Articles on this Page
- 05/11/17--04:19: _Missouri's Castle D...
- 05/15/17--04:20: _How can a crooked j...
- 05/16/17--04:07: _James Comey firing ...
- 05/16/17--11:03: _Public Citizen lawy...
- 05/17/17--04:08: _David Deusner, lawy...
- 05/18/17--04:05: _Patricia Lillian Po...
- 05/19/17--08:30: _Founder of legal et...
- 05/22/17--04:15: _Lawyer David J. Har...
- 05/22/17--09:50: _Federal judge Virgi...
- 05/23/17--04:05: _Sex addict David De...
- 05/24/17--04:10: _Take a ride on a ro...
- 05/25/17--04:05: _Reports of AG Jeff ...
- 05/25/17--10:25: _GOP candidate spark...
- 05/30/17--04:30: _Former Bush speechw...
- 05/31/17--07:05: _Will the U.S. 11th ...
- 06/01/17--04:34: _Jeff Sessions sinks...
- 06/01/17--10:15: _Promising ICBM defe...
- 06/05/17--04:19: _Federal judge Virgi...
- 06/05/17--11:20: _Tribalism was on di...
- 06/06/17--04:20: _Russian military ta...
We recently showed that my wife, Carol: (A) Did not assault a law enforcement officer, a misdemeanor charge that she still faces; and (B) Even if she had used force, it would have been lawful under Missouri's Castle Doctrine Law. Of course, it would have been impossible for Carol to apply much force, given that a deputy broke her arm so severely that it required trauma surgery for repair. But the public is supposed to believe she was the assaulter, not the victim of an assault?
Now, we've learned that the same law shines new light on the myth that, roughly one week before our unlawful eviction on Sept. 9, 2015, I placed a 911 call and threatened to shoot any cop who attempted to evict us. I never made such a threat, or placed such a call, and discovery in our upcoming federal lawsuit will prove that. Research on Missouri's Castle Doctrine Law, however, indicates such a threat -- under the circumstances -- would have been lawful.
I've never been quite sure how the 911-call myth came to fruition. I first heard about it in an e-mail from my brother-lawyer, David Shuler, who lives here in Springfield, Missouri. He wrote that a deputy named Scott Harrison had informed him that a dispatcher reported such a call from me. I responded to David, in no uncertain terms, that I had never called 911 in my life -- and I certainly had not issued a threat to anyone, much less cops, via 911.
The 911 myth might have its genesis with a one-time "friend," who shall remain nameless, for now. About the same time of David's e-mail, this "friend" visited our duplex apartment, uninvited, and tried to convince us to leave because the landlord had sent us a notice to vacate. I informed Mr. "Friend" that the landlord was violating the terms of our lease, and we intended to fight the attempted eviction.
Mr. "Friend" began to berate Carol and me, saying we had made all sorts of "bad decisions" that led to my unlawful incarceration in Alabama and foreclosure on our Birmingham home. As he stood up and started to stomp out, I said, "Why don't you sit down and tell us what 'bad decisions' we've made."
I don't remember the conversation from there word for word, but I believe the only "bad decision" he could come up with was my refusal to accept the offer of an unspecified "other" job after my termination as an editor at UAB.
Of course, he failed to mention a few things: (1) I never had an offer in writing; (2) I never was told where at UAB I would be working; (3) I never was told who my boss would be; (4) I never was told why I was being forced to leave my position when a UAB grievance committee had found that I should not have been fired; (5) I never was told why I was being forced to leave my position when the HR director admitted my supervisor had butchered the situation and "would be dealt with." (The supervisor, I've been told, was forced to retire.); (6) When I asked to see a copy of the grievance hearing's written report, the request was denied; (7) Along with the job shuffle, I would have to accept two written warnings in my file, and UAB policy calls for automatic termination after three written warnings; (8) When I asked what the two written warnings were for, the HR director said the committee decided they were in "lieu of termination"; (9) When I asked what UAB policy allowed a grievance committee to find an employee had been wrongfully terminated but still should receive two written warnings, the HR director was stumped. When I again asked to see the committee's written report, the request was denied; (10) When I told the HR director, "It sounds like you are trying to set me up to be fired all over again," she didn't deny it. When I said, "If I wore the wrong color of socks to work one day, I could be fired," she didn't deny that either. In fact, she said, "That would be up to your new supervisor."
I firmly informed Mr. "Friend" that he did not know squat about what had happened at UAB. I also told him he didn't know squat about Missouri eviction law -- that the eviction unlawfully had been scheduled inside a 10-day window when no such action could be taken, and we intended to file a notice of appeal, which would put a stay of execution on the eviction.
As I recall, he said that we were going to be evicted anyway, and I informed him that anyone who unlawfully attempted to break into our home would be wise to think twice about that. Is that a radical thought? I imagine 99 percent of homeowners and renters in the US of A would say the same thing, although many probably would say it in much stronger terms than I did.
Mr. "Friend" has admitted that he passed along this "threat" to someone, probably my brother and possibly my health-care provider. As a result, Mr. "Friend" might soon have at least a couple of legal issues to deal with: (1) The conversation in question took place in our home, where Carol and I had an "expectation of privacy." The "friend's" actions might constitute invasion of privacy, and to the extent that his words to others were false, that might constitute defamation; (2) A person's relationship with a health-care provider, and his medical records, are protected by several layers of privacy laws. If Mr. "Friend" stepped into that minefield, he was most unwise.
But here is the key point: If I had used physical force -- even deadly force -- against those I reasonably believed were unlawfully entering my home, that would have been legal under Missouri's Castle Doctrine. And it makes no exception for invading cops.
Under Mr. "Friend's" apparent scenario, which likely is filled with falsehoods, I made a "threat" to do something that is 100 percent legal, even encouraged, under Missouri law. I pledged, in so many words, to protect my "castle" from unlawful intruders. Does that make me a criminal? Nope, it makes me a good Missourian.
Did Mr. "Friend" have grounds to report me to anyone for threatening to engage in lawful activity? No, he did not. And that is one of several reasons he might be needing to "lawyer up" in the near future.
|Crooked federal judge David Proctor and his|
I probably could write a New Yorker style magazine piece of considerable length about the myriad ways Proctor screwed us in the middle section of his opinion. But we will limit our attention to four key issues -- constitutional claims, wrongful foreclosure, tortious interference, and defamation. (Proctor's opinion and our Rule 59 response to it are embedded at the end of this post.)
If you care about justice and integrity, this stuff might be hard to stomach. But we operate under the theory that the first step to cleaning up corruption is to expose it. Please keep in mind that we're talking about a judge who claims to be a devout "Christian," who attends Briarwood Presbyterian Church (PCA) and sends his kids to Briarwood Christian School, supposedly because of the fine moral training they receive there. If so, it's good they go to Briarwood because they apparently will get no moral underpinnings at home -- based on the cheat job "Judge" Proctor administered in our "House Case."
(1) Constitutional claims (First, Fourth, and Fourteenth Amendments)
Proctor rejects these claims because he finds that certain defendants -- Jessica Medeiros Garrison, Bill Baxley, Rob Riley, Liberty Duke -- are not "state actors" for purposes of claims under Sec. 1983. But the law is clear: We don't have to show such defendants are "state actors"; we have to allege that they worked in conjunction with state actors. That is simple, long-established law, and Proctor has to know it. His ruling to the contrary is a glaring sign that he is a cheater. From our Rule 59 motion:
The U.S. Supreme Court has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. In Lugar v. Edmondson. 457 U.S. 922 (1982), our nation's highest court found: "We have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the Fourteenth Amendment. The rule in these cases is the same as that articulated in Adickes v. S.ll. Kress and Co., supra, at 152, in the context of an equal protection deprivation: "Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not :require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," quoting United States v. Price. 383 U.S.., at 794." As Proctor acknowledges, the Shulers allege repeatedly that defendants acted "in conjunction with state actors." Thus, the Shulers have alleged facts that defendants were state actors and liable for suit under Section 1983. This court's erroneous finding must be reversed.
Is there any doubt that Proctor ruled contrary to law on this issue? None, zero. He rules contrary to three U.S. Supreme Court cases, so it's hard for a corrupt judge to get more wretched than that.
(2) Wrongful foreclosure
Proctor rejects this claim because he finds it can only be asserted against the "mortgagee" (Chase Mortgage, in this case). But -- surprise, surprise -- that's not what Alabama law says. We address that in the Rule 59 motion:
In In re Sharpe, 391 B.R. 117 (Bankr., N.D.Ala,, 2008), the federal bankruptcy court proposed the following as factors to consider as elements of a wrongful foreclosure claim under Alabama law: whether (I) the actions of the mortgagee were either outside the boundaries of the foreclosure or taken for some purpose other than to secure the debt owed by the mortgagor; (2) the actions of the mortgagee were for some ulterior motive; (3) the power of sale was perverted or used for the mortgagee's or someone else's purpose; or (4) the mortgagee had an ill motive. 391 B.R, at 152 -153. Under Alabama law, the ulterior motive can apply to the mortgagee or "someone else," and the Shulers have properly cited multiple parties who had an ulterior purpose. This is clear error and must be reversed.
As you can see from the highlighted section above, the ulterior motive does not have to rest just with the mortgagee (Chase Mortgage). It can rest with "someone else," and that's a pretty broad term, which could apply to any number of defendants in our "House Case."
Is there any doubt Proctor ruled contrary to law on this issue? None, zero.
(3) Tortious interference
Proctor rejects this claim, stating we had "pled no facts which in any way suggest that any Defendant except Defendant Chase instituted the foreclosure action against them, or was responsible for the decision to foreclose on their home."
