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- 07/26/16--09:01: _Court documents sho...
- 07/27/16--06:49: _Ashley Madison cust...
- 07/27/16--22:30: _Conservative tribal...
- 07/29/16--08:50: _U.S. Judge Madeline...
- 08/01/16--08:15: _Jessica Medeiros Ga...
- 08/02/16--07:05: _Bartnicki v. Vopper...
- 08/02/16--10:39: _Don Siegelman: Cons...
- 08/02/16--11:14: _GOP operative Jessi...
- 08/03/16--11:03: _Don Siegelman: "Chr...
- 08/04/16--06:50: _Did Missouri Sherif...
- 08/05/16--09:00: _Records indicate Al...
- 08/08/16--08:45: _Even 11th Circuit, ...
- 08/09/16--07:10: _Evidence is overwhe...
- 08/10/16--12:12: _Jessica Medeiros Ga...
- 08/11/16--05:05: _In telephone interv...
- 08/12/16--06:35: _New phone tape capt...
- 08/15/16--08:00: _California biotech ...
- 08/15/16--11:10: _In the speech where...
- 08/16/16--07:45: _Failure to provide ...
- 08/16/16--10:37: _Pennsylvania attorn...
|Offices of Maynard Cooper Gale in downtown Birmingham|
Since taxpayers are paying the bill, do they have a right to know how MCG is using that money? My answer is yes. Do they have a right to expect that MCG will represent Bentley and Stabler in an honest fashion? My answer, again, is yes. Are taxpayers getting the kind of legal services they have every right to expect? Absolutely not.
How do we know? It takes a close examination of the Motion to Dismiss MCG filed on behalf of Bentley and Stabler. It includes citations to law that are . . . well, "fanciful" is one word that comes to mind. "Creative" is another. "Fraudulent" is another. (Motion to Dismiss is embedded at the end of this post.)
Three MCG lawyers -- John Neiman Jr., Stephanie Houston Mays, and Mark D. Foley Jr. -- claim Bentley and Stabler are protected by sovereign immunity and should be dismissed from Collier's lawsuit. Here is probably the key argument, found on page 7 of the 13-page motion to dismiss:
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.” But the absolute sovereign immunity of constitutional officers does not have a “bad-faith” exception in suits for monetary damages.
The lawyers essentially are claiming the law protects Bentley's pocket book (and Stabler's) and frees him from the lawsuit, even when he acts in bad faith -- with willful, malicious, or fradulent intent, beyond his authority, The lawyers cite nine cases that supposedly support this proposition. But there is a slight problem: The cases do not say what the MCG lawyers claim they say.
The MCG lawyers are lying to the court, lying to the opposing party, and lying to taxpayers who are paying their fees.
A case styled Ex parte Cranman, 792 So.2d 392 (Ala. 2000), restated the rule governing state-agent immunity 16 years ago, making it probably the most important case on the subject in Alabama history. Here is a key finding from Cranman:
A State agent shall not be immune from civil liability in his or her personal capacity. . . .
(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law."
In other words, Collier makes a correct citation to law -- showing that Bentley and Stabler are not protected by sovereign immunity when they act in bad faith, etc. -- and Bentley's lawyers are trying to muddy the waters by citing nine cases for a holding they do not make.
How do the MCG lawyers try to execute this little con game? First, we must recall that they are trying to convince the court that nine different cases support this proposition: "The absolute sovereign immunity of constitutional officers does not have a “bad-faith” exception in suits for monetary damages."
Let's look at one of the nine cases the lawyers for Bentley cite. It is styled Alexander v. Hatfield, 652 So. 2d 1142 - Ala: Supreme Court 1994, and Team Bentley claims the above proposition is found in section 1144. Here is what section 1144 of Alexander says:
We have also held that deputy sheriffs are immune from suit to the same extent as sheriffs. "In general, the acts of the deputy sheriff are the acts of the sheriff. The deputy sheriff is the alter ego of the sheriff." Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (11th Cir.1990) . . . "[Under Alabama law, a] deputy is legally an extension of the sheriff. If the deputy's acts are generally considered the acts of the sheriff, it is logical that those acts should enjoy the same immunity covering the sheriff's own acts." Carr, at 1526, quoted with approval in Wright v. Bailey, at 303.
In this case, none of the exceptions set out in Parker v. Amerson applies. Deputy Hatfield was on duty when she left the papers at Alexander's place of employment. Therefore, the summary judgment in favor of Deputy Hatfield, individually and in her official capacity, was proper, based on the sovereign immunity granted under Article I, § 14, of the Alabama Constitution of 1901.
Does this say anywhere that there is no "bad faith exception in suits for monetary damages"? No, it does not, and it does not say that at any point in the Alexander opinion. It also does not say that in any of the other eight cases Bentley's lawyers cite.
This is a crafty tactic of the unethical lawyer, a tactic I've seen many times in my own court battles. The lawyer cites a certain case, claims it says such and such . . . then, when you look up the case, it says no such thing.
Bentley and Stabler are relying on sleazy, corrupt lawyers to represent them. And taxpayers are being forced to pick up the tab. Taxpayers should be flooding the offices of Maynard Cooper Gale with complaints about the underhanded use of state funds.
|New Ashley Madison logo: "Find Your Moment"|
Now, that's clever, isn't it? If a reporter writes, accurately, about your attempts to cheat on your spouse, you respond by creating fake profiles to suggest, falsely, the reporter is trying to cheat on his spouse.
All of this raises a question: What kind of sorry-ass people are attracted to Ashley Madison? They go there in an effort to cheat on their spouses. Then, when they fear their unsavory activity might become public, they manufacture bogus profiles of the journalist involved. In other words, they try to cheat on the front end and try to cheat on the back end. In other words, they are cheaters in every meaning of the word.
As the reporter who probably has unmasked more AM customers than any other journalist -- and we have many more unmaskings to come -- I've apparently become a thorn in the side to certain elites who thought they could dabble with infidelity and walk away unscathed. I use the term "elites" because our reporting has focused on AM customers who enjoy an exalted status in society -- lawyers, doctors, bankers, CEOs, wealth managers, etc.
That suggests elites probably are behind the bogus profiles that have been set up for me at AM. Could this have legal implications? I'm not sure, but it smells of identity theft, defamation, perhaps more. I intend to check with legal resources and/or law enforcement on the matter.
I first became aware of bogus AM profiles in my name after I wrote posts that revealed Birmingham attorneys Edgar Gentle III and Stewart Springer were customers at the site. The Gentle and Springer posts were published on March 8-9, At 7:51 p.m. on March 9, I received an e-mail with the header: "Welcome to Day 1 of our your Ashley Madison experience."
"Oh, how exciting, I'm getting a free 'experience' on the Web," I thought at first. Then I realized I hadn't signed up for Ashley Madison and had no interest in doing so. We received several comments at the blog -- anonymous, of course -- from folks who seemed happy to "take credit" for making it appear that I was an AM customer.
They might not be so happy before too long. I definitely intend to find out if these pranksters have crossed any legal lines.
Over the next few days, I received messages from several AM "babes" who apparently were just dying to meet me. "CountryCutie16," age 31 from Cleveland, Georgia, was hot for my bod. So was "Scarlet3," age 21 from Atlanta, Georgia. What is it with chicks from Georgia who are young enough to be my daughter.
But it didn't stop there. "Nearlythere2020," age 41 from Atlanta, was warm for my form -- and she is African-American. (Got to love diversity!) Finally, we had an Alabama girl who could not wait to get her hands on me. That was "Looking932016," age 29, from Killen, Alabama. At 6-0, 190 pounds, she might be able to beat me up.
After messages from bedazzled women started slowing down, I figured the prank was over. But yesterday, at 9:14 a.m., I received a message from Ashley Madison that said "Welcome Back!" It included the new AM logo, which encouraged me to "Find Your Moment." Now I'm confused; I thought I was supposed to "Have an affair" because "Life is short."
The new missive came six days after I had reported that businessman Michael E. Stephens, who owns one of the most expensive houses in Alabama, was an AM customer. I sense a pattern: Roger reports on an Alabama (or Missouri) elite who appears at Ashley Madison, and someone creates a fake profile, suggesting Roger appears at Ashley Madison.
What a fun game we have. But someone might find out before too long that it's not so much fun.
Either way, messages should start flooding in again -- from women who want me in the worst way -- and I'll be sure to keep you updated. I guess we're all just trying to "find our moment," whatever that is.
|"Yella Fella" Jimmy Rane: Part of Mike Hubbard's tribe|
We already have examined a concept we call "The New Confederacy" and it's role in the Hubbard case. Now, we turn our attention to "Conservative Tribalism," which might have played an even more prominent role in the trial.
Conservative Tribalism, to a great extent, is at the heart of the legal difficulties that my wife, Carol, and I have experienced for roughly 16 years and gave rise to this blog.
What do we mean by tribalism? Here is one of the most useful definitions I've seen:
Tribalism is the state of being organized in, or advocating for, a tribe or tribes. In terms of conformity, tribalism may also refer in popular cultural terms to a way of thinking or behaving in which people are more loyal to their tribe than to their friends, their country, or any other social group.
For our purposes, the key element is this: Members of a tribe are more loyal to that unit than to most anything else, including their country and its laws, constitutions, and governing concepts. In our experience, tribalism has been particularly evident among those who identify as conservative. But I have little doubt that liberal and moderate tribes are out there as well.
How is this for irony? George W. Bush, our most recent "conservative" president, led us into wars in two countries -- Afghanistan and Iraq -- that have been dysfunctional for decades (centuries?) largely because of tribalism. Bush supposedly tried to bring democracy to countries where it had almost no chance to thrive -- because tribalism was likely to keep it from taking root.
How was tribalism on display at the Hubbard trial? Remember all the businessmen -- Jimmy Rane (Great Southern Wood), Rob Burton (Hoar Construction), Will Brooke (Business Council of Alabama), and more -- who testified that they gave Hubbard "things of value," not because he was Speaker of the House but because they considered him a friend.
In fact, that mantra -- "Mike is my friend; I love him like a brother" -- was pretty much the only defense Hubbard had. Defense attorney Bill Baxley made almost no effort to dispute the prosecution's version of the facts.
What were the business executives saying when they declared their undying friendship for Mike Hubbard? They were essentially saying this: "We are all part of the same tribe with Mike. We do favors for him, he does favors for us, and we all get rich from that arrangement. Alabama statutes might say Mike's actions were criminal, but that's not the case at all. We have the kind of tribal friendship that goes beyond business and politics."
How has tribalism manifested itself in our lives? You might say Carol and I, without ever intending to do so, have crossed swords with the "parental tribe."
Let me make clear that we are not "anti parent." We don't have children, but we've been around enough people who do that we understand, and appreciate, that parenting is challenging and profoundly important work.
But we've discovered that, at least in postmodern America, some parents act like they are members of a tribe. They want to set their own ground rules, and if you question it, they can quickly gather forces and attack with ferocity. If their rules conflict with state and federal laws -- not to mention simple common courtesies -- well that's tough. You are to treat their rules with deference and obedience, or they will make your life miserable and try to banish you from the scene. If you try to argue that they are acting outside the law and societal norms, you are wasting your breath. Certain parents, apparently by virtue of having procreated, are always right -- especially on matters of children and family.
Here's how it played out in our situation: A couple named Larry and Lucille Lisenbee moved in next door to us around 1992. They seemed like nice people and had two young boys, Shannon and Nathan. Larry and Lucille told us they had moved to Birmingham from Mississippi mainly to enroll their children in the private and conservative Briarwood Christian School. That hinted to us that we probably weren't going to be on the same political page with them. But their political, educational, and religious choices were fine with us -- and they were none of our business -- so we looked forward to having a pleasant, neighborly relationship.
