criminal counts. Meanwhile, they both played major roles in Jessica Garrison's default judgment, and they seem to be saying $3.5-million is a proper amount for a journalist whose reporting never has been found to be false or defamatory at trial -- and whose constitutional rights to due process and equal protection were raped by a judge from the Democratic Party (Don Blankenship), who should be above such corrupt actions.
What does the rule of law mean to Strange and Baxley? The answer appears to be "absolutely nothing" -- and it will be interesting to see how that plays out in the Hubbard sentencing.
|Rebekah C. Mason and Robert Bentley|
That means taxpayers will be paying the bill for Bentley and Stabler to defend themselves in a legal action that was brought against them as individuals, not in their official capacities. The money will go to the Birmingham law firm Maynard Cooper Gale, which we've shown has some shaky ethics of its own.
Members of the Contract Review Committee should keep this in mind: The Collier matter might not be the only lawsuit facing Bentley, Stabler, or both in the near future.
According to multiple news reports, Bentley ordered the use of state and federal criminal databases to help gather information to attack his critics. One report has said the plan was to concoct bogus criminal charges against citizen journalists who broke the story of Bentley's affair with senior advisor Rebekah Caldwell Mason.
Another report has Bentley unlawfully accessing the medical records of at least one critic.
Could these issues lead to significant civil liability for Bentley and Stabler (and perhaps some of their associates)? Could they lead to more lawsuits, for which taxpayers might be on the hook? The answer to both questions is yes, and Alabamians might want to consider contacting legislators to let them know this isn't the way they want to see their tax dollars spent.
The potential problem does not end there. We know Bentley and Mason are the targets of a federal investigation led by John A. Horn, U.S. attorney for the Northern District of Georgia. Here is how Bill Britt, publisher of Alabama Political Reporter, recently characterized the federal probe:
A task force from the FBI, the Postmaster General, and the IRS is conducting the investigation into allegations of obstruction of justice, fraudulent use of campaign contributions, improper use of State resources, and other potential criminal acts, according to former Bentley confidants, and staffers, who are cooperating with the investigators. The most serious scrutiny surrounds Bentley’s involvement with Rebekah Caldwell Mason, his former senior advisor, and alleged paramour.
This is how Alabama attorney Donald Watkins put it recently:
The FBI's investigation of Bentley is focused on his racketeering and public corruption conduct as governor. His primary accomplice in these crimes was Rebekah Mason.
The governor is aware that his federal criminal indictment is imminent. The number of counts in the indictment is expected to set a record for a federal racketeering and public corruption case. Bentley will be arrested at his capitol office, which is the headquarters for his racketeering enterprise.
Could such a wide-ranging criminal investigation lead to civil liability? You might want to pose that question to O.J. Simpson sometime. My answer: You can count on it.
If Alabama taxpayers are on the hook for $200,000 to defend Bentley Inc. against one lawsuit, what if three, five, 10 or more lawsuits are right around the corner? Will taxpayers put up with being asked to pay more than $1 million to defend a governor who really can't be defended?
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Lee County Circuit Judge Jacob Walker III this morning sentenced Hubbard to four years in prison, eight years on probation and ordered him to pay a $210,000 fine on 12 felony ethics convictions. Hubbard was not ordered to pay restitution, even though evidence showed (and a jury found) that he used his public office to enrich himself by more than $1 million. Also, Hubbard was allowed to remain free, pending an appeal.
What kind of sentence is this? In a word, it is noxious.
Each count for which Hubbard was convicted carried a range of two to 20 years in prison. At a minimum, Hubbard was facing 24 years behind bars for his 12 convictions. But he got four years? We're supposed to believe that represents justice? We're supposed to believe Alabama judges take white-collar corruption seriously? We're supposed to believe Mike Hubbard didn't receive special treatment because he's white and male and "conservative"?
Most importantly, we're supposed to believe the rule of law holds in Alabama courts? Don't make me laugh.
The office of Attorney General Luther Strange started this charade by asking that Hubbard be incarcerated for five years. But less than two years ago, Strange asked for 50-year sentences in the ethics-law case of former state education official Deann Stone and her husband, Dave Stone.
How does "justice" work in "Big Lutha World"? If your name is Deann Stone or Dave Stone, Lutha wants to put you away for 50 years. If your name is Mike Hubbard, and you long have been connected to the Riley Inc. political machine, Lutha wants you to get five years -- and these are cases that were governed by the same law and presented similar facts, under the same attorney general.
Judge Walker, who was born with a silver spoon in his mouth and long has been part of the legal elite in east Alabama, is even worse than Strange. He sentences Hubbard to four years, orders no restitution, and allows the former speaker to remain free pending an appeal.. For good measure, Judge Walker had a clear conflict of interest all along, but Strange's office never bothered to challenge whether Walker was suited (under the law) to hear the case at all.
|Judge Jacob Wlker III|
But that's not all. Consider Baxley's words today regarding an appeal:
"I believe with all my being after everything we’ve gone through that Mike Hubbard is absolutely innocent of every charge he was found guilty of," Baxley told Walker Friday.
That might just be the blathering of an old lawyer who gave up the moral high ground years ago to serve the interests of corrupt conservatives. But consider this from Baxley about one week ago:
"Mark my words, the verdict will not stand," Baxley said.
Is that more blathering or does Baxley have inside knowledge about how the appellate process is likely to play out? That's not an off-the-wall question when you consider that trial testimony showed Hubbard considered funneling $10 million to the state court system, just in case he might need a favor someday from Roy Moore, chief justice of the Alabama Supreme Court. Consider these words from Joe Miller's report at The New Republic:
Hubbard had his own reasons for saving $10 million that went beyond closing holes in the budget. According to testimony, he was hoping to carve off $10 million that he could shift to the state’s court system, which was run by Roy Moore. (Moore is currently under suspension for ordering court officials statewide to disobey a mandate from the federal courts to grant marriage license to same-sex couples.) Hubbard—who at the time was the subject of a grand jury investigation—reportedly believed that if he could help Moore, Moore might be of help to him at some point in the future. The parties involved were on board with this plan, too.
Perhaps some Alabamians have been conned into believing that Hubbard's convictions before a jury of his peers in his home county mean state courts have been renewed. It's much too early to buy into that. It's hard to see where there were any errors of fact or law at the trial level. But don't be surprised if Roy Moore and Co. overturn Hubbard's convictions anyway. Don't be surprised if Mike Hubbard never sets foot in a prison cell.
Judge Walker's sentencing today might be the first official sign that something smells to high heaven in Lee County.
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.
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.)
|Bill Swatek: Would you want this guy for your lawyer?|
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.
|Erik Davis Harp|
Harp once was a business partner with Jessica Medeiros Garrison, an Alabama Republican operative and former campaign manager for Attorney General Luther Strange. Harp was indicted in 2009 in Queens, New York, as one of two alleged ringleaders in an illegal offshore sports gambling operation. The ring, which had a "wire room" in Panama, reportedly generated more than $20 million a month -- totaling about $567 million in a 28-month period leading to arrests.
Harp was arrested on March 15 for allegedly carrying a concealed 9 mm handgun into a government building -- the Bay County Courthouse in Panama City Beach, Florida. A pre-trial hearing was set for June 9, but that now has been postponed until 1:30 p.m. on December 15. (See court document at the end of this post.)
This seems like a straightforward case; either law-enforcement officers caught Harp carrying a concealed handgun into the Bay Courthouse or they didn't; Harp has a legitimate defense or he doesn't. (If he does, it's hard to imagine what it would be.)
It's also hard to imagine why a pre-trial hearing would need to be postponed for more than six months. Criminal defendants are guaranteed access to a speedy trial, but depending on whether a plea deal is cut or a trial date is set, this one could take more than a year to be resolved. All of that for a case that seems to revolve around a simple question: Did Erik D. Harp enter the courthouse with a concealed weapon or not?
Protests continue over the police shootings of Alton Sterling
and Philando Castille
For the moment, many citizens are outraged about the kind of violence that can happen on the front end of an encounter with police. But what about the back end, when (in some cases) the "justice system" seeks to "punish" the offending officer?