That, however, is not the standard, as we show in our Rule 59 motion:
The Shulers must only allege that the defendants interfered with their business relationship with Chase, and the complaint does just that - especially when viewed under the proper standard of review and the requirements of Watts (which holds that the complaint must be viewed in a light most favorable to the party not moving for dismissal -- and that would be Carol and me). The court admits the Shulers have pled facts sufficient to suggest lawsuits brought by Defendants Riley, Duke, and Garrison affected their ability to pay the mortgage - and this confirms tortious interference because the Shulers' relationship with Chase was based on payment of a mortgage. Finally, Proctor violates the holdings of Watts, assuming Riley, Duke, and Garrison did not intentionally interfere with the Shulers' business relationship with Chase. But no one disputes that Riley, Duke, and Garrison intentionally filed lawsuits, and the Shulers' have alleged that the lawsuits were groundless and interfered with the key component oftheir relationship with Chase paying the mortgage. When viewed in a light most favorable to the Shulers, and the court is required to view facts in such light, it points to intentional interference.
This is simple stuff: We had a contract with Chase that required us to pay the mortgage, and individuals who caused me to be unlawfully incarcerated for five months, interfered with that business relationship by making it impossible for us to hold up our end of the deal.
Is there any doubt Proctor ruled contrary to law on this issue? None, zero.
This might represent Proctor's nuttiest ruling of all. Proctor rejects the defamation claim largely on a finding that GOP operative Jessica Medeiros Garrison statements in an article at the women's fashion magazine Marie Claire were privileged as part of civil judicial proceedings. In essence, that means the statements were exempt from defamation law because they were drawn from official court documents. But there is no evidence that Garrison or Marie Claire writer Liz Welch consulted any legal documents.
In fact, the article is listed as "by Jessica Garrison, as told to Liz Welch." That plainly states Garrison was the author of the article, with Welch serving as more or less a stenographer. A case of truly privileged journalism would involve a third-party reporter, who attended a trial, checked court documents, and attempted to write a somewhat objective article.
But the Marie Claire article has none of that. It was written by a party to the case and shows no sign that it involved objective journalism at all. Jessica Garrison made false statements about me in court documents, and again, during testimony in her default-judgment hearing. And Proctor correctly (gasp!) finds those statements to be privileged as part of court proceedings. Any third-party reporter would be free to write about them, without being subject to a defamation finding.
But a third-party reporter did not write the Marie Claire article; Jessica Garrison wrote it -- the byline clearly states as much. Garrison essentially is trying to get away with defaming me twice -- once in court proceedings (which, technically, is not defamation) and once in the Marie Claire article (which is not privileged and absolutely is defamation.)
Translation: It was incredibly dumb for Garrison to write the article, and it was even dumber for Marie Claire to publish it. Here's how we addressed some of these issues in the Rule 59 motion:
Regarding Garrison's false statement that Roger Shuler reported Luther Strange was the biological father of her child, Proctor cites an Alabama statutory privilege that protects "fair and impartial" reports of civil judicial proceedings. Proctor concludes, apparently out of thin air, that the Marie Claire article (and those largely republished from it at al.com and Yellowhammer News) is a fair and impartial report of court proceedings. This would be laughable ift he matter were not so serious. First, the Marie Claire article is listed as "by Jessica Garrison." In other words, it is written by one party to a civil case - the plaintiff, the one who brought it - without input from the other party. The court considers that "fair and impartial"? The first words of the article -- by Jessica Garrison -- make clear it is not impartial. Second, the byline says the story is "by Jessica Garrison, as told to Liz Welch."It clearly states the story is based on Jessica Garrison's words, as imparted to Liz Welch, with no reference to any court filings. The article is all about Jessica Garrison's words and emotions, and that's why it was published in a women's fashion magazine. The notion that Marie Claire runs articles about court proceedings is absurd. The article is by Garrison, and thus cannot seriously be called impartial or fair.
There you have it -- four clear-cut examples of how a federal judge can cheat you at the trial-court level. And that has serious repercussions for the public. One, it denies justice at the time and place where it should be achieved. And it forces the cheated party to file for an appeal, which can be expensive and time consuming -- and as we have shown in numerous post, it might not result in justice either. Appellate courts have a disturbing tendency to side with their trial-court brethren, no matter how wrong they are. It's easy to do this by use of "Do Not Publish" opinions.
Our "House Case" currently is under appeal to the U.S. Eleventh Circuit, based in Atlanta. We will keep you posted on that process, and we will address the fraudulent use of "Do Not Publish" opinions in upcoming posts.
(To be continued)
Andrew Kreig, an attorney and journalist who directs the Justice-Integrity Project (JIP), writes that Sessions long has been a "master of the dark arts of political intrigue," which include blackmail, prosecution of political enemies, and gross abuse of the justice system.
Kreig's piece focuses on Sessions' role in last week's firing of FBI director James Comey and shows that Sessions, as state attorney general and U.S. senator from Alabama, has a history of ties to such skulduggery. Title of the article is "Comey firing stems from DOJ, Sessions hidden scandals." From the article:
The Justice Department's top two officials (Sessions and Rod Rosenstein) have helped enable longstanding, deeply hidden Justice Department deceit and obstruction of justice in major cases, thereby paving the way for President Trump’s shocking firing of FBI Director James Comey on May 9.
Many Americans reacted with outrage at President Trump's suggestion on May 12 that he may have secretly taped Comey while Comey sought retention as the FBI probed potential criminal Russian influence over Trump's team and the 2016 elections.
But relatively few people even in government or the media know the vast abuses that U.S. Attorney General Jeff Sessions has long enabled as a U.S. senator in Alabama beginning in 1996 and previously as a U.S. Attorney and attorney general in that state since 1981.
That's because he's a master of the dark arts of political intrigue, including dark money, political prosecutions of enemies, blackmail and other repeated abuses of the justice system — each of them tactics that are most effective when obscured by rhetoric about conservative principles, national security, family values and "rule of law." Sessions . . . was Trump's first major supporter among elected officials during the 2016 presidential campaign.
Kreig points to a March Guardian article, titled "Gun for hire: How Sessions used his prosecuting powers to target Democrats." From the The Guardian article, by reporters Jon Swaine and Oliver Laughland:
Opponents concluded that Sessions used his federal prosecutor’s office, and the FBI agents who worked for him, as political weapons, according to more than half a dozen veterans of Mobile’s 1980s legal and political circles. Some alleged in court filings that the ambitious young Republican actually worked from a “hit list” of Democratic targets. . . .
The decades-old concerns have been revived by Donald Trump’s appointment of Sessions as US attorney general, and the mounting anxiety over his ability to remain even-handed as the nation’s most senior law enforcement official given his record of vigorous partisanship.
How partisan is Sessions? Dana Jill Simpson -- a retired lawyer, one-time GOP opposition researcher, and major figure in the Don Siegelman case -- told Kreig that Sessions is an extremist, even among some of Alabama's most "out there" conservatives. From the Kreig article:
"Jeff Sessions is a racist," Alabama opposition researcher and political activist Dana Jill Simpson told the Justice Integrity Project in an exclusive interview on May 12. "He has been on the far, far, far right even by the standards of Alabama conservatives."
Simpson is an Alabama attorney and former GOP political operative who courageously stepped forward in 2007 to describe the DOJ's frame-up on corruption charges of former Alabama Gov. Don Siegelman, her state's leading Democrat. . . .
She has also helped this editor and other investigative reporters document many scandals. These include involvement by Sessions and his cronies in mind-boggling national and international intrigues. Among them have been secret dealings with Russia, suspicious awards of defense contracts involving tens of billions of dollars in one instance, and a sinister role in the 2007 U.S. attorney firing scandal that Simpson helped expose and document.
For almost 10 years, Legal Schnauzer has chronicled corruption in state and federal courts, in Alabama and beyond. Simpson says our courts are a wreck, in part, because of Jeff Sessions. From the JIP article:
Simpson describes Sessions as "the national ringleader of partisan abuses of the legal system, first in Alabama and then via his leadership of the U.S. Senate Judiciary Committee, where he was in a position to help appoint prosecutors, judges and other officials to accuse some people unfairly and let others off, and otherwise reward his patrons and confederates."
Just yesterday, we wrote about such a confederate, U.S. District Judge R. David Proctor, who repeatedly has ruled contrary to law in two pending federal lawsuits, regarding my unlawful arrest and incarceration in 2013-14 and the wrongful foreclosure of our home of 25 years in Birmingham.
|Dana Jill Simpson|
Sessions' involvement in the Comey firing, after the AG had vowed to recuse himself from all matters related to the Trump-Russia scandal, might have led him into a morass from which he cannot escape. Writes Kreig:
In sum, Comey's firing is an assault on the nation's core constitutional and other democratic values comparable if not worse than President Nixon's Watergate. However, no one can truly understand the situation, much less reform it, without appreciating the full history of the perpetrators and their institutions.
|Paul Alan Levy|
I'm sure you did not see that one coming.
