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- 03/21/13--03:24: _A Fellow Federal Ju...
- 03/25/13--03:16: _Recent Letter Prove...
- 03/26/13--03:23: _CEO Ted Rollins Too...
- 03/27/13--03:39: _Richard Scrushy's T...
- 03/28/13--03:17: _Massive Law Firm Is...
- 04/01/13--03:38: _The Remnants Of Ala...
- 04/01/13--09:05: _It Takes Assassinat...
- 04/02/13--03:18: _Is Luther Strange T...
- 04/02/13--07:50: _The Presence of Fir...
- 04/03/13--03:14: _Campus Crest Remain...
- 04/04/13--03:15: _New Report Reveals ...
- 04/08/13--03:16: _Richard Scrushy: Co...
- 04/09/13--03:28: _Feds Promised To Re...
- 04/10/13--03:21: _Press Release From ...
- 04/11/13--03:06: _We Catch Federal Co...
- 04/12/13--03:41: _Alabama State Unive...
- 04/15/13--03:18: _U.S. Judge William ...
- 04/15/13--09:40: _Feud Among Members ...
- 04/16/13--05:49: _Does The Federal Ju...
- 04/17/13--03:20: _Trusted Strange Aid...
|Judge William M. Acker Jr. (right)|
This revelation raises disturbing questions about Acker's competence, integrity, and fitness as a federal judge. But perhaps more importantly, it shows the wild disparity in the way similar cases are handled, based simply on the supposedly random selection of a judge. We learn that "justice" in America can come down to a crap shoot that might be fitting for the "Wild, Wild West"--if you get one judge, you have a decent shot at receiving lawful treatment; if you draw another judge, you have no chance.
Acker's actions in my case against UAB--granting summary judgment to the university and individual defendants even though no discovery had been conducted--were so outrageous that we don't need additional evidence to prove that the 85-year-old Reagan appointee is a corrupt hack. In fact, we've shown that Acker almost had to have engaged in a criminal conspiracy that likely involved certain members of the Birmingham legal community and several UAB officials. (Acker's bogus ruling on summary judgment can be viewed at the end of this post.)
While anyone with a few weeks of law school (or the ability to read my posts on the subject) should clearly see that Acker acted corruptly in my case, it's nice to receive confirmation from one of the judge's judicial brethren.
The latest evidence comes in the form of a memorandum opinion by U.S. District Judge Lynwood Smith Jr., in a case styled April D. Chandler v. Volunteers of America, North Alabama Inc. (Civil Action No. 10-S-2961-NW).
How similar are the two cases? Smith, like Acker, serves on the federal bench in the Northern District of Alabama. April Chandler, like yours truly, brought various discrimination claims against her former employer.
Some might question my objectivity on this, but I dare say my case against UAB was much stronger than the one April Chandler has against Volunteers. For one, my case included alleged Constitutional violations. And my First Amendment claim was supported by tape-recorded evidence showing that a UAB human-resources official admitted I was targeted because of my reporting on this blog about the political prosecution of former Alabama Governor Don Siegelman.
That is not to discount the serious nature of Ms. Chandler's claims. The evidentiary record in her case points to the likelihood that she experienced racial discrimination. But here is perhaps the key difference in these two cases: Ms. Chandler, in fact, had an evidentiary record in her case; there essentially was none in mine, other than a few affidavits that individual UAB defendants filed--and I was not allowed to challenge.
Let's consider a brief scorecard of how these two similar cases were handled on critical issues:
Chandler case--Extensive discovery was conducted. Judge Smith's memorandum opinion includes 251 footnotes, many of them references to affidavits and depositions submitted by the party opposing summary judgment, which was Plaintiff Chandler.
Shuler case--No discovery was conducted. The party opposing summary judgment, me, was not allowed to gather any evidence, even though I notified the court in multiple documents that no discovery had been conducted. In fact, the case docket shows no discovery meeting even was scheduled. Judge Acker's memorandum opinion includes no footnotes because there was no evidentiary record.
II. Outcome on Summary Judgment
Chandler case--Judge Smith had harsh criticism for Chandler's attorney, who apparently has brought a number of discrimination claims against Volunteer. Smith said the lawyer's briefs and evidentiary material were sketchy and disorganized. Smith granted summary judgment and dismissed Chandler's claims for hostile work environment and retaliation, but he allowed certain aspects of her disparate-treatment claim to go forward. That means Chandler has a chance to receive some measure of justice, likely in the form of a settlement before the case reaches a jury verdict.
Shuler case--Before rendering his finding on summary judgment, Acker actually praised my work as a pro se litigant, stating that my briefs and other documents were better than those he receives from many lawyers. But Acker ignored my multiple motions requesting that discovery be scheduled and conducted, dismissing all of my claims without giving me an opportunity to gather any evidence. The end result? He allowed UAB to get away with misconduct that even one of the university's own HR officials admitted took place.
How off target was Acker? Well, let's consider the following words from Judge Smith in the April Chandler case. It comes under the heading "Motion for Summary Judgment: Legal Standards":
Federal Rule of Civil Procedure 56 provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
So we learn from Smith that discovery is an essential part of the summary judgment process. But he doesn't stop there:
In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
Here we learn that summary judgment is proper only "after adequate time for discovery." And Judge Smith cites Celotex, a well-known U.S. Supreme Court case from 1986.
|Judge Lynwood Smith|
I applaud April Chandler for getting over the summary-judgment hurdle and moving toward a shot at justice; I intend to keep up with her case. But here are questions that any American with a functioning conscience should ask upon learning how these two cases were handled:
"What kind of justice system do we have if the outcome of court cases can vary wildly depending on luck of the draw regarding a judge? What do the 14th Amendment guarantees of 'due process' and 'equal protection' mean if we do not have judge who are able and willing to enforce them? How much damage do corrupt charlatans, such as William M. Acker Jr., inflict upon the very foundation of our democracy?
Here is perhaps the most important question of all;
"How long are we going to quietly allow such gross injustice in the federal courts that all taxpayers fund?"
(Note to readers: Following is Judge William M. Acker's memorandum opinion, granting summary judgment in my lawsuit against UAB. I've been operating for months under the notion that I had scanned this document and run it multiple times on Legal Schnauzer. After all, I've referenced Acker's erroneous ruling on summary judgment in more than a dozen posts. But I recently discovered that I've never run his actual opinion, and that was an oversight on my part. I've run numerous documents leading up to the summary-judgment ruling and a number of documents that came after, including appellate documents. But this is the first time Acker's actual opinion has appeared, and that's because I have it only in hard-copy form, and I just now realized that I have never scanned it for publication on the blog. My apologies for the omission of this critical document in my personal legal journey. But now, better late than never, here is your opportunity to peruse perhaps one of the most outlandish documents in the history of American jurisprudence. I will examine its many absurdities in upcoming posts, but I invite readers to take their own close-up looks at the kind of "reasoning" and "logic" that your tax dollars support.)
According to a new report from Bob Martin of the Montgomery Independent, Strange wrote to lawyers for VictoryLand owner Milton McGregor just before raiding and closing the facility last month. Here, in part, is what Strange said:
"You likely are aware of the situation with regard to Class 2 gambling on Indian land. Federal law governs those facilities, and I do not have jurisdiction to enforce federal or state laws against them."
So what gives? Strange announced his lawsuit against the Poarch Creeks on February 19, the same day he executed a search warrant at VictoryLand, seizing gambling machines, money, and other equipment. Both moves came only a few days after Strange had acknowledged in writing that he had no legal standing to take action against the Poarch Creeks.
Is Luther Strange a liar of mythical proportions? Is he so ethically compromised that he no longer cares if the public can figure out his transparent games? Is he so lacking in a conscience that he happily wastes taxpayer dollars on a legal case that he knows has zero merit? If he has no conscience, is Luther Strange a sociopath?
A reasonable Alabamian might have decided that the answer to all four questions is yes. As for Bob Martin, he provides important background, plus his own insights about what really is driving the attorney general. First, Martin tells us what prompted Strange's letter:
This correspondence was written to McGregor’s attorney Joe Espy after Espy asked him to file a declaratory judgment action against VictoryLand so the matter could be settled once and for all in court, and not force VictoryLand to close until a court ruled the bingo machines there were illegal.
Martin then comes to a logical conclusion about Strange's motives:
Several questions arise from Strange’s actions. If Strange now deems the Poarch Creek machines illegal, how has he suddenly gained jurisdiction over the Indian casino equipment? And why didn’t Strange seize the Poarch Creek machines when he filed suit against them? The answer seems obvious. The Poarch casinos, as I reported two months ago, made a $100,000 campaign donation to Strange in 2010 and the suit is a sham, obviously filed in an attempt to dupe the public.
Is it as simple as that? Has Luther Strange been bought and sold like a common streetwalker? Multiple experts, to be sure, are baffled by the AG's actions. Reports Martin:
“I’ve just never seen anything like this,” said Nelson Rose, author of “Gambling and the Law” and an expert witness who has testified on behalf of pro-gambling interests before. “It’s a public embarrassment for a state official to be doing this. I mean, he doesn’t have any lawyers who know anything about federal law, gaming law, Indian law or any combination thereof,” Rose told The Birmingham News.
G. William Rice, a professor with Tulsa University’s Native American Law Center, told the News that, generally speaking, states have no authority to intervene on Indian lands. “States simply have no jurisdiction over Indian Country,” he said. “I’m afraid that the attorney general’s lawsuit is on very tenuous grounds.”
Translation: These experts seem to suggest that Alabama's chief law-enforcement officer is losing it, to the point that he has become a "public embarrassment." But I suspect Luther Strange is not a loon; he's a man under duress.
Consider a recent column by Alabama political commentator Steve Flowers. He hints that Strange and his staunch political ally, former Governor Bob Riley, are seriously compromised. From Flowers article, dated March 21:
Indeed the closing of VictoryLand created quite a bonanza for the Alabama Creek Indian casinos. For the fourth year in a row they have experienced record setting growth. According to the Indian Gaming Industry Report released two weeks ago by Casino City Press, revenue for Alabama’s Indian casinos grew by over 26% in 2011. The report says Alabama leads the nation in revenue growth for Indian gambling. All of this is a direct result of the continuous havoc being played on the private constitutionally granted casinos by Bob Riley and now Luther Strange.
Have Riley and Strange been wreaking havoc simply because they have been bought off by Indian gaming interests, including the Poarch Creeks in Alabama and the Choctaws in Mississippi? Flowers notes that public records show Riley received more than $400,000 from Indian casinos for his 2002 gubernatorial campaign.
I suspect, however, that the peculiar actions from Riley and Strange go beyond dollars and cents. GOP felon Jack Abramoff admitted in his 2011 book that he funneled some $20 million into Alabama to help Riley beat Democrat Don Siegelman in 2002. That means Riley was the beneficiary of a widespread criminal enterprise, one that never has fully been unearthed.
A number of prominent journalists, including Scott Horton of Harper's, have reported that Congress and prosecutors pursued only a fraction of the criminal wrongdoing in the Abramoff affair. Does that mean Indian gaming interests have plenty of damning material to hold over the heads of Bob Riley and his associates, including Luther Strange? Could this information, if made public, be strong enough to put members of Team Riley in federal prison for years? Does that explain why Riley and Strange are quick to do the bidding of their Indian benefactors?