A new report from Think Progress shows that, in 2015, 97 percent of officers in violence cases faced no criminal charges. That might be just as well because we've seen evidence in Alabama that, even when a cop does face criminal charges, a judge is likely to twist the facts and law into a pretzel in order to get him off.
A Legal Schnauzer analysis shows a federal judge repeatedly butchered the law earlier this year when she threw out criminal charges against an Alabama police officer who body slammed and partially paralyzed a 57-year-old grandfather from India.
The case of Sureshbhai Patel--who underwent cervical spinal-fusion surgery and is unable to walk or grip his hands, is disturbing on numerous levels. Two federal juries in Alabama could not reach a verdict, even though video showed no sign that Patel had engaged in criminal activity and was merely walking down the sidewalk in his son's Madison neighborhood, when Officer Eric Parker stopped him and slammed him headfirst to the ground. Reports about the two hung juries indicate racism and sexism are alive and well in federal courthouses--certainly in Alabama and probably elsewhere.
Perhaps most disturbing, from a legal standpoint, U.S. District Judge Madeline Haikala, made one error after another in her 92-page ruling (released on January 13, 2016) that granted the defense's Motion for Acquittal and ensured that the criminal case against Parker would not go to a jury for a third time. (See Haikala's ruling at the end of this post.)
Haikala, a former lawyer with the Birmingham firm Lightfoot Franklin and White, was nominated to the federal bench by President Barack Obama in May 2013. That a Democratic appointee could perform such a hatchet job on a criminal civil-rights case that drew international attention is enough to make one wonder if there really is any difference between the two major political parties.
Our review of the Patel case indicates the following:
* Haikala misapplied the standard for reviewing a Motion for Judgment of Acquittal;
* The federal case that Haikala cites to justify throwing out the charges against Parker does not support her ruling;
* The federal case that Haikala cites is not even about a Motion for Judgment of Acquittal; it involves appellate issues after a jury verdict;
* Haikala ignored evidence in the record that Parker lied about at least three key issues in the case;
* Haikala short-circuited a process where a jury, if properly instructed on the law, clearly could have found that Parker willfully violated Patel's civil rights--the central issue in the case;
* Haikala ultimately ruled that because two juries had deadlocked in the case, a third jury likely would produce the same result--and therefore the criminal charges should be thrown out. “The government has had two full and fair chances to obtain a conviction,” the judge wrote. “It will not have another.” Haikala cites not a single piece of case law to support that finding.
|Madeline Haikala takes oath of office|
Madeline Haikala, with her butchery on the Sureshbhai Patel case, proves that the federal judiciary always can sink a little lower in Alabama.
Here is the primary question of the moment: Will the officers who gunned down Alton Sterling and Philando Castille ever be held accountable in a criminal court of law? Madeline Haikala's botch job on the Sureshbhai Patel case suggests the answer is no.
(To be continued)
|Murphy Abigail Shuler (1993-2004):|
The real schnauzer who inspired a blog.
Legal Schnauzer has been front and center in the reporting of all four stories -- and with news today that a special state grand jury has been impaneled in Montgomery County, we plan to be on the front line if more major figures fall.
But we need your help. Loyal readers have helped sustain this blog -- even when I was unlawfully thrown in jail for daring to report accurately and aggressively on subjects that ruling elites did not want uncovered -- and we invite your support to help continue the battle. My wife, Carol, and I have paid an enormous emotional and financial price for engaging in journalism that portrays modern-day "Big Mules" in a not-so-favorable light. In essence, conservative forces have stolen almost everything we owned, forcing us to live like refugees -- in a flea-bag motel, in a state (Missouri) where we do not want to be.
We believe our kind of fearless reporting is essential in helping Alabama become the kind of state where constitutional rights are protected for everyone -- rather than having favors dished out to a select few. If you are able to help us along that journey, please click on the donation button to the right, under the "Support the Schnauzer" headline. If the payment options there do not work for you, please contact us at firstname.lastname@example.org, and we would be glad to make other arrangements.
To our knowledge, Legal Schnauzer is the oldest and most established investigative-journalism blog in Alabama. We started in June 2007 -- writing mostly about our legal travails in Shelby County, plus the political prosecutions of former Gov. Don Siegelman and Mississippi attorney Paul Minor during the George W. Bush administration. We are proud to have helped pave the way for additional "Web journalism" sites, such as Bill Britt's Alabama Political Reporter (APR) and the Facebook page of attorney Donald Watkins.
In 2013, the Chicago-based digital marketing and research firm Cision named us among the top 50 law blogs in North America (No. 37). We were the only blog on the list not associated with a law firm, law school, or foundation/association. We were one of only two blogs on the list not written by a lawyer.
At the time we started, I was not aware of another blog like Legal Schnauzer, focusing on court-based and political corruption. In fact, I'm still not aware of another blog quite like it -- where someone who is both a professional journalist (with a B.J. degree from the University of Missouri and more than 30 years of professional experience) and a victim of judicial corruption has spelled out how anyone can be victimized in court.
Has Legal Schnauzer made a difference? Consider the following.
* U.S. Judge Mark Fuller, who butchered the Siegelman case and sent two innocent men (Siegelman and former HealthSouth CEO Richard Scrushy) to federal prison, resigned last August after a wife-beating incident came to light. A number of news outlets reported on the wife-beating story, but we had earlier broken a story about court records that showed Fuller's divorce from his first wife involved allegations of physical and emotional abuse. That helped establish a pattern of abusive behavior and probably played a key role in Fuller's forced resignation.
* We broke the story of the Robert Bentley/Rebekah Caldwell Mason affair last August -- and along with Donald Watkins, we were the first to report on the possible legal and financial implications of the scandal. Watkins and I provided critical reporting roughly seven months before al.com started taking the story seriously.
* Former House Speaker Mike Hubbard has been convicted on ethics-law violations and sentenced to four years in prison. Bill Britt and APR played a lead role in breaking and reporting that story, but we played an important supporting role by providing analysis (along with Watkins) that readers were not likely to find in the mainstream press
We believe a new day is dawning in Alabama -- one where public officials can no longer casually betray the public trust without any fear of being caught and punished. Legal Schnauzer has been on the leading edge of that revolution for almost nine years now, and we hope you will consider providing financial support that will allow us to continue making a difference.
This endeavor started as a little blog devoted to the memory of our real schnauzer, Murphy Abigail Shuler (1993-2004), who helped us survive some of the worst times in our own legal trainwreck. It has grown into a news outlet that helped bring down multiple corrupt politicos in Alabama -- with more possibly on the way.
While Murphy inspired us, dedicated readers have sustained us. Dozens of stories here have grown from tips or inside information that our readers provided. Without readers who care about advancing the cause of justice, the blog would be a shell of what you see now. To them, we are eternally grateful.
Readers have played a key role in the digging that unearths stories the mainstream press does not want to touch. We stand ready to keep those schnauzer claws digging. For those who are able to provide financial support, your help is greatly appreciated. It comes at a critical time in the effort to make "due process" and "equal protection" realities in Alabama.
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|Gov. Robert Bentley (center) heads to the grand jury|
room in Montgomery on Wednesday
For all the examples of this blog's impact cited yesterday, we have a new one today. Gov. Robert Bentley appears to be among those testifying at a special grand jury in Montgomery County, convened by Alabama Attorney General Luther Strange. That's from a report today by Bill Britt of Alabama Political Reporter (APR). The grand-jury was impaneled on July 11, following a court motion filed by Strange. (See motion at the end of this post.)
Another report today, from John Archibald of al.com, says the grand jury is focused primarily on activities surrounding the extramarital affair between Bentley and former senior advisor Rebekah Caldwell Mason.
How did the affair come to light? Legal Schnauzer broke the story last August 31, becoming the first news outlet to report Rebekah Mason and an extramarital affair were at the heart of First Lady Diane Bentley's divorce complaint, which ended a 50-year marriage. The mainstream press and al.com did not start taking the story seriously until March 2016, when audio tapes surfaced of "Doctor Love" Bentley and Mason discussing his tendency to caress her breasts and grope her nether regions.