They did some nice things for us, and we tried to return the favor. Unlike the criminally inclined Mike McGarity, who arrived on the other side of us about six years later, the Lisenbees asked us if it would be OK for their kids to come on our yard to retrieve balls and such while they were playing. We said that would be fine, and I'm guessing the boys spent more time in our yard than they did their own over a two-year period or so.
Things started to get dicey when we came home from work one day to find Nathan (the oldest boy) kicking balls up against our garage window, intentionally trying to tease and torment our schnauzer, Murphy, who was minding her own business -- inside a pen, in her own garage.
Larry Lisenbee apparently saw this unfold, so there was no question about what happened. The boys and the parents apologized, we accepted their apology, and said we were fine with the boys continuing to come on our yard. In other words, we forgave them once.
For reasons I'll never quite understand, Nathan Lisenbee continued to act out several times on our property, to the point of acting disrespectfully toward both Carol and Murphy. I went over to the Lisenbee home one evening to express my concerns -- but this time I was met with denials and statements that more or less tried to blame any issues on us. When I said that Carol had told me in considerable detail what Nathan had done, Lucille said, "Well, Nathan said he didn't do it, and of course, I'm going to believe my son."
I made a mental note to myself: "If a parent is going to take an 8-year-old's word (I'm guessing at his age) over ours -- about events that happened on our property -- that's a sign of future trouble. If the boy claims I dropped my trousers in front of him, is the parent going to believe that?"
I left that night with this message: "I think we need to take a break from the boys having full access to our yard. If you can think of a solution that would prevent objects from flying over here, we'd be willing to consider that. If their stuff comes over, I would be glad to pick it up when I see it and throw it back. If one of us isn't out, you can call us, and we'll throw it back. But for at least a few weeks, I don't want the boys on our property. We'll see how things go from there."
Well, things didn't go so well from there. Carol, Murphy, and I were going for a walk one night when we came upon Lucille (and maybe one of the boys; I can't remember). We waved at them, and they walked right by us without any acknowledgement -- as if we didn't exist.
I called a day or two later and told Lucille that access to our yard now was denied, permanently. She said that Nathan had admitted to what he had done, and I said that's fine, but a trust had been broken, and our yard was now off limits to their kids.
That's where tribalism entered the picture. We saw Lucille talking in animated tones with several neighbors, Our impression was that she was stabbing us in the back -- and probably failing to note that Nathan had done exactly what Carol said he'd done. This was pretty much confirmed when McGarity moved in on the other side and made several references to the Lisenbees (who had moved by then), claiming that we hated children or some such rubbish.
Before long, McGarity, his kids, and guests were trespassing on our property at an almost daily rate. Our requests that they stay away were met with threats, sassing, and general infantilism from a grown man with two kids.
When our problems with McGarity finally led to him suing us . . . well, we were pretty shook up, especially since the guy had proven that trying to reason with him was fruitless. It was our first experience with being sued, and we did not enjoy it, right off the bat.
The couple that lived across the street, Bob and Karen Caldwell, had always seemed reasonable and pleasant, so we went over to their house one night after receiving the lawsuit. The Caldwells have a daughter, Helen, who attends Yale University (or I assume she still does), so obviously there are some brain cells present in the family. But you wouldn't have known it from our conversation that night.
We mentioned that McGarity's presence since the beginning had been upsetting, after he had sassed and threatened me and built a fence that took up almost 400 square feet of our property. "Roger, Mike's fence wasn't over on your yard," Bob Caldwell said.
Carol and I probably looked like we had seen an apparition. "Bob, you want to look at the survey we had done that shows his fence was on our yard?" Carol said. Bob Caldwell didn't have much of an answer to that, except to claim such encroachments are no big deal -- never mind that you lose the property if you don't do something about it.
I made a mental note to myself: "This guy is so arrogant that he actually thinks he knows more about the status of our property than we do."
At some point, Karen Caldwell chimed in with this: "Well, Roger, it's really God's property."
I had always seen Karen Caldwell as a pretty enlightened, intelligent person, so I was not sure how to respond to such a statement.
I made another mental note to myself: "Best I can tell, Karen, God created our property, your property, all the property on earth -- and any other planets. But last time I checked, our mortgage is made out to Carol and me -- and the mortgage company expects us, not God, to pay it. By the way, where are you and all these other neighbors when it comes time to pay the mortgage, or mow the lawn, or pick up brush, or clean up storm debris? Since all of you seem to want to use our yard, have any of you offered to help pay for it or maintain it?"
What did we learn from the whole unpleasant experience, from which we still are feeling the fallout? To some folks, their parental tribe is more important than your property rights; than local, state, and federal laws; than your basic self worth.
Our property was vandalized at least a half dozen times during this period. Did any of the neighbors express concern about that? Nope. One guy, Rob Murray, almost walked right over Carol and Murphy one morning while we were on a walk. He went out of his way to walk on the wrong side of the street and tried to intimidate my wife and dog. Did he ever apologize? Nope. Will he ever apologize for such disgusting behavior? I guess not, since he died several years ago.
All of this could have been resolved, of course, if any of the parents had acted like an adult and tried to help the kids find an alternative place to play -- perhaps explaining that we had property rights that weren't to be interfered with, that we and our rights were deserving of respect.
That, however, would have taken a little work and consideration on the parents' part. But they didn't want to go there, they didn't want to take responsibility for the kids they had brought into the world. It was easier, and probably more fun, to bully and harass us.
Was that mindset present at the Mike Hubbard trial? I think the answer is yes. I think the mindset was, "Yes, the state has ethics law, but we are all part of the business and political elites. We have important business to tend to, so we shouldn't have to be bothered with laws that govern everyone else."
|U.S. Judge Madeline Haikala|
For more than two years, the news has been littered with cases of police brutality. When gunmen in Dallas and Baton Rouge recently opened fire on cops, it added a new element to the equation -- citizens fighting back against a law-enforcement apparatus they see as out of control.
Still, when it comes to cops vs. citizens, the playing field hardly is even. A recent study showed that 97 percent of officers in violence cases never face criminal charges. An Alabama case from earlier this year shows that, in the rare case where a cop winds up in criminal court, he is likely to benefit from judges' dubious rulings.
Consider U.S. Judge Madeline Haikala, in the Northern District of Alabama. She cited a case that is more than 30 years old to throw out criminal charges against Alabama officer Eric Parker in the body slamming of Sureshbhai Patel, a grandfather from India. Unfortunately for Haikala--and citizens who trust her to apply the law appropriately--the case does not remotely support her decision to grant the defense's Motion for a Judgment of Acquittal.
In fact, the case law in question--United States v. Bell, 678 F. 2d 547 (5th Cir., 1982)--does not even address the issues raised in Patel. We've shown that Haikala repeatedly failed to view the facts in favor of the non-moving party (the prosecution) -- and the government's hands are tied because the Double Jeopardy Clause prevents an appeal. Now, we have a second glaring reason Haikala should be overturned on appeal -- if one were allowed.
How severely did Haikala butcher the law in the Patel case? Her 92-page opinion is a hatchet job from start to finish, and let's consider the implications. It allows a thuggish police officer to go free on a criminal charge for which the evidence strongly suggests he is guilty. Worse than that, Haikala unilaterally tried to ensure that Parker will not even have to face a third jury--one that might be capable of reaching a verdict after two previous juries deadlocked.
That seemingly leaves Patel, and the public, with zero chance for justice at the federal criminal level -- even though Parker still faces a civil complaint. (A state misdemeanor criminal charge has been dropped.)
How does Haikala attempt to justify unlawfully throwing out the criminal charges against Officer Parker? The answer is found, for the most part, on pages 51-52 of her ruling. (See full opinion at the end of this post.)
The standard for considering a motion for entry of a judgment of acquittal requires the Court to draw all reasonable inferences in favor of the Government. When evidence is subject to multiple interpretations, some of which favor the Government and some of which favor the defense, the Court has construed the evidence in the light most favorable to the Government. However, when evidence is unfavorable to the Government, but is not ambiguous, the Court is not required to ignore it. When critical gaps appear in the Government’s case, the Court is not required to turn a blind eye to them. On the contrary, the law requires the Court to consider the objective reasonableness of Officer Parker’s use of force within the totality of the circumstances. The Court has viewed the full expanse of evidence concerning the use of force and is left with the firm conviction that the evidence concerning use of force in this case is not adequate to support a unanimous verdict of guilt beyond a reasonable doubt. When, as here, “a hypothesis of innocence is sufficiently reasonable and sufficiently strong, then a reasonable trier of fact must necessarily entertain a reasonable doubt about guilt.” United States v. Bell, 678 F.2d 547, 550 (5th Cir. 1982) (Anderson, J., concurring) aff'd, 462 U.S. 356 (1983). Viewing the relevant evidence in the light most favorable to the Government, the Court has determined that that evidence could not be accepted by twelve jurors as adequate and sufficient to support the conclusion of Officer Parker’s guilt beyond a reasonable doubt.
The Bell case had nothing to do with a Motion to Acquit. It was about sufficiency of the evidence upon which a jury found Bell guilty of violating the federal bank-robbery statute. It also was about the findings of a jury, not the unilateral ruling of a judge. Here is the key section from Bell:
Bell also argues that the evidence is insufficient to support his conviction unless it excludes every reasonable hypothesis of innocence, on the theory that if there is such a reasonable hypothesis the jury must necessarily have had reasonable doubt of his guilt. . . .
We hold that the appellant has incorrectly stated the standard of review for sufficiency of the evidence. It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence. Viewing the evidence presented in this case and the inferences that may be drawn from it in the light most favorable to the government . . . we conclude that it was sufficient to allow a reasonable jury to find that Bell altered the endorsement on the check, deposited it to his account, and thereby was enabled to take and did take $10,000 with intent to steal from the care, custody, control, management or possession of Dade Federal.
What did the court decide in Bell?
(1) A JURY is free to choose among reasonable constructions of the evidence;
(2) The JURY's decision to convict Bell was reasonable and supported by sufficient evidence.
What did the Bell court say about a judge's ruling on a Motion to Acquit? Not one thing. So how does that case support Haikala's ruling, as she claims? It doesn't.
Are you scratching your head? You should be. And by the way, welcome to the legal world of Alabama.
(To be continued)
Previously in the series:
(1) Here's the flip side of police-brutality cases -- July 13, 2016
(2) Federal judge in Alabama shows how cops tend to get favorable treatment in court -- July 18, 2016
|House at 119 Main Street, Mountain Brook|
Jefferson County property-tax records indicate a prominent figure in the Alabama banking community helped make the transaction possible. Is that one of the perks Jessica Garrison enjoys from her role as Luther Strange's mistress? That seems like a reasonable question to ask.
Garrison sold the house, at 119 Main Street in the Crestline Heights section of Mountain Brook, on June 22, 2015--roughly three years after she bought it. Garrison sold it to Ray Bryan and Anne H. Petty for $550,000. Public records show that Garrison bought the house at foreclosure, over a roughly one-year period, for $441,922.
That means Garrison garnered a nifty profit of almost $140,000--$139,078, to be exact, if my math is correct (always a big "if").
Strangely, records indicate Garrison purchased full ownership rights to the house in July 2012, with a winning bid at auction of $30,000. Almost one year later--after I had begun reporting on her relationship with Strange, her role as his campaign manager, and the loads of cash he was sending to companies she owns--a second auction was conducted, in June 2013. A second foreclosure deed shows Garrison had the high bid of $411,922, bringing the total to slightly more than the appraised value of the house.