The answer to all of those questions, I suspect, is yes.
My guess is that dollars and cents, in part, are driving Riley and Strange. But so, in all likelihood, is blackmail.
It all seems to be part of a pattern of abuse that started when Ted and Sherry Rollins got married without a prenuptial agreement. It continued through the Rollins v. Rollins divorce case, which I have called the worst courtroom cheat job that I've encountered. And it continues to this day, with Sherry Rollins struggling to meet expenses each month, leading to frequent threats that her utilities will be cut off.
Did Ted Rollins avoid having a son of his own because he did not want to be tempted to abuse his own flesh and blood? Was this part of the fallout from the documented abuse Ted Rollins heaped upon his stepson, Zac Parrish, who was Sherry Rollins' son from her first marriage?
Based on her statements to Legal Schnauzer,Sherry Rollins apparently believes the answer to those questions is yes. And that is ironic, Ms. Rollins says, because her husband's first marriage, to Monica Bulich, ended largely because she wanted to have children and he did not. From Sherry Rollins' statement to us:
His first wife wanted to have children with him desperately; he left her because of it. But he came and found me with two young sons.
During the second marriage, Ted Rollins became interested in having children of his own--but only under certain conditions. From Sherry Rollins' statement:
Then he said he wanted to have girls; he even went as far as to buy books about conceiving girls. He also talked with doctors on the executive committee of the cancer center at Durham about how to have girls. It was crazy.
Something must have worked because the couple eventually produced two daughters, Sarah and Emma Rollins. But along the way, Ms. Rollins gave birth to a son, who arrived about three months too soon. Both mother and child contracted e coli infections in a case that was so rare that Ms. Rollins' OB/GYN asked for permission to write a research paper on it.
The child's name was Jacob Benjamin Rollins, and he weighed about 1.5 pounds at birth. The little boy lived for about 10 days in the NICU at Wake Forest Medical Center. It's unclear how long he might have lived had Ted Rollins not intervened:
Ted made the doctor take the breathing tube out of his mouth and let him die. [Ted] did not want a son.
Sherry Rollins said the loss of Jacob Benjamin Rollins still haunts her. The child was cremated, and she has kept his ashes.
What's it like to marry into a wealthy family without a prenup? In the case of the Rollins family, it made Sherry Rollins the target of suspicion. That came, she says, mainly from John Rollins Sr. (Ted's father, now deceased); Michele Rollins (Ted's stepmother); Randall Rollins (Ted's billionaire cousin); and Henry Tippie, the family's financial guru who is based in Austin, Texas.
What kind of clout does Henry Tippie have in financial circles? The business school at the University of Iowa is named in his honor. He helps oversee the numbers for Orkin Pest Control, Dover Downs Gaming & Entertainment, and other Rollins enterprises. Says Sherry Rollins:
I read an article somewhere lately that Henry Tippie and Michele are taking money away from Dover Downs. I remember when it went public in 1993 or so, Ted's brother, Jeff, who was 24 years old, made $68 million on the IPO. Ted made somewhere near that, but Mr. Rollins held onto Ted's money as they did not trust his marriage with me, with no prenup in place. I was the only Rollins woman without a prenup. That made them all very nervous from the beginning and influenced how I was treated. They kept private detectives on our house, and especially me. In these families where money is the only respected thing, the new person walking in without their approval and the prenup is a huge threat to their income flow.
As CEO of Campus Crest Communities, Ted Rollins now manages a company that has attracted more than $400 million of Wall Street support. But the family hierarchy did not trust him to manage his own funds. From Sherry Rollins:
Ted was a very wealthy man when we were married. However, John, Michele, Randall, and Henry Tippie made sure that he did not control his own money because of me. I was viewed as nothing more than an ignorant gold digger. . . . Our lives meant nothing at all to these people, and now my daughters are in that same petri dish, watched as [possible threats] to the family wealth.
Previously in the series:
CEO Ted Rollins Got Married Without a Prenuptial Agreement To Satisfy His Taste For Adolescent Boys (2/7/13)
Ex Wife Of CEO Ted Rollins Might Have Been Warned That She Was About To Marry A Child Predator (2/19/13)
Age Difference Might Explain Much of the Ugliness That Led Rollins Divorce To Be A Colossal Cheat Job (2/26/13)
Why Do Ex Wives Of Campus Crest CEO Ted Rollins Tend To Issue Warnings About Possible Child Abuse? (2/28/13)
I've never known quite what to make of Scrushy, but I do know of at least one reason to admire him at this moment. Scrushy was released from federal prison last summer after serving 70 months for his convictions in the Siegelman case. Many individuals, after serving time in one of the most controversial criminal cases of recent decades, would wipe their hands of the matter and quietly get on with life.
But that's not Richard Scrushy. He seems convinced that he was wrongly convicted, that a broken justice system punished him for a non crime, and he remains intent on proving it. I admire that kind of principle and backbone in anyone. And in Scrushy's case, he is absolutely on target--he and Siegelman were railroaded by a bevy of corrupt lawyers, prosecutors, judges, and political operatives.
In his most recent brief to the U.S. Eleventh Circuit of Appeals, Scrushy points to the existence of evidence that likely will prove he and Siegelman never should have been prosecuted, much less convicted, under the law.
Will Scrushy be allowed access to that evidence, and will he be able to use it in a way that shows the Siegelman case was a cheat job of monstrous proportions? Those questions are at the heart of Scrushy's pending appeal, which included oral arguments before a three-judge panel in Atlanta on March 19.
Art Leach, Scrushy's chief attorney in the case, points to law that shows Scrushy is entitled to a review of the documents--and any others that might show his convictions should not stand. (The full brief can be read at the end of this post.)
Will the documents be unearthed, helping to prove what really happened behind the scenes of the Siegelman fiasco? Given the Eleventh Circuit's stupefying actions in the case so far, it's hard to imagine Scrushy's motion being successful. But it's also hard to imagine any lawful justification to deny a citizen's right to prove his criminal convictions were deeply flawed.
Consider, for example, the matter of former U.S. Attorney Leura Canary and her supposed recusal from the Siegelman case. In his brief on the current Scrushy appeal, Leach cites a pending Freedom of Information Act (FOIA) proceeding styled John Aaron v. U.S. Department of Justice, U.S. District Court for the District of Columbia, Case No. 1:09-cv-00831.
John Aaron, an attorney based in Alabaster, Alabama, filed a FOIA request in 2006, seeking DOJ records about Canary's role in the Siegelman case. When the Bush administration turned over almost no pertinent information, Aaron filed a federal lawsuit in 2009. The Obama DOJ also has stonewalled on the matter, but the Aaron lawsuit turned up some compelling information anyway.
A motion from Aaron's lawsuit, however, shows that Judge Coody is mistaken. Writes Leach in the Scrushy brief:
Scrushy cited to a summary judgment motion filed by the U.S. Attorney’s office in [the Aaron Freedom of Information Act proceeding]. A declaration attached to the summary judgment motion by Middle District of Alabama First Assistant Sandra Stewart shows that documents relating to the recusal of the U.S. Attorney not only exist, but had also been indexed. These materials include the entire file of the then-First Assistant and a CD containing “all the captured electronic records from U.S. Attorney Canary’s computer system. . . . ” At the time the magistrate found that no such documents existed, he was on notice that documents relevant to this issue had been gathered and indexed in the D.C. District Court proceeding.
What are the take-home points from this? I can think of at least two biggies:
* Electronic records from Leura Canary's computer system have been captured and indexed, meaning they are in a searchable format.
* U.S. Magistrate Charles S. Coody knew this when he found that no such documents exist. That strongly suggests Judge Coody is incompetent, wildly corrupt--or both.
Is Scrushy entitled to discovery on the Canary issue? Leach cites the applicable law, and it appears to be heavily in Scrushy's favor:
The standard for granting discovery is whether “there is a firm evidentiary basis for believing such evidence likely exists.” United States v. Velarde, 485 F.3d 553, 561 (10th Cir. 2007).
By citing information revealed in the Aaron FOIA case, Scrushy seems to have established beyond a doubt that "such evidence likely exists." The words of Sandra Stewart, Leura Canary's one-time chief lieutenant, make it clear.
Leach then points to law from the nation's highest court to support his contention that Scrushy's discovery requests are due to be granted:
As the Supreme Court held in Harris v. Nelson, 394 U.S. at 300, “where specific allegations before the court show reason to believe that a petitioner may, if the facts are fully developed, be able to demonstrate” that he is entitled to relief, “it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.”
Has there been an adequate inquiry on prosecutorial misconduct, juror misconduct, judicial bias, or any of the other ugly issues surrounding the Siegelman case? Art Leach's words in the Richard Scrushy appeal suggest there hasn't been much of an inquiry at all--adequate or otherwise.
(To be continued)
|Jesse P. Evans III|
But the story does not end there. I know from first-hand experience, and from reporting on cases of other everyday Alabamians, that lawyers make a habit of stealing from non-wealthy clients, too. They just go about it in a little different way.
With middle-class clients, it might not be a matter of direct overbilling. Rather, lawyers will bill steadily while hiding the fact that they are not representing their clients' best interests. Such lawyers have a legal duty to zealously represent the person who is paying them, but instead they are more concerned with the desires of the judge, opposing counsel, the local bar, or maybe all three.
As opposed to "overbilling," you might call this "underlawyering." The client thinks he is being represented--after all, he's paying the bills--but he really isn't. And he's likely to get a lousy outcome, the one chosen for him by what I call "the legal tribe."
Whatever you call them, overbilling and underlawyering amount to glorified theft. And we learned this week that it probably happens in the legal world far more often--and in a much more brazen fashion--than most of us might imagine.
You can rest assured the legal tribe never intended for this issue to make national headlines. But it all started when DLA Piper, which bills itself as the world's largest law firm, sued a New York businessman named Adam H. Victor for $675,000 in legal bills. Victor, an energy-industry executive, fought back by filing a counterclaim and accusing the law firm of a "sweeping practice of overbilling."
Discovery in the counterclaim showed that Mr. Victor was on target. Internal correspondence from DLA Piper revealed lawyers joking about the firm's habit of cheating its own clients. From reporter Peter Lattman, of The New York Times:
Mr. Victor’s feud with DLA Piper began after he retained the firm in April 2010 to prepare a bankruptcy filing for one of his companies. A month after the filing, a lawyer at the firm warned colleagues that the businessman’s bill was mounting.
“I hear we are already 200k over our estimate — that’s Team DLA Piper!” wrote Erich P. Eisenegger, a lawyer at the firm.
Another DLA Piper lawyer, Christopher Thomson, replied, noting that a third colleague, Vincent J. Roldan, had been enlisted to work on the matter.
“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” Mr. Thomson wrote. “That bill shall know no limits.”
"Churn that bill, baby!" might become the equivalent of "Remember the Alamo!" for citizens who are fighting unscrupulous lawyers. And I know what such a fight is like--I've spent more than 10 years on the front line.