Let's look at a few cases where Public Citizen did, in fact, represent a defamation defendant at the trial-court level:
(1) Houlihan Smith and Company, Inc., et al v. Julia Forte, et al
Public Citizen's own Web site makes it clear the organization represented defendant Julia Forte at the trial level in this defamation case. Here is a description of the case:
Houlihan Smith and Company, an investment bank based in Chicago, filed suit against Julia Forte over two message boards -- 800Notes.com and whocallsme.com -- where members of the public had posted statements criticizing Houlihan's telemarketing practices as well as other aspects of Houlihan's business. On less than 90 minutes notice to Forte, a North Carolina resident, Houlihan went to state court in Illinois and got a temporary restraining order compelling Forte to remove "all statements of a factual nature" about Houlihan and to prevent future postings by those who had posted such statements. Representing Forte, Public Citizen removed the case to federal court and opposes continuation of the TRO. We argue that the TRO is an impermissible prior restraint, especially in Illinois which does not allow injunctions against libel, and that in any event Forte, as the host of a message board, is immune from liability under 47 U.S.C. § 230. Although Houlihan has tried to evade section 230 immunity by relabeling its defamation claims under the trademark laws as well as the right of publicity, such relabeling does not defeat Forte's statutory immunity. Forte moved for an award of attorney fees. In response to the motion, Houlihan Smith claimed that it had been driven out of business by their failure to obtain a preliminary injunction, that the plaintiffs were no longer operating companies, and that they lacked assets to pay any fee award. The fee motion was settled for a payment of $35,000 in attorney fees.
This case involved several issues that were present in my case at the trial level -- an unlawful TRO and an impermissible prior restraint. It also indicates Public Citizen made $35,000 in attorney fees, while Levy claimed I was looking for "free legal help." The Houlihan case suggests Levy lied to me about the reasons for not taking my case -- and it suggests Public Citizen does not do "free legal help," and I never asked for such help, in the first place.
(2) Matul Patel v. Matthew Chan
Public Citizen's own blog, in a piece written by Levy himself. indicates Levy lied to me about the organization's policy regarding defamation cases at trial level:
At a time when the California Supreme Court is deciding whether to grant discretionary review of the decision of the California Court of Appeal in Hassell v. Bird, which held that Yelp could be required to comply with a default judgment holding that a posted review of a California lawyer was false and defamatory, along comes a situation that crystallizes concerns about judicial willingness to impose such orders on sites that host consumer content.
Matthew Chan, a resident of Columbus, Georgia, posted a series of reviews (for example, on Yelp) complaining that Mitul Patel, a dentist in Suwanee, Georgia, had induced Chan to visit his office by advertising an inexpensive dental cleaning deal. However, Chan reported that he was confronted with a hard pitch for additional, more expensive services, and Patel allegedly lost interest in providing the cleaning when Chan was not agreeable to buying additional services. I am in no position to say whether Chan’s criticisms of Patel are fair or accurate, but Patel’s sneaky response to the criticism, instead of just suing his detractor in the Georgia courts, tends to suggest that Chan might well have reason to complain.
This clearly was a defamation case, at the trial level -- the kind Levy told me Public Citizen could not handle. But he represented Defendant Chan. Levy lied about why he could not represent me.
(3) Vision Media v. Forte
Again, Public Citizen's own Web site makes clear that it represents defamation defendants at the trial stage. A description of the case:
Vision Media, a company that produces television promotions for non-profit groups, sued Julia Forte, the proprietor of the web site www.800notes.com, after she refused to identify the authors of postings that cited published reports accusing Vision Media of deceptive advertising, and told Vision Media it could respond on the message board but refused to remove the postings. Public Citizen argued that a web host like Forte is immune from suit for the content that others have posted on her site, and that Vision Media's creative efforts to plead around her immunity so that she has to bear litigation expenses (creating pressure to settle) are not successful. The trial court eventually dismissed the case for lack of personal jurisdiction.
Again, Public Citizen successfully represented a defamation defendant at trial stage. Why did Paul Alan Levy spew b.s. in my direction? I can come to only one conclusion: Levy is a lying lawyer who lies.
Now, I can imagine one defense Levy might try to cite for himself. Here is exactly the language he used, via e-mail, on this issue: "We don’t handle defamation cases on the merits at the trial court level."
Perhaps Levy is saying his organization can handle defamation cases, such as the ones noted above, that can be handled on procedural issues, without having to dive into the merits of the case. Well, my case could have been handled on procedural matters, too. As in Houlihan above, my case involved a TRO (and preliminary injunction) that was an impermissible prior restraint. The issues are virtually identical, but Public Citizen took one and passed on the other, which involved far more egregious behavior by plaintiffs -- and damages to the defendant (my wife, Carol, and me).
On top of that, by the time I contacted Levy, Judge Claud Neilson had issued a bogus final order, so the case was ripe for appeal -- and Levy seemed to be saying that his outfit could handle such matters. (Come to think of it, what is the justification for supposedly not being able to handle a defamation case on the merits at the trial level? I assume Public Citizen gets a percentage of any recovery, or seeks awards of attorney fees, so I'm not sure why it would avoid trial-level cases on the merits.)
Bottom line: I'm cutting Levy more slack than he deserves. He did lie to me, and as to why, I think I nailed it with this, via e-mail:
Here's the truth: You jump on easy cases involving Yelp and such, but if lawyers are behind abuse of free speech, you have no interest in the case and essentially engage in a cover up. Corrupt lawyers like Rob Riley and Christina Crow caused me to be incarcerated, and you are their protector -- screw the First Amendment. You and Public Citizen are dishonest to the core -- and I see you still are a rude, thoughtless twit.
|David Deusner and family|
I'm not making this up -- and we're not talking here about a stupid guy.
David Deusner is managing director of compliance forensics intelligence for Control Risks, working out of Birmingham and Washington, D.C. Before that, he worked for roughly six years at Birmingham's Bradley Arant law firm, first as director of litigation support and eDiscovery Services and then as senior eDiscovery counsel in the litigation and construction group.
Deusner earned a bachelor's degree in business administration/music business and artist management at Belmont University in Nashville and a law degree at DePaul University in Chicago. This is a bright guy, so why the bizarre -- even stupid -- response to our Ashley Madison post, which was published on April 26? Let's address that question by examining our communications with Deusner, which began the next day via e-mail:
Please take down the post about me and my family. I was diagnosed with sex addiction several years ago. It nearly destroyed my family. I went through counseling and continue to work on my addiction, almost daily. My wife and I went through years of counseling as well due to this, and our marriage is still not where it should be as a result of my addiction. My wife and family have suffered enough from my horrendous mistakes and poor choices. They do not need to suffer any further because of this posting now. I can't stress enough how painful this has been to my wife, and your bringing this up again will only cause more pain and grief. I realize the point of your blog is to report on attorneys and their conduct, but this is a VERY personal matter, a very private matter, and your publicizing it only will cause more pain and suffering to my family.
PS. I now see your emails to my work email account; they were sitting in my junk folder. I would have responded sooner. But I implore you - please remove this posting immediately.
I was in the midst of preparing court documents that had a tight deadline, so I was slow responding. Deusner sent me another e-mail, on April 28:
Mr. Shuler -
Please take down this post immediately. I have caused enough damage to my family, and this is only opening old wounds. Please respond to let me know you will be taking this down immediately.
I was concerned about his tone, but I was willing to talk with him, so I responded later that day:
I apologize for being slow responding. I'm in the midst of preparing court documents that have a deadline, and it probably will take me through the weekend to finish them up. Perhaps we can talk via phone early next week? Let me know if you would be OK with that.
My concern about Deusner's tone only increased with his response:
I will talk to you, but you have to take this post down. I am happy to explain whatever you feel you need, and will make myself available early next week, but I need you to take this down now. The embarrassment you're causing my wife is something I don't think you fully grasp, and the pain of not only opening these old wounds but opening it to the public for her ridicule is outrageous. Please take this down immediately, and I will talk to you all you need next week.
I doubt there is a journalist in the world who would not be taken aback by this kind of language. And I was stunned that it came from a lawyer, who should know better. A journalist (or anyone else, for that matter) has an absolute right to publish accurate information. For any citizen, especially one with a law degree, to tell a journalist "you have to take this post down" is . . . well, it's nonsense. And to suggest that I was the source of any embarrassment for his wife -- rather than his own behavior -- was pure rubbish.
My responses made it clear I was willing to communicate with Deusner. But his pushy tone and ill-informed statements made me think nothing much would come from any discourse. I would be proven right about that, but not before Deusner went down a path that perhaps was even more ill-advised than his adventures with Ashley Madison.
(To be continued)
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|Judge Margaret Holden Palmietto (left)|
So, imagine our surprise yesterday when we checked case.net(State v. Carol T. Shuler, Case No. 1631-CR07731) and found an attorney is representing Carol -- an attorney we've never met, whom we've never agreed to have represent us, who probably knows zero about our case, and even is filing documents on Carol's behalf without our consent or knowledge.
Yes, you heard that right: Patricia Lillian Poe filed a Motion for Discovery, dated 5/15/17, on behalf of Carol T. Shuler. It would have been nice if Carol T. Shuler had known about that. It also would have been nice if Carol T. Shuler knew the purpose behind the motion, given that Carol already has filed two such motions on her own.
Here is the most alarming part: We have no idea if Ms. Poe has a trial strategy that is palatable to us or not. We have no idea if she understands that this is not a case of Carol committing a crime; it's a case of Carol having a crime committed against her -- one that resulted in the bone in Carol's upper left arm being snapped in two, such a severe break that it required trauma surgery and the implantation of metal plates and screws.
A reasonable reader might raise this question: Well, how did Ms. Poe become aware of Carol's case, to the point she could be named an attorney in the matter? Answer: At our most recent court hearing, on 5/3/17, Judge Margaret Holden Palmietto asked if Carol waived her right to an attorney. Carol said no, that she was considering several options -- continuing to represent herself, hiring a regular attorney, etc.
At that point, Palmietto ordered Carol to fill out an application with the Public Defender's Office. In fact, Palmietto said Carol would not be allowed to leave the courtroom until the application was completed and turned in to her bailiff.