In the roughly seven-month period from the time I broke the story until audio tapes emerged, al.com spent much of its time attacking me as a blogger with "dubious credibiltiy," who had produced a story that was "smoke." Has al.com ever offered an apology and given the slightest credit to the journalist who actually broke the story (with tips from outstanding sources who have helped me break a number of other stories the MSM doesn't want to touch.)? Of course not.
Would Gov. Bentley ever have been caught in his Web of sexual and financial treachery -- and wound up appearing before a grand jury -- without our reporting at Legal Schnauzer? That's hard to say. Attorney Donald Watkins started publishing on the Bentley/Mason affair, and it's possible fallout, about the same time we did. I think it's likely that Watkins also would have broken the story, but without Legal Schnauzer, I'm not sure any other news outlet would have picked up on his reporting to help spread the word.
This much is certain: The Web press -- mostly Watkins and me -- broke and did almost all of the early heavy lifting on the Bentley/Mason scandal, which now is the subject of a grand-jury investigation. Would that have happened without independent journalism from the Web, without constraints that advertisers, publishers, and editors can place on MSM reporters? The answer is "absolutely not."
Gov. Robert Bentley and many of his associates are facing the music of a grand jury because of Donald Watkins and me. No wonder there are reports that Bentley has unlawfully used state and federal databases in an effort to trump up criminal charges against the two journalists who have unmasked him.
Grand juries meet outside of the public sphere, but here is key information that has been reported so far. Bill Britt reports that Stan Stabler and Hal Taylor, from the Alabama Law Enforcement Agency (ALEA) joined Bentley among those who entered the grand-jury room. Taylor was chief of staff to former ALEA director Spencer Collier. Here's more from APR:
Not only was APR there to observe those entering the Grand Jury, sources around the courthouse confirmed that others who appeared earlier in the week were J.T. Jenkins, ALEA’s second-in-command under Collier, and Ray Lewis, who served as Bentley’s “Body Man” before becoming Chief of Protective Services.“
“Lewis knows what skeletons are stashed in Bentley’s closet and where to go looking for them,” said a former Trooper who spoke to APR on conditions of anonymity.
The presence of Stabler and former ALEA staff would indicate at this stage the grand jury is hearing testimony concerning events leading to Bentley’s firing of Collier, for filing an affidavit concerning the criminal trial of former Speaker Mike Hubbard.
John Archibald provides more details about the grand jury's apparent focus.
Those identified as testifying were all intimately involved in the events leading to revelations by Collier that Bentley long had an improper relationship with his former political adviser Rebekah Caldwell Mason.
Collier said in March that Lewis and Stabler made him aware of "improper" and sexually explicit cell phone messages between the governor and Mason. Collier said he confronted the governor about those messages, but the governor refused to break off the relationship.
The situation came to a head after confrontational meetings in February relating to the Hubbard investigation and involving Collier, Bentley, Mason, Bentley's lawyers, Taylor and others.
The grand-jury investigation appears to revolve around the Bentley-Mason affair -- and Legal Schnauzer broke that story. That means whatever comes from the grand-jury room in Montgomery, Alabama, will have its roots in this blog's Bentley-Mason reporting, which started on August 31, 2015.
As for donations, they are very much needed and appreciated. Some readers who primarily use mobile devices might experience difficulty in finding the donate button for Legal Schnauzer. Here is a note about that issue:
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Here is the motion that AG Luther Strange filed, seeking a grand jury:
|Sibel Edmonds, founder of Newsbud|
Edmonds, who publishes the Boiling Frogs Post blog, is founder of Newsbud, which is 100-percent funded by viewers. That means it presents the kind of independent reporting, with no corporate or political control, that we desperately need in this age of a frayed and timid journalism landscape.
That's why I was so pleased to be a contributor on one of Newsbud's earliest presentations. My segment focused on the recent U.S. Supreme Court ruling that overturned the bribery convictions of former Virginia Governor Robert McDonnell. Peter B. Collins and I discussed the following questions: What impact will the McDonnell ruling have on the case of former Alabama Governor Don Siegelman, who remains in federal prison on charges similar to those in the McDonnell case? And why did the Supreme Court hear the McDonnell case after passing on multiple opportunities to review the Siegelman matter, which has become known as perhaps the most notorious political prosecution in American history.
Below is Newsbud's full Episode 5, which includes my segment starting at about the 11:00 mark. I think you will see immediately that this is a professional news operation, which is likely to live up to its motto -- "Newsbud: Where Media Integrity Matters."
What is Newsbud's mission, how does it plan to shake up journalism in the 2000s. For one, it's reaching out to an underserved audience. Says one promotional item: "Support the alternative-alternative media by getting involved and joining us, the irate minority."
It's the alternative-alternative media for the irate minority. I like the sound of that. Check out, for example, Newsbud's treatment of the Dennis Hastert pedophilia/hush money scandal. You will see what the mainstream media was not willing to report, by clicking on this link.
Here is more about Newsbud's mission and vision, from an article by Sibel Edmonds:
Now is the time to stand up for your right to be informed and help create a news and multimedia network unlike anything else online, in print, or on TV. Newsbud will produce original stories, investigative reports, video-podcasts, editorials, and discussion forums, and it will be a real independent alternative because it will be 100% people funded. . . .
Solely people-funded media means no corporate advertisement gunk. It means no marketing gimmicks imbedded in the information presented. It means no strings attached to billionaire sugar daddies- be it Soros, Koch, Rockefellers or Carnegies. It means a media outlet only accountable to you-to we the people. This means integrity. It means ethical and agenda-free journalism. It means making we the people relevant, and taking the 0.0001% out of the equation, thus making them irrelevant. And most importantly, it means that it is up to you and me, up to us the people, to do what it takes to create NEWSBUD-Where Media Integrity Matters. Thomas Jefferson put it simply and eloquently: "An informed citizenry is at the heart of a dynamic democracy."
Here are links to other Newsbud episodes produced so far:
* Synthetic Terrorism: The Uncanny Parallels from 9/11 to Istanbul Airport Attack
* The Telling Travel Log of NATO Chief Stoltenberg: Is NATO Getting Desperate for a Conflict?
* U.S. Foreign Military Sales to Lebanon
* ChemTrails: The CIA and Weather Modification
* Meet Operation Gladio B’s New Terror Mastermind: Akhmed Chatayevbr
Newsbud is in the midst of a Kickstarter campaign, and if you would like to help a promising journalism enterprise take flight, we invite you to check out the following link:
Below is the new episode, featuring Peter B. Collins and I discussing the Don Siegelman case, in the aftermath of the SCOTUS ruling in McDonnell. Our segment starts at about the 11:00 mark.
The ambush killings yesterday of three police officers in Baton Rough, Louisiana, has placed such hot-button status on issues related to police brutality that they threaten to relegate this week's Republican National Convention to back pages of the nation's newspapers.
Top officials seem to be in a state of shock and confusion, with even normally articulate President Barack Obama seemingly at a loss for meaningful words.
This much seems certain: Gunman Gavin Long did a disservice to Americans who would like to see a serious and extensive examination of dozens of high-profile police brutality cases that have erupted around the country since a white police officer shot a young black man named Michael Brown at Ferguson, Missouri, in summer 2014.
Since Long opened fire yesterday morning, numerous public officials have stepped forward to make statements along the lines of, "This must stop. Violence against police officers cuts at the fabric of our society."
That is an understandable response. But it's as if the other side of the equation -- the documented (often on videotape) mayhem law-enforcement officers have heaped on citizens -- has been largely, and hopefully temporarily forgotten.
In our first post in this series, we showed that officers enjoy a distinct advantage in any physical encounter with a citizen. In a new study at Think Progress, statistics for 2015 show that 97 percent of officers in police-violence cases never face criminal charges. In the rare instance where an officer does face criminal charges, juries and judges are likely to cut him an extraordinary amount of slack.
We had such a case earlier this year in Alabamian, which left Sureshbhai Patel (a grandfather from India, who was visiting his son, daugther-in-law, and new grandchild in the Huntsville suburb of Madison) partially paralyzed.