As regular readers know, the legal headaches for Mrs. Schnauzer and me began when a troublesome neighbor named Mike McGarity, he of the extensive criminal record, filed a bogus lawsuit against me over a property-related matter. I hired Jesse P. Evans III, a Birmingham lawyer who is noted for his expertise in property law--in fact, he has written a textbook called Alabama Property Rights and Remedies. At the time, Evans was a partner with the firm of Lange Simpson Robinson and Somerville (now Adams and Reese/Lange Simpson), and he handed much of the work on our case over to a junior attorney named Michael B. Odom.
Evans and Odom since have shuffled over to the Birmingham firm of Haskell Slaughter. Experience has taught me this pair is a con-man tag team, regardless of where they lay their hats.
Did Evans and Odom cheat me by overbilling? No, although their monthly invoices were a major burden on our middle-class finances. But this was a classic case of underlawyering. Evans and Odom went through all of the "motions" (pardon the pun) of making it appear they were representing my best interests. They filed a motion to dismiss and two motions for summary judgment--all of which were denied by corrupt Shelby County Circuit Judge J. Michael Joiner, who now resides on the Alabama Court of Criminal Appeals.
It took almost 15 months, but I finally realized Evans and Odom were not really representing me. And they almost certainly were pulling a scam from the outset. What were the signs? I presented pretty much all of them in an e-mail to Michael Odom dated Aug. 15, 2002. (The e-mail can be viewed at the end of this post.)
I wrote the e-mail after I had fired the lawyers from my case and demanded a refund totaling $11,619.16--the full amount I paid Lange Simpson during the course of their "representation." I never received a penny from these high-priced, downtown lawyers, but I had the pleasure of figuring out their game--they simply were going along with a scheme that Judge Joiner had set in motion, along with the neighbor's attorney, the wildly corrupt Willliam E. Swatek.
|Michael B. Odom|
*Refusal to file a counterclaim--In my first meeting with Jesse Evans, in January 2001, I told him that the neighbor, Mike McGarity, had built a fence on our property, essentially stealing some 400 square feet of land that belonged to us. It's hard to imagine a more clear case for civil trespass, which needed to be stated in a counterclaim. We also had viable grounds for nuisance and abuse of process, which could have been asserted in a counterclaim. In the early weeks after Michael Odom began working on our case, I questioned him multiple times about the need to file a counterclaim because (1) We needed to seek damages for the wrongs against us; (2) We needed to make sure we were not in a defensive position throughout the proceedings. After Judge Joiner unlawfully denied our two motions for summary judgment--even though Swatek did not respond with any timely or admissible evidence on either one--I met with Evans and Odom on July 25, 2002, and demanded that we file a counterclaim. They flat-out refused, and that's when I knew they were not working on my behalf--and probably had not been the entire time.
* Filing a second motion for summary judgment--McGarity, via his lawyer Swatek, filed no timely or admissible evidence to counter our affidavits on the first motion for summary judgment (MSJ). Our affidavits were filled with material evidence, countering McGarity's claim of malicious prosecution against me--and under Alabama law, summary judgment had to be granted and the case dismissed. A judge's finding on summary judgment is considered a "nondiscretionary" ruling, and Rule 56(e) of the Alabama Rules of Civil Procedure spells out the process. Case law also makes it clear:
When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing." Voyager Guar. Ins. Co., Inc. v. Brown 631 So. 2d 848 (Ala., 1993).
When Judge Joiner denied our first MSJ--which, by law, had to be granted--Evans and Odom surely knew I was being railroaded, and a second MSJ would be a waste of time and money. But they filed one anyway, and again, it was denied--even though, this time, Swatek made no response whatsoever for his client.
What did this little exercise in legal futility cost me? Well, Michael Odom worked on the second MSJ in December 2001 and January 2002. My bills for those months were $1,204 and $902, respectively--coming to a total of $2,106.
How much did I spend altogether on MSJs? Most of the work on the first one came in August 2001. My bill for that month was $2,312, which means my total outlay on summary judgment motions was $4,418.
What did I get for them? Absolutely nothing. For the same amount of money, or less, we could have filed a counterclaim and conducted discovery that might have forced a settlement. But I now know that Jesse Evans didn't want to file a counterclaim because that, indeed, would have meant discovery--and the judge on our case did not want that.
Joiner, I feel certain, did not want me to become privy to information about how Mike McGarity came to be my next-door neighbor via an under-the-table deal with Briarwood Presbyterian Church and a real-estate agent named Phyllis Tinsley. Judge Joiner almost certainly did not want me to know that the whole scam was executed so that Briarwood Christian High School could offer a sweetheart deal to keep Fred Yancey, its highly successful football coach and our neighbor before he moved to a house on school property--and Mike McGarity entered our lives.
Did Jesse Evans and Michael Odom overbill me, as the DLA Piper lawyers did with Adam Victor? Nope, but they did underlawyer me, charging the hourly rate they had stated, but acting in a way that they knew would get me nowhere.
I've seen similar behavior by lawyers in other cases I've reported here at Legal Schnauzer. Two classic examples are the divorce cases involving Birmingham resident Sherry Carroll Rollins and Clanton resident Bonnie Cahalane (Knox) Wyatt. Ms. Rollins and Ms. Wyatt spent well into the six figures on divorce lawyers, and what did they get? Sherry Rollins wound up with a divorce judgment, thanks to Shelby County Circuit Judge D. Al Crowson, that was so unlawful and one-sided that she and her two daughters have been on and off food stamps. Bonnie Wyatt received a bogus ruling from Chilton County
Circuit Judge Sibley Reynolds that led to her being unlawfully jailed for roughly five months last year. Since her release from jail, she has unlawfully been forced to put her house up for sale.
How is the middle class defined in America these days? I'm not sure, but let's assume it means you have a household income between $35,000 and $75,000. If you fit in that category and someday need legal services--for a divorce, estate matter, personal injury, consumer issue, employment discrimination, you name it--you will be in grave danger of being "underlawyered."
How can you tell if that is happening to you? The following e-mail might provide insight on what to look for. It provides details of how Jesse Evans and Michael Odom mishandled my case--and states my grounds for demanding a refund. It's rather lengthy, and I will spotlight the key points in an upcoming post.
But for now, let's consider this: If you take your car to a mechanic, only to get home and discover it hasn't been fixed, what do you do? You take it back to the mechanic and demand that he fix it, right? What happens if he says you should be content with his sorry performance and refuses to do anything about it? You demand your money back, right?
Jesse Evans and Michael Odom apparently think lawyers are in the rarefied air, above mechanics and all of us regular folks. They think lawyers should be allowed to not do the job you pay for--and still keep your money. That's not how I see it, and here is an e-mail where I made my feelings abundantly clear to Michael Odom.
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|Judge Thomas Young|
Will the state's high court grant the petition? Well, that probably depends on how the justices answer the following questions:
* Do they care about retaining what is left of their tattered credibility?
* Are they concerned about signs that they are engaging in a criminal conspiracy?
In other words, do the justices of the Alabama Supreme Court have any shame? We already know the answer to that question regarding Luther Strange. He is one of the most shameless judge shoppers in the history of the American justice system.
Strange proved that last week when he filed a petition for a writ of mandamus that would force Judge Young off the VictoryLand case. That comes on the heels of Young's denial of a search warrant application from Strange's office, a Supreme Court writ forcing Young to approve the search warrant on VictoryLand property, and Young's refusal to recuse himself from the case.
How ironic is all of this? Strange's office, in a similar case involving the Center Stage facility in Houston County, has been fighting to make sure Circuit Judge Mike Conaway does NOT recuse himself. What's the difference between Judge Conaway and Judge Young? Former Governor Bob Riley, one of Strange's close Republican allies and an avowed gaming opponent, appointed Conaway to the bench. Sonny Reagan, who now is Strange's chief lieutenant in the attorney general's office, interviewed Conaway for the judicial position while serving in the Riley administration.
Translation: Mike Conaway is a friendly judge for Luther Strange; in fact, a reasonable observer could find plenty of grounds to question Conaway's impartiality in the Center Stage case. But the Supreme Court has allowed him to stay on board.
Meanwhile, we've seen no sign that Judge Young is biased toward one party or another, but he did refuse to rubber stamp a search warrant for the attorney general's office, on the grounds that he could find no probable cause that criminal acts were being committed at VictoryLand. Still, Luther Strange wants Young off the case, and few observers will be surprised of the high court sides with the AG.
The irony of all this has not gone unnoticed in Houston County, even in the mainstream media. In a piece titled "Tables turned in Macon County judge bingo battle," Dothan Eagle reporter Lance Griffin writes:
According to court documents, the Attorney General argues that Young’s refusal to sign a search warrant for the VictoryLand raid, his initial reluctance to sign the warrant after being ordered to do so by the Alabama Supreme Court, and written comments placed on the warrant itself indicate a bias against the state.
“On the face of the search warrant, Judge Young wrote that he was signing with ‘the greatest judicial reluctance’ and ‘did not believe that (the) application for search warrant provides sufficient probable cause.’ He ended his note by declaring the State’s case and the Supreme Court’s order was ‘improper according to the law,’” the Attorney General states in his motion for Young’s recusal.
The motion goes on to allege Young made statements to investigators that questioned the Attorney General’s motives for obtaining the warrant.
None of that, of course, proves bias or "the appearance of impropriety" on Young's part. The judge's comments only show that (a) He disagrees with the AG's contentions that probable cause exists in the VictoryLand matter--a reasonable finding given that no court has found the facility's electronic-bingo machines to be illegal; (b) He believes the state's high court is setting a dangerous precedent by issuing an "extraordinary writ" to override the ruling of a local judge.
If the Alabama Supreme Court's actions in the Center Stage case mean anything, its ruling on the VictoryLand matter should be a no-brainer. Last December, the high court denied a petition from the Houston Economic Development Association (HEDA) to have Conaway removed from the Center Stage case; in fact, Conaway is expected to rule soon on motions involving the seizure of cash and machines at the casino near Dothan.
How did the Supreme Court deal with efforts to get Conaway off the case in Houston County? It simply declined to hear the appeal, with no explanation.
For the sake of consistency, we should expect to see the high court act the same way in the Macon County matter, right? A reasonable person should expect a decision stating that the court declines to hear the appeal, offering no explanation and leaving Young on the case, right?
Well, yes . . . if the court cares about maintaining some semblance of credibility with the public. But we've signs that court doesn't care one iota what the public thinks. It's main interest seems to be serving the interests of its political soul mates, such as Luther Strange and Bob Riley.
As for the possibility, however slim, that the court might get nabbed in a criminal conspiracy . . . we doubt the justices are concerned about that, either. But the public should be concerned about it--and a ruling that forces Judge Young off the Macon County case will add to the mounting evidence that something smells mighty foul with the Alabama Supreme Court.
We will address that issue in an upcoming post.
(To be continued)
|The home of Texas prosecutor|
That's when the bullet-riddled bodies of Kaufman County District Attorney Mike McLelland and his wife, Cynthia, were discovered at their home about 20 miles outside of Dallas. The slayings came less than two months after Kaufman County Assistant District Attorney Mark Hasse was killed in a parking lot a block from his courthouse office. Authorities apparently have no solid leads in either case, although they suspect the killings might be connected.
A quick search on the Web reveals that the Texas justice system has been in crisis for years, especially if you are a citizen who has seen your constitutional rights trampled or your tax dollars wasted because of public corruption. But that reality apparently did not hit home to elites in the justice system until some of their own started turning up dead.