Carol did as instructed, and we figured that meant we would receive a call from the Public Defender's Office, be asked to come in and discuss the case, and the sides would agree or disagree to have the office represent Carol. That call never came, and we've never met with anybody -- which is a little unsettling when you consider that Carol's freedom is at stake. Under RSMo 565.083, assault of a law enforcement officer in the third degree is a Class A misdemeanor, which carries a possible punishment of up to one year in jail, plus a possible fine of up to $2,000.
It can be costly, in a variety of ways, to have a law enforcement officer break your arm in Missouri.
Back in serious mode, it's critical that any lawyer understand that this is a case about grotesque police misconduct, which almost certainly rises to a criminal level (18 U.S.C. 242 -- Deprivation of rights under color of law.) Does Patricia Lillian Poe grasp that and does she have a plan for dealing with that reality? We have no idea; we've never spoken with her.
Carol does not necessarily object to representation from a public defender, but right now, it feels like she's having a lawyer forced down her throat. I don't pretend to be an expert on due process, but I presume it includes the right to consent to representation by a certain lawyer -- to have some say-so in the matter.
Right now, Carol hasn't consented to anything, and she's had no voice in selection of her attorney. It doesn't help that local newspapers recently have been filled with reports that Missouri's Public Defender System is one of the most poorly funded in the nation, with lawyers wildly understaffed and overworked. It is the subject of an ACLU lawsuit, and The Atlantichas referred to the situation as a "constitutional crisis."
Is the system so dysfunctional that it skips small steps -- like letting a defendant know she has representation and maybe, you know, meeting with her? If you check case.net under Carol's case number and click on docket entries, you will see the following at the top:
05/15/2017 Motion for Discovery
Request for Discovery. Electronic Filing Certificate of Service. /sel
Filed By: PATRICIA LILLIAN POE
On Behalf Of: CAROL T SHULER
Entry of Appearance Filed
Entry of Appearance. Electronic Filing Certificate of Service. /sel
Filed By: PATRICIA LILLIAN POE
That Ms. Poe took action "on behalf of" Carol T. Shuler sort of implies that Carol T. Shuler has met with Ms. Poe, discussed her case, and agreed upon a plan of action, doesn't it? Well, none of that has happened.
That leaves us to ask a question that we've raised many times related to court actions over the past 17 years: What in the hell is going on?
|Monroe H. Freedman|
Hofstra University law professor Monroe H. Freedman, who died in January 2015 at age 86, was considered the founder of legal ethics as an academic field. "He invented legal ethics as a serious academic subject,” famed Harvard Law professor Alan M. Dershowitz told The New York Times. “Prior to Freedman, legal ethics was usually a lecture given by the dean of the law school, which resembled chapel: ‘Thou shalt not steal. Thou shalt not be lazy.’ But Monroe brought to the academy the realistic complexity of what lawyers actually face. . . .
"He was on my speed dial for everything I ever did involving legal ethics. And I brought him to my classes every single year: A legal education without Monroe Freedman was incomplete.”
Now, we will use Freedman to help educate the public at large. That's because the death last year of U.S. Supreme Court Justice Antonin Scalia raises ethical questions about unpublished opinions -- such as the favorable one Scalia friend John B. Poindexter received in an employment discrimination case.
Freedman was a brassy, provocative type, and he didn't mind taking on the legal establishment. Unpublished opinions in federal courts bothered him -- and that means he likely would have been appalled by my experience in the U.S. Eleventh Circuit Court of Appeals (which covers Alabama, Georgia, and Florida). He also probably would have known that unpublished opinions short-change many litigants, across the country. Freedman's words from a 1989 speech indicate he knew that too many court rulings amounted to fraud -- with unpublished opinions providing cover:
Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.
I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”
How refreshing to see an eminent scholar admit that "Do Not Publish" opinions are a pox on our justice system. It's likely the situation only has gotten worse in the 28 years since Freedman spoke those words. I know from first-hand experience that unpublished opinions, indeed, are a fraud -- a mechanism to favor certain parties by producing unlawful rulings that do not foul the body of actual law that is recorded in various reporters.
I've had three cases on appeal before the Eleventh Circuit, and each time the trial court's unlawful findings were upheld -- and the opinion was stamped "Do Not Publish" in the upper right-hand corner. (See Shuler v. Ingram & Associates, Shuler v. Swatek, and Shuler v. Board of Trustees.) Why was that stamp there? It's because the opinions were so contrary to black-letter law that reporting them would have created havoc in a field that supposedly is grounded in the consistency of legal precedent.
As for the case involving Scalia's pal, John B. Poindexter, this is from a March 2016 Legal Schnauzer post:
Multiple news outlets have reported that John B. Poindexter, owner of Cibolo Creek Ranch and the Houston-based manufacturing firm J.B. Poindexter and Co., received a favorable outcome when the U.S. Supreme Court refused to hear an appeal on an employment-discrimination case involving one of his subsidiaries. According to news reports, Scalia's expenses-paid hunting trip to Poindexter's ranch was a "gift."
Was it a possible kickback for court-related favors the justice had provided? The answer to that question is not clear, but it is clear that Poindexter's favorable treatment in the discrimination case (James Hinga v. MIC Group) started long before SCOTUS refused to hear the case.
How? The U.S. Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) upheld a trial court's dismissal of Hinga's discrimination claim on summary judgment. Here is the alarming part: The Fifth Circuit issued an unpublished opinion in Hinga. Based on our experience and research, that can be a sign a ruling is suspect.
We aren't the only ones who hold that opinion of unpublished opinions. A scholar who was considered the "father of modern legal ethics" also had a low opinion of unpublished opinions.
That scholar, of course, was Monroe Freedman. If I had gone to law school, he's the kind of professor I would hope to have. If I were a law professor, he's the kind I would hope to be.
We will provide details about our experiences with "Do Not Publish" opinions in an upcoming post. The subject hits close to home at the moment because we have two pending appeals in the Eleventh Circuit now -- one in our "Jail Case" and one in our "House Case."
If you ever have a case go before a federal appellate court -- in the Southeast or anywhere else -- you could wind up getting a "Do Not Publish" opinion. You likely will not find it pleasant, I assure you.
(To be continued)
|David J. Harrison|
(From Dothan Eagle)
Harrison perhaps is best known as the attorney who filed paperwork for a guilty plea from Country Crossings developer Ronnie Gilley in the bingo case. Jarrod Massey and Jennifer Pouncy, lobbyists for Gilley, also pleaded guilty. Without those three guilty pleas, the case would have been a total wipe-out for the government. Every defendant who went to trial was found not guilty, a result that was described as "one of the most remarkable setbacks nationally" for federal prosecutors in decades.
As for Harrison's most recent misadventure, he was arrested on April 25. From a report at the Dothan Eagle:
According to Dothan police reports, Harrison was selling a vehicle at a car lot in Dothan and he alleged that forgery occurred in the paperwork. After an investigation, police determined no items had been forged, leading to the charge against him.
Harrison’s arraignment is scheduled for June 6. According to Harrison’s attorney, Shaun McGhee, they look forward to their day in court. McGhee believes his client will be found innocent of all charges.
Here is a rundown of colorful events in Harrison's past:
(1) Conviction on meth-trafficking charges
You might think having a conviction for meth-trafficking would put an end to your legal career. After all, lawyers are supposed to uphold the law and stuff. But you would be wrong. Harrison was convicted of conspiracy to distribute methamphetamine in March 1997, but bingo, he still has his bar card. How does a lawyer with such a background wind up representing Ronnie Gilley in a case that drew national attention? Hmmm . . . that has never been made clear.
(2) And now appearing at Ashley Madison
Harrison is one of numerous Alabama lawyers who appear at the notorious extramarital-affairs Web site. (More on that in an upcoming post.)
(3) Representing man in a bestiality case
In 2015, Harrison represented a Geneva man in a bestiality case. From a news report on the case, which became a social-media phenomenon:
The man charged with having sex with his estranged wife's dog was in a Geneva courtroom today. Jonathan Medley's trial was continued to the December Circuit Court docket. Last June, the 39-year-old reportedly told police he had sexual contact with the shih-tzu named Buster because his wife paid more attention to the dog (than to him). Medley's attorney's, David Harrison, tells News 4 his client is innocent of the charge. The case has generated worldwide attention through social media.
Medley wound up pleading guilty to a misdemeanor and was sentenced to a 12-month sentence to be served for 15 consecutive weekends at the Geneva County Jail.
(4) Allegations of ineffective assistance of counsel
Gilley filed a document in October 2013, alleging that Harrison provided ineffective assistance of counsel in the bingo case. The document includes portions of a transcript from jailhouse phone calls in which Gilley makes clear to Harrison that he does not want to plead guilty and he does not believe he is guilty. (More on that in an upcoming post.)
Gilley was released in 2016 after serving four years in federal prison. Gilley now is working in construction and property development and hopes to return to the entertainment business.
(5) A peculiar relationship with current U.S. Senate candidate Doug Jones
Before Harrison joined the defense team, Gilley's representation came from Doug Jones and two other attorneys from the former Birmingham firm Haskell Slaughter. Court documents indicate that Harrison and Jones were on the case together for almost a month. When asked about his actions on Gilley's behalf, and about Harrison's criminal background, Jones refused to comment.