A Legal Schnauzer analysis shows that Haikala abused the law--and the public trust--when she threw out criminal charges against Alabama police officer Eric Parker in the Patel case?
That abuse becomes worse when you understand that Haikala's ruling cannot be appealed, due to fairly complex case law related to the United State's Double Jeopardy Clause.
That means Eric Parker, who has been fired as a police officer, is home free on federal criminal charges, and Attorney General Luther Strange dropped state misdemeanor assault charges against him in May; Parker still faces a lawsuit and perhaps substantial civil liability.
The government would have had multiple grounds for seeking to have Haikala's ruling, granting the defense's Motion for Judgment of Acquittal, overturned. The strongest ground might have been this: The trial judge repeatedly misapplied the standard for reviewing the defense's motion to acquit Parker.
Haikala, however, never will be held accountable for her abuse of the law because to allow an appeal from the prosecution would violate case law that protects Parker (and other defendants) from double jeopardy--multiple trials for the same offense.
Before we turn to the double-jeopardy issue, let's consider the quality (or lack thereof) of Haikala's ruling. At the beginning of her 92-page ruling, Haikala appears to know what she is doing. (See full ruling at the end of this post.) She cites the correct standard for review of a Motion to Acquit, as follows:
When considering a motion for the entry of a judgment of acquittal, “a district court must view the evidence in the light most favorable to the government, and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. The prosecution need not rebut all reasonable hypotheses other than guilt. United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005)
In layman's terms, that means all close calls should be decided in favor of the non-moving party, which would be the prosecution in the Patel case. We should note that, in Miranda, the Eleventh Circuit vacated the trial court's judgment of acquittal, partly because the trial court misapplied the standard cited above. From the Miranda ruling:
The Government seeks reversal of the judgment of acquittal on the ground that the District Court failed to draw all permissible inferences in favor of the jury's guilty verdict, and did not view the evidence in the light most favorable to the Government. We reverse the judgment of acquittal because we conclude that the evidence was sufficient to demonstrate that Mr. Miranda was a member of the conspiracy, and that he is guilty of the possession crimes that were committed in furtherance of the conspiracy.
The Miranda case and Patel were fairly similar, but there is at least one very important difference--the Miranda case led to a jury verdict of guilty, while two trials in Patel led to deadlocked juries. That difference explains the government's ability to appeal in Miranda--and its inability to appeal in Patel. That might seem unfair, even nonsensical, to a reasonable citizen. But we will explain in a moment how an appeal in Patel would run afoul of the Double Jeopardy Clause.
For now, it's back to Haikala. The Patel case boils down to two questions, she writes;
(1) Did Parker engage in an unreasonable use of force?
(2) Did Parker willfully deprive Patel of his civil rights?
At this point, Haikala seems to understand the proper standard for review and the key issues in the case. That's a good thing. But Haikala then veers wildly off course.
Over and over, she fails to view the evidence "in the light most favorable to the government." One of many examples can be found on pages 33-34 of the judge's ruling:
Officer Parker stated that as he pulled Mr. Patel toward the grass, he (Officer Parker) placed his weight on his right leg, and he lost his balance and fell with Mr. Patel. . . .
Some of the MPD officers who watched the dashcam video testified that Officer Parker used a leg sweep to take Mr. Patel to the ground. . . . Captain Stringer testified that what he saw in the dashcam video was not consistent with MPD policy because he “didn’t see what appeared to be resistance” from Mr. Patel, such that “[t]he amount of force that was used at the time didn’t meet the level of any resistance that might have been offered.” (Doc. 106, p. 18). Captain Sanders, the Government’s use-of-force expert, testified that the technique that Officer Parker used was not consistent with prevailing police standards. (Doc. 106, p. 47). Based on the motion of Mr. Patel’s body, Captain Sanders opined that Officer Parker must have kicked Mr. Patel’s feet out from under him. (Doc. 106, p. 52). Captain Sanders stated that the technique that Officer Parker used was violent, and there were less violent techniques that Officer Parker could have used to control Mr. Patel. (Doc. 106, p. 49).
You have two expert witnesses stating . . .
(1) Patel did not appear to resist;
(2) The amount of force Parker used was not appropriate for the situation;
(3) The technique Parker used is contrary to prevailing police standards;
(4) Parker apparently kicked Patel's feet out from under him, a more violent technique than was necessary to control Patel.
All of those statements go to one of the two key questions in the trial: Did Parker engage in unreasonable use of force? Multiple government witnesses said the answer was yes--and, by law, Haikala was required to view the evidence in a light most favorable to the prosecution.
Judge Haikala's ruling is a gross miscarriage of justice, on numerous grounds, but the prosecution's hands are tied because of the Double Jeopardy Clause.
The best explanation of double jeopardy we've found comes from a case styled U.S. vs. Jenkins, 420 U.S. 358 (1975). From that case:
In those cases, where the defendants had not been adjudged guilty, the Government's appeal was not permitted since further proceedings, usually in the form of a full retrial, would have followed. Here there was a judgment discharging the defendant, although we cannot say with assurance whether it was, or was not, a resolution of the factual issues against the Government. But it is enough for purposes of the Double Jeopardy Clause, and therefore for the determination of appealability under 18 U. S. C. § 3731, that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent's favor. To subject him to any further such proceedings at this stage would violate the Double Jeopardy Clause.
In ever-day language, Haikala's ruling cannot be appealed because, if it were overturned, that would subject Parker to further proceedings. And our legal system takes seriously a defendant's right not to be tried multiple times for the same offense.
I can find nothing in the law that would have kept Haikala from denying the Motion to
Acquit and ordering a third jury trial. In the interests of justice, that is what should have happened. Instead, she unilaterally took Parker's fate out of a jury's hand and made the decision herself--and she did it in a way that the prosecution, representing the people of Alabama and the other 49 states, could not appeal.
Here is one harsh way to look at it: Judge Haikala screwed the public, and the victim (Patel), and she did it in a way where neither one can seek redress.
Does that kind of decision contribute to the resentment many citizens seem to feel toward police? We suspect the answer is yes..
(To be continued)
|House at 119 Main Street in Mountain Brook, AL|
I do, however, have plenty of clues. Here are a few: (1) Republican political operative Rob Riley and lobbyist Liberty Duke had filed a defamation lawsuit, claiming I had written posts about them that were false and defamatory--even though they never came close to proving their case, and proceedings showed that, as a matter of law, my reporting was neither false nor defamatory; (2) Shelby County officers started showing up on our property (two and three at a time, with multiple vehicles) about 10 days after I had broken a story about U.S. Circuit Judge Bill Pryor and his ties to 1990s gay pornography. (Pryor now is on Donald Trump's list of 11 possible nominees to the U.S. Supreme Court.) (3) Retired Judge Claud Neilson, who is from Demopolis and just happens to be a long-time associate of Birmingham attorney and former state attorney general Bill Baxley, somehow was appointed to hear the Riley/Duke case and granted a preliminary injunction on material that had not (and still has not) been determined at trial, before a jury, to be defamatory. That tramples more than 200 years of First Amendment law, which prohibits such "prior restraints" on free speech in defamation cases.
I probably could list more than a dozen other clues, but for now, let's focus on what might be the most intriguing clue of all. It involves a house at 119 Main Street, in the fashionable Birmingham suburb of Mountain Brook. GOP operative Jessica Medeiros Garrison bought the home a few months before I started writing about her extramarital affair with Attorney General Luther Strange (for whom she served as campaign manager in 2010 and 2014).
About this time, multiple news outlets were reporting on Strange's efforts to prosecute Democrat Lowell Barron, former president of the Alabama Senate, for allegedly providing excessive compensation to a female campaign aide. The charges against Barron sounded exactly like what Strange had done with his female campaign aide, Jessica Garrison--and the prosecution eventually dropped the Barron charges.
Here is where it gets really interesting: On October 22, 2013, I wrote a post with the headline "How did Jessica M. Garrison pay a modest $30,000 for a Mountain Brook house valued at $400,000?" I was arrested the next day and spent five months in jail, becoming the only U.S. journalist to be incarcerated since 2006.