Consider this report from The Dallas Morning News, quoting Kaufman County Sheriff David Byrnes:
Authorities had worked frantically Saturday night to confirm that other officials were safe, and sources confirmed that security was being provided at the homes of others who authorities feared might be targets.
However, Byrnes repeatedly declined to discuss specific concerns about security, though he acknowledged “taking precautions to protect other elected officials. . . . ”
And though he would not discuss what protection for officials may be in place, he acknowledged the slayings of the McLellands and Hasse were worrisome.
“It’s unnerving to the law enforcement community and the community at large, which is why we’re striving to ensure the community we are providing public safety,” he said. “We’re meeting all our duties, plus our investigative duties.”
So Sheriff Byrnes finds the assassinations of two prosecutors and one spouse to be "worrisome," and the law-enforcement community finds it "unnerving." That's understandable, of course, but have Byrnes and his colleagues been unnerved about the following headlines I pulled off the Web in about five minutes' time?
* Texas gets near failing grade for corruption risk (March 20, 2012)
* Corrupt Texas judges going to jail this month (April 27, 2011)
* Judge, DA, and lawyer accused in Texas corruption case (September 7, 2012)
* Texas sheriff arrested, charged in corruption investigation (March 6, 2013)
I found those cases of Texas-sized sleaze, plus several others, in a Web search of less than five minutes--covering only the past couple of years. Geez, what if I had searched for 10 minutes and gone back, say, to 2005? I probably still would be sorting through all the material.
The point, however, seems clear. Texas' justice system is a cesspool of corruption, but as long as it affects regular citizens, elites like Sheriff Byrnes don't much seem to care. In fact, you don't hear a peep out of them--and that's because sheriffs, judges, DAs, and lawyers are the ones benefiting from that criminal activity.
What happens when a criminal turns the table, and heaps suffering upon the elites? It's time to yell, "Sweet Jesus, we got a crisis on our hands!"
I can imagine such a reaction if similar events transpired here in Alabama. Let's consider the following scenario:
Over the course of five weeks, five lawyers from large Birmingham firms turn up dead, their corpses filled with bullet holes. These slayings occur at a rate of one per week, and authorities quickly pick up on a pattern. One lawyer is gunned down while he works in his yard. Another dies while having sex with his mistress. One is killed while checking under the hood of his Mercedes. One dies in a hail of gun fire while cleaning debris from his pool. Finally, one is slain while having sex with his wife. (This, of course, is an unmistakable sign that our scenario is fictional.)
I can hear the howls of alarm and concern from the usual high-profile lawyers who tend to be quoted in the local press. Doug Jones of Haskell Slaughter, Matt Lembke of Bradley Arant, and Drayton Nabers of Maynard Cooper Gale would be among the local lawyers fretting over "a crisis in our justice system."
"Something must be done," they would screech. "Someone is trying to keep the wheels of justice from turning."
Jones, Lembke, and Nabors, of course, are well aware that Alabama's justice system has been marked for years by corruption--in both state and federal courts. In fact, Jones, Lembke, and Nabors are just three of many lawyers who have helped create our dysfunctional justice system.
But you never hear them raise a concern as long as everyday Alabamians are the ones suffering at the hands of corrupt judges, prosecutors, lawyers, and the like. But let a few members of the justice elite experience some suffering and . . . well, Jones and Co. would be in panic mode, just like the one now gripping justice elites in Texas.
The killings in Texas are unmistakably alarming, and they have all the trappings of a terror campaign. One prosecutor was killed near his office, and another (plus his wife) was killed at his house. That seems to send this message to certain authorities: "You are not safe at work, you are not safe in your homes, and your loved ones aren't safe either."
Was the messenger wronged by someone in the Kaufman County criminal-justice system? Does the messenger perceive that he was wronged, even though his issues were handled correctly under the law? Is the messenger a madman who has decided to target officials in one county for no apparent reason? Could the messenger be affiliated with a white supremacist group called the Aryan Brotherhood of Texas, as reported in The New York Times?
Perhaps we will learn the answers to those questions before too long. But for now, justice elites in Texas are in a state of siege, and they are feeling terrorized. That's ironic because that's exactly how it feels to be on the receiving end of a court-related cheat job.
My wife and I know that from 12 years' worth of personal experience. I know it from reporting on cases involving fellow Alabamians--some well known, others relatively unknown. I'm talking about people like Sherry Carroll Rollins, Don Siegelman, Bonnie Wyatt, Richard Scrushy, Angela Drees, Sue Schmitz, and more. I know it from reporting on cases next door in Mississippi, involving people like Paul Minor, Wes Teel, John Whitfield, and Oliver Diaz.
A great philosopher once said, "Karma's a bitch." Someone seems to be driving that point home right now for justice elites in Texas. Perhaps their brethren in other states would be wise to pay attention.
A reasonable Alabamian might pose that question, especially in the wake of reports that Strange is asking the high court to force Macon County Circuit Judge Thomas Young to step down from the VictoryLand seizure case. Strange's request seems goofy, coming on the heels of his petition to ensure that Houston County Circuit Judge did NOT recuse himself from a similar case involving the Center Stage casino near Dothan.
To the casual observer, this might seem like nonsense, with neither Strange nor the Supreme Court showing any common sense or consistency. But Alabamians should remember that justices on the state's high court have been issuing questionable rulings on gambling-related issues for almost five years now. It dates to the last two years of the Bob Riley administration, and our research points to evidence of dark activity that cuts at the heart of the state's justice apparatus.
We are talking about unlawful communications with the court regarding pending cases. If proven, this probably would amount to federal crimes--the kind that might earn prison sentences for some of the state's most powerful officials.
First, we know that Luther Strange and Bob Riley are allies, thanks partly to their mutual connections with the Birmingham right-wing law firm Bradley Arant. In his last days as governor, Riley cut a deal with Strange in which he would help raise $2 million for the AG's possible gubernatorial run in 2014. In return, Riley wanted "protection" and the procurement of business for his children.
That, of course, is the kind of "something for something" deal (quid pro quo) that amounts to bribery under federal law. But the story gets uglier from there.
In February 2010, less than a month after Riley had left office, the Montgomery Independent reported on evidence that the administration had engaged in unlawful communications with the Supreme Court on gambling-related cases. We covered the story, based on the reporting of Independent publisher Bob Martin, in a post titled "Was Monkey Business Involved In Supreme Court's Bingo Ruling?" From that post:
Lawyers for VictoryLand were surprised by a citation in a motion to vacate an injunction that had halted raids by the governor's task force at the Macon County facility. The citation was to a case styled Surles v. Ashland, and that was curious because the decision in Surles had not been released at the time the task force's motion was filed.
The episode suggests that someone at the Alabama Supreme Court was working in conjunction with the governor's office. This would not be the first time we've seen reports about possible improper communications between Riley's office and the Supreme Court. It also is not the first time we've seen signs that Alabama's highest court is fully capable of acting in a corrupt fashion.
Is Luther Strange now using an unlawful pipeline that Bob Riley put in place? If so, how profound is all of this? It means we have a court system that cannot be trusted, that is infested with unlawful political machinations. More from our earlier post:
Bob Martin, editor and publisher of the Independent, says the task force's motion was time stamped at 1:55:15 on January 29. The Surles decision was not released until 2:04 on January 29. Writes Martin:
According to Supreme Court Rules and policies no one, including attorneys in a case, are permitted to see or be told the details of a decision other than the justices and the court staff. Although attorneys for both sides are notified the result of a case two hours prior to its release, they are not told the details and lawyers with whom I talked said it would take clairvoyant skills for a lawyer to be confident enough to cite a case by only having knowledge about which side won or lost.
This conduct might go way beyond violations of Supreme Court rules. If the U.S. mails or wires were used, it likely would constitute obstruction of justice under federal law. Obstruction might be just the beginning of federal charges that could be brought in such a case.
Of course, that would require a U.S. Justice Department that is attentive and competent--and the Obama DOJ, under Eric Holder, has proven so far that it is neither.
How far are Luther Strange and the Alabama Supreme Court willing to push it with Bob Riley's "underground railroad" of judicial and political chicanery?
If the high court forces Judge Young off the VictoryLand case, we probably will have our answer.
|Texas prosecutor Mike McLelland|
Those who hold such beliefs might want to consider the experience of Mike McLelland, who was district attorney of Kaufman County, Texas. I say was because McLelland and his wife, Cynthia, were shot and killed on Saturday by an intruder at their home some 20 miles southeast of Dallas. The slayings came less than two months after one of McLelland's chief assistants, Mark Hasse, was killed by one or more gunmen in the courthouse parking lot.
In the wake of Hasse's murder, McLelland made a number of tough public statements, vowing to apprehend the "scum" who were responsible. McLelland even made it clear that he had taken extra precautions to protect himself. The message that McLelland sent, in so many words, was this: "I am heavily armed, and I am a professional who knows how to use weapons."
Did that help keep him alive? Not exactly. Authorities say McLelland was shot multiple times while wearing his pajamas. Here is how The Dallas Morning News described McLelland's mindset after the Hasse murder:
McLelland himself had said he was taking no chances after Hasse was assassinated.How could a heavily armed "soldier," on high alert, wind up being shot to death in his own home? Here are details of the crime scene from The Dallas Morning News:
He said he carried a gun everywhere he went and always took extra care when answering the door of his home.
“I’m ahead of everybody else because, basically, I’m a soldier,” the 23-year Army veteran boasted less than two weeks ago.
Investigators said little publicly about the crime or possible suspects. But a law enforcement official, speaking only on condition of anonymity because of the sensitivity of the case, called the attacks at the McLellands’ home “brazen.”
The shootings appeared to be premeditated, well-orchestrated and anything but a random burglary that went bad, several law enforcement officials said.
Cynthia McLelland’s body was found near the front door, and it appeared she had answered the door, the officials said. At least two officials said Mike McLelland’s body was found toward the rear of the house. He was dressed in pajamas.
Both were shot more than once, apparently with a large-caliber assault-style rifle. “They found the bodies and a lot of shell casings,” a law enforcement official said.
“It’s a bad deal. This is brazen. It’s revenge. You don’t go in there and do the stuff that’s been done if it’s not revenge motivated.”
Texas is known for its gun-toting, cowboy culture--and McLelland seemed to revel in his tough-guy image. But that did not help much--not when a bad guy with an assault weapon made him, and his home, a target.
|Copper Beach Townhomes|
Do corporate big dogs see something in Campus Crest that everyday consumers can't see? Is the investment world unconcerned about the company's questionable ethics and shaky operations as long as the bottom line produces favorable numbers?
The answer to both questions appears to be yes. But perhaps its time investors put themselves in the shoes of employees and customers who have seen the real-world view that Campus Crest has successfully hidden from Wall Street.
Charlotte-based Campus Crest has developed student-housing complexes, under The Grove banner, near some 40 public universities around the country. The company is of special interest here at Legal Schnauzer for three primary reasons: (1) It has Grove sites operating or planned at four Alabama institutions (South Alabama, Troy, Jacksonville State, and Auburn); (2) CEO Ted Rollins played a central role in a Shelby County divorce case that caused his ex wife, Sherry Carroll Rollins, and their two daughters to wind up on food stamps; (3) Campus Crest's chief corporate law firm is Birmingham-based Bradley Arant.