Jones, a Democrat who once served as U.S. attorney under the Bill Clinton administration, now is running for the U.S. Senate seat vacated by Trump attorney general Jeff Sessions. What about Jones' ties to David Harrison and the dubious Gilley guilty plea? Is Jones someone Alabamians seriously should consider to represent them in the U.S. Senate? (More on that in upcoming posts.)
|Virginia Emerson Hopkins|
We've written extensively about our interactions with ND AL federal judges William M. Acker Jr. (a Reagan appointee), Abdul Kallon (Obama), and R. David Proctor (Bush II). We've shown that these three amigos are, as my mother used to say when I was a wee sprout, "crooked as a dog's hind leg."
(Note: My mother grew up in Osage, Arkansas, not far from where several episodes of The Beverly Hillbillies were filmed back in the day. It's also not far from Harrison, Arkansas, which once was home to Dogpatch USA, a now-abandoned theme park based on the characters of Al Capp's Li'l Abner. My mother grew up in what might charitably be called a "shack," with no running water or electricity, but she came from learned stock. The union of her mother and father produced a nurse, a social worker, an engineer, and a school teacher/principal. It's nice to know that I come from a line of pretty smart folks, but I can't deny there's a heavy dose of hillbilly blood coursing through these veins. All of this is to say my mother came by her corny sayings honestly, and so does her oldest son.)
Now, along comes U.S. District Judge Virginia Emerson Hopkins to show that she might be just as crooked as all the rest. Hopkins entered the scene when Proctor acknowledged that he had a conflict of interest requiring recusal in our "House Case," and the matter wound up in Hopkins' lap. In true ND AL fashion, Proctor made the laughable claim that his conflict had arisen only after he had dismissed our case. The case is on appeal to the Eleventh Circuit, but for now, Proctor's unlawful rulings stand -- even though publicly available information shows his conflicts date back way before our complaint was filed. In other words, he was disqualified from the outset but failed to abide by his duty to recuse when his impartiality might "reasonably be questioned." Like I said, these folks are crooked -- and they don't try real hard to hide it.
We have evidence, already, that Hopkins fits the mold. Since Proctor's exit, our Rule 59 Motion to Alter or Amend Judgment fell to Hopkins. She issued an order, denying the motion, that suggests she never even glanced at the case file -- and maybe did not read the motion. (Our Rule 59 motion, and Hopkins ruling on it, are embedded at the end of this post.)
How nutty was Hopkins' ruling? Let's take a look:
(1) Manifest errors of law? Gee, I don't see any.
Hopkins acknowledges that manifest errors of fact or law are grounds for reversal via a Rule 59 motion. We present 11 or 12 (depending on how you count) manifest errors of fact or law that Proctor made in his 45-page memorandum opinion dismissing our case. But Hopkins can't see one of them. Here is what she writes:
Importantly, Plaintiffs’ disagreement with the court’s reasons for dismissing their case does not, in any manner, demonstrate that the 45-page memorandum opinion thoroughly supporting the with-prejudice dismissal contained manifest errors of law or fact.
Oh, really? Let's see if we can help the scales fall from Judge Hopkins eyes.
(2) A "heightened pleading standard" no longer exists in the Eleventh Circuit
Proctor dismissed a number of our claims based on the "heightened pleading standard" of a U.S. Supreme Court (SCOTUS) case styled Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007). But that presents a slight problem: The Eleventh Circuit, in at least two cases, has flatly rejected the Twombly standard and even SCOTUS, in at least one case, has rejected it. From our Rule 59 motion:
Proctor uses the wrong standard of review throughout. The U.S. 11th Circuit, which provides binding law for this case, has held no heightened pleading standard, of the sort raised in Twombly and Iqbal, exists in the circuit (covering Alabama, Georgia, and Florida.) The 11th Circuit held in Randall v. Scott, 610 F.3d 701, 710 (11th Cir., 2010) as follows: "We conclude that the district court erred in applying a heightened pleading standard to Randall's complaint. After Iqbal it is clear that there is no "heightened pleading standard" as it relates to cases governed by Rule 8(a)(2), including civil rights complaints. The 11th Circuit reaffirmed Randall in Saunders v. Duke, 766 F. 3d 1262 (11th Cir., 2014).
Here is the key point: The 11th Circuit found in Randall that most pleading standards are governed, as they have been for decades, by Federal Rules of Civil Procedure (FRCP) 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."
Even SCOTUS is moving away from heightened pleading standards. Our Rule 59 motion cites its most recent finding on the matter:
Like the Eleventh Circuit, the U.S. Supreme Court is moving away from the language of Twombly and Iqbal.In Johnson v. City of Shelby, 135 S. Ct. 346 (2014), the nation's highest court held: "We summarily reverse. Federal pleading rules call for "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.
Our complaint easily clears "the short and plain statement" hurdle, and neither Proctor, nor Hopkins, nor any defendant even attempts to argue that isn't the correct pleading standard. Proctor, through all 45 pages of his opinion, ignores the proper pleading standard -- but Hopkins can find no manifest errors of law or fact? The woman either is blind, preposterously lazy, or both.
(3) Virginia Emerson Hopkins: A Portrait of Judicial Laziness
Hopkins makes no effort to address any of our substantive arguments. She does, however, try to deny us the right to file an amended complaint -- and she can't get that right.
An amended complaint would not be necessary in our case if we could find a district judge who knew how to follow Eleventh Circuit precedent. That seems impossible, but it can't be seriously argued that we are entitled to amend our complaint.
Hopkins tries it anyway, citing a case styled Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, (11th Cir. 2010) for its proposition that "Post-judgment, the plaintiff may seek leave to amend if he is granted relief under Rule 59(e) or Rule 60(b)(6)." In other words, Hopkins claims, Proctor denied our Rule 59 motion, so we can't seek leave to amend our complaint.
(Interestingly, I can find no Eleventh Circuit case where Jacobs is cited. Also District Judge Kenneth Ryskamp, sitting by designation in Jacobs, issued a blistering dissent that charges his colleagues with gross misapplication of the law. We plan to make the Ryskamp dissent the subject of a future Legal Schnauzer post.)
Hopkins ignores an inconvenient truth: We are pro se litigants, and the law allows us at least one opportunity to amend our complaint. From the Rule 59 motion:
Here is a key holding on this issue in the Eleventh Circuit: A pro se plaintiff, however, "must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice," at least where a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir., 1991).
Another key holding from the Eleventh Circuit: "As to the second exception, where the issue of futility is close, we err on the side of generosity to the plaintiff."O'Halloran v. First Union Nat'l Bank of Fla., 350 F.3d 1197 (11th Cir. 2003)."
Did Proctor and Hopkins have an obligation, under the law, to allow amendment of our complaint (even though it should not have been needed)? Yes. Is this a case of judges cheating everyday parties who are challenging powerful corporate, political, and institutional entities? Absolutely. Does this happen often in the Eleventh Circuit? It sure as heck does.
In fact, we have more evidence of Hopkins' cheat job, and that will be unmasked shortly.
(To be continued)
The following is part of an e-mail he sent to me on April 28. It came after he had admitted my reporting on his activities at Ashley Madison was accurate, and he had struggled for some time with sex addiction:
The embarrassment you're causing my wife is something I don't think you fully grasp, and the pain of not only opening these old wounds but opening it to the public for her ridicule is outrageous.
Regular readers of this blog know that my wife, Carol, and I have earned graduate degrees in "pain management," so I had a ready answer for Mr. Deusner:
I know all about pain, and so does my wife. I was thrown in jail for five months in Alabama for writing an accurate blog post that displeased Judge Bill Pryor and the Bob Riley gang. I've come to learn that Rob Riley is one of the most corrupt "humans" on the face of the earth.
We lost our home of 25 years in Birmingham to a wrongful foreclosure driven by associates of Bob Riley and Luther Strange and Jeff Sessions. We now live in Missouri, and cops here conducted an unlawful eviction and broke my wife's arm -- snapped the bone in two, just above the elbow. I saw the whole thing happen. They then turned around and brought bogus criminal charges against her. All of our possessions have been stolen; I have one pair of pants and one pair of shoes to my name.
All of that is neither here nor there regarding this post. But I'm just trying to let you know that I'm not a neophyte when it comes to pain. We live in a society where people literally can be beaten up inside their own home, kidnapped by cops without a warrant, and thrown in jail for practicing journalism.
I can't take down the post now; it's accurate, and I know of no journalist who would remove a story that is accurate. I've worked in the field for 35 years and have a degree in journalism. I would be glad to talk with you early next week, but I will leave that up to you. Just let me know your thoughts.
Deusner's reply was revealing on a number of fronts:
I am not contesting the accuracy, but accuracy is not the point. I am a private citizen, and you are posting outrageous, hurtful, scandalous information about me, with links to my wife's Facebook and photos of my children. You're causing undo pain and suffering - that's not journalism - and nothing about this is in the public's interest. I made mistakes and owned up to them, and paid the price and continue to pay the price. I will ask you to reconsider your position. I understand you are busy filing court papers right now, but please take time to reconsider. The last thing I need right now are legal fees - and I am sure its the last thing you need as well. I really hope we can resolve this without going that route.
Let's note a few peculiarities here:
(1) Deusner claims accuracy is not the point. But as a lawyer, Deusner should know accuracy is THE point in any journalistic endeavor; it's an absolute defense against claims of defamation. And Deusner admits he's not contesting the accuracy of my report. So, what's his beef? He doesn't have a legitimate one -- just sound and fury, driven perhaps by guilt over the mistakes that, to his credit, he admits to.
(3) Deusner concludes by really going off the deep end -- threatening legal action over an article he admits is accurate. Upon what grounds does he plan to base a possible lawsuit? I have no idea. But he should know there is a tort called abuse of process that can be a counterclaim to a lawsuit that has no basis in fact or law. Also, most jurisdictions have some sort of "litigation accountability act" that can have serious consequences to those who use the courts to file groundless claims.