The second foreclosure deed shows the bid of almost $412,000 made Garrison full owner of the house. But the first foreclosure deed indicates she already was the owner, with the $30,000 bid. You can see why we've used the word "funky" to describe this real-estate deal.
Speaking of funky, consider this: Ray B. Petty, who purchased Garrison's house, is on the board of directors of ServisFirst Bank in Montgomery. Petty joined ServisFirst in 2008 as chief development officer; before that, he was regional president for SouthTrust/Wachovia, where he worked in various roles for 35 years. At one point, he was CEO of Wachovia Mortgage Corporation.
|Ray B. Petty|
We have more questions than answers at the moment. For example:
* Was it a happy coincidence that Ray Petty was interested in buying Jessica Garrison's house? Or did he do it as a favor because of professional connections to her or Luther Strange, or both?
* Where does Jessica Garrison live now? That's a key question because a ruling in her divorce/child custody case with ex husband Lee Garrison (president of the Tuscaloosa City School Board) requires her to live within 60 miles of his residence. That restriction forced her to give up a job in Luther Strange's office after he was elected attorney general.
So where is Jessica Garrison now? We are in the process of figuring that out.
(To be continued)
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A reasonable observer might ask: "If stolen documents can't be used in a court of law, why can journalists use them to write about Ashley Madison customers?"
I'm a journalist, not a lawyer, but I'm pretty sure I can provide a law-based answer to that question by raising two points:
(1) A 2001 U.S. Supreme Court (SCOTUS) case gave journalists the right to report on information they receive that has been illegally obtained;
(2) Evidence provided in a courtroom, and evidence required in a newsroom are two very different things.
The SCOTUS case is Bartnicki v. Vopper, 532 U.S. 514 (2001), which involved a radio commentator who played a tape on his public-affairs show of an intercepted conversation between two union officials during contentious collective-bargaining negotiations for teachers at a Pennsylvania High School. An unknown person had intercepted and recorded the call, and the tape wound up being played on another radio station, and local newspapers published its contents.
Here is how Justice John Paul Stevens described the issues at hand:
These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934, this is the first time that we have confronted such an issue.
The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know—or at least had reason to know—that the interception . . . was unlawful. Accordingly, these cases present a conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech. The Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action. It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendment's application to this issue. Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment.
Putting it more succinctly, Stevens wrote:
Simply put, the issue here is this: "Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?" Boehner, 191 F. 3d, at 484-485 (Sentelle, J., dissenting).
How did the court approach the First Amendment issues before it? Again, Justice Stevens provides the framework;
First, respondents (the journalists) played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception. Second, their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else. . . . Third, the subject matter of the conversation was a matter of public concern.
The court's ultimate ruling, siding with a free press over privacy concerns, rode largely on the shoulders of truth. From Justice Stevens:
As a general matter, "state action to punish the publication of truthful information seldom can satisfy constitutional standards." Smith v. Daily Mail Publishing Co., 443 U. S. 97, 102 (1979). More specifically, this Court has repeatedly . . . held that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order." Id., at 103; see also Florida Star v. B. J. F., 491 U. S. 524 (1989); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978).
In the end, this was a classic battle between privacy and free speech--and privacy lost. Wrote Stevens:
In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: "The right of privacy does not prohibit any publication of matter which is of public or general interest."
As for item No. 2 above, it touches on the Rules of Evidence, which I suspect many law students would say are a major pain in the posterior to learn. I don't have a formal legal education, but I've been involved in more court cases than I care to count, so I think I can make an educated guess about why courts view evidence allowed in court very differently from information published in the press.
My understanding is that a lawyer generally has to "lay a foundation" before evidence can be accepted in a court case. For example, consider a possible civil case over alleged insurance fraud. A plaintiff's lawyer in such a case likely would want to enter all sorts of documents to show that his client was defrauded. But how could he show the documents were legitimate? One way might be to put his client on the stand and have her testify that these were documents the insurer sent her and she kept them in a file cabinet at home. More than likely, that would lay the foundation for showing the documents were real and could be entered as evidence.
That process becomes difficult when the evidence has allegedly been stolen. Who is going to testify to the documents' authenticity? Is the thief going to do that? Not likely. I suspect that's why U.S. Judge Ross in Missouri excluded the stolen Ashley Madison data. There is no way to lay a foundation that the information is authentic.
On the other hand, Ross found that the data likely could be entered if produced as part of the discovery process. I'm guessing that's because someone, likely an Ashley Madison official, will be able to lay the necessary foundation for use as evidence.
I suspect some readers will respond to this explanation with: "Well, that's all well and good, but it's still unfair." I can't say that's an unreasonable statement. But the law has found that lawyers and journalists, while both have serious rights and responsibilities, operate in different arenas when it comes to the evidence they need to do their jobs.
Bentley's plan is to use a lottery to shore up the state's hemorrhaging general-fund budget, pummeled by Medicaid costs. That makes it starkly different from the education lottery Siegelman proposed in the late 1990s. That lottery failed at the polls, largely because "conservatives" like Bentley were against it.
The irony of that is not lost on Siegelman, who released a statement yesterday about the new lottery plan -- from a federal prison in Oakdale, Louisiana, where he still resides because of perhaps the most notorious political prosecution in American history. In fact, the ugly politics behind the "bribery" charges against Siegelman and former HealthSouth CEO Richard Scrushy largely grew from Siegelman's efforts to establish an education lottery in Alabama.
How does Siegelman compare today's lottery to the one that failed in 1999? Well, his words seem filled with a touch of anger, sarcasm, even bitterness -- all of which is easy to understand. Siegelman notes that many politicos now pushing for a lottery railed against one that a Democrat proposed 17 years ago:
So now some of these same people who fought the lottery in 1999, whose greed or lust for power cheated our children out of a better life, want Alabama voters to bail them out.
How big a hypocrite is Bentley? Siegelman pulls no punches:
Governor Bentley, a staunch Baptist, once joined the loud “Christian” refrain opposing a lottery as a sin, immoral, something so wicked it would surely usher in prostitution, muggings, robberies and create a wave of gambling addiction. These were the arguments used by opponents to defeat the “Education Lottery” referendum in 1999.
I went directly to the largest gathering of many faiths, mostly Baptist and listened to their holy proclamations about the lottery being “immoral”. I stood and answered: ‘I’ll tell you what I think is immoral. I think immoral for children because of the color of their skin or where they were born or to whom, not to be able to reach their god-given potential because they can’t get a quality education.
I had been asking the people of Alabama to establish a lottery since 1989. Over and over I pleaded “Every child, regardless of where they are born or to whom, deserve the right to quality education and every child should have the hope and dream of knowing that if they make their grades and stay out of trouble, they’ll be able to go to college free.
Siegelman's education lottery appeared to enjoy widespread support. After all, he was elected while running on an education-lottery platform, one that offered greatly enhanced learning opportunities for Alabama students:
In 1998 I was elected Governor again calling for an “Education Lottery,” a Georgia style lottery with 100% of the proceeds going into the “Alabama Education Trust Fund”.
First, the “Alabama Education Lottery” would have provided free higher education for every high school graduate, tuition free college, community colleges, or trade schools free.
Secondly, the Alabama Education Lottery would provide free preschool, relieving working mothers of the worry and expense of day care, knowing at the end of the day their child would be better prepared to read, write, and get along with other children before they entered the first grade.
Finally, the Alabama Education Lottery would provide technology to put the world’s knowledge at the fingertips of every child, to assist teachers in accessing lectures by the brightest instructors in the world on every conceivable subject. For rural Alabama which lacks the tax resources and ability to raise needed education dollars, technology would be ‘the great equalizer’, bringing the best educational resources, lectures, free college classes from the best colleges and universities in the world to every child in every part of the state.
Supporters were confronted with a groundswell of "Christian" opposition, driven largely by some of the slimiest characters in the history of American politics. Writes Siegelman:
In order to get this constitutional amendment establishing the “Education Lottery” passed, I had to raise money for television, radio and newspaper advertising and money to get out the vote. Unknown at the time, Karl Rove’s confidante, Ralph Reed, President of the “‘Christian Coalition’, lobbyist Jack Abramoff and Mike Scanlon, who had worked for my opponent, Bob Riley, and the Mississippi Choctaw Indian casinos had engaged in a money laundering scheme to funnel up to $20,000,000 from the Indian casinos into Alabama to defeat me, to defeat the lottery, to defeat other gaming proposals. (See “Capitol Punishment”, by Abramoff, PP 184-189)
The opposition, funded by the Mississippi casinos, ran a smothering barrage of TV ads portraying corrupt politicians with cash stacked high like gangsters, ending their ads with:
“Maybe a lottery, but not this lottery.”
(To be continued)
|House at 212 Dexter Avenue in Mountain Brook|
Is this a sign that the Garrison/Strange story is getting more and more like the scandal engulfing Gov. Robert Bentley and former advisor Rebekah Caldwell Mason? Does it mean that women who engage in extracurricular activities with powerful Republicans can expect to receive favors, which come in a variety of forms?
We're not sure about that, but something seems to be going right with Jessica Garrison's personal balance sheet these days. The $835,000 she paid for her new Mountain Brook home is almost twice what Garrison paid for her first Mountain Brook house, at 119 Main Street, in 2012. And it comes as Garrison appears to be pulling back from some of her professional activities.
Work less and buy a house that's worth almost twice what your old one was worth? Must be a nice trick, if you can pull it off.
Jessica Garrison, it seems, can pull off most anything when it comes to real estate in the highly desirable "tiny kingdom" of Mountain Brook. A foreclosure deed from sale of the first house showed that Garrison issued a "high bid" of $30,000--for a house appraised at almost $440,000.
Roughly a year later, after I began reporting about the curious deal and large sums of money that Strange was funneling to Garrison's political-consulting companies, a second foreclosure deed appeared. It showed Garrison making a high bid of $411,922, bringing the total to slightly more than the home's appraised value.
Did media attention, driven partly by Strange's dubious prosecution of Democrat and former Senate President Lowell Barron, cause someone to reconfigure what appeared to be a sweetheart house deal for Garrison? The answer is not clear at the moment, but we know it seems to be a sensitive subject; I was arrested one day after writing about the transaction on October 22, 2013.
Now, we have a second Mountain Brook house deal for Garrison--and it, too, emits a peculiar odor.
Garrison seems to have a knack for rubbing shoulders with corporate types and winding up with houses that keep her safely ensconced in Mountain Brook--often with a tidy profit for Garrison's nest egg.
In summer 2015, Garrison sold her first Mountain Brook home to ServisFirst Bank executive Ray B. Petty, who worked 35 years for SouthTrust/Wachovia, eventually becoming a regional president and CEO of Wachovia Mortgage. You might think a banking veteran like Petty would be a rugged negotiator on a house deal. But public records show he paid $550,000, which left Garrison with a profit of almost $140,000. Not bad for a house she owned for barely three years.
Garrison's new digs are at 212 Dexter Avenue, also in the Crestline Heights section of Mountain Brook--maybe a 9-iron or so from her previous residence. Why is it so much more expensive than the Main Street house? That's hard to figure, since it has only about 300 more square feet of living space.
Property records show that the Dexter home has undergone more than $226,000 of improvements since 2011. Also, the Main Street house faces the fairly busy Euclid Avenue, so the Dexter location probably is quieter. These things matter, a lot, in the "Tiny Kingdom."
Did connections--political, corporate, or both--play a role in Garrison buying the house? Well, Garrison bought the house from Howard R. and Stacey Torch. Howard Torch is an advertising manager for Alabama Power and Southern Company in Birmingham.
Garrison is an attorney and serves in an "of counsel" role at Balch and Bingham. That outfit just happens to be known as THE Alabama Power firm in Birmingham. Hmmm . . .