Does that indicate someone found my reporting on the Garrison house transaction to be highly sensitive, enough that they wanted to make sure I could not write anything more about it for a while? That's how I take it--and I had already seen signs that it was a sensitive topic.
I sent an e-mail to Garrison, seeking an interview or comment about the real-estate transaction. Two days later, her attorney sent me a message threatening a lawsuit. Who was her attorney? Bill Baxley, long-time associate of Claud Neilson, the judge who unlawfully had me incarcerated.
Our reporting had shown that, according to public records from her divorce/child custody case, Garrison had the 119 Main Street address at least by May 2012, but the property was not sold at a foreclosure auction until July 12.
Was the house subject to open bidding via "pubic outcry" on the courthouse steps, as required by state law? Doesn't look like it. Was it sold "off the grid," in a rigged fashion, so that Garrison could get a sweetheart deal? Is that one of the advantages of being Luther Strange's mistress, the kind of favor one receives for being a "good girl" and keeping Republican sleaze on the down low? A reasonable person, examining the evidence we have at the moment, might answer, "Yes."
Did Garrison actually pay just $30,000 for a Mountain Brook home with an appraised value of $439,900? Was that the plan, but it changed slightly when I started writing about the transaction--and the boatloads of cash Strange had funneled to Garrison and her companies?
Finding answers to those questions is complicated by the presence of two foreclosure deeds on the house. The first foreclosure deed is dated July 20, 2012, and states--in so many words--that Robert C. and Hilary J. Maxwell had foreclosed on a mortgage with Renasant Bank and "in consideration of . . . $30,000" auctioneer Burt W. Newsome did "grant, bargain, sell, and convey" the described property (Lot 17, Block 8, according to the survey of Crestline Heights) to Jessica Medeiros Garrison.
The plain language seems to state that Jessica Garrison had paid $30,000 to become owner of the property at 119 Main Street in Mountain Brook.
But then a second foreclosure deed appeared almost one year later, dated June 18, 2013. It states that the Maxwells had defaulted on a mortgage with Countrywide Bank, later assigned to M and T Bank. The auctioneer this time was Michael Corvin of Corvin Auctioneering and--surprise, surprise--Jessica Garrison was the "highest" and "best" bidder, at $411,921.68. That brings the total for the two sales to $441,921.68, roughly $2,000 over the appraised value. (Both foreclosure deeds are embedded at the end of this post.)
According to the deed, Corvin did "remise, release, quit claim, and convey" unto Jessica Garrison"all of its right, title, and interest in and to the following described property. (Lot 17, Block 8, Crestline Heights).
Corvin seems to be saying that Jessica Garrison now was owner of the house. But wasn't she already owner of the house, based on proclamations in a foreclosure deed filed about one year earlier?
What was going on here? Why were there two foreclosure deeds?
I don't claim to be an expert on foreclosure law, but this seems to be the answer to the second question: The Maxwells, it appears, took out two mortgages on the property--one on June 27, 2007, for the much higher figure (roughly $400,000) and one on August 6, 2007, for the lower figure (roughly $30,000).
So why was the smaller mortgage handled first in the foreclosure process, with the larger mortgage seemingly ignored until about one year later? Why did the first foreclosure deed indicate Jessica Garrison had full ownership rights for only $30,000--and her child-custody case indicates she knew the house was hers before it ever went up for "public auction"?
Does a timeline of events shine light on these questions? Let's take a look:
July 20, 2012 -- The first foreclosure deed--with Garrison paying $30,000--is filed on the Mountain Brook property.
May 8, 2013 -- I publish the first post that mentions Garrison's address as 119 Main Street in Mountain Brook and Strange's steady flow of cash to companies that Garrison owns.
May 15, 2013 -- I publish a post about the Lowell Barron case, noting that the charges sound almost exactly like transactions between Garrison and Strange.
June 18, 2013 -- Second foreclosure suddenly appears in the public record, with Jessica Garrison producing a winning bid of almost $412,000.
It appears that Jessica Garrison owned the Mountain Brook house free and clear, for the sum of $30,000, until I published her address and wrote about the dubious case Luther Strange was bringing against Lowell Barron.
Was that the reason the second foreclosure deed appeared, bringing the total paid to roughly the appraised value of the house, and making it look like Jessica Garrison didn't receive such a sweetheart deal? If so, who arranged for the second foreclosure deed and who actually paid for the Mountain Brook home? Was it Jessica Garrison or was it someone else?
Was the price of my investigative reporting on the matter to be beaten up inside my own home, doused with pepper spray, and dragged off to jail--thanks to a judge that Bill Baxley, Jessica Garrison's lawyer, possibly hand-picked?
If the answer to that last question is yes, it raises the specter of organized crime, which almost certainly violates the Racketeer Influenced and Corrupt Organization Act (RICO).
Are the Mike Hubbard and Robert Bentley cases ugly? For sure. But circumstances surrounding Jessica Garrison's Mountain Brook house might be even uglier.
|Michael E. Stephens speaks at his alma mater,|
the University of Montevallo
Michael E. Stephens, former executive director of Lakeshore Rehabilitation Hospital and founder of the Lakeshore Foundation, owns (or did own) the Resting S Ranch on Cahaba Valley Road (Highway 119) in North Shelby County. The 12,300-square-foot main house sits on 35 acres and is valued at $4.56 million. The entire 82-acre ranch had a list price of $11.65 million in 2011. The property has been on the market, but it's not clear from public records if it has sold.
From a report at al.com:
According to Stephens, the Resting S Ranch land used to be Indian ceremonial grounds. He raised Arabian horses there, and the ranch is equipped with a birthing barn, stalls, office, inside arena and outside round pen.
Stephens founded ReLife Inc., a nationwide Birmingham-based rehabilitation-medicine company, which sold to HealthSouth for $180-million in 1984. The business school at the University of Montevallo is named for Stephens.
|Resting S Ranch|
Stephens was married to Deborah L. Stephens, but they divorced in 1992, public records show. He has been married to Nancy K. Stephens since at least the early 2000s, and their primary residence now is in Naples, Florida.
We contacted Rhonda Hoggle, who is Stephens' financial adviser and attorney-in-fact and has an office at 3230 Cahaba Valley Road, near the Resting S Ranch. We sought comment for this post from either Ms. Hoggle or Mr. Stephens, but neither has responded so far.
(1) Edgar C. Gentle III--attorney at Gentle Turner Sexton and Harbison, Birmingham, AL (3/8/16)
(2) Stewart Springer--attorney, solo practice in Birmingham, AL. (3/9/16)
(3) Richard W. "Dick" Bell--attorney, solo practice in Birmingham, AL (3/14/16)
(4) Robert M.M. Palmer--attorney and bar association president in Springfield, MO (3/15/16)
(5) Thomas Plouff--attorney, who is licensed in Alabama and has a practice in Chicago (3/17/16)
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Does it sound loony to think "Luv Guv" Bentley might be at the heart of our struggles in the Midwest ? I'm sure to some folks, it does. But we learned one week ago that Bentley has appeared before a special grand jury convened by Alabama Attorney General Luther Strange. Now, get a load of what Carol and I have been dealing with in that time frame. Here's a hint: It involves bed bugs.
First, we need to point out that I broke the Bentley-Mason story in a post dated August 31, 2015. Nine days later, on September 9, we were unlawfully evicted from our apartment in Springfield, Missouri, even though we had filed a notice of appeal that put an automatic stay on an eviction procedure. Despite the stay, of which all lawyers involved were notified in advance, Greene County deputies burst through our door, pointed multiple assault rifles and handguns at us, and wound up shattering Carol's left arm so severely that it required trauma surgery, and she is likely to regain only 80-percent use of it. Greene County Sheriff Jim Arnott was present at the eviction, and immediately after three deputies had roughed up Carol, he pointed at her on the ground and claimed she had "assaulted a police officer." Carol even was taken to jail, only to be released when someone noticed her purple arms and ordered X-rays that showed the left one had been snapped like a twig, just above the elbow.
So, what's going on now? This one is almost funny, even to me. But the humor tends to dissipate when you and your spouse play the role of victims.