We have reported, along with the mainstream press, on all sorts of operational problems at Campus Crest. Those include discrimination lawsuits at corporate headquarters; a balcony collapse that led to serious injuries in Denton, Texas; and mold, heating, and water problems at Orono, Maine.
For good measure, we have reported extensively on Ted Rollins' personal ethical lapses--including a conviction for assault on his 16-year-old stepson, an investigation for child sexual abuse of the same stepson, and perjury in his Alabama divorce case.
If the business community is concerned about any of this, it's hard to tell.
First came reports that Campus Crest had reached agreement to acquire Copper Beach Townhome Communities, which has been a major player in the student-housing sector for about 20 years. Lawyers from Bradley Arant helped orchestrate the transaction. Here is what made Copper Beach an attractive target for Campus Crest:
Copper Beech, which was founded in 1994, is the fifth largest student housing operator in the United States, with a portfolio of approximately 16,645 beds. For 20 years, it has been a vertically integrated developer, owner and operator of a unique, market-tested, branded town-home student housing product. The Copper Beech portfolio consists of 35 student housing properties, including two phase II development properties scheduled to open in fall 2013, plus one undeveloped land parcel in Charlotte, NC and Copper Beech's corporate office building in State College, PA. Copper Beech has utilized its vertically integrated platform to develop 30 of its 35 properties. As of February 13, 2013, the operating portfolio had an average occupancy of 98.5%, marking three consecutive years with occupancy levels in excess of 98%.
Then came news that Campus Crest had closed on a $300-million stock offering, designed primarily to fund investment in the Copper Beach portfolio. By our unofficial count, that brings Wall Street's total investment in Campus Crest to about $730 million.
All of this comes with a load of irony. Copper Beach is based in State College, Pennsylvania, and its founders and CEOs are John and Jeanette McWhirter. In 2010, the McWhirters were among the largest donors to Penn State University.
Why is that ironic? We will examine that question in a series of upcoming posts.
(To be continued)
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The Saban revelations are part of an investigative series about NCAA President Mark Emmert. Before assuming his current position, Emmert served as chancellor at the University of Connecticut and LSU. USA Today reports that Emmert played a prominent role in limiting damage from an academic scandal that happened on Saban's watch at LSU.
Saban's connections to scandal should not come as a surprise, given that he was brought to Alabama by a man with documented ties to massive insurance fraud. Saban was head coach at LSU from 1994 to 2004 and won one national championship before leaving to spend two seasons as head coach of the Miami Dolphins in the National Football League. He became Alabama's coach in November 2006 and has led the Crimson Tide to national titles in 2009, 2011, and 2012.
Paul Bryant Jr., the current president of the University of Alabama Board of Trustees, played a major role in luring Saban to Tuscaloosa. Bryant, the son of late Hall of Fame Coach Paul "Bear" Bryant, long has been considered one of the most powerful boosters in college athletics. Despite his role as head of UA's governing body and kingmaker in the athletics program, Bryant Jr. keeps a low profile, rarely granting interviews.
That might be because of ugliness in his past as CEO of Greene Group Inc., an umbrella firm for Bryant's business interests in casino management, dog tracks, catfish farming, ready-mix concrete, and insurance.
Alabama Reassurance, one of Bryant's companies under Greene Group, was implicated in a $15-million insurance-fraud scheme that drew a 15-year federal prison for a Philadelphia-based lawyer/entrepreneur named Allen W. Stewart. The case was tried in 1997, with Stewart found guilty on all counts, and he only recently was released from prison. Bryant, meanwhile, managed to escape scrutiny, even though an Alabama-based probe was planned if the Pennsylvania case resulted in convictions. (A court document from the Allen W. Stewart case can be viewed at the end of this post; a footnote on page 11 outlines Alabama Re's connections to the case.)
G. Douglas Jones, a UA graduate who has done legal work for Bryant, had been named U.S. attorney for the Northern District of Alabama by the time the Stewart case drew to a close. Once Jones took office, the planned Alabama Re investigation mysteriously was canceled. We have asked Jones multiple times about his apparent role in protecting Paul Bryant Jr. from a federal investigation, and Jones has refused to answer our questions.
The bottom line? Public documents show that scandal lurks in the background of Alabama's lead trustee and No. 1 football booster. Thanks to USA Today, we now know that scandal also has touched Nick Saban, the coach Paul Bryant Jr. helped bring to UA. Here is how reporter Brent Schrotenboer describes Mark Emmert's role in covering up the academic scandal at LSU:
At LSU, an academic fraud scandal emerged in the football program under then-coach Nick Saban in 2001-02. Emmert oversaw an investigation into the allegations made by a university instructor that eventually acknowledged five minor and isolated violations and declared most of the claims "unfounded."
Emmert even met on LSU's behalf with the NCAA, which accepted LSU's findings. But after Emmert decided to leave LSU in 2004, a witness testified in a deposition that the instructor was telling the truth and that the problems were far more systemic than the school admitted, even extending to grades being changed for football players, according to court records.
Court records show that grades were changed for football players while Nick Saban was head coach at LSU? Amazingly, the Alabama mainstream press, so far, has not picked up on this story.
How bad was LSU's academic environment while Saban was football coach? From USA Today:
The culture was "appalling" and "like Romper Room," the employee said in 2004 testimony.
At LSU, Emmert made changes to help turn around the football program, saying "success in LSU football is essential for the success of Louisiana State University."
He hired Saban as coach in 1999 and helped make him the nation's highest paid coach ($2.3 million) after the Tigers won the BCS championship in January 2004. Two years earlier, Emmert himself had become the nation's highest-paid head of a public campus when his compensation was increased to about $500,000, a portion of which was paid by the Tiger Athletic Foundation.
Supporters justified his salary in part because he oversaw a fundraising drive that was on its way to bringing in $255 million.
Public records, however, show that football success came at the expense of academic integrity:
Scandal broke in 2001-02. A university instructor accused the school of having systemic academic fraud in its football program, including plagiarized papers on bobsledding players were turning in and un-enrolled students showing up to take notes for football players, who often slept through class. A graduate assistant also spoke out about the plagiarism problem.
At the time, LSU already was on NCAA probation for a recruiting scandal in men's basketball that happened prior to Emmert's arrival. Findings of more major violations typically would trigger harsh penalties.
Led by Emmert, LSU investigated the fraud allegations and said they found only five minor isolated problems, resulting in a self-imposed penalty of two lost scholarships in football. "Despite isolated incidents, the allegations were largely unfounded," says LSU's 82-page report on the allegations.
Court documents eventually would show that the incidents were not "isolated," and the allegations were not "largely unfounded":
The NCAA accepted LSU's findings in May 2004 and declined to put the school on probation. But the two female accusers had sued LSU, claiming they were forced from their jobs at the university in retaliation for blowing the whistle on the powerful football program.
Shortly after the NCAA case was settled and Emmert announced he was leaving for Washington, another LSU academic counseling employee backed up the women's claims under oath, saying there were numerous examples of favoritism for football players in academics, including changed grades and having papers typed for them, according to court documents obtained by USA TODAY Sports.
LSU later paid the two women more than $110,000 each to settle their lawsuits.
Did Mark Emmert conduct a serious investigation of Nick Saban's football program? It doesn't look like. From USA Today:
A person who worked for LSU as an academic counselor in athletics at the time told USA TODAY Sports the investigation was a whitewash designed to minimize damage. The person asked not to be identified for fear of reprisals.
"They'd interviewed the people they wanted to," the person said. "It was typical, let's get together and do damage control and construct a narrative that will allow us to say, 'OK, we've done something wrong here, but it ain't that bad.'"
The attorney for the accusers, Jill Craft, told USA TODAY Sports, that "LSU's self-report was way downplayed to what they were originally told and what my clients reported. In fact, the evidence that shook out over time revealed that the academic issues, especially in football, were systemic."
What could this mean for Saban and Alabama? John Pennington, of the Web site Mr. SEC, touched on that question in a post titled "USA Today Digs Into Emmert, Digs Up Issues For LSU, Saban." From Pennington:
Whether Emmert was guilty of a cover-up or not, LSU is back in the news today. So is Nick Saban, who will have to answers about this situation and how it might pertain to his current program at Alabama.
That scenario, as described under oath by former Siegelman aide Nick Bailey, has a slight flaw--it never happened, according to a man who was central to the alleged transaction.
Richard Scrushy, who was released from federal prison last July after serving a six-year sentence, says he never had such a meeting with Siegelman--and he never gave the governor a check.
That is one of several major revelations from Scrushy's one-hour interview last Thursday with San Francisco-based radio host Peter B. Collins. It was Scrushy's first interview about the Siegelman case, and the podcast can be heard in its entirety here, at peterbcollins.com. Collins invited me to assist with the interview, and I was on the phone line to hear Scrushy describe the case against him and Siegelman as a "farce" and a "joke."
In fact, Scrushy still can't seem to believe that it happened. Says the former CEO:
It's painful to grow up a Boy Scout and love your country, and your daddy is in the military, and to go through all of this--and see the corruption and dishonesty. It’s hard, as an American, to experience this in our own country.
Siegelman was released from custody to pursue his appeals, but after the U.S. Supreme Court declined to hear the case, the former governor returned to federal prison last September 11. Siegelman now resides at a facility in Oakdale, Louisiana, a fact that clearly disturbs Scrushy:
He shouldn’t be in prison today. He was innocent. He did nothing wrong, I did nothing wrong. There was no corruption, no bribery. This thing is a total farce, a total fraud.
How can Scrushy make those statements with such certainty? To answer that question, we turn to the central moment in the criminal trial. It came when Nick Bailey described his boss, Governor Siegelman, holding a check for $250,000 after a meeting with Scrushy. The check, Bailey stated, was for Siegelman's education-lottery campaign, and as part of the deal, Scrushy wanted a seat on the Certificate of Need Board (CON), which regulates Alabama health-care facilities.
Those who have closely followed the Siegelman case probably can remember Bailey's version of events word for word. We referenced it in a post last June titled "SCOTUS' Refusal to Review Siegelman Case Will Forever Stand As a Reminder of Obama's Shame." Here is how we described it, with text taken directly from an appellate brief filed by government prosecutors. At the heart of the scenario is a check written by a Maryland company called Integrated Heath Services (IHS):
Siegelman and Scrushy subsequently met in Siegelman’s office. Bailey testified that, at some point after the meeting, Siegelman showed Bailey the IHS check and said that Scrushy was “halfway there. . . . ” Bailey asked, “what in the world is he [Scrushy] going to want for that?” Siegelman replied, “[T]he CON Board.” Bailey responded, “I wouldn’t think that would be a problem, would it?” Siegelman replied, “I wouldn’t think so.”