Speaking of Garrison's professional life, it seems to be shrinking. The "of counsel" job at Balch and Bingham long has appeared mostly ceremonial, with Garrison landing there after she had to give up a job with Strange's office in Montgomery because a court ruling in a divorce/child custody case forced her to live within 60 miles of her ex husband's residence in Tuscaloosa.
Her primary positions seemed to be with the Republican Attorneys General Association (RAGA) and the affiliated Rule of Law Defense Fund (RLDF). Garrison's current LinkedIn page shows she left those positions in January 2016. She lists her main roles now with Balch and Bingham and MDM27, the political-consulting company that received mucho Luther Strange campaign dollars.
(By the way, a quick check of campaign-finance records shows U.S. Rep Gary Palmer (R-AL) has spent at least $84,000 or so with MDM27 and Jessica Garrison.)
This new chapter in the Garrison/Strange story can't help but remind an attentive observer of the Bentley/Mason scandal. How? Consider this:
* When Jessica Garrison needed a job within 60 miles of Tuscaloosa, she found one at Balch and Bingham, THE Alabama Power law firm. When Garrison was in the market for a new house, she found one that had been owned by an advertising manager at . . . Alabama Power. One of the major contributors to ACEGOV, the nonprofit that attorney Donald Watkins has called a slush fund for paying Rebekah Caldwell Mason. is Alabama Power. One of ACEGOV's board members is R.B. Walker, assistant to the executive vice president at . . . Alabama Power.
* Could the Garrison and Mason stories intersect via a shadowy organization known as PACE (Partnership for Affordable Clean Energy)? It seems like a strong possibility. Here's what we wrote about PACE in a post last summer, and we have more coming soon:
Speaking of Alabama Power and Balch Bingham, they are connected to a curious outfit called Partnership for Affordable Clean Energy (PACE). It sounds like PACE is concerned with keeping energy affordable for consumers. But published reports indicate PACE's primary purpose--perhaps its only purpose--is to ensure that Alabama Power's rates stay at a comfortably profitable level. What law firm helped incorporate PACE? Why, it was Balch Bingham. Who really is behind PACE, and how is it funded? That is not entirely clear, but Mobile-based investigative journalist Eddie Curran is shining considerable light on that question. . . . We think Curran's reporting on Alabama Power and PACE, at his blog mrdunngoestomontgomery.com, is worth a look. The following post (at Curran's site) describes the curious relationship between Alabama Power, PACE, and the Montgomery-based political consulting firm Matrix LLC.
Jessica Garrison works for Alabama Power's law firm and buys a house from an Alabama Power executive? Rebekah Mason apparently was paid, in part, via a slush fund connected to Alabama Power? Are more connections present via PACE, and who has benefited from them?
That's a question we will be examining in the coming weeks.
Consider these ironies:
* Christian conservatives defeated Siegelman's lottery, driven largely by roughly $20 million funneled in the state by Mississippi casino interests who feared any form of gaming competition next door?
* Business leaders supported the lottery in 1999, but now they are being asked to support a proposal from Gov. Robert Bentley, who has become a national embarrassment because of his affair with a former senior advisor, plus related abuse of public resources.
* Republicans, who now dominate every branch of Alabama government, are largely responsible for the state's budget crisis.
Siegelman knew Mississippi casinos were fueling the opposition to his lottery proposal. And he knew that presented challenges. From a statement Siegelman released this week about Bentleys lottery plan:
Knowing I had a fight on my hands, I asked Alabama business leaders to kick in the lion’s share of money needed to pass the lottery referendum. Business leaders knew how Alabama would benefit from an educated workforce, and generously supported the lottery campaign.
On October 12, 1999 the Mississippi casino owners and states surrounding Alabama won. The majority of voters were duped by some good meaning Christians and a few preachers, politicians and the ‘Christian Coalition’ who were bought by millions from Mississippi casinos. I can forgive those who came after me, but I’ll never forget or forgive those who put their greed for money and power ahead of the lives of our children.
Among the CEO’s I had asked to give or raise money to pass the lottery referendum was HealthSouth’s Richard Scrushy. HealthSouth ended up raising $250,000. I asked CEO Mr. Scrushy, to rejoin a nonpaying board to which he had been appointed by three previous governors and from which he had recently resigned. My political enemies charged that this was a bribe.
Siegelman and Scrushy were indicted almost one full year after the statute of limitations had expired. The indictment itself was so vague that the defendants essentially went to trial without knowing what they had allegedly done. No evidence of bribery was presented at trial, but a jury voted to convict anyway, and the U.S. Eleventh Circuit has, inexplicably, upheld the verdict on appeal. Writes Siegelman:
Months after the referendum had been defeated, months after I had re-appointed Mr. Scrushy to the state board, HealthSouth gave $250,000 to pay off a debt that had been incurred by the Democratic Party during the lottery campaign. Eight months after the lottery had been defeated I agreed to be on a bank loan to help pay off the lottery debt. Obviously, there would have been no way for anyone to have foreseen a lottery debt at the time I made the appointment of Mr. Scrushy but that didn’t stop the prosecutors from alleging I had profited from ‘a deal to appoint Mr. Scrushy.’ It was so ludicrous that my lawyers didn’t even press the point.
The trial judge, Mark Fuller, would not allow us to tell the jury that the U.S. Attorney’s husband had been paid by my opponents to defeat me. My judge, Mark Fuller, who had been on the Republican Executive Committee and had opposed the lottery, told the jury that a contribution to the lottery campaign could be considered ‘a thing of value’ to me because I supported the lottery referendum, even though I did not personally benefit by a single penny.
I had been indicted one month after I announced I would run for reelection. Then I was brought to trial one month before my primary election in 2006. The US Attorney’s husband was the campaign manager for my general election opponent, Bob Riley, while Riley’s former staffer, Mike Scanlon, funneled millions of dollars from the Mississippi Choctaw casinos into Alabama to benefit Mr. Riley’s campaign.
Should Alabamians be skeptical of the new lottery proposal? Yes, says Siegelman:
So now some of these same people who fought the lottery in 1999, whose greed or lust for power cheated our children out of a better life, want Alabama voters to bail them out.
First, please remember, Medicaid would not be in trouble in the first place if elected Alabama politicians had accepted the billions of dollars that came along with the Affordable Care Act. They foolishly looked that gift horse in the mouth, yelping political criticism at President Obama trying to curry political favor. Shame on you!
Secondly, some hypocrites who opposed the lottery before now want to be bailed out from having to pass tax reform to force large foreign corporations, out of state, multinational corporations to pay their fair share of taxes. Hundreds of companies make billions of profits in Alabama but don’t pay a penny. Foreign corporations which own nearly 30% of our timber land, pay only pennies in taxes compared to our neighbor, Georgia.
Finally, for goodness sakes pass true “Home Rule” to allow school boards to propose…propose ballot initiatives to allow citizens to vote to raise money for their local schools.
Today, I am not even sure how much money a lottery would yield, but I do know this, whatever it might raise should go to educate our children and voters should not let the Governor or Alabama Legislature get their hands on a penny of it.
So I say, ‘Maybe a lottery, but not this lottery.’
|Greene County, Missouri, Sheriff Jim Arnott|
Do we support such action? No. Do we understand how people can become so disturbed by police abuse that they choose to take matters into their own hands? Yes.
That's because my wife, Carol, and I have come face to face with police brutality -- twice. And we've seen how officers tend to lie when confronted with the need to cover for their actions. Is it infuriating to witness such behavior from "public servants" who are sworn to "serve and protect"? It sure as heck is.
Consider our unlawful eviction last September 9 in Springfield, Missouri. Our coverage of that horrifying event has focused largely on my wife's broken arm. And that is understandable because the injury was severe (see X-ray below), it was the result of unmistakable police brutality, and it was caused by Missouri officers who had no lawful grounds that day for being on the property we were renting. On top of that, it involved officers bursting into our home, with six to eight weapons (assault rifles and handguns) coming at us from all directions.
But the actions that led to Carol's broken arm might not have been the most outrageous we witnessed that day. In fact, there is little doubt we saw officers commit federal crimes.
Greene County Sheriff Jim Arnott was on the scene, standing about five feet away when at least three of his deputies surrounded and brutalized Carol, slamming her to the ground, butt first, with frightful force -- the kind that can cause concussions, After watching his officers injure a citizen by yanking viciously on her arms, Arnott's immediate instinct was to lie.
He pointed at Carol and said, "She assaulted a police officer." I saw the same events from about 15 feet away, and if I had not been so concerned about Carol's well-being, might have let out a guffaw when I heard Arnott's words. As it was, I did manage to say, "You've got to be kidding."
No, he wasn't kidding, as became clear when he ordered Carol handcuffed, placed in the back of a squad car, and driven to the Greene County Jail. (Imagine how all of that felt when the humerus, the large bone in your upper arm, has been snapped in two--with multiple pieces so pulverized that trauma surgeons later could only clean them out because they were of no use in the repair process.)
When you read Missouri law on "assault of a law-enforcement officer," you realize that Arnott is more than just a liar--he's also a con man, an abuser (of both Carol and the public trust), and likely a criminal.
Who else probably is a criminal in this scenario? That would be the deputy--whose name remains unknown for now--who appeared to do most of the damage to Carol's arm.
He and Arnott both apparently violated 18 U.S. Code 242 (Deprivation of rights under color of law), which holds:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both. . . .
In other words, both Arnott and his deputy could face up to one year in prison. And given the bodily injury that Carol suffered, plus the dangerous weapons used in unlawfully forcing us from our home, one or both of them could face up to 10 years in prison.
|X-ray of Carol Shuler's broken arm,|
before surgical repair.
Here is a key finding from the House case:
With regard to the requirements of the Fourth Amendment as to traffic stops, the district court instructed the jury that a traffic stop conducted by a law enforcement officer is constitutional only if the officer has both authority or jurisdiction and a sufficient legal basis for the stop.
House involved unlawful seizures, in violation of the Fourth Amendment, via traffic stops. Our eviction involved the unlawful seizure of a person, my wife Carol. That also invokes the Fourth Amendment, so the principle announced in House also was present when Sheriff Jim Arnott ordered Carol arrested and imprisoned. This is made clear in the House ruling:
"[A] person is `seized' ... when, by means of physical force or a show of authority, his freedom of movement is restrained" such that, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). A seizure is effected by force "when there is a governmental termination of freedom of movement through means intentionally applied[,]" such as where a law enforcement officer pulls his vehicle "alongside [a] fleeing car and sideswipe[s] it, producing [a] crash" regardless of whether the officer intends "to give the oncoming driver the option of a voluntary stop" or "to produce a collision." Brower v. County of Inyo, 489 U.S. 593, 597-99, 109 S.Ct. 1378, 1381-82, 103 L.Ed.2d 628 (1989). A seizure by means of show of authority requires both a show of authority and submission to that authority. California v. Hodari D., 499 U.S. 621, 628-29, 111 S.Ct. 1547, 1551-52, 113 L.Ed.2d 690 (1991). That is, a government officer effects a seizure by means of a show of authority where "the officer's words and actions would have conveyed ... to a reasonable person" that "he was being ordered to restrict his movement," and those words and actions actually "produce his stop." Id. Certain "circumstances ... might indicate a seizure, even where the person did not attempt to leave," including "the display of a weapon by an officer ... or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. An arrest is the "quintessential" example of a seizure of the person. Hodari D., 499 U.S. at 624, 111 S.Ct. at 1550.