Here is how I left things with Deusner:
I've said I would be glad to speak with you via phone, and I should be available early next week. If you want to get in touch with me then, that's fine. If not, that's fine, too.
Not sure how I could have been any more courteous, considering the ugly tone and pure garbage he was throwing at me. I've heard no further word from him.
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|"Do Not Publish" appellate opinions|
often provide cover for corrupt
trial judges like William M. Acker Jr.
-- Monroe Freedman, founder of legal ethics
Join me on a brief tour of our experience with "Do Not Publish" opinions in the Eleventh Circuit Court of Appeals. We've shown that the late law professor Monroe H. Freedman found such opinions often are a sham, designed to cover up findings that bear no resemblance to the facts and law governing the case.
My wife, Carol, and I know, from unpleasant, firsthand experience that Freedman was right. In fact, we have two pending matters before the Eleventh Circuit, related to our "Jail Case" and "House Case," and our No. 1 concern is that the ruling will come with "Do Not Publish" stamped in the upper right-hand corner. Without even reading the opinion, that will tell me we've been screwed.
We've had three similar experiences already, and it disgusts us to think taxpayer dollars are being wasted on opinions that "bear no relationship whatsoever to the cases that have been filed and argued before the judges." Those aren't my words. They come from Monroe H. Freedom, who is considered the father of modern legal ethics as a academic subject.
I won't address everything the court got wrong in our cases, focusing only on the primary unlawful findings that forced the court to put the "Do Not Publish" stamp on them. Given that 82 percent of the circuit's cases wind up with unpublished opinions, you are likely to have a similar experience if you live in Alabama, Georgia, or Florida and ever have a federal issue go to appeal:
(1) Shuler v. Board of Trustees of the University of Alabama, et al., 11th Cir., 2012 (Do Not Publish)
Issues at stake -- Allegations of discrimination, and First Amendment violations, related to my termination as an editor at the University of Alabama in Birmingham (UAB), where I had worked for almost 20 years.
Primary unlawful finding in trial court -- Rule 56 of the Federal Rules of Civil Procedure (FRCP) and binding Eleventh Circuit law (see Snook v. Trust Company of Georgia, 859 F.2d 865, 11th Cir., 1988) hold that a court cannot consider summary judgment until the parties have had an opportunity to conduct discovery. Federal rules require a court to order a discovery conference and set a schedule to govern the completion of interrogatories, depositions, requests for production of documents, and the like.
Trial judge William M. Acker Jr. did none of those things. He granted summary judgment to the university, without the first bit of discovery being conducted. He did it, even though I filed three documents informing the court that discovery not only was outstanding, it hadn't been conducted at all. That cannot happen under the law, as outlined in Snook: "This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests."
I cited Snook over and over in trial-court documents. Did that have any impact on Acker, a Reagan appointee who now is 89 years old? Nope. After telling me in open court that he was going to cheat me, Acker did just that.
What the appellate court did about it -- A three-judge panel simply lied about its own holding in Snook--and it lied about my actions in the trial court. Snook holds that a party simply needs to notify the court that discovery has not been completed -- in this case, discovery had not even started -- and that invokes the protection of Rule 56(d). I filed proper notification in three separate documents, but Acker ignored each one. And the appellate panel covered for the trial court by writing the following: "Shuler never filed a motion under Rule 56(d) and did not identify any discovery relevant to the grounds for summary judgment."
How gross is this con job? You can read my Rule 56(d) motion here, and I filed two other documents alerting the court that discovery had not begun, had not even been scheduled. You can read my petition for an en banc hearing here, and it outlines everything the appellate panel got wrong. Naturally, my en banc petition was denied.
Why this opinion had to be stamped "Do Not Publish" -- Nothing is profound about Snook. I'm sure every federal circuit has similar case law because it's a matter of common sense: You can't determine that a case should be summarily dismissed, or allowed to go to trial, until both parties have been allowed to gather facts that support one outcome or another. In Bill Acker's world, at least in my case, court is a "fact-free zone." My case was decided without a single fact being entered into the record. And the 11th Circuit essentially said, "That's perfectly OK, even though we know it conflicts with Snook. Big deal. Due process and equal protection of the law mean nothing to us."
A quick check of Google Scholar shows that Snook has been cited as recently as Dec. 2, 2015. That means it still is binding precedent, and it probably will be binding precedent as long as federal courts exist in the Southeast. It's that fundamental, so essential to any notion of fair play and justice in our courts. The Eleventh Circuit's ruling in Shuler overturns Snook -- and if put into the official record, that would throw the circuit into chaos. That's why the opinion in my case had to be marked "Do Not Publish."
(2) Roger and Carol Shuler v. Swatek, et al., 11th Cir., 2012 (Do Not Publish)
Issues at stake -- Allegations that a sheriff's sale related to our house was unlawful, violating our rights to due process and equal protection.
Primary unlawful finding in trial court -- Judge Abdul Kallon, citing the Rooker-Feldman doctrine, found that he did not have subject-matter jurisdiction to decide the case. Rooker-Feldman holds that lower federal courts, other than the U.S. Supreme Court, generally should not sit in direct review of state-court decisions. The doctrine involves a number of exceptions, and several of them applied to our case. Perhaps most importantly, Rooker-Feldman applies only to "final state-court judgments." (See Nicholson v. Shafe, 558 F.3d 1266, 11th Cir., 2009.) We weren't seeking review of a final state-court judgment; we were seeking review of a sheriff's sale. In fact, the record showed there was no state-court judgment related to the sheriff's sale.
Federal courts have found that federal claims can be barred if they are "inextricably intertwined" with a state-court judgment. (See Casale v. Tillman, 558 F.3d 1258, 11th Cir., 2009.) Casale held that "A claim is inextricably intertwined if it would effectively nullify the state court judgment . . . or it succeeds only to the extent that the state court wrongly decided the issues." Our claim did not seek to nullify a state-court judgment, and it did not claim that a state court wrongly decided any issue. It claimed that the Shelby County Sheriff's Department unlawfully conducted a sale that caused us to lose full rights to our house.
What the appellate court did about it -- The three-judge panel ignored the 11th Circuit's finding in Nicholson that Rooker-Feldman applies only to final state-court judgments. Made no mention of it.
The panel did admit that, under Lance, Rooker-Feldman did not block Carol's claims. Bit it dismissed her claims on other dubious grounds, mainly involving immunity. The panel ignored the U.S. Supreme Court finding in Lugar, which if applied properly based on allegations in our complaint, would have treated Swatek and McGarity as acting under color of state law. My appellate brief on the various issues can be read here.
Why this opinion had to be stamped "Do Not Publish" -- The panel's ruling in Shuler essentially overruled Nicholson, Lance, and Lugar -- and butchered the long-held findings related to Rooker-Feldman. In terms of Lugar, the Eleventh Circuit effectively overruled the U.S. Supreme Court. That's something circuit courts are not allowed to do -- the U.S. Supreme Court is called "the highest court in the land" for a reason; Lower courts have an obligation to uphold its findings. Again, had Shuler been published it would have thrown the Eleventh Circuit into chaos -- certifying findings that run contrary to precedents that have governed important legal questions for years.
(3) Roger and Carol Shuler v. Ingram and Associates, et al., 11th Cir., 2011 (Do Not Publish)
Issues at stake -- Allegations that certain entities violated the Fair Debt Collection Practices Act (FDCPA) in trying to collect a debt we allegedly owed to American Express.
Primary unlawful finding in trial court -- This case was a mess from the outset. Four different judges were assigned to it, with Kallon finally getting it. By the time it wound up in his lap, I don't think he had a clue what was going on. We had multiple attorneys representing us, included the deceptive duo of Darrell Cartwright and Allan Armstrong, who essentially cost us the case by admitting to "facts" that the record shows were not facts. Consider this from our appellate brief, which I wrote after we fired Cartwright and Armstrong:
Any admissions in the record were not made by the Shulers; they were made by Darrell Cartwright and Allan Armstrong, two attorneys who no longer represent the Shulers. It was Cartwright and Armstrong who, without consulting the Shulers, admitted to “undisputed facts” Nos. 9, 12, 13, and 18 in Ingram’s motion for summary judgment. The Shulers’ own attorneys repeatedly made blatant mistakes that undermined their clients’ case, admitting to “facts” that are not facts. Federal law makes it clear that a party is not to suffer because of the incompetence of counsel. Consider Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,843 F. 2d 808 (4th Circuit, 1988) : “When the party is blameless and the attorney is at fault, the former interests control . . .”
So many errors of fact and law were made in this case, it's hard to know where to begin. Cartwright and Armstrong wrote our response to Ingram's Motion for Summary Judgment, and they did a fairly good job on the argument -- despite wrongfully admitting near the beginning to at least four non-facts that helped cost us the case. Perhaps the most important error by the court is this: 15 U.S.C 1692e holds that "a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt."
Representatives of Ingram and Associates lied to us over and over -- and we captured it all on tape. Perhaps the most important lie, in our view, was their claim that American Express hired them, even though their own sworn testimony showed that the debt-collection firm NCO hired them. Obviously, American Express is a powerful, well-known consumer brand, and claiming they hired you, makes it more likely you will collect a debt (whether you can prove it is owed or not) with relatively little effort.
What the appellate court did about it -- A three-judge panel did nothing to correct Kallon's numerous mistakes. Contrary to clear law, the panel found that we were to suffer for our attorney's mistakes, upholding as "facts" information that the record showed clearly was not factual. The panel also misapplied the standard for summary judgment review, which holds that all matters must be viewed in a light most favorable to the non-moving party (us). Instead, the panel upheld Kallon's rulings that gave Ingram the benefit of the doubt at every turn.