Scrushy told Collins that Bailey's version of events was wildly off track:
I never gave the governor a dime and never had a meeting with him where we discussed that I would serve on any committee or contribute to pay down any debt or help with a lottery referendum. We never had any meetings to discuss that, and they couldn’t put me in a meeting with the governor. There is no evidence to support any of that.
|Peter B. Collins|
They had to pay off a debt to the Democratic Party . . . , and wealthy businessmen in Alabama had signed on that note. Elmer Harris again came to see me and said Alabama Power was putting in $100,000, and ALFA Insurance was putting in a bunch, and he named a bunch of other companies that were paying it down. He said you’ve never helped the governor, and never given him a dime, you’ve never done anything in the state of Alabama to help this guy, can you help these businessmen get off this note? And I said, “OK, I will put in $250,000."
Now, I already was leaving CON. We wrote a check to help pay down that debt to the Alabama Democratic Party, which was all we ever put in. But it’s still everywhere that I gave the governor $500,000.
Scrushy still seems to have a hard time believing that he went to prison under such circumstances:
The governor and I get indicted for bribery to be on a volunteer board I didn’t want to be on. And I never gave him any money. The whole thing was a farce. We thought it was a joke, and I thought it would go away.
Scrushy proved to be wrong about that. But he is not backing away from the legal battle. Even though Scrushy has served his sentence, he has an appeal before the U.S. Eleventh Circuit, seeking discovery that might help prove misconduct on the part of judges, prosecutors, and jurors in the case.
The Collins interview marks the first time Scrushy has talked extensively about the Siegelman case. The former CEO winds up providing stunning insights into what likely is the most notorious political prosecution in American history.
(To be continued)
|Richard and Leslie Scrushy|
Scrushy, the former CEO of Birmingham-based HealthSouth Corporation, said prosecutors gave him several examples of testimony that would help ensure a bribery conviction against Siegelman. None of the proposed statements was truthful, Scrushy said, so he refused the offer. He wound up being convicted and was released from federal prison last July after serving a six-year sentence. Siegelman was released from custody for several years to pursue appeals, but returned to prison last September after the U.S. Supreme Court refused to hear the case.
The latest revelations in the Siegelman saga came during Scrushy's interview last Thursday with San Francisco-based radio host Peter B. Collins. A one-hour podcast of the interview, Scrushy's first on the Siegelman case, can be heard in its entirety at peterbcollins.com. The former CEO, now a resident of Houston, Texas, makes it clear that prosecutors were willing to trample criminal procedure and simple rules of fair play in an effort to gain a conviction against Siegelman. Their tactics included a blatant effort to coerce false testimony from Scrushy, who was Siegelman's codefendant.
Scrushy called the case against him and Siegelman--and the actions of prosecutors--a "total farce, a total fraud." Perhaps nothing was more fraudulent than prosecutors' efforts to pressure Scrushy into concocting testimony that would amount to a quid pro quo ("something for something" deal) that is central to a federal bribery case, in the context of a campaign contribution.
The testimony that prosecutors wanted had a slight problem, Srushy said; he and Siegelman did not have a "something for something" deal. In fact, Scrushy repeatedly said during the Peter B. Collins interview that he did not want the Certificate of Need Board (CON) appointment for which he supposedly bribed Siegelman. Here is Scrushy from the Peter B. Collins interview:
I found myself in a conversation with my attorney, and he had prosecutors on the other line, and they said, "If Richard will give us the governor, we’ll let Richard out." They gave me four or five scenarios, and my lawyer said to go home and think about it. I said, “This isn’t going to take much time. I can’t see me sitting on a stand and swearing this man did something wrong when he didn’t do anything wrong."
Scrushy did go home and discuss the matter with his wife, Leslie. But she apparently could not believe that officials who are sworn to uphold the law would make such a proposal:
I went home to discuss it with my wife and said, “Leslie, honey, what do you think?” And she said, "You’re not going to lie on him are you?" And I said, "No, I’m not a snitch. I'm not going to say he did something that he didn’t do." So I called them back and said no, we’ll go to trial. I couldn’t believe they would find us guilty because we didn’t do anything wrong, and there was no evidence that we did anything wrong."
Despite the weak evidence against them, Siegelman and Scrushy were convicted--and Scrushy wound up with a graduate-level education in the way America's broken justice system really works. It all was driven, Scrushy says, by Bush White House strategist Karl Rove and his plan to eliminate prominent Democrats, especially in Republican strongholds such as Alabama:
There's no doubt Karl Rove wanted the governor. If I had been willing to do what they asked me to do and say things they wanted me to say, I would have walked out and I wouldn’t have gone to prison. I didn’t know Governor Siegelman that well, but I couldn’t get up and say the things they asked me to say because they were not true. To know he’s got two children and a wife . . . I couldn’t wake up every day the rest of my life and say, “Richard Scrushy, you are a liar and you know you put that man in prison.” I’m not going to do that.
Scrushy took a principled stand, but he paid a huge personal price. Meanwhile those who did testify against Siegelman, such as former aide Nick Bailey, received reduced sentences after pleading guilty to federal crimes. Said Scrushy:
I would rather spend five or six years in prison myself. My wife and kids suffered greatly. And I was in a horrible place, a place no man wants to go. But I feel better about myself. These other people put [Siegelman] in prison. He shouldn’t be in prison today. He was innocent. There was no corruption, no bribery.
(To be continued)
|Luther Strange and|
Jessica Medeiros Garrison
Luther Strange, Alabama's current attorney general and one of Riley's closest allies, is making a serious run for the title of "World's Biggest Political Hypocrite." Since Luther stands 6-8, he is a big hypocrite in every sense of the term.
At the heart of the storm is Jessica Medeiros Garrison, who was campaign manager for Strange's 2010 attorney general race and remains one of the AG's closest confidants.
All of this comes to mind because of a recent report from Montgomery Independent publisher Bob Martin, whose work appears in the Atmore News and a number of newspapers around the state. Martin reports that the Alabama Ethics Commission recently ruled that Strange can keep a $100,000 campaign contribution from the Poarch Creek casinos. Writes Martin:
Shortly after The Montgomery Independent reported last October that Mr. Strange accepted the money, an ethics complaint challenging the contribution was filed by Tuskegee Mayor Johnny Ford.
Ford accused Mr. Strange of threatening raids on the VictoryLand in order to seize its electronic bingo machines, an event that occurred a few months later.
The commission’s general counsel, Hugh R. Evans, has written Mayor Ford that the commission has now closed the case, telling Mr. Ford the commission has carefully reviewed the notebook of information he provided.
How closely did the commission examine the material that Ford submitted? Probably not all that closely. In fact, Martin writes that evidence suggests only Evans, and not the entire commission, reviewed the material.
What grounds did Evans give for rejecting Ford's complaint? He says there is "no nexus between the Poarch Creek Indians' contribution and General Strange." No nexus? Here is an online definition of the word "nexus":
A means of connection; a link or tie
Evans admits in his letter that both Luther Strange and the Alabama Republican Party received money from the Poarch Creeks. In other words, money went from Point A to Point B--and from Point A to Point C. I would call that a pretty serious nexus.
How does Jessica Medeiros Garrison enter the picture? It comes from a press release she produced on March 11, 2010, in the midst of Strange's primary contest against incumbent Troy King. (See full release at the end of this post.)
Garrison takes King to task for accepting gambling money in his campaign. From the press release:
Public records show that at least $190 thousand in campaign contributions from gambling operators, slot machine manufactures and their lobbyists were funneled to the Troy King campaign through a series of PAC to PAC transfers.
On February 18, 2010, Mr. King told radio listeners that he would return contributions made to his campaign if it were shown those funds came directly or indirectly from gambling interests. Research of public records clearly shows the trail of money from gambling interests to political action committees to King.
Garrison goes on to call for King to return the gambling funds, which she claims add up to at least $190,000. She says King might need to return as much as $400,000.
Let's see if we have this straight: In March 2010, Jessica Medeiros Garrison was exorcised over the fact that public records showed Troy King accepted campaign funds from gambling interests. But we now know that just a few months later--between July 15 and August 4, 2010, to be precise--Luther Strange accepted at least $100,000 from gambling interests, specifically the Poarch Creek Indians.
Is Jessica Medeiros Garrison calling on Luther Strange to return funds that he received from gambling interests? We haven't heard a peep out of her. As for Big Luther himself, it appears he intends to keep every dime that the Alabama Ethics Commission says has no "nexus" to the Poarch Creeks.
Jessica and Big Luther have some serious "splainin" to do. They also should be proud that their hypocrisy rivals that of Bob Riley. That, indeed, is quite an achievement.
|Hugo Black U.S. Courthouse|
The purpose of the scam was to use the U.S. mails and court process to cheat my wife in a pending employment lawsuit. My use of the word "scam" probably is too mild to describe what happened; a strong case could be made that we unearthed a criminal conspiracy for obstruction of justice.
The infuriating part of the experience was that we drove about 40 miles round-trip for a court proceeding that did not occur--and, in fact, never was intended to take place. The exhilarating part is that we foiled a plot for now, and we are going to unmask the culprits on this blog. What happens next? We don't know, but you will be reading about any and all developments here at Legal Schnauzer.
Regular readers probably recall that Mrs. Schnauzer (MS) was unlawfully terminated from her job at Birmingham-based Infinity Insurance in October 2009, during the course of our lawsuit against various debt collectors and lawyers under the Fair Debt Collection Practices Act (FDCPA).
As the FDCPA case was reaching a critical juncture, with discovery about to commence, my wife's supervisor at Infinity told her to change her start time from 9 a.m. (central time) to 9:30, in order to assist with the company's large customer base in California, which has a two-hour time difference from Alabama. MS did as she was told and started arriving at work around 9:20 each day, only to have her supervisor allege she had been chronically tardy and fire her. When MS pointed out the directive to start her workday at 9:30, the supervisor acted as if it had never happened, even though it was given in front of about a dozen coworkers.
In a case styled Carol Shuler v. Infinity Property & Casualty et al, my wife alleges that various entities and individuals conspired to interfere with her employment because of our aggressive pursuit of the FDCPA action. Evidence also suggests that the same political/legal forces who cheated me out of my job at the University of Alabama at Birmingham (UAB) were involved in my wife's case.
The handling of MS's case has been emitting an unpleasant smell for several months, but we weren't certain about its origins--or the machinations that caused it to drift our way. The events of yesterday morning erased any doubts that we had.
Here is the issue at the heart of yesterday's attempted screw job: As a pro se litigant, MS must rely on the U.S. mail to receive court documents about her case. Electronic filing has become commonplace in American courts, but that only applies to members of the bar. If you are representing yourself--and given our experiences with lawyers, MS is not about to hire one--you must rely on snail mail.
My wife's case has proceeded at a curious pace from the outset. Her complaint was filed on September 22, 2011, and assigned to U.S. Magistrate T. Michael Putnam. Defendants filed motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP), and over about a nine-month period, Putnam issued a number of orders, mostly related to those motions.
Putnam seemed to be handling matters in a relatively prompt fashion, by federal-court standards, but the case came to a screeching halt last summer. Putnam issued an order on July 11, 2012, and for the next five months, the case went dark. When MS or I were downtown, we usually would stop by the courthouse to check the file on public computers--only to find that nothing was happening. As the new year approached, my wife considered filing a motion to see if the case had somehow slipped through the cracks and been forgotten.