Did Sheriff Jim Arnott order that Carol Shuler be seized? There is no question about it, under the law. Did Arnott have sufficient legal basis for making that order? Not even close. Did he commit a federal crime? Absolutely. Is it any wonder citizens are fed up with police brutality, and the lies that inevitably follow as cops try to avoid accountability at all costs? No, it isn't.
(To be continued)
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|Officer Eric Parker|
The Alabama police officer who body slammed a grandfather from India and left him partially paralyzed lied about three key issues in the case, court documents indicate. Still, a federal judge threw out criminal charges against Officer Eric Parker after two juries had deadlocked.
How could that be? How could Parker get away with such apparent lies, under oath, when his brutal actions against Sureshbhai Patel were caught on tape and seen around the world?
We will address those questions in a moment, but first, let's look at Parker's apparent falsehoods:
* Parker said he did not believe Patel when the latter stated he could not understand English. Later in the same document, Parker makes a statement that indicates he did believe Patel could not speak or understand English.
* Parker denied that he used a "leg sweep" to take Patel to the ground, causing him to land on his head. Later in the same document, Parker apparently admits to using a "leg sweep," a technique that an expert witness said is not consistent with prevailing police policy.
* Parker claimed that he lost his balance and fell, causing Patel to hit the ground. Later in the same document, Parker's apparent admission that he used a leg sweep means he did not lose his balance and fall.
A video of the body slam clearly shows Parker taking his left leg and swiping Patel's feet out from under him. How could anyone see that video (which can be viewed below) and buy Parker's story that he lost his balance and fell? It's hard to imagine anyone believing it.
What about the specifics of Parker's apparent false statements under oath? Here is a brief summary of each one:
(1) Parker claims he did not believe it when Patel said he could not understand English
On page 20 of her opinion, Judge Haikala writes:
Officer Parker testified that although the subject—Mr. Patel—stated that he did not understand English, Officer Parker did not believe him. . . . Officer Parker reasoned that when the subject did not answer questions, the subject was refusing to cooperate with the investigation and was being evasive.
On page 38, near the beginning of her analysis of the evidence, Haikala writes:
The evidence supported the Government’s argument that when Officer Slaughter called out to Mr. Patel so that Officer Slaughter could ask some questions, Mr. Patel did not run from the police or ignore them. Instead, Mr. Patel’s behavior was friendly; he turned, waved, and walked toward the officers. . . . Mr. Patel did not understand the questions that Officer Slaughter asked, but he did his best to communicate to the police that he was from India and that he lived at 148 Hardiman Place Lane. Officer Slaughter ignored the fact that Mr. Patel repeatedly said, “No English” and continued to press Mr. Patel for answers to his questions. . . . Officer Parker understood that Mr. Patel did not speak English because he said to Officer Slaughter, “He’s saying ‘No English.’ He doesn’t understand what you’re saying”; but Officer Parker made no attempt to address the language barrier.
The judge clearly states that evidence supported the government's argument that Patel did not understand English and did his best to communicate with the officers. Perhaps more importantly, the judge quotes Parker, speaking to his partner, Slaughter: "He's saying 'No English.' He doesn't understand what you're saying."
That contradicts Parker's earlier statement that he did not believe Patel could not understand English--and it strongly suggests that Parker lied under oath. As noted in an earlier post, Haikala was required by law to review the evidence in a light most favorable to the non-moving party, which was the prosecution. She did not do it.
(2) Parker denies using a leg sweep to take Patel to the ground
On page 35 of her opinion, Haikala writes:
At trial, Officer Parker denied that he performed a leg sweep when he took Mr. Patel to the ground or that he intentionally kicked Mr. Patel. . . . Officer Parker has no training in or experience with martial arts.
On page 39, while summarizing the prosecution's case, Haikala writes:
The Government argued that perhaps out of frustration or perhaps to act tough for Officer Slaughter, Officer Parker took Mr. Patel to the ground. . . . Without further warning and without enlisting Officer Slaughter’s assistance, Officer Parker kicked Mr. Patel’s legs out from under him, causing Mr. Patel to fall to the frozen ground. The Government added that because Officer Parker held Mr. Patel’s hands during the takedown maneuver—a maneuver which Officer Parker eventually acknowledged constituted a leg sweep—Mr. Patel was unable to use his hands and arms to break his fall, and his face and neck absorbed the impact of the collision with the hard ground. . . . Mr. Patel suffered a bloody nose, and the neck trauma caused Mr. Patel to experience paralysis. (Doc. 107, p. 147). The Government argued that Officer Parker had to have known that Mr. Patel would suffer an injury if he restrained Mr. Patel’s hands while throwing him violently to the ground.
The law on review of a Motion to Acquit requires a judge to view the evidence in a light most favorable to the government. By that standard, Parker admitted to using a leg sweep, contradicting his earlier sworn statement -- and this alone should have forced Haikala to deny the Motion to Acquit.
(3) Parker claims that he lost his balance and fell when taking Patel to the ground
On page 33 of her ruling, Haikala writes:
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.
Does that story hold up under closer scrutiny? Not very well, not even in the same document, as noted on page 78 of the ruling:
When he returned to the precinct, while Officer Parker was working on his report, Lieutenant Harrell watched the dashcam video of the takedown. After he reviewed the video, Lieutenant Harrell questioned Officer Parker about the technique that he used in the takedown. Lieutenant Harrell asked Officer Parker if he used a leg sweep. Officer Parker replied that he did not recall using a leg sweep. . . . Lieutenant Harrell testified that later, he and Officer Parker watched the dashcam video together, and at some point, Officer Parker acknowledged that he used a leg sweep. . . . Officer Parker denies that he told Lieutenant Harrell that he used a leg sweep to take Mr. Patel to the ground. . . . In his written report about the incident, Officer Parker did not provide a description of his takedown technique, and he did not write that he lost his balance and fell with Mr. Patel.
Parker's own supervisor, Lieutenant Harrell, stated under oath that Parker admitted using a leg sweep to him. In Parker's written description of the incident, he made no mention of losing his balance and falling.
That all raises serious questions about Parker's credibility. The video, which clearly shows Parker sweeping Patel's legs out from under him, also raises questions about the officer's truthfulness.
We invite you to watch the video below. We encourage viewers to watch Parker's left leg closely. He clearly moves it to swipe Patel's legs out from under him. This is a leg sweep, and there is no question that Parker used it, it caused Patel's severe injuries, and expert witnesses testified that the technique is not endorsed under general law-enforcement policy.
Parker told the court that he lost his balance and fell with Patel? Yeah . . . right.
(To be continued)
Previously in the series:
(1) Here's the flip side of police-brutality cases -- July 13, 2016
(2) Federal judge in Alabama shows how cops tend to get favorable treatment in court -- July 18, 2016
(3) Judge threw out charges based on case that does not support her findings -- July 29, 2016
The most high-profile such nomination is that of Merrick Garland to the U.S. Supreme Court, as a replacement for the late Justice Antonin Scalia. Senate Republicans seem determined not to give Garland a hearing or vote, so his nomination appears to be stalled.
The same apparently holds true for the nomination of Abdul Kallon to the U.S. Eleventh Circuit Court of Appeals. But that's where any similarity in the two nominations ends.
Garland, by all accounts, is a highly qualified jurist, and he almost certainly is not nearly as liberal as conservative commentators want you to believe. (Not that there is anything wrong with liberal judges; in my view, we need more of them.) Kallon has proven, during his time as a district judge in the Northern District of Alabama, that he is a sham as a jurist. In fact, Republicans would be doing us all a favor if they would block his nomination. An ideal outcome would be for Kallon, somehow, to be booted off the federal bench altogether -- although I'm not sure how that could happen; gross incompetence is openly tolerated among U.S. judges, with their lifetime appointments.
My wife, Carol, and I have cast a combined four votes for Obama as president. But his appointment of Kallon to the bench almost caused us to become independents or agnostics or something other than the liberal Democrats we want to be. That Obama now seeks to promote Kallon almost gives us a case of the dry heaves.
How bad a judge is Kallon? Well, Carol and I have had a front-row seat to help us come to the conclusion that he is awful -- beyond awful, if that is possible. We've had three cases before Kallon in Birmingham, and that experience convinces us he has no business being on the federal bench--much less being promoted. (Three cases before the same bozo judge, in about five years' time? Is there only one federal judge for all of north Alabama? Has Kallon been assigned as our personal judge?)
I probably could write a treatise or two on all of the unlawful rulings we've seen from Kallon--roughly two dozen of them, is my guess--but one ruling on one issue in one of our cases reveals all you need to know about this judge. It's a simple, easy-to-follow legal concept, and Kallon's failure to get it right suggests (at least to me) that he's not just inexperienced and incompetent--he's also corrupt.
Even the Eleventh Circuit Court of Appeals, the court to which Obama made the nomination, found that Kallon got it wrong on the issue in question. In an unpublished opinion -- which courts often use to hide rulings that don't mesh with the actual law -- the Eleventh Circuit still managed to cheat us, by borrowing an idea from . . . Kallon. But the appellate court did confirm that Kallon butchered the one, simple issue that is the subject of this post.
The issue arose in Roger Shuler and Carol Shuler v. William E. Swatek, et al, a case about an unlawful sheriff's sale on our house back in 2008, robbing us of full rights to property we had owned for more than 20 years at the time of Kallon's rulings. (You can watch a video of the actual sheriff's sale at the end of this post.)
Kallon's primary finding is that he lacked subject-matter jurisdiction to hear our case because of something called the Rooker-Feldman Doctrine. What is that? Here is a short and sweet definition, from an August 2012 post:
The doctrine holds that lower United States federal courts other than the Supreme Court should not sit in direct review of state court decisions unless Congress has specifically authorized such relief. In short, federal courts below the Supreme Court must not become a court of appeals for state court decisions. The state court plaintiff has to find a state court remedy, or obtain relief from the U.S. Supreme Court.
For purposes of this post, we will assume Kallon got it right regarding my claims because I was a party to a state-law claim brought by our troublesome neighbor (the criminally inclined Mike McGarity) and his sleazy lawyer, Bill Swatek -- and therefore could not seek review of the state issues in federal district court. (In fact, Kallon butchered Rooker-Feldman on my claims -- as I explain in this post--meaning he did have jurisdiction to hear them. But to simplify things, we'll wipe my claims off the table.)
In his memorandum opinion, Kallon seemed to conveniently ignore that Carol also was a party to the federal claim. Kallon repeatedly uses the term "Plaintiffs," seeming to acknowledge there was more than one of us. But I'm not sure he ever mentioned Carol by name in his opinion--it was as if I was married to a ghost, and the ghost had played no role in owning a house with me for more than 20 years.
On page 7 (second paragraph), Kallon gives himself away--and proves that he is a glorified con man. The judge writes: "Shortly thereafter, McGarity filed suit against Roger Shuler, alleging malicious prosecution and conversion, seeking damages of $25,000."
You have the judge admitting that McGarity sued only me, and no opposing party in the federal matter argued otherwise. How could they? It's a matter of public record that McGarity sued me, and Carol was not a party to his state complaint.
What does that mean for Carol? It means her federal claims were not precluded by Rooker-Feldman -- and, by law, her claims (as the joint owner of our home) had to be heard. How did Kallon deal with that issue, which would have forced him to hear Carol's case and raise all sorts of uncomfortable truths about the actions of McGarity; his lawyer, Bill Swatek; and Sheriff Chris Curry and Deputy Bubba Caudill? He simply ignored it, did not mention it.
Our appellate brief shows, however, that we raised the issue in a Rule 59 Motion to Alter or Amend Judgment. And Kallon denied our motion, even though the law is clear he had to hear (at the very least) Carol's complaint.