Since last September's unlawful eviction, we've been living at a pay-by-the-week, fleabag motel that we have come to call the "Shiftless Drifters Motel." It's real name is the Cloud Drift Motel. Photos on the Web suggest the Cloud Drift once was the kind of inexpensive, down-to-earth place that was popular in the '50s and '60s. You might say it possessed a touch of Americana.
But that's not the case anymore. The Cloud Drift Motel has fallen on hard times, and it apparently has been on hard times for quite some time. The clientele now appears to be down-on-their-luckers, including alcoholics, drug dealers, meth manufacturers, and folks who appear to have serious health problems and no family to help them. We've seen a number of oxygen tanks on the premises.
About two months ago, when the weather turned fairly warm here, we started noticing an occasional bug in our bed. Neither of us recognized what they were, and since they were few in number and didn't appear every night, we figured it must be some sort of seasonal creature that soon would disappear.(That's called, in the medical literature, "wishful thinking.")
Carol first raised the issue, "Could they be bed bugs?" I, not being an expert in entomology, said, "Oh, I'm pretty sure bed bugs are microscopic; you can't see them. We can definitely see these things, so I don't think they could be bed bugs."
Well, was I wrong about that. I might know a thing or two about the law, but it seems I'm pretty clueless about bugs, especially ones I've never seen before.
After researching the matter online, we became convinced they were, in fact, bed bugs. The question then became: What on earth do we do? Do we try to come up with a solution on our own? Do we contact management and let them give it a go? Our research indicated that eradicating a bed-bug problem can be a tricky and expensive exercise -- and we had neither the knowledge nor the finances to handle it.
That's when Carol notified the manager -- a woman named Allison; we don't know her last name -- only to be informed that we had caused the bed-bug problem, and we likely were going to be kicked out because of it.
I went with Carol the next day to see if I could figure out what was going on with the management's strange reaction to notice of a bed-bug problem. Among the first words out of Allison's mouth were: "You brought the bed bugs in, and you didn't notify us when you should have."
|A postcard of the Cloud Drift Motel, in its better days|
I should note that we've never seen a lease or any other piece of paper that provides details on a tenant's obligations should they see bugs. We never were given any guidelines about how to respond to a bug problem.
Allison admitted that bed bugs can move from one unit to another in any multi-family facility -- and we have other units on three sides of us, plus one above us. She also admitted that the motel's pest-control guy had not checked our unit for bed bugs, as he is supposed to. This is what Allison actually said, "You guys make your bed real nice, and he said he didn't want to bother it to check for bed bugs." In other words, it was our fault because we make our bed and try to keep our apartment clean.
According to Allison, and a guy who works for the company that owns the place, we would have to leave the premises for 12-14 days while they conduct a heat treatment to kill the bed bugs and then check to make sure they are gone. We understand that we would need to get out for a few days while the treatment is done -- and they claimed they had no other unit to put us -- but two weeks or so? Our research indicates a bed-bug treatment normally doesn't take that long.
I asked Allison, "Are you saying you want us to leave and not come back?"
"Yes," she said.
"Why is that? We've been model tenants, always paid on time, etc."
"You're not welcome. You brought the bed bugs."
"You have no way of knowing how the bed bugs got there."
"Well, I'm an expert, and I know you brought the bed bugs. Plus, you're not welcome because you're arguing with me."
"I'm arguing with you because you are trying to kick US out because of YOUR bed-bug problem. You can't begin to know how they got there. But it's your property, so the bugs are your responsibility."
Being a legally minded guy, I noted that Missouri law holds that landlords and hotel-motel managers operate under a "warranty of habitability." meaning they have a duty to make sure premises are relatively clean, operable, and habitable. Allison must have taken this as a threat of a lawsuit because she said, "Well, you would lose that like you lose everything else."
That certainly was an interesting comment. Where did she get that information? Does she make it a habit to check Alabama legal records? Or is it possible that someone with knowledge of the repeated cheat jobs we've experienced in court has communicated with her? If so, who was it? Does this establish an Alabama-Missouri pipeline that explains the abuse we've experienced in the Midwest?
We're not sure about the answers to those questions, but we intend to find out. We're also not sure how the bed-bug issue will play out, although I'm quite sure we have grounds for a lawsuit if they kick us out permanently and continue with their efforts to blame us for their problem. Would we pursue such a claim? We're giving that some thought.
Bed bugs aren't the only concern at the Cloud Drift Motel. The place might be charitably called a fire trap. In July 2011, a fire at the Cloud Drift apparently was caused by individuals using a meth lab. One person was treated for smoke inhalation, but there were no other injuries. In October 2012, a man died in a fire at the Cloud Drift when he apparently was smoking in bed near oxygen tanks.
Despite its rather seedy and dangerous environment, we've enjoyed our stay at the Cloud Drift Motel for the most part -- at least until the bed bugs arrived. It's sort of a rotating cast of characters in most units, so it's hard to get to know neighbors. And I'm not sure we want to know some of them. But one neighbor and his wife have been particularly nice and helpful. You really appreciate little kindnesses when you've been dumped on for 16 years the way we have been.
|A feral cat at the Cloud Drift Motel|
Perhaps the nicest feature of the Cloud Drift is that it's long been a dumping ground for feral cats. Normally, that's not a good thing -- and it pains us to be surrounded by cats who have no homes. We so wish we could do something about the problem, especially since many of these cats have been around people at the Cloud Drift enough that they are almost tame. Five or six of them have gotten to where they let us pet them, or they rub up against our legs.
We sometimes hear cat fights outside our door in the middle of the night. But for the most part, these "fur babies" are pretty well behaved. And I think most of them, with a little vet care and training, could be suitable pets.
Whether we leave because of bed bugs or we decide to leave on our own, we certainly will miss the feline friends we've made at the Cloud Drift. The motel, it turns out, is like a lot of places -- the animals (except for the bugs) are great, but some of the people suck.
Here is a story and video from a Springfield TV station about the feral cats at Cloud Drift Motel:
|Michael Mukasey at GOP Convention|
Despite its tedium and general lack of news value, the RNC did produce one extremely important story. In fact, I would argue that it illuminates one of the two most important issues mankind faces -- (1) Global climate change (see recent story with headline "Hottest ever June marks 14th month of record-breaking temperatures."); and (2) The collapse of the U.S. justice system.
Republicans, of course, aren't about to touch climate change. But one of their speakers, his words largely unreported or ignored, did inadvertently provide overwhelming evidence of our justice system's decay. In fact, Michael Mukasey, a former attorney general under George W. Bush, more or less stated (when taken in light of his past actions) that he believes in prosecuting people for political reasons, especially if that person's name is Hillary Clinton. (See video of full speech at the end of this post.)
The main point behind Mukasey's convention speech was to trash Clinton, the Democratic nominee for president, and whine about the Justice Department's recent decision not to prosecute her for using a private e-mail server while acting as U.S. Secretary of State -- the same thing Republican secretaries of state Colin Powell and Condoleeza Rice had done.
The gist of Mukasey's harangue can be summed up from this report at Politico, which holds the appropriate headline "Mukasey slams Clinton on email, but blocked classified leak probe in 2008." From reporter Josh Gerstein:
Ex-Attorney General Michael Mukasey used his Republican National Convention speaking slot Tuesday night to blast Hillary Clinton over her carelessness with classified information, but Mukasey helped throw a major roadblock in the path of an investigation into improper leaking of such information less than a decade ago.
"How she treated government secrets as secretary of state, and what she said before and after she was caught, sums up the case against her," Mukasey declared in Cleveland Tuesday. "Hillary Clinton is asking us, as Americans, to make her the first president to take the oath of office after already violating that oath."
Gerstein actually is letting Mukasey off easy with that passage. The nation's former "top cop" oversaw not one, but two, botched investigations that reeked of dishonesty and political machinations. Let's take a brief look at both:
The Outing of Valerie Plame
This is the focus of Gerstein's article, and it's likely the few people who saw Mukasey's speech at the RNC forgot he once helped engineer a cover-up in the outing of CIA officer Valerie Plame. How bad was it, how much disregard for the truth did Mukasey display? Gerstein reminds us:
When confronted with a congressional request for details about the leak of CIA officer Valerie Plame's identity during President George W. Bush's administration, Mukasey persuaded Bush to invoke executive privilege to keep key evidence from a House committee investigating the episode.