Why this opinion had to be stamped "Do Not Publish" -- We probably could point to more than a dozen reasons that this case could not be recorded in the actual law. But here's the No. 1 reason: The appellate court, more or less, overturned key provisions of the FDCPA, holding that it's OK for debt collectors to resort to deceptive statements, misrepresentations, threats, and out-and-out lies in efforts to collect a debt. Of course, that's not what the law says, so the ruling had to be kicked into the nether world of unpublished opinions.
That's the place where, all too often, truth, facts, law, and justice go to die.
Many voices, including ours, tried to tell the American public, before Sessions was confirmed, that he has a history of being fundamentally dishonest and corrupt -- not to mention racist. Our take on Sessions came largely from living in Alabama for 36 years, where Sessions served as state attorney general or U.S. senator for most of that time. We reported months ago on multiple examples of Sessions' dishonesty -- one involving him directly and another involving his best-known protege.
Now, we learn that Sessions has not changed, with Trump (and a Republican Congress) giving us a chief law-enforcement officer who has not lawfully received security clearance. Worst of all, the justice department that Sessions "leads," was put in the position of making excuses for an AG whose history of failure to disclose and cover up are well known. From CNN, which broke yesterday's security-clearance story:
Attorney General Jeff Sessions did not disclose meetings he had last year with Russian officials when he applied for his security clearance, the Justice Department told CNN Wednesday.
Sessions, who met with Russian Ambassador Sergey Kislyak at least two times last year, didn't note those interactions on the form, which requires him to list "any contact" he or his family had with a "foreign government" or its "representatives" over the past seven years, officials said.
The new information from the Justice Department is the latest example of Sessions failing to disclose contacts he had with Russian officials. He has come under withering criticism from Democrats following revelations that he did not disclose the same contacts with Kislyak during his Senate confirmation hearings earlier this year.
To no one's surprise, the DOJ promptly went into excuse mode. From CNN:
Sessions initially listed a year's worth of meetings with foreign officials on the security clearance form, according to Justice Department spokeswoman Sarah Isgur Flores. But she says he and his staff were then told by an FBI employee who assisted in filling out the form, known as the SF-86, that he didn't need to list dozens of meetings with foreign ambassadors that happened in his capacity as a senator.
Is that, to put it bluntly, bullshit? Should the public believe anything that comes from Sessions' propaganda apparatus? The answers are a resounding "yes" and "no."
Let's consider just two of many dubious incidents from Sessions' time in Alabama:
(1) An Alabama judge accuses Sessions' office of the worst prosecutorial misconduct he'd ever seen
While serving as Alabama's AG in the 1990s, Sessions became entangled in a case styled USX v. Tieco, which dragged on for roughly 10 years and involved both criminal and civil proceedings. Here is the gist of the matter: Officials and lawyers for United States Steel (USX) prompted the AG's office to bring criminal charges against Tieco officials over alleged fraudulent billing. USX also brought civil claims, and Tieco responded with counterclaims.
As the cases moved forward, it became clear that Sessions and the AG's office were acting with blatant favoritism toward USX and its lawyers from the long-established Birmingham firm of Burr Forman, which had represented the steel company for roughly 100 years.
James S. Garrett, then a Jefferson County circuit judge, dismissed the criminal case against Tieco and blasted Sessions' office in an order and opinion. From our December 2016 post on the matter:
As Sen. Jeff Sessions awaits a confirmation hearing in hopes of becoming the next US attorney general, a blistering legal opinion on a case he oversaw as Alabama's top prosecutor two decades ago could emerge as an issue for the nominee. . . .
"The court finds that even having been given every benefit of the doubt, the misconduct of the Attorney General in this case far surpasses in both extensiveness and measure the totality of any prosecutorial misconduct ever previously presented to or witnessed by this court," wrote James S. Garrett, a Jefferson County Circuit Court judge.
The misconduct was "so pronounced and persistent," Garrett wrote, that "it permeates the entire atmosphere of this prosecution."
Was Garrett finished showing his disgust for Sessions and his office? Absolutely not. Here's more:
A year after the high-profile indictments, Garrett found that the case was rife with prosecutorial misconduct, including failures to turn over exculpatory evidence, deceptive testimony by assistants or agents of the Attorney General and "flagrant disregard of the constitutional rights of those accused."
"This court can only conclude it is dealing with either intentional and deliberate misconduct or conduct so reckless and improper as to constitute conscious disregard for the lawful duties of the Attorney General and the integrity and dignity of this court and this Judge."
Notice key words in the highlighted section above -- "failure to turn over exculpatory evidence,""deceptive testimony,""disregard for constitutional rights." Sounds a lot like Sessions' actions in the Trump-Russia scandal, doesn't it? So does this.
(2) Federal judge Bill Pryor, a devoted Sessions protege, apparently fails to disclose information to Congress
We have reported extensively on Pryor, a fiercely anti-LGBT judge, who has a history of posing nude for gay magazines and Web sites, dating to his college days in Louisiana in the 1980s. Pryor served under Sessions in the Alabama AG's office and has seen his career boosted at every opportunity when Sessions served on the Senate Judiciary Committee. Pryor was a finalist to replace Antonin Scalia on the U.S. Supreme Court but lost out to Neil Gorsuch, of Colorado, when even the Trump administration apparently could not stomach the thought that the Pryor gay-porn brush fire might turn into a conflagration.
|Robed and disrobed Bill Pryor|
That brings us to Pryor's Senate confirmation hearing. It is standard for a federal nominee to be asked, under oath, if there is anything in his background that might embarrass him or the president who nominated him. Pryor has known the nude photos were public since at least September 1997, and our sources say he likely did not disclose their existence to FBI and Senate investigators.
What are the possible implications of that? Here is how we answered that question in an earlier post:
"Could Pryor face serious consequences if it is shown he made false statements to officials looking into his background? Based on the impeachment and removal of Louisiana federal judge Thomas Porteous in 2010, the answer might be yes.
"One of the articles of impeachment against Porteous involved his failure to disclose information to investigators--and his false statements during pre-confirmation regarding any background information that might prove embarrassing to him and the president who nominated him, Bill Clinton.
"Did Pryor withhold information that would embarrass him and George W. Bush? We don't have a certain answer at the moment, but it appears likely."
Yesterday's security-clearance report probably will not be the last one to show that Jeff Sessions has engaged in underhanded behavior. He's had that tendency for decades.
A Republican Congress knew all about Sessions' lack of integrity, but they chose to ignore it. Those Americans who have a few functioning brain cells -- and who lack a tendency to reflexively vote GOP for race-based reasons -- should remember that the next time they go to the polls.
Meanwhile, our best hope is that Jeff Sessions can only do limited damage to our justice system.
(From Washington Examiner)
Greg Gianforte, a tech millionaire, is running in a special election for Montana's seat in the U.S. House of Representative. During a press session yesterday, Gianforte apparently took exception to questions from The Guardian reporter Ben Jacobs and slammed Jacobs to the ground. Jacobs was transported via ambulance to a nearby hospital, but his primary injury apparently was winding up with broken glasses. Journalists from multiple news outlets, including Fox News and BuzzFeed, witnessed the incident and confirmed Jacobs' account of what happened.
The election, with Gianforte running against Democrat Rob Quist, is today, so it won't take long to determine if an assault charge hurts a Republican's chances in Montana. Our guess is that it won't hurt Gianforte one bit, and he will wind up winning the seat left vacant when Ryan Zinke resigned to join Donald Trump’s Cabinet as secretary of the Interior Department.
Normally, I would be outraged at such brutality used against a journalist, or anyone, for that matter. But I've seen this kind of thuggery in an up close and personal way. It has been used in both Alabama and Missouri against my wife and me, and compared to our experiences, Jacobs got off lucky. The Montana incident has been portrayed as "unprecedented" or sparked by Donald Trump's attacks on the press. But neither of those characterizations is true, and I know from firsthand experience.
I was thrown three times to the concrete floor of my own garage, doused with pepper spray, and hauled to the Shelby County Jail in Alabama for a five-month stay. That was in October 2013, and it made me the first U.S. journalist since 2006 to be incarcerated -- and apparently the only one in U.S. history to be jailed because of an unlawful preliminary injunction in a defamation case. What was my crime? Reporting accurately about an extramarital affair involving a GOP political figure and a lobbyist.
More recently, in September 2015, a Missouri deputy body slammed my wife to the ground during an unlawful eviction and yanked so viciously on her limbs that he snapped the bone in her upper left arm, just above the elbow. The break was so severe that it required trauma surgery for repair; doctors determined that regular orthopedic surgery would not get the job done.
And get this: Carol was arrested on January 30, 2017, and charged with assaulting a law enforcement officer. You heard that correctly: The victim of an assault by cops now stands charged with assaulting a cop. We've received a number of documents related to discovery in the case, and the falsehoods told by Missouri deputies will shock anyone who has a conscience. (A number of posts about those bogus documents will be coming soon.)
Perhaps most shocking is this: The Probable Cause Statement and Misdemeanor Information in the case show that, on their faces there were no grounds to arrest and incarcerate Carol, much less make her stand trial. So far, Judge Margaret Holden Palmietto has refused to consider Motions to Dismiss until Carol has a lawyer, and Carol wound up with a public defender (PD), whom we've never met, after the judge forced her to fill out a PD application. What was Carol's real "crime"? Being married to me, a journalist.