In early February of this year, Carol Shuler v. Infinity Insurance suddenly sprang back to life. We received a copy of an order regarding a review of Putnam's report and recommendation on the various motions to dismiss. When my wife read the order, she quickly realized that it referenced other orders Putnam had issued on December 11 and December 26, 2012.
These orders dealt with critical issues, recommending that some defendants be dismissed while others remained in the case. The December orders gave MS 15 days to file any objections to the magistrate's report, and she had a number of objections. But she never received those orders in the mail, and the deadline for filing objections had passed. (Curious note about federal courts: A judge can sit on his hands for five months, doing nothing on a case, but then give you 15 days to respond to one of his orders.)
Our noses started picking up foul odors at this point. Mail delivery to our home might not be flawless, but the possibility of us failing to receive two court orders in the span of roughly two weeks . . . well, it is extremely unlikely. In the almost 23 years we've lived at our current address, we've never had any legal or financial difficulties that were caused by failure to receive important documents in the mail.
On February 27, 2013, MS filed a motion to stay the proceedings, noting that she had not received the December documents via U.S. mail and asking for a time extension so that she could file objections to Putnam's report. (See motion at the end of this post.)
At a hearing on March 8, Putnam gave MS 15 days to file objections. He also questioned her about the mail problems, asking if the court had her correct address on file. When she replied that it did, Putnam said records showed the clerk's office had mailed the documents, so he could not understand why they were not received. He then stated that it was the plaintiff's responsibility to keep up with her case, and if she experienced future problems with mail delivery . . . well, that would just be tough.
The gist of the the judge's message seemed to be this: "I'm cutting you a break for now, but if you miss deadlines in the future because you didn't receive mail from the court, I will dismiss your case."
Putnam filed an order, giving MS until March 25 to file objections and citing several cases that supposedly backed his claim that she would be SOL (shit out of luck) if mail did not reach her going forward. (See order at the end of this post.)
A quick review of the cited cases showed that they do not say what Putnam claimed they say. They generally deal with lawyers who fail to keep up with client cases and said little or nothing about pro se litigants. They certainly offer no support for Putnam's apparent contention that he could lawfully dismiss a case because a pro se litigant failed to receive documents via U.S. mail.
At this point, the smell surrounding MS's case officially became a stench. We began to strongly suspect that the court intentionally was not sending documents to our address, for the purpose of concocting grounds to dismiss my wife's case.
It turns out, we were right.
(To be continued)
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The Strange contract was revealed in IAP's report about an ongoing investigation into the awarding of service contracts at ASU and whether the university received a fair value for the services provided under the contracts. Also at issue are allegations of kickbacks involving fees paid for legal services by the university.
State Rep. John Knight (D-Montgomery) either has been or is about to be indicted by a federal grand jury in Birmingham, and House Speaker Mike Hubbard (R-Auburn) is under investigation by the FBI, IAP reports.
Perhaps the most intriguing portion of the IAP report involves Luther Strange. From the newsletter's April 8 issue:
Interestingly, Republican Attorney General Luther Strange convened a grand jury in Montgomery several months ago to look at consulting contracts. It has since been revealed that Strange himself received thousands of dollars in contracts from ASU to study education in India. As a result, Strange may be in the unique position of investigating his own contracts with Alabama State.
All of this is reminiscent of the federal prosecution against former State Rep. Sue Schmitz (D-Toney) under the George W. Bush administration. Schmitz was employed in a state-funded job and allegedly did little or no work in return. Alabama Republicans hailed the effort to root out "corruption" at the time, especially after Schmitz was convicted and sent to prison. The GOP might start to rethink the Schmitz charges if some of their own, including Luther Strange, wind up in federal cross hairs.
The revelations about Strange raise a number of obvious questions:
* What did Strange do in return for his contract to study education in India?
* What does a lawyer, who was running for office as the state's chief law-enforcement officer, know about education in India?
* Why would ASU, a historically black university with a support base that certainly leans strongly Democratic, offer a contract to a Republican such as Strange?
* Perhaps most interesting of all, why would Strange seek a contract from ASU?
How did apparent corruption find fertile soil at Alabama State University? IAP provides the background:
The allegations involving questionable contracts issued by ASU first arose last December when then-ASU President Joseph Silver reported to the board of trustees: “In reviewing the financials, contracts and other pertinent information of Alabama State, I discovered some items I considered questionable and troubling, at best, and a conflict of interest at the least.” Within days of making the allegations, Silver was terminated as president after only three months on the job.
In the aftermath of the Silver scandal, two audits of ASU contracts were ordered, one by Gov. Robert Bentley and the other by the ASU board. The results of those two audits are still pending.
As for the Hubbard investigation, federal law enforcement seems to be taking the matter seriously. Reports IAP:
A former newspaper reporter who covered the State House and Alabama politics and who requested his name be withheld, confirmed to IAP that he has spoken with special agent William Kinnaird about Hubbard both in person and in a number of telephone conversations. When contacted, Kinnaird denied he was “investigating” Hubbard, but walked that back slightly when he pointed out that what the FBI considers an “investigation” and what may be an investigation in lay terms are two different things.
A spokesman for the FBI in Mobile told IAP that as a matter of policy, the FBI neither confirms nor denies that it is engaged in an active investigation. IAP sources say at least two others have been interviewed by the FBI, including an out-of-state political consultant and a Montgomery political blogger.
Meanwhile, citizens should be on the lookout for results of the audits at Alabama State. Those reports might reveal uncomfortable truths about the way politics, business, and education are intertwined in our state.
|Judge William M. Acker Jr. (right)|
Acker might be 85 years old, but he can contort himself in impressive fashion when he really wants to cheat a litigant who comes before him. I know because I've been one of those litigants.
We recently used the words of a fellow federal judge to prove that Acker committed a monstrous cheat job in a lawsuit over my unlawful termination at the University of Alabama at Birmingham (UAB). Acker granted summary judgment for the University of Alabama Board of Trustees and various individual defendants, even though no discovery had been conducted in the case. We used an opinion from U.S. District Judge Lynwood Smith Jr., to show that cannot lawfully be done.
But that only scratches the surface of Acker's chicanery in my case. His 10-page memorandum opinion, in which he explains his "reasoning" for dismissing my case, reeks of deceit and disingenuous thinking. When Acker isn't engaging in gross distortions of fact and law, he is lobbing insults at me--apparently because I refused to hire an attorney and had the audacity to represent myself. I've read Acker's opinion probably 10 times, and I still discover new jaw-dropping material. Each time, I come away thinking, "This is the work of a diseased mind." (The full opinion can be read at the end of this post.)
How diseased is Acker's mind? Well, the contempt he holds for everyday citizens comes across most clearly in the numerous pot shots he takes at me. We will address those in a future post, but for now, let's examine what passes for "legal scholarship" in a Bill Acker opinion.
My complaint in the UAB case presented a number of problems for Acker. Perhaps the biggest one involved a legal concept called qualified immunity. Individual state employees generally are protected from lawsuit--they are immune--as long as their actions do not violate a "clearly established constitutional right." (See Hope v. Pelzer, 536 U.S. 730, 2002.)
The Eleventh Circuit has held that the determining factor is whether the complaint alleges a violation of a clearly established constitutional right. (See Chesser v. Sparks, 248 F. 3d 1117, 11th Cir., 2001) My complaint alleges that the university terminated me in violation of the First Amendment right to free speech on matters of public concern--specifically the prosecution of former Alabama Governor Don Siegelman.
It's hard to imagine more clearly established constitutional rights than those spelled out in the First Amendment. Since my complaint alleged such a violation, that meant the individual UAB defendants could not lawfully be dismissed from the case. In legal terms, they did not enjoy qualified immunity.
How did Acker get around that, seeing that he clearly wanted to let the UAB defendants off the hook? As our headline states, he pulled "facts" right out of his butt. That's a crass way of putting it, but the description fits here. This is from page 6 of Acker's opinion:
Shuler's allegations, taken as true, do not provide a basis for any of the individual defendants to know that what he or she did, or failed to do, in connection with the termination of Shuler (after determining he had engaged in blogging at work after he had been warned not to do so) constituted a constitutional violation or violations and should have been recognized as such by a similarly situated person holding a supervisory position at an institution of higher learning. This court has looked for, but not found, any constitutional protection for an imagined right to blog on the job.
This might be the biggest load of horse feces ever written by a federal judge. First, the allegations in my complaint are the determining factor, and under "Count One, Violation of First Amendment," I clearly allege that I was terminated for blogging about a matter of public concern. Nowhere do I claim to have a right to "blog on the job," and nowhere does UAB even allege that I was "blogging on the job."
After Acker issued his order, I filed a Motion to Alter or Amend Judgment, outlining Acker's numerous mistakes of fact and law. Such a motion is governed by Rule 59(e) of the Federal Rules of Civil Procedure, and mine can be viewed at the end of this post. In item No. 10 ("Shuler Asserted a Valid First Amendment Claim"), I addressed Acker's contortions on the subject of qualified immunity:
This court dips into bizarre territory when it states that Shuler's "blogging on the job" was not a constitutionally protected act. Why is this bizarre? Because Shuler never claims that "blogging on the job" is a constitutionally protected act. In fact, Shuler claims that he was fired largely because he wrote a blog, on his own time and with his own resources, about matters of public concern--and that is a constitutionally protected act. In no pleadings filed in this case does Shuler claim a right to "blog on the job." He specifically states that he was not blogging on the job and that UAB's own grievance committee found this to be true. Even UAB and its defendants do not claim, in any court document, that Shuler was "blogging on the job." One can only imagine where Judge Acker pulled this notion from.
Actually, I don't have to imagine too hard to figure out where Acker got this notion. He got it from the various political and legal forces who pressured UAB to fire me in the first place. These same forces also wanted to ensure that I also got cheated in court.
We already have presented evidence that Acker was influenced by unlawful, ex parte communications in my case--and we've shown that such conduct likely constitutes obstruction of justice and possibly other federal crimes. Acker's references to a supposed "right to blog on the job"--words which are not contained in any document filed by either party in the case--are a clear sign that the judicial process was hopelessly tainted in my case.
This is ugly stuff, but we can find one comedic twist to the whole sordid tale. Acker's own words reveal exactly what he is doing--the judge, in fact, largely unmasks himself.
We are left with this discomforting thought: Bill Acker is a horrible judge, but he might be an even worse criminal. As the Iran-Contra Affair and the Savings and Loan Crisis remind us, Acker has plenty of company from the Reagan era.
(To be continued)
In fact, Eric Williams had been a judicial officer. Williams, who once served as justice of the peace in Kaufman County, was arrested over the weekend in connection with the shooting deaths of assistant DA Mike Hasse (January 31) and DA Mike McLelland and his wife, Cynthia (March 30).
Who is the bad guy in all of this? Finding an answer to that question is not as easy as it might appear. Williams faces charges of making terroristic threats, and it appears that murder charges will come any day. But a look beneath the surface shows that Williams might have been the victim of an abusive prosecution, one that eventually led him to lash out.
Press reports had included speculation that white supremacists might be behind the murders. But The Dallas Morning News reports that a former member of the justice community now is the No. 1 suspect--and revenge, sparked by an office feud, probably is the motive.