Mukasey's face-off with Congress followed the conclusion of Special Counsel Patrick Fitzgerald's criminal investigation into how Plame's identity as a CIA officer went public. Fitzgerald prosecuted no one for the leak, but charged Vice President Dick Cheney's Chief of Staff Scooter Libby with perjury, making false statements to investigators and obstruction of justice over his statements during the probe.
A jury convicted Libby on four of the five counts against him and he was sentenced to two-and-a-half years in prison.
Mukasey's scheming continued after the Libby trial. Writes Gerstein:
While panel Chairman Henry Waxman (D-Calif.) and ranking member Rep. Tom Davis (R-Va.) insisted they needed that information to assess how classified information was or was not safeguarded, Mukasey insisted that concerns about the confidentiality of presidential advice and about future Justice Department investigations should take priority over the congressional inquiry, at least with respect to some information.
"The Committee insists that the Department provide it with unredacted copies of all of the subpoenaed documents except your interview report. In my view, such a production would chill deliberations among future White House officials and impede future Department of Justice criminal investigations involving official White House conduct," Mukasey wrote to Bush on July 15, 2008. "Accordingly ... it is my considered legal judgment that it would be legally permissible for you to assert executive privilege with respect to the subpoenaed documents, and I respectfully request that you do so."
In a report responding to the executive privilege invocation, Waxman and Davis called Mukasey's advice on the topic "flawed." The lawmakers said the action frustrated the panel's effort to determine "whether senior White House officials complied with requirements governing the handling of classified information" - a quite similar focus to the charges Mukasey and other Republicans have leveled at Clinton. . . .
It was eventually shown that the first leak of Plame's identity came not from any White House official, but Deputy Secretary of State Richard Armitage, who was at odds with the White House on many issues. Neither he nor anyone else was ever charged with the leak.
In the face of a serious crime, the outing of a CIA officer, Mukasey took steps to ensure that no Republican was held accountable.
Protecting Karl Rove, and others, in the firing of U.S. attorneys
During the Bush II era, nine U.S. attorneys were fired, apparently for refusing to bring trumped-up charges against Democrats. Mukasey appointed career federal prosecutor Nora Dannehy to investigate, and she produced what one legal analyst called a "whitewash."
The Dannehy appointment was dubious from the outset, given her ties to a case where an appeals court found prosecutors had suppressed evidence. Here's how Andrew Kreig describe it, writing at the Nieman Watchdog Web site:
In September 2008, the Bush Justice Department appointed career federal prosecutor Nora Dannehy to investigate allegations that Bush officials in 2006 illegally fired nine U.S. attorneys who wouldn’t politicize official corruption investigations.
But just four days before her appointment, a federal appeals court had ruled that a team of prosecutors led by Dannehy illegally suppressed evidence in a major political corruption case in Connecticut. The prosecutors’ misconduct was so serious that the court vacated seven of the eight convictions in the case.
The ruling didn’t cite Dannehy by name, and although it was publicly reported it apparently never came up in the news coverage of her appointment.
But it now calls into question the integrity of her investigation by raising serious concerns about her credibility -- and about whether she was particularly vulnerable to political pressure from within the Justice Department.
Was Dannehy compromised to the point that she became a political tool? Kreig suggests the answer is yes:
Now, almost two years later (in 2010), Dannehy has provided arguably the most important blanket exoneration for high-level U.S. criminal targets since President George H.W. Bush pardoned six Iran-Contra convicts post-election in late 1992.
The DOJ announced on July 21 that it has “closed the case” on the nine unprecedented mid-term firings because Dannehy found no criminal wrongdoing by DOJ or White House officials.
But the official description of her inquiry indicates that she either placed or acceded to constraints on the scope of her probe that restricted it to the firing of just one of the ousted U.S. attorneys, not the others -- and not to the conduct of the U.S. attorneys who weren't ousted because they met whatever tests DOJ and the White House created.
Yes, you read that right: Of the nine U.S. attorneys fired, Dannehy examined one case, that of David Iglesias, who had served in New Mexico. Scott Horton, legal contributor at Harper's, examined the Dannehy investigation in a piece titled "Another audacious GOP whitewash." Wrote Horton:
The investigation was also marked by a process of blindering, driven by the Justice Department itself, but without any apparent pushback from Nora Dannehy, the Bush-appointed U.S. attorney in Connecticut tapped by Attorney General Mukasey to handle the probe. Rather than look at the entire U.S. attorneys scandal, Dannehy settled on a probe of a single case: that involving New Mexico U.S. Attorney David Iglesias. This is the one case in which the available evidence showed that the decision was taken by President Bush himself, in the White House. The cast of characters included Karl Rove, New Mexico Senator Pete Domenici, and New Mexico Congresswoman Heather Wilson. Executive privilege was invoked to block any meaningful investigation of what happened inside the White House, and a number of Bush officials declined to cooperate with the investigation, which explains why Dannehy could not find “sufficient evidence.”
What kind of "legacy" did Mukasey leave at the DOJ? Horton sums it up:
Nora Dannehy’s decision to take no action, coupled with all the lame rationalizations of inaction that preceded it, is another self-administered bullet wound to the integrity of the Justice Department. It makes clear that the Department has a well-honed double standard. There is one standard applied by the Department’s Public Integrity Section to political figures of the party out of power (whether Democrats or Republicans, doesn’t really matter). Minor indiscretions and fundraising gaffes will be prosecuted as crimes, usually under the “honest-services fraud” statute, using standards that three Supreme Court justices recently ridiculed as lacking any intellectual or political integrity. Conduct by Justice Department political appointees that is comparable or still worse, however, will simply be fluffed off—sometimes after lengthy internal probes designed to create the appearance that the Department takes the matter seriously. How can a Justice Department hold its own personnel to a lower standard under the law than they hold other public officials? This is a formula for disaster. Dannehy’s decision not to proceed is an open invitation to future administrations: the White House is free to manipulate the Department for political purposes, and Justice Department officials are free to lie to Congress.
Bottom line? Michael Mukasey has no business questioning the integrity of Hillary Clinton, or anyone else. Especially when you consider that FBI director James Comey admitted that none of three key e-mails in question was properly marked as classified, according to State Department rules. In other words, Clinton had no proper marking to tell her the information was classified, so Comey's decision not to prosecute was on target. Are we now expecting public officials to be mind readers? Of course not?
Even politifact.com, after suggesting FBI findings would "tear holes" in Clinton's defense, ended with this whimper, in the form of an editor's note buried at the bottom of the story:
Editor's note: The day after we published this fact-check, Comey testified before the House Oversight and Government Reform Committee on July 7. Comey said he believes three emails on Clinton's server contained information labeled classified at the time they were sent. This information was not properly marked in that the emails did not have a classification header, even though a "(c)" immediately preceded text in the body of the emails, designating confidential information. Without the clear classification header, it's reasonable to infer that Clinton did not realize these three emails contained classified information, he said.
Michael Mukasey should know there was no crime in the Clinton case, but he's a political hack -- a fact he proved during his time as Bush attorney general. Put enough political hacks in positions of power, and you wind up with a justice system that resembles a cesspool. That's what we have right now -- and a democracy without justice won't be a democracy for long.
|Spencer Collier, with Robert Bentley (background, left)|
Bentley fired Collier in March, and Collier responded with a lawsuit in April, claiming he was terminated because he knew about Bentley's extramarital affair with former advisor Rebekah Caldwell Mason, and Bentley had improperly ordered him to not give statements to prosecutors in the public corruption case against House Speaker Mike Hubbard. After being terminated, Collier stated publicly that he had seen evidence of the Bentley/Mason affair.