Here is how we argued the issue in our Motion to Alter and the appellate brief:
The U.S. Supreme Court has held that “the Rooker-Feldman doctrine does not bar actions by non parties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment.” Lance v. Dennis, 546 U.S. 459 (2006). The district court ruling in the instant case is clear error, conflicting with U.S. Supreme Court precedent.
A three-judge panel at the Eleventh Circuit agreed with us, writing as follows in a "Do Not Publish" opinion:
A. Subject Matter Jurisdiction
We find no error in the district court's determination that the Rooker-Feldman doctrine precluded it from ruling on Roger Shuler's claim that the judgment against him in state court, resulting in the issuance of the writ of attachment, was invalid. Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009) (holding that a losing party in a state-court lawsuit may not seek an order in federal court that would "effectively nullify the state court judgment") (internal quotation marks omitted). However, Carol Shuler was not a party to the state tort action that resulted in Roger Shuler's liability to McGarity, therefore, the Rooker Feldman doctrine did not bar the district court from addressing her claims. See Lance v. Dennis, 546 U.S. 459, 464 (2006) (per curiam) (holding that Rooker Feldman does not apply "where the party against whom the doctrine is invoked was not a party to the underlying state-court proceeding").
So, there you have it -- even the Eleventh Circuit found that Kallon got it wrong, that he had to hear Carol's claims. And we are supposed to think Kallon is qualified to join the Eleventh Circuit, after that court found he butchered the simplest of legal concepts?
What does it say about Kallon when he got such an issue wrong? To me, it says he is corrupt and followed someone's "ex parte" instructions to make sure the issues in our case never got a hearing.
Similar corruption probably was present with the Eleventh Circuit. Even though they ruled correctly on the issue of Carol and Rooker-Feldman, they still found a way to cheat us, borrowing an idea from Kallon. And we will address that in an upcoming post.
Our experience in this case proves that, even when a court admits you are right, they still can find ways to make you a loser. Ain't "justice" wonderful?
For the purposes of this post, it's enough to show that Abdul Kallon should not be promoted.
Both probable crimes evolve from the right to be free from unreasonable seizures, which is supposed to be guaranteed to Americans by the Fourth Amendment to the U.S. Constitution. As we showed in a previous post, unlawful seizures can become criminal by violating 18 U.S.C. 242 (Deprivation of rights under color of law). (Include link to previous post.)
A seizure, of which an arrest is considered the "quintessential" example, is constitutional only if the officer has a "sufficient legal basis" for making it--in other words, he must have "probable cause."
Did Arnott have probable cause to order Carol seized for allegedly assaulting a law enforcement officer? When you study Missouri law on the subject, the answer is: "Not even close."
Did the deputy who appeared to be primarily responsible for brutalizing Carol and breaking her arm have probable cause to seize her? Again, the facts and the law lead to only one answer: "Not even close."
Greene County deputy Scott Harrison drove Carol in a squad car to the county jail and informed her that she was facing a felony charge of assaulting an officer, with a likely bond of $100,000. This apparently was based on Arnott's instructions. Carol, handcuffed behind her back with a shattered left arm, was in excruciating pain, and someone at the jail finally realized that she might be seriously injured. Carol was taken to nearby Cox North Medical Center, where X-rays showed a break so severe that it would require trauma surgery.
After realizing that Carol was badly hurt, while none of his deputies appeared to have a scratch on them, Arnott apparently decided that bringing assault charges against Carol--when she actually was the victim of an assault--might not be such a good idea.
Did Arnott have "sufficient legal basis"--any basis at all--for his claim that Carol had assaulted a law-enforcement officer. No, he did not--not for a felony or a misdemeanor.
Under Missouri law, two forms of assault--first and second degree--are felonies. The notion that Carol committed either of these would be laughable--if the repercussions were not so serious. (Arnott watched his deputy beat up Carol from about five feet away; I witnessed the same event from about 15 feet away.) A $100,000 bond would have meant a payment of $10,000 to get Carol's release from custody. I'm not sure how I would have come up with that money, so it's likely Carol would have been in jail for months--for a "crime" she did not commit--if her arm had not been broken.
The description for first-degree assault of a law-enforcement officer is found at Missouri Revised Statutes 565.081. Here is the gist of it:
A person commits the crime of assault of a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer in the first degree if such person attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer.It's hard to envision even an ethically challenged individual, such as Jim Arnott, to seriously claim that Carol tried to kill or cause serious physical injury to an officer on September 9, 2015.
The description for second-degree assault of a law-enforcement officer is found at Missouri Revised Statutes 565.082. This section is quite a bit longer than the one for first-degree assault, but here is the key language (with some repetitive language removed, for easier reading):
A person commits the crime of assault of a law enforcement officer . . . in the second degree if such person:
(1) Knowingly causes or attempts to cause physical injury to a law enforcement officer . . . by means of a deadly weapon or dangerous instrument;
(2) Knowingly causes or attempts to cause physical injury to a law enforcement officer . . . by means other than a deadly weapon or dangerous instrument;
(3) Recklessly causes serious physical injury to a law enforcement officer . . . ; or
(4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle or vessel in this state and when so operating, acts with criminal negligence to cause physical injury to a law enforcement officer . . . ;
(5) Acts with criminal negligence to cause physical injury to a law enforcement officer . . . by means of a deadly weapon or dangerous instrument;
(6) Purposely or recklessly places a law enforcement officer . . . in apprehension of immediate serious physical injury; or
(7) Acts with criminal negligence to create a substantial risk of death or serious physical injury to a law enforcement officer. . . .
Carol had no deadly weapons or dangerous instruments, she caused no physical injury (serious or otherwise), she was not intoxicated or under the influence of controlled substances . . . well, you get the idea -- none of these even come close to applying.
|X-ray of Carol Shuler's broken arm|
prior to surgical repair
A person commits the crime of assault of a law enforcement officer . . . in the third degree if:
(1) Such person recklessly causes physical injury to a law enforcement officer . . . ;
(2) Such person purposely places a law enforcement officer . . . in apprehension of immediate physical injury;
(3) Such person knowingly causes or attempts to cause physical contact with a law enforcement officer . . . without the consent of the law enforcement officer. . . .
Evidence indicates that Carol caused no physical injury to anyone. She had been given permission to enter the apartment to retrieve personal belongings, and that's what she was trying to do--she didn't purposely come in contact with an officer or anyone else. Officers initiated contact with her, not the other way around. Even as loose as the language is in this section, Arnott had no probable cause to believe Carol had committed even a misdemeanor assault -- as his own actions indicate because he apparently was planning on a felony charge.
As for the officer who broke Carol's arm, there is no doubt that he seized her. Here is the definition that applies in such cases:
"[A] person is `seized' ... when, by means of physical force or a show of authority, his freedom of movement is restrained" such that, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980).
Did the officer have probable cause to seize Carol? Absolutely not, and his own words and actions indicate that. Never did he indicate Carol had violated any law that merited a show of physical force or authority. Never did he say she was under arrest or give any reason for slamming her to the ground and yanking on her arms.
I've had a tendency to write about this as a personal story -- Carol and I, after all, have been married for 26 years -- or a Missouri story. But it's much bigger than that. All Americans, in all states, are supposed to be free from unreasonable, violent, and bogus seizures.
When law-enforcement officers violate those rights, they cross into criminal territory.
|Jessica Medeiros Garrison and Luther Strange|
The house purchase, when viewed in light of Blankenship's order and actual Alabama law, indicates Garrison should have received no damages, even if the finding that I defamed her is assumed correct -- which it wasn't.
Garrison, a Republican operative best known for her close relationship to Alabama Attorney General Luther Strange, sued me in fall 2013 -- about the same time Shelby County deputies beat me and doused me with pepper spray in my own home and dragged me to jail for a five-month stay. Garrison's complaint alleged that my posts about her extramarital affair with Strange were false and defamatory. She received a default judgment after my wife, Carol, and I were forced to go through a dubious foreclosure on our home of 25 years and wound up being forced to move to Missouri (where I grew up). After the move, I received no notice of actions in the Garrison case -- essentially, I was rendered unable to defend myself, even though I appeared in the case at least twice while in jail -- and that led to Blankenship's default ruling, which has no basis in fact or law.
We will take a closer look at the default judgment in upcoming posts, but for now, our emphasis is on the off-the-charts damages Garrison was awarded. Nothing in the record suggests Garrison's claim merited anything beyond nominal damages, and probably not even that. Newly discovered evidence -- in the form of her recent house purchase that gets pretty close to $1 million -- suggests she should have gotten damages, maybe, sufficient to secure her a hot dog from Sneaky Pete's.
The law of damages in a defamation case is complex, and we won't go into a comprehensive review of the subject. But the off-the-wall nature of the damages, and Garrison's subsequent purchase of a pricey house, point to at least three key issues related to defamation damages. (Defamation, by the way, refers both to libel [unlawful written communications] and slander [unlawful verbal communications]
Defamation per se or per quod
Under Alabama law, the only way to receive damages in a defamation case, especially significant damages, is to prove that you've been the victim of defamation per se or per quod. What does that mean? Here is an explanation from a case styled Blevins v. W.F. Barnes Corp. (Ala. Civ. App., 1999):
“The foundation of an action for libel or slander is a malicious injury to reputation, and any false and malicious imputation of crime or moral delinquency by one published of and concerning another, which subjects the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances, or the public, with resulting damage to his reputation, is actionable either per se or per quod․”
In every-day language, a per se claim (meaning "on its face") involves allegedly false imputations regarding criminal conduct (an indictable offense of infamy or moral turpitude), and at least nominal damages are assumed when such a claim is proven before a jury. In short, Garrison had to prove she had a per se claim to receive nominal or compensatory damages. (See Drill Parts v. Joy Mfg., 619 So. 2d 1280 [Ala. Supreme Court 1993])
A per quod claim does not involve imputations regarding a crime of infamy or moral turpitude. In a per quod claim, the plaintiff must allege and prove special damages.
We invite you to view Blankenship's ruling, the one granting Garrison $3.5 million, at the end of this post. Does he make a finding of either defamation per se or defamation per quod? No, he does not. Even Garrison does not claim I imputed criminal conduct or acts of moral turpitude. For such a substantial award, there would have to be a finding of defamation per se. But there is no such finding. That means the monstrous damages have no support in law, and neither would mere nominal damages.
In his order, Blankenship breaks the award into $1.5 million in compensatory damages and $2 million in punitive damages. But we've already shown that, without a finding of defamation per se or per quod, there is no basis for compensatory damages at all. And without compensatory damages, there can be no punitive damages. (See Tanner v. Ebbele, Ala. Civ. App., 2011.)
Bottom line? Garrison's damages, under the law, equal zero.
Defamation and mental anguish
According to Blankenship's order, Garrison mostly claimed damages related to mental anguish. The order states, "Plaintiff further testified that the comments contained in the blog were embarrassing, hurtful and degrading." The order further states that since "comments posted to the blog have become widely known," Garrison "constantly suffers from embarrassment and anxiety." (Note: The court's words suggest Garrison was harmed by comments that readers posted to Legal Schnauzer, not by anything I reported. Law in the Internet age has held that publishers of Web sites or blogs are not legally responsible for comments left by third parties.)
Under Alabama law, there can only be a finding of mental suffering once defamation per se has been proven. (See Tanner v. Ebbele.) Without a per se finding from Blankenship, there can be no damages for mental suffering.
Also, this is where the newly discovered evidence of Garrison's home purchase enters the picture. Her purchase of an $835,000 house in Mountain Brook is almost twice what she paid for her previous "Tiny Kingdom" home. If Garrison was suffering so mightily from embarrassment and anxiety, how was she able to establish financial standing that would allow her to buy such a pricey house? Wouldn't such a traumatized person barely be able to hang on to the house she already had?