The day after the bodies of McLelland and his wife were found, county officials received an anonymous e-mail stating that more attacks were imminent. Authorities traced the e-mail to Williams. What drove him to send such a message? From The Morning News report:
Williams was convicted of stealing county equipment last year and sentenced to probation in a highly contentious case prosecuted by McLelland and Hasse. That case is on appeal. Williams faces another theft charge in a case related to money allegedly misused from a law library fund.
Under Texas law, a justice of the peace is not required to be a lawyer, but Williams has a law degree and was a member of the bar. After his conviction on theft charges, Williams was suspended from his office and likely will lose his law license if the conviction is upheld.
Williams was sentenced last April to two years probation and fined $2,500. He alleges in appellate documents that at least two prosecution witnesses provided false testimony.
How did a justice of the peace wind up getting charged with theft? The Dallas Morning News provides details in an article titled "Complex picture arises of ex-Kaufman justice of peace eyed in case."
Williams stood accused of felony theft of property worth more than $500 but less than $1,500 by a public servant and burglary.
At issue were three computer monitors taken from a county storage area. Two of the monitors were found in Williams’ county office, according to testimony. The third was located in his truck.
In court documents, Williams said he never committed theft. He said he took the monitors so that he could conduct hearings with jail prisoners from his office, a process known as “video magistration.”
He said he’d planned to take the monitor in his truck to the jail but hadn’t gotten around to it.
At the heart of most any theft case is an intent to deceive and deprive the owner of possession of property. Two of the monitors that Williams supposedly stole were found in his county office. A third was found in his vehicle, apparently in plain view. If Williams was trying to deprive anyone of property, while hiding his actions, he sure had a peculiar way of doing it.
The case gets murkier when we learn that Williams and McLelland had long had a contentious relationship. Williams had publicly opposed McLelland's unsuccessful run for the DA's office in 2006, leading to a feud that apparently continued after both men were elected to public office in 2010. Reports The Morning News:
By Williams’ account, there was bad blood between him and McLelland long before Williams first faced criminal charges in late 2011. That was less than a year after Williams was elected as a justice of the peace and McLelland became DA.
Williams tried to get McLelland disqualified from prosecuting him, according to court records. David Sergi, one of Williams’ attorneys, wrote that “a high degree of animosity” developed when Williams opposed McLelland’s unsuccessful 2006 bid for the DA’s office.
Sergi alleged that the “mutual dislike . . . only intensified” when Williams published a letter shortly before the 2006 election day “questioning whether McLelland possessed sufficient character and integrity to hold office.”
McLelland and Hasse seemed to take unusual delight in seeing Williams tried and convicted. Here is how The Kaufman Herald described some of their comments during and after the trial:
Suspended justice of the peace Eric Williams has been found guilty on all charges by a Kaufman County jury in the 422nd District Court on Friday.
“I’m ecstatic,” District Attorney Mike McLellan said after the verdicts were announced. “It shows the community that elected officials should be, and are, held to a higher standard. It’s not the old system over here any more. . . .”
What did Hasse have to say about Williams?
"This guy sitting over at the end of the defense table is an elected official who is nothing but a thief and a burglar," Hasse said.
At least one member of the Kaufman County legal community did not agree with McLelland and Hasse. In fact, this lawyer says Williams was targeted for a bogus prosecution:
Kaufman County attorney Jenny Parks said that she believed that Williams was the victim of a political vendetta “without a doubt.”
“The whole thing was a witch hunt and anyone in the legal community here knows that,” she said. . . .
“The items he ‘stole’ were only for county use because . . . the IT department wouldn’t fix his computer,” Parks said. “Eric is a computer whiz and the IT guy took offense to that.”
Many questions remain about the Texas DA murders. But this much seems clear: A feud among lawyers apparently drove them--and white supremacists had nothing to do with it.
For now, this appears to be a matter of a county official taking a couple of computers out of storage and using them in his office--and taking one computer home to work on it when IT personnel refused to fix it. For that, Eric Williams was charged with theft, and saw his professional career ruined.
We have reported extensively on the abusive actions of prosecutors, especially in the federal cases of Don Siegelman in Alabama and Paul Minor in Mississippi. We now have a state case in Texas where two prosecutors apparently decided to pick on a guy they saw as a political rival--and it looks like Eric Williams proved to be the wrong guy to pick on.
Would Mike McLelland and Mike Hasse have brought such a flimsy theft case against one of their buddies? The answer, in my mind, is "of course not." They went after Eric Williams because they didn't like him and saw him as a threat to their political aspirations. In other words they "prosecuted a person, not a crime"--and that decision had deadly consequences.
|Hugo Black U.S. Courthouse|
Meanwhile, in Birmingham, my wife and I see unmistakable signs that our federal justice apparatus is broken. We are operating in the civil arena, not criminal; no one figures to be in physical danger. But we see mounting evidence here that federal-courthouse employees--a couple of judges, perhaps a law clerk, a member of the U.S. Marshals Service, various personnel in the clerk's office--are involved in a scam.
The criminal investigation in Boston and our civil matter in Birmingham are separated by about 1,200 miles and many degrees of complexity and national interest. But central figures in both belong to the U.S. Department of Justice. And both cases seem to be raising this question: Can federal justice officials be trusted to get it right?
A quick check of the Web reveals a torrent of information and opinion about the events in Boston, and it's easy to find material that suggests many Americans do not think a wide-ranging investigation will uncover the full story. It's tempting to dismiss such sentiments as conspiracy-minded quackery. But my wife and I are finding clear evidence that something seriously is amiss at the Hugo Black U.S. Courthouse here in Birmingham, and it appears to be driven by individuals with a warped sense of right and wrong--and little, if any, regard for the law.
In fact, the culture at the Hugo Black building seems so dirty that we want to take industrial-strength showers whenever we return home from a visit there. Is there any reason to believe the "justice" culture in Boston is more pure than the one in Birmingham. I can't think of any--and given Boston's reputation as a place of political patronage and arm twisting--the culture there might even be nastier than ours.
|Boston Marathon bombing scene|
As I reported last week, we appeared for a hearing only to be told that the judge who had scheduled it, U.S. Magistrate T. Michael Putnam, was not there. On the surface, that might not sound so sinister. But join me for a brief journey through the legal underworld--a trip that will show something most certainly is afoul at the Hugo Black building.
No visit to the underbelly of the Alabama legal world would be complete without a visit from our old "friend," U.S. District Judge Abdul Kallon. An Obama appointee to the federal bench, Kallon has cheated MS and me on multiple occasions, leading me to vow that I would not renew my vote for the president in the 2012 election, as a form of protest. I only changed my mind on that after realizing that GOP nominee Mitt Romney was one truly warped and frightening individual; I had a civic duty, it seemed, to vote in a way that would help keep Romney out of the White House.
I wound up voting for Obama in 2012, but MS and I still loathe Kallon. And we were none too pleased to learn that he had been "randomly selected" to issue an order and memorandum opinion on Putnam's findings in the case up to that point. (Kallon's opinion can be viewed at the end of this post.)
We did not have to read even two full pages of Kallon's 14-page opinion, to realize that he was up to his old tricks. In footnote No. 2 at the bottom of page 2, Kallon references the "tortured procedural history of this case" and notes that MS had filed a motion to stay proceedings because she did not receive multiple documents from the court via U.S. mail. That's pretty important for a pro se litigant who is not allowed to file or receive documents electronically and must rely on the U.S. mail to keep up with her case. Because she was not served with certain key documents, MS had not been given an opportunity to object to the magistrate's reports and recommendations.
Kallon states in his footnote that the magistrate had granted MS additional time, to March 25, 2013, to file objections. Then Kallon offers this pearl: "Even so, plaintiff has filed no objections."
Both of our jaws dropped when we read that. Why? Well, my wife had filed objections, and the docket clearly shows that. Her document was filed and time stamped at 11:31 a.m. on March 25, 2013, well within the deadline that she had been given. (See the time-stamped objections at the end of this post.)
Kallon apparently ripped off his order and opinion without even bothering to check the court file for my wife's objections. How in the hell did that happen? We vowed to find out, and that's when a foul odor really started to hit our noses.
Meanwhile, our thoughts and prayers are with the victims and their loved ones in Boston. May the machinery of justice operate much more efficiently there than it does in Birmingham.
(To be continued)
|Luther Strange gets a victory hug|
from Jessica Medeiros Garrison
We know that Strange takes hypocrisy on gambling issues to monumental dimensions. After all, this is the guy who has tried to shut down non-Indian gaming facilities, such as VictoryLand in Macon County and Center Stage Alabama in Houston County, while taking a $100,000 campaign contribution from the Poarch Creek casinos. This also is the guy who used the Republican State Leadership Committee (RSLC) to help obscure the donation via a PAC-to-PAC transfer.
That brings us to Jessica Medeiros Garrison. She made news here last week when we reported on a press release she issued in March 2010, calling for Strange's GOP primary opponent, incumbent AG Troy King, to return any campaign funds he had received from gambling interests. That seems curious--some might say hypocritical--when you consider that Garrison now works for the very organization that helped launder gambling funds for Luther Strange in the same campaign.
What are we talking about? Before we tackle that question, let's see just how worked up Jessica Medeiros Garrison became over Troy King's campaign funding. This is from her press release, and the full release can be viewed at the end of this post:
“Gambling interests have propped up Mr. King's campaigns, back to 2006,” said the Luther Strange campaign manager, Jessica Garrison. “If he sticks to his pledge of returning direct contributions from gambling interests, he needs to return at least $190 thousand. If he gives back all of the contributions he has accepted from PACs which have received money from gambling operators, slot machine manufactures and their lobbyists, King needs to return nearly $400 thousand to keep his public pledge.”
Jessica Medeiros Garrison, it seems, tried to hold Troy King to a standard that she was not willing to meet herself.
Garrison now serves in an "of counsel" role with the large, downtown-Birmingham law firm Balch & Bingham. But her primary role seems to be serving as director of the Republican Attorneys General Association (RAGA). What is RAGA? It is an affiliate of RSLC, the organization that helped funnel Indian gaming funds to the Luther Strange campaign.
Translation: Jessica Medeiros Garrison called for Troy King to distance himself from any organization that dealt with gambling funds; Garrison herself subsequently joined an organization that . . . deals with gambling funds.
That's not all. During the 2010 campaign, Garrison took a fairly personal shot at Troy King. From her press release:
Garrison also called on King to release all loan documents related to a $300 thousand loan to his campaign disclosed in January.
“At a time when so many Alabamians are having trouble getting bank credit, it is inconceivable that any lender would provide an unsecured loan to a campaign,” Garrison said. “Given the questions raised by these documents, we know a reputable bank such as ServisFirst would have required King to guarantee the loan. Considering recent questions raised about a $500 thousand bank loan to Ron Sparks' gubernatorial campaign, it would only make sense for Mr. King to disclose how he was able to qualify for so much money or to explain who helped him secure the loan."
For now, we will call the hypocrisy race between Jessica Medeiros Garrison and Luther Strange a dead heat. More importantly, our research indicates the two of them have a few personal issues that might merit a public airing. If it was important for Troy King to "disclose" and "explain" certain financial issues, perhaps it is time for Garrison and Strange to address questions for which Alabamians deserve answers.
We soon will find out if Garrison and Strange are willing to follow the forthcoming path they recommended for Troy King.
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