What is sovereign immunity? That's not an easy question to answer. A case styled Alabama State University v. Stacy Danley (Ala. Sup. Ct., 2016) provides a fairly concise answer. It boils down, mainly, to the source of damages if a plaintiff prevails; such damages generally cannot come from the state. Wrote the Danley court:
To determine whether an action against a State officer is, in fact, one against the State, this Court considers "whether 'a result favorable to the plaintiff would directly affect a contract or property right of the State . . . whether the defendant is simply a 'conduit' through which the plaintiff seeks recovery of damages from the State . . . and whether 'a judgment against the officer would directly affect the financial status of the State treasury,'
That last one, highlighted in yellow, seems to be the key consideration. But Collier appears to be seeking damages from Bentley, as an individual, and not (directly or indirectly) from the state.
Still, suing a governor is not easy, as made clear in Wheeler v. George, 39 So. 3d 1061 (Ala. Sup. Ct., 2009). In that case, the governor in question was Don Siegelman. The case involved procurement of property for a Hyundai plant:
The matters made the basis of the claims against then Governor Siegelman . . . in causing the State to fund the purchase of the Shelton property for Hyundai, stem from actions taken while he was executing the duties of his office. Alabama courts have "consistently held that a claim for monetary damages made against a constitutional officer in the officer's individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer's employment."
The highlighted section, we believe is where Bentley runs into trouble. Based on news reports, here is a key component of Collier's complaint. (See complaint at the end of this post.)
The complaint – as Collier has alleged from the beginning – says he was punished by Bentley, at the direction of Mason, because he refused to lie to the attorney general's office about prosecutorial misconduct alleged by the defense in the case of Alabama House Speaker Mike Hubbard.
Is it "within the course and scope" of Bentley's employment to interfere with a state prosecution? It's hard to imagine that it would be. Collier also could make the argument that he was fired for knowing about the Bentley/Mason extramarital affair. That might lead to this question: Does the scope of Bentley's employment include fondling, groping, and talking nasty to female advisors? For some reason, we doubt it.
Here is another consideration: Alabama courts long have cited six exceptions to the protections of sovereign immunity. Here is how the Alabama Supreme Court, in Danley, phrased No. 6:
(6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law.
Bentley's own attorneys, in their motion to dismiss on sovereign immunity grounds, state that "Collier attempts to plead his way around state-agent immunity by alleging that the Governor’s actions 'were willful, malicious, fraudulent, in bad faith and/or beyond [his]authority.'” That's not an attempt "to plead his way around state-agent immunity"; that is a proper statement of an exception to sovereign-immunity protection.
At the very least, Collier should overcome Bentley's motion to dismiss and be able to conduct discovery -- seeking answers to interrogatories, depositions, and production of documents -- in order to overcome the hurdle of summary judgment and prove his case.
If the court follows the actual law -- and that's always a big "if" in Alabama courts -- Bentley's efforts to hide behind the cloak of sovereign immunity should fail.
Male escorts were making "crazy money,"according to a headline in The New York Post. From the report:
Male prostitutes contacted by The Post said business is booming and Republican National Convention attendees — most of them married — are clamoring for their services.
“Business has been way better. I’ve seen 10 clients so far,” one male escort said.
“Most of them were first-timers. You could tell they were nervous, but once they became more comfortable, they seemed to be having a good time.”
Business was particularly strong near Quicken Loans Arena, home to the RNC. Reports The Post:
Another escort said he had already earned $1,600 since Monday — over six times the amount he usually makes.
“I normally only make $200 to $300, but I’ve been seeing lots of guys in hotels downtown,” he said, noting the boom in business near the Quicken Loans Arena.
How did escorts describe their johns? They were mostly white guys, many of them from the South:
The clientele has included mostly married white men between the ages of 40 and 50, said another escort who’s seen eight johns so far.
“One of them was from Texas and visiting for the convention. He said he was a politician,” he said, claiming he didn’t remember the client’s name.
One gigolo who charges $250 an hour said he’s been making about $800 per day since the convention kicked off — all from men visiting from Florida, Louisiana and Washington, DC.
“Usually I need to go out of town,” he said with a chuckle.
At least one client was into pretty kinky stuff:
Most men paid to have sex, but one client requested to “do his business in the corner” while watching his wife in bed with the escort.
One of the hookers said he wasn’t surprised that the convention — filled with politicians who openly oppose gay marriage — brought such a boom in business.
“When it comes to anything people aren’t supposed to be doing, they like to do it,” the escort said.
“The Republicans have a lot of delegates in the closet, let’s put it that way.”
What about female escorts? Well, they were pretty lonely with the GOP in town:
When contacted by The Post, females for hire said they’re making much less money than normal.
“Has business been better for me? Honestly, no,” one woman said before abruptly hanging up the phone.
“Business is slower than usual,” said another. “I haven’t been getting any calls.”
At least one GOP wife took part in the "festivities" on the shores of Lake Erie. But our guess is that most wives have no idea what their "conservative" hubbies were doing during convention week. You have to feel for those with a husband who brings home a "gift" -- something like gonorrhea, chlamydia, herpes.
Those closeted GOP gays are a thoughtful bunch of guys.
|An illustration of the Rollins family|
Rollins Inc., the parent company of Orkin Pest Control, is headed by billionaire brothers Gary W. and R. Randall Rollins. They are the sons of the late O. Wayne Rollins, who founded the company with his brother, the late John W. Rollins Sr.
The plaintiffs in the court case are Gary Rollins' children. They claim their father and uncle engaged in bad-faith actions that deprived them of access to trust accounts.
Why does the case, which has been litigated for six years, have special interest here at Legal Schnauzer? We explained in a December 2014 post:
The John Rollins side of the family is based mostly in Delaware and the Carolinas, and it includes Ted Rollins, who recently was removed as CEO of Campus Crest Communities. Ted Rollins has been the subject of numerous posts here at Legal Schnauzer, mainly because of his central role in a grossly unlawful divorce case in Shelby County, Alabama, from his second wife, Birmingham resident Sherry Carroll Rollins. Also, Ted Rollins has student-housing developments at four Alabama campuses (South Alabama, Troy, Jacksonville State, and Auburn), even though he has a criminal conviction for assault from the brutal beating of his stepson.
Ted Rollins is not directly involved in the Georgia lawsuit, but the controversy involves billions of dollars and attracted the attention of Forbes magazine, with reporter Clare O'Connor producing a major investigative report. What will be at stake at trial? The Daily Report, of Atlanta, reports:
"This case turns on claims of breach of fiduciary duty and breach of trust," (appellate judge William Ray II wrote). "A jury could find evidence of bad faith."
Orkin owner Rollins died in 1991, leaving an estate that Forbes magazine estimated to be worth $8 billion. If Forbes was correct, the 11 heirs— two sons and nine grandchildren—stood to inherit more than $700 million each.
In 2010, four of the grandchildren—Glen, Ruth, Nancy and O. Wayne II—sued their father, Orkin CEO Gary Rollins, and their uncle, Chairman R. Randall Rollins. The younger generation accused their father and uncle of manipulating accounting records, making improper investments and setting a subjective conduct-based standard for inheritance. They contended the restrictions violated their grandfather's directions to share equally.
After the trial judge's initial decision in favor of the father and uncle on all but one claim, both sides appealed. This was the third trip to the Georgia Court of Appeals on various issues. The most recent review was ordered by the Georgia Supreme Court, which prescribed a different standard of review for the conduct of the father and uncle.
"Even evaluating Gary and Randall's actions under the more lenient partnership standard (as opposed to the more stringent trustee standard), a jury could find evidence of bad faith," Ray wrote.
The appellate ruling means Rollins family business practices likely will be exposed to the public in a way that never has happened before::
H. Lamar Mixson of Bondurant, Mixson and Elmore, lead counsel for the grandchildren, called the decision an important victory for his clients.
"The bottom line is the court of appeals correctly recognized factual questions that must be decided by a jury," Mixson said. "We look forward to that as soon as possible."
Instead of their full inheritance at age 45—and partnership in the Rollins Investment Fund—as prescribed by their grandfather, Mixson said his clients "got paper and no money" on their birthdays. After they filed their lawsuit, Mixson said they were "cut off entirely" from their trust disbursements. Also, he said, Glen Rollins was fired from his job as president of Orkin.
The case boils down to a battle over an estate estimated at $8 billion. That should make for an interesting jury trial.
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