Defamation and job performance
According to Blankenship's order, Garrison claimed the "defamation" had affected her in the workplace. From the order: "[Garrison] testified further that the comments made it difficult to perform her job." (Again, the court's words suggest it was reader comments, not my reporting, that caused problems for Garrison.)
How badly was Garrison harmed in her professional life? Well, since being "defamed," she's been able to purchase a house that is worth almost twice what her previous house was worth? That suggests Garrison's professional standing actually has improved since my posts hit the Web. Shoot, maybe Garrison should ask me to "defame" her more often.
The bottom line? Using Blankenship's own words, and his version of Garrison's testimony in court, there is no legal support for any damages against me. But that hardly is the only way her judgment has sprung a leak.
(To be continued)
|Steel manufacturing in China|
Upton, however, was much less talkative when we gave him an opportunity to discuss his divorce from Linda Upton, to whom he had been married for more than 30 years and who played a significant role in getting the family's steel businesses off the ground.
We contacted Bill Upton via telephone and requested an interview, noting that public records indicated Upton v. Upton had been decided based on a number of legal irregularities. Upton immediately became defensive and said, "There's nothing unusual about it at all."
That's a curious statement, given that Upton admitted in court documents to having an extramarital affair with Gincie Walker, a young woman who had left an abusive home in Shelby County and been raised as the Upton's daughter for roughly 10 years. Was Bill Upton saying there is "nothing unusual at all" about a multimillionaire business executive having sex with a young woman who had called him "Daddy" for about a decade? We also wanted to know how Bill Upton had received a highly favorable court ruling, despite egregious marital misconduct that, by law, should have given Linda Upton an upper hand in the division of marital property.
We wanted to know about these issues, but Bill Upton didn't seem anxious to discuss them. Here's how the discussion wound down:
"You had an affair with Gincie Walker, right?"
"Did you have an affair with Gincie Walker . . . is that correct?"
Bill Upton no longer was on the line. I called back and left a voice message, renewing my request for an interview and asking why he apparently had hung up on me. I'm still waiting for Mr. Upton to return that message. Bill Upton and Gincie Walker now are married.
|Gincie Walker Upton|
Small manufacturers say they have increased productivity to compete. . . . But small manufacturers insist labor costs are not relevant when in many cases heavily-subsidized goods from China have been sold in America for below what the local manufacturers pay for raw materials.
"Labor costs have nothing to do with it," said Bill Upton, president of Pelham, Alabama-based Vulcan Threaded Products Inc. Vulcan makes steel bars and rods for everything from air conditioning units to sprinkler systems, is the last American firm of its kind, and won a trade case against Chinese competitors in 2008.
"We have a lean, efficient operation and we can compete against anyone in the world on a level playing field. But there's no way we can compete against finished goods that cost less than the raw materials," Upton said.
Bill Upton becomes a veritable Donald Trump when asked about steel-industry issues. But ask him about a divorce case where he received a judgment, thanks to Private Judge Gary Pate, that clearly was not supported by facts or law . . . and well, the silence becomes deafening.
Want to experience the difference? Please check out the video below of our aborted interview with Bill Upton on issues connected to his divorce. Below that, is an interview with Upton about China and steel dumping. We invite you to check it out and note how it differs from the first video:
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A taped phone conversation released yesterday captures Alabama Gov. Robert Bentley calling your humble blogger a "slimy guy." Bentley also makes a negative reference to attorney Donald Watkins. The tape adds another level of authenticity to reports that Bentley used state and federal resources to target Watkins and me -- the two citizen journalists who broke the story last summer of Bentley's extramarital affair with advisor Rebekah Caldwell Mason.
It becomes more intriguing when you consider this timeline: I broke the story of the Bentley/Mason affair on August 31, 2015, the same date Bentley and State Rep. Allen Farley (R-Bessemer) talked in the evening, with Bentley calling me a "slimy guy." Nine days later, on September 9, my wife, Carol, and I were violently and unlawfully evicted from our apartment in Springfield, Missouri, and Carol was left with a shattered left arm that required trauma surgery. We've already asked this question: Were Bentley and/or Mason involved in arranging the bogus eviction in Missouri? Was that part of their plan to target me? Was having us roughed up and brutalized also part of the plan?
The new audio suggests the answer might be yes.
Yellowhammer Newsyesterday released the audio, and al.com followed with a report that Farley made the tape and released it, in part because recent events had caused him not to trust Bentley. The tape captures Farley saying he wants to take information from an "avalanche" of press reports about misconduct in the Bentley administration and ask Attorney General Luther Strange to conduct an investigation.
"I want the AG to step up and make sure state dollars were properly spent by the governor," Farley says. "This is a bombshell, but we have to deal with it."
Bentley seems less than enthused about the idea. "Allen, I don't think you need to get Luther in it, personally. There's nothing we're trying to hide . . . Whoever is doing this is using rumors and innuendos that are not fact. . . ."
Who does Bentley think is throwing around these "rumors and innuendos"? He makes that abundantly clear. "Casino gambling people are feeding this story. . . . They want to use the divorce to feed the story and get it out because they are trying to discredit me. . . . This didn't cause my divorce, although it did in part . . . they fed my wife this stuff."
Get a load of that arrogance. Bentley actually is blaming "casino gambling people" -- whoever that is -- for his own abominable behavior with Mason, which caused his divorce. Talk about "slimy."
On a personal level, it's quite a "blow" to be called a "slimy guy" by someone as slimy as Bentley -- by a guy we know spent time caressing Mason's boobs and exploring her nether regions, even though he marched into office as a "Christian, family values" candidate. His values were so strong that his wife of 50 years, former First Lady Dianne Bentley, filed for divorce last August and more or less told the "Luv Guv" to take a hike -- after she was finished taking him to the cleaners.
My given name never comes up in the Bentley-Farley conversation. But my blogging name is front and center. Consider this back and forth from Farley (AF) and Bentley (RB), early in the tape:
AF: There is an avalanche of speculation across the media. . . . When these people are contacting me, I say the governor is my friend, and I've been over a couple of times and prayed with him. This is devastating. When they say, "What do you think of this allegation about trips taken by the governor on the jet, and overtime by people who guarded him, and personal things that have been alleged . . .
RB: I read some of that stuff from Donald Watkins. . . .
AF: There is this guy Legal Schnauzer, or something . . .
RB: Legal Schnauzer is the one who accused Rob Riley and got sued . . . he's a slimy guy.
That last part is laughable. Rob Riley might be the most unethical and oily individual ever to engage in American politics. And I'm a "slimy guy" because Riley filed a bogus defamation lawsuit against me -- a case where, by law, my reporting was shown to be neither false nor defamatory? Sounds like the people who think Bentley is mentally losing it might be right.
Bentley reveals himself to be both a liar -- repeatedly claiming, falsely, there was no affair -- and an idiot. He apparently thinks it's lawful, and routine, for a journalist to be kidnapped (taken without a warrant) and thrown in jail for five months because of a civil case that alleges publication of defamatory matter. We have a governor, it turns out, who knows absolutely nothing about the First Amendment.
Perhaps Bentley needs to take a refresher course in the meaning of the word "slimy." A quick Google search reveals this definition: "disgustingly immoral, dishonest, or obsequious."
If you want to talk about slimy qualities, Governor, try looking in the mirror.
Pikamab Inc., of Menlo Park, California, alleges breach of contract, fraud, and negligence against UAB and Robert P. Kimberly, M.D. (See complaint at the end of this post.) Kimberly is director of UAB's Center for Clinical and Translational Science. He is a professor in the Division of Clinical Immunology and Rheumatology. Kimberly and UAB (technically, the defendant is the the University of Alabama Board of Trustees) claim they are protected from suit by sovereign immunity. They also claim the applicable statute of limitations precludes the Pikamab lawsuit. (See motion to dismiss at the end of this post.)
The lawsuit is before U.S. Judge Jefffey S. White, in the Northern District of California.
According to its complaint, Pikamab is a start-up company that grew from research conducted at Stanford University and the Hospital for Special Surgery (HSS) in New York. The company is attempting to commercialize cutting–edge treatments for cancer, inflammatory disorders, and autoimmune diseases, using an invention related to stratified medicine. The invention is based on a number of patents and patent applications owned by Pikamab CEO Vijay Ramakrishnan, Ph.D,; Stanford; and HSS.
Kimberly and Pikamab entered into an agreement in 2009, and Kimberly became a member of the company's scientific advisory board. The complaint alleges that Kimberly steered Pikamab to award UAB two research contracts, with Kimberly to be the lead investigator on both. From the complaint:
Kimberly convinced Pikamab that UAB had access to unique databases (each called a “Cohort”) that categorized the biological characteristics of medical patients for certain diseases, such as lupus and lupus nephritis. Indeed, in 2011 (prior to the contracts at issue being signed), Kimberly represented that UAB was the only institution that could perform the contract work and stated that he would perform the contract with an utmost level of diligence by stating to Ramakrishnan in a telephone call: “ I will do a great job on these studies” (the “Misrepresentation”).
Court documents indicate Kimberly did not do such a great job, at least in Pikamab's view. The first contract, for $128,000, involved development of a theragnostic product related to certain cancer therapies. The second contract, also for $128,000, involved development of a product for treating lupus and lupus nephritis.
Where did the dispute begin? From the complaint:
When a research institution like UAB undertakes formal research on behalf of a sponsor, it is an industry custom that the investigating institution provide a comprehensive report setting forth, among other things, raw data as well as information sufficient to verify the methodology, scope and accuracy of the research (the “Deliverables”).
Pikamab alleges that Kimberly delivered almost nothing in the way of deliverables, in both contracts:
Defendants utterly failed to provide any Deliverables . . ., even though each contract specifically provided that the Defendants were to provide progress reports and final reports on the research. . . . Notwithstanding his reporting obligations, Defendants delivered a purported final report in the form of a 10-line email on April 30, 2012 that was completely useless. Moreover, from that 10 line email, Pikamab discovered that Defendants lied, misled, and did not perform the relevant studies as per the contract requirements.
A company pays UAB $256,000 for research studies and detailed reports -- and for one of the contracts it gets a 10-line email in return? For the other contract, it gets an irrelevant set of garbled data that was not requested? That raises this question: What kind of research operation is UAB running? The discovery process and possible trial might yield an answer that is quite unflattering for one of Alabama's most important economic drivers.
There also is no effort to address Pikamab's damages, which are substantial, according to the complaint:
As a result of Defendants’ wrongful conduct above, Pikamab was unable to close on least $11 million dollars in financing. Such financing was contingent upon Pikamab being able to provide verifiable research results supporting the Invention. In addition, Pikamab was unable to close on strategic licensing deals with bio-pharma companies who were eager to be involved in the Invention, but who required proof-of-concept data. But Defendants’ breaches deprived Pikamab of the information needed to satisfy the requirements of investors and bio-pharma partners. Because of Defendants’ unlawful conduct, Pikamab ran out of money and was unable to finance new studies. Moreover, Pikamab wrote to other investigators of the lupus Cohort, but none were interested in investigating or resolving Pikamab’s complaints.
That is pretty damning stuff. It accuses UAB of cutting the legs out from under a company that holds the promise of helping to develop advanced treatment for cancers, lupus, lupus nephritis, and other diseases. What could possibly be the underlying motive behind this? Why would UAB do this in both contracts?
As we've reported numerous times in the past, UAB has a history of Medicare fraud, research fraud, and scientific misconduct. (See here, here, and here.) Such cases usually have been quietly settled or kept mostly from public view. It will be interesting to see if Pikamab gets an opportunity in a California federal court to pull back the mask on UAB's highly profitable, but ethically suspect, research enterprise.
|Donald Trump during his "Second Amendment people" speech|
What's the issue that got overlooked? Well, it involves a federal judge from Alabama, a guy named Bill Pryor. Reporter Jay Michaelson picked up on it in a Daily Beast articled titled "Donald Trump’s Supreme Court Pick Would Kill the ‘Right to Remain Silent’ Warning." From the Michaelson piece:
Just a few sentences after the “Second Amendment” remark, Trump boasted, “we have such great Justices, you saw my list of 11 that have been vetted and respected.” At the top of the list—prepared not by Trump but by the Heritage Foundation, the conservative-to-libertarian think tank funded by the Coors family, the Koch Brothers, the Bradley Foundation, the Scaife Foundation, and the Olin Foundation, some of the same funders who have blocked the nomination of Judge Merrick Garland—is Judge William Pryor of the Eleventh Circuit Court of Appeals.
Michaelson then reminds Americans of extremist views Pryor has expressed in the past -- and how they could radically alter our democracy if a President Trump were to nominate Pryor for the U.S. Supreme Court. After noting Pryor's staunch -- and in my view, wildly unlawful -- opposition to abortion rights under Roe v. Wade, Michaelson writes:
Pryor is also (in-)famous for a 2000 speech he gave (to the Heritage Foundation, incidentally) in which he called Miranda v. Arizona one of the two “worst examples of judicial activism.” (The other, of course, was Roe.) If you’ve ever watched a cop series on TV, you know Miranda—that’s the case that required police to tell arrestees “you have the right to remain silent.”
In Pryor’s world, those warnings wouldn’t exist.
The U.S. Supreme Court more or less gutted Mirandawith a 2013 ruling styled Salinas v. Texas. If BIll Pryor were to wind up on the high court, via a Trump presidency, it might wipe out Miranda altogether.
Consider a few troubling implications from such an outcome:
* Miranda applies not only to those arrested and charged with a crime, but also to those who have been detained in a "custodial investigation." In other words, some of these people have not even been accused of doing anything wrong.
|Bill Pryor, in a gay-porn pose|
from the 1990s and badpuppy.com
In an otherwise fine article, Michaelson makes one mistake. Here's how he refers to Pryor:
Now, Bill Pryor is, by all accounts, a distinguished and ethical jurist. Born in 1962, he has had a brilliant career, serving as Alabama’s youngest attorney general from 1997-2003 before being nominated by President George W. Bush to a federal appeals court.
Those of us who have followed Pryor's career closely know he is neither distinguished nor ethical -- and his career has been anything but brilliant.
We have shown that, as a college student, Pryor posed nude for photographs that wound up at the badpuppy.com gay-porn Web site, and he almost certainly failed to mention that in his confirmation hearings, which would constitute lying to Congress. Because of his gay-porn background, Pryor is subject to being controlled, even blackmailed, according to multiple news reports. Pryor perhaps is best known for launching (while Alabama AG) an investigation of former Democratic Governor Don Siegelman, leading to perhaps the most notorious political prosecution in American history.
Pryor's investigation, which turned into a federal probe, started after Siegelman had been in office for roughly three months. (Question: How could Pryor have probable cause to open such an investigation when Siegelman had been in office barely 12 weeks? Answer: He couldn't, which points to the investigation being driven by politics, not facts or law.)
As for Donald Trump, he vanquished the Republican primary field largely because of his ability to entertain and shock audiences. His comment about Hillary Clinton was perhaps his most shocking statement yet. But that should not lull Americans into thinking that Trump is a mere sideshow. He's running for the highest office in the land, and the thought of Bill Pryor on the Supreme Court should scare the daylights out of any thinking American who cherishes civil liberties and the rule of law.
Meanwhile, we have this question: Is Trump's campaign so out to lunch that no one is aware of Pryor's ties to 1990s gay porn? Trump claims that everyone on his "great" list of 11 potential justices has been vetted? Sure doesn't look like it with Bill Pryor. Does that suggest Trump is lying, or he just has no clue?
|Jessica Medeiros Garrison and Alabama AG Luther Strange|
Garrison's arrogance, which was on full display in her as-told-to article at women's fashion magazine Marie Claire, might start dwindling now that we can show her $3.5-million "bonanza" is void. In other words it is a "nullity," worth zero. And those aren't my words; they come from Alabama law on the subject.
The crowing Ms. Garrison will never get enough from that judgment to buy a hot dog at Sneaky Pete's. In fact, the judgment might wind up costing her a lot more than she ever will receive.
How do we know? The answer probably can be found in a variety of Alabama cases, but the best one we've found is styled Abernathy v. Green Tree Servicing (Ala. Civ. App., 2010). In Abernathy, a Franklin County woman faced a default judgment from Green Tree, allegedly because a sheriff's deputy left court papers with the woman's mother. Abernathy wound up having no idea she was being sued. In a complicated series of events, Abernathy had to file two motions seeking relief from the default judgment; in the second instance, notice had been sent to her, but not to her attorney.
Abernathy lost in the trial court, but she took the matter to the Alabama Court of Civil Appeals. Here was the gist of her argument:
Abernathy contends, among other things, that Green Tree did not provide her with appropriate notice of its November 12, 2009, application for a default judgment and that, as a result, the trial court erred when it entered the November 13, 2009, default judgment. Specifically, she argues that Rule 55(b)(2), Ala. R. Civ. P., required that her attorney be given three days' written notice before the entry of the November 13, 2009, default judgment and that the failure to provide such notice constitutes reversible error. We agree.
How did failure to give proper notice affect Green Tree's claim.? You might say it was gutted. From the appellate court:
The failure to provide the notice of the application for a default judgment as required by Rule 55(b)(2) renders the default judgment "void, and not merely voidable," Bracknell v. S.E. Belcher, Inc., 517 So. 2d 588, 591 (Ala. 1987), and "requires a vacation of the default judgment," Southworth v. University of South Alabama Med. Ctr., 637 So. 2d 896, 898 (Ala. Civ. App. 1994).
Like Abernathy, I had appeared in my case; in fact, I appeared once in regular clothes (before I had been arrested because of the Rob Riley/Liberty Duke case) and at least twice in jail clothes during my five-month stay at the "Shelby County Hilton." That is what triggers the three-day notice requirement. In essence, the appellate court was saying there is no excuse for not giving notice of a default application when the defendant has appeared in the case.
The bottom line? I never received any notice of Garrison's default judgment application, or its hearing. The whole process took place without me knowing about it. Davy Hay, a Chilton County attorney who was "representing" me at the time, said the record showed it was not just a matter of me not receiving notice -- there was no indication notice was even sent.
(I put "representing" in quote marks because I was not pleased with the work Davy Hay supposedly did on my behalf. In fact, I'm not sure he did anything on my behalf. We parted ways, and I was left with the notion that I certainly would not recommend Mr. Hay's services to anyone. More on that in an upcoming post.)
Court documents show that my e-mail address was on every document I filed with the court. Garrison or her attorney, Bill Baxley, easily could have sent me an e-mail to determine my whereabouts. They never did that. I think they didn't do it because they didn't want me there; they wanted Garrison and Attorney General Luther Strange to blabber in court without pesky questions from the opposing side -- questions that might center on their professional, and personal, relationship.
Aside from that, Blankenship simply put the burden for notice on the wrong party. The law in Abernathy clearly shows the burden is on the plaintiff -- Garrison in this case. She did not fulfill her obligation, and that makes her $3.5-million default judgment void. In fact, her little piece of paper is worthless, as the Abernathy court makes clear:
Our supreme court has stated that, when the three-day notice provision of Rule 55(b)(2) is violated, a trial court is "without discretion in the matter" and errs to reversal if it refuses to set aside the default judgment. Bracknell, 517 So. 2d at 591. Moreover, our supreme court has written that the failure to provide the notice required by Rule 55(b)(2) "requires vacation of the default judgment regardless as to whether defendant has shown a meritorious defense or not." Cockrell v. World's Finest Chocolate Co., 349 So. 2d 1117, 1120 (Ala. 1977) (emphasis added).
Hay should have included the lack-of-notice argument in his written motion, but he did not. He did, however, argue it during the hearing -- as Blankenship makes clear in his order. That means the issue properly was before the court, And as Abernathy shows, Blankenship had no discretion in his ruling; vacation of the default judgment was required.
What about the time I have to get the default judgment voided? What about Blankenship's outrageous screwups in the case? We will address those issues, and more, in upcoming posts.
For now, we know that Jessica Garrison's $3.5-million default judgment was a "ridiculous little" piece of garbage all along.
(To be continued)
|Pennsylvania AG Kathleen Kane|
Kathleen Kane, the Democratic attorney general of Pennsylvania, was found guilty yesterday on nine counts of perjury and obstruction related to a grand jury leak. Did Kane actually do anything wrong? It's possible. Was her prosecution conducted for political reasons? There is almost no doubt about it, yes.
Kane had outed a number of Pennsylvania judges and other state officials who made it a habit to send pornographic, racist, and misogynistic messages via the Internet. Her investigation, which became known as "Porngate," led two state Supreme Court justices, and others, to resign.
Seamus McCaffery, a Democrat, was the first justice to resign, in 2014. He had been suspended, in part, for attempting to blackmail a fellow justice. Republican Michael Ekin resigned in March 2016.
How gross were the actions of individuals Kane unmasked? Consider this from a 2015 Washington Post story:
Over the past 15 months, beleaguered Pennsylvania Attorney General Kathleen Kane has released a steady stream of messages retrieved from a state email server that show state officials and employees trading pornographic, racist and misogynistic messages.
There are jokes about rape and sexual assault, photos mocking African Americans and other minorities, and insults leveled at people because of their weight, their sexual orientation or their religion. At least two state Supreme Court justices and numerous officials in the office of the attorney general have been caught in the scandal that has been dubbed “Porngate.”
Want more details? Here they are:
A small sampling: A photo of a pantsless woman on her knees performing oral sex on a man is captioned “Making your boss happy is your only job.” A picture of a white man fending off two African American men while carrying a bucket of fried chicken reads “BRAVERY At Its Finest.” The sender of the email that shows a group of men engaged in sex included this message to friends, “How friggin gay are you?”
“When you see these emails . . . it’s just a swamp of misogyny, racism, homophobia and white privilege. It taints everybody, especially in the judicial branch,” said Bruce Ledewitz, associate dean of academic affairs and a law professor at Duquesne University School of Law. “Some of these things are really disgusting. You get the impression that every white male office holder in the state is a creep.”
Did white male office holders take an underhanded path to get back at Kane for unmasking them as creeps? Sure looks that way. Consider this from a Fox News article about Ekin's resignation earlier this year. (And how appropriate is it that "Porngate" is tied, in a roundabout way, to the Jerry Sandusky child-sex scandal at Penn State?)
Justice Michael Eakin's decision to retire marks the latest fallout since embattled state Attorney General Kathleen Kane began releasing hundreds of emails in 2014 to the media and ethics agencies. Kane has since been indicted on perjury and other charges that she claims were trumped up because she took on the old boys' club of Pennsylvania's judiciary and law enforcement. . . .
The exchange of explicit and pornographic emails by state prosecutors was uncovered as part of Kane's internal review of how the office handled the investigation into Jerry Sandusky, the former Penn State assistant football coach now serving a lengthy prison sentence after being convicted in 2012 of 45 counts of child sexual abuse.
Pennsylvania has an old boys' club that controls the courts and law enforcement? Gee, that's a shock. Alabama has one, too. Right now, the Pennsylvania old boys' club is making Alabama's look good, by comparison. And I didn't think that was possible.
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