Republican brutality against a journalist is not as new as some experts might think. A professor at Carroll College in Montana yesterday called the Gianforte incident "unprecedented." From a report about Prof. Jeremy Johnson's take on the assault:
Johnson said he couldn’t think of any precedent for what happened Wednesday night a little over 24 hours before voting ends in the first U.S. House special election Montana has held since the 1960s. The 85-day campaign has been unlike any seen in the state, drawing more spending during a very compressed cycle than the November race for the seat.
Huffington Post portrayed the Gianforte incident as spillover from Donald Trump's attacks on the press. From the HuffPo piece, by Michael Calderone, titled "GOP Candidate’s Attack On Reporter Shows Peril Of Asking Questions In Trump’s America":
On Wednesday evening, Montana Republican congressional candidate Greg Gianforte slammed Guardian reporter Ben Jacobs to the floor as Jacobs tried to ask his view on GOP health care legislation.
As Jacobs and a Fox News crew told it, it was a shocking assault on a reporter just one day before a special election to fill the state’s lone House seat.
But it was hardly an isolated occurrence. In the past three weeks, political reporters have described being arrested, pinned against a wall, slapped, and now body slammed ― all this in a nation where freedom of the press is enshrined in the Constitution.
Alaska Dispatch News reporter Nathaniel Herz told police earlier this month that Republican state Sen. David Wilson slapped him during an encounter over a recent story.
West Virginia reporter Dan Heyman was arrested on May 10 while trying to ask a question of Health and Human Services Secretary Tom Price, who later praised police for their handling of the situation.
And last week, CQ Roll Call reporter John M. Donnelly said he was pinned against a wall by security guards after trying to ask a Federal Communications Commission member a question in Washington.
The Johnson and Calderone takes are intriguing, but they are more than a little off target. Johnson claims the Montana incident is "unprecedented" -- but it isn't. I was assaulted for being a journalist more than three years ago, and Carol was beaten for being married to a journalist roughly 20 months ago -- and we both were injured much more severely than was The Guardian's Jacobs.
Calderone suggests the Montana incident is peculiar to the Trump era -- except that it isn't. Carol and I both were brutalized while Barack Obama was president -- and my case received international news coverage. But we never saw any sign that the Obama justice department would look into terrorism against journalists and their family members.
About the only difference between what happened last evening in Montana and our experiences is this: In Alabama and Missouri, corrupt GOP political figures get law enforcement to do their dirty work for them; in Montana, Gianforte took matters into his own hands.
Here is another major difference: Gianforte, who is not a "state actor," is facing a misdemeanor under Montana law. The cop/thugs in our cases committed federal crimes -- 18 U.S. Code 242, Deprivation of Rights Under Color Law -- and we soon will be filing criminal complaints with the U.S. attorneys in the appropriate federal districts.
Why was Gianforte so sensitive about questions from a Guardian reporter? Perhaps it's because the newspaper had reported previously on his investments in Russian index funds.
It's hard to see how Gianforte is going to get off on an assault charge, and he's likely to cough up a bundle in a civil case. When that happens, don't be surprised if GOP politicos take a page from the Alabama/Missouri playbook -- they will start getting cops to rough up journalists for them. Carol and I know exactly how that works.
Here is a video that includes audio of the body slamming incident in Montana:
Gerson was the speechwriter for George W. Bush who came up with the phrase "axis of evil," referring to states that allegedly sponsored terrorism or sought weapons of mash destruction -- such as Iran, Iraq, and North Korea. Bush introduced that phrase to the world in his January 2002 State of the Union Address, a little more than four months after roughly 3,000 Americans lost their lives in the attacks on 9/11.
We now know that none of the countries that comprised the "axis of evil" had anything to do with 9/11. Maybe that's why Gerson wants to gloss over the "Dubya" years, not to mention other eras where conservative "thinking" was around the bend.
Gerson is correct to say that much of today's conservative thought has pathological origins. And he is right to suggest that Trump -- while in office barely four months -- has taken dishonesty, boorishness, and possible criminality to condensed and heightened levels we probably have not seen before. But Gerson is wrong to suggest a diseased conservative mind was not present long before Trump took center stage.
On a personal level, I've witnessed diseased conservative thinking in my own family for roughly 25 years. My late father, to his credit, was a Republican before it was cool -- and I never understood why since he worked for the U.S. Post Office, in a job that offered the kind of union benefits and protections that Democrats support and Republicans abhor. In essence, he was able to support a family of six because of a union job that grew from liberal policies. Still, he consistently voted Republican, probably because of the anti-communist views that were passed down from my grandfather, Walter Shuler. of fashionable Aldrich, Missouri (which mostly now resides deep under the waters of Stockton Lake).
My mother, best I could tell, was a Roosevelt Democrat, largely because of actions FDR took during the Great Depression to save her impoverished portion of northwest Arkansas (which included Osage, Alpena, and the relatively large Harrison, not far from Fayetteville, home of the Razorbacks). She often extolled the virtues of Roosevelt and the public-spending policies that she felt put people back to work and pulled the country out of one of its darkest hours.
I long have considered myself more of an Arkansan than a Missourian because my hometown of Springfield is much closer to the Arkansas border than it is to the heart of Missouri (Kansas City, Jefferson City, Columbia, St. Louis -- along and near the I-85 corridor at the center of the state). Plus, my mother's parents, from a shack in the Ozark hills, produced a nurse, a social worker, an engineer, and an educator -- so, I always considered them the "thought leaders" of our clan. My dad's side of the family, I thought, produced good folks -- "Men From Earth" farming types -- but whatever thoughts they collected tended to stay internalized.
As the 1992 election approached, I was pretty stoked that a real Arkansan, Bill Clinton (as opposed to a watered-down Arkansan, such as myself) appeared to be in good shape to win the White House. When the subject came up at a family gathering, it was clear no one else shared my enthusiasm -- even my mother, who had regaled us for years with tales of comical and dramatic moments from the hard life on an isolated Arkansas farm.
I learned that my immediate family members were suddenly "pro life" on the issue of abortion rights. They were entitled, of course, to hold a wrong-headed opinion (and by "wrong-headed," I mean an opinion different from my own), but it produced a sense of foreboding in me because I had never heard the subject discussed when I was growing up. One of the tenets of the Shuler life, as I understood it, was to keep our noses out of other people's business -- and the pro-life stance, by definition, means you are sticking your nose into someone else's business.
When I noted that my wife, Carol, and I were pro choice, it drew the kind of ugly, race-tinged language that I had never heard in my family home growing up. I wasn't quite sure what was happening with my family -- and I'm still not -- but I suspected I didn't want to be a part of it. Carol and I started keeping a distance from the Missouri side of our family around 1992, and that became pretty much a total blackout (with a few exceptions) around 2000.
Speaking of 2000, that's roughly when "diseased conservative thinking" hit us smack in the face. Our troubled and troubling neighbor Mike McGarity, who somehow managed to get a job at Blue Cross and Blue Shield of Alabama despite his extensive criminal record, filed a lawsuit against me that grew from his efforts to steal our land -- and our efforts to resist. Shelby County judges J. Michael Joiner and Dan Reeves repeatedly ruled contrary to black-letter law, and this is a classic example of diseased thinking. In fact, it is un-American thinking, showing utter disregard for foundational concepts of due process and equal protection.
All of the bogus rulings from Joiner and Reeves benefited Bill Swatek, who was McGarity's attorney. Swatek has been disciplined at least three times by the Alabama State Bar, including a suspension of his license and a criminal trial for perjury, so he is among the lowest of the low in the state's legal community. But his son, Dax Swatek, is a noted GOP political consultant with ties to former governor Bob Riley, Business Council of Alabama chieftain Bill Canary, and (via Canary) to "Bush's Brain," Karl Rove. So that gives the senior Swatek a certain pull among judges in central Alabama, and we learned it is common for them to rule in his favor, no matter what the relevant facts and law say.
Swatek, Joiner, and Reeves represent what we called "The New Confederacy," in a post from July 2016. We submit that the New Confederacy has its roots in the Old Confederacy and the Dixiecrat movement of the Old South. But it has spread to other parts of the United States, especially to Great Plains states such as Oklahoma, Kansas, Missouri, Nebraska, Wyoming, Montana, and Idaho. From our earlier post, which focused on the trial of former Alabama House Speaker Mike Hubbard:
"The New Confederacy" includes individuals who tend to self-identify as "patriots," even though they reject fundamental tenets of the U.S. Constitution. These modern-day confederates tend to especially reject the Fourteenth Amendment guarantees of due process and equal protection, which became part of America's constitutional landscape after the Civil War.
From 1866 to 1868, Southern states bitterly opposed ratification of the Fourteenth Amendment. The Hubbard trial showed that many Southerners, especially elites, still despise the principles of the Fourteenth Amendment.
The McGarity lawsuit helped teach us that the Fourteenth Amendment, when butchered by corrupt "New Confederacy" judges, has no meaning in postmodern America.
That brings us back to Michael Gerson, and his flawed notion that Donald Trump has ushered in an era of "diseased conservative thinking." Trump certainly is doing his best to add to such "thinking," but he hardly invented it.
When did it start? I submit it started with the GOP's use of race-based fears as a political weapon. Richard Nixon rode his "Southern Strategy" into the White House in 1968 and 1972. Watergate slowed the GOP advance in the mid 1970s, but Ronald Reagan stoked the flames anew by using coded race-based language to kick off his 1980 general-election campaign in Philadelphia, Mississippi.
Once the white middle class was sufficiently distracted by race-based fears, the GOP turned to criminal enterprises, under Reagan and George H.W. Bush in the 1980s and early '90s. Those included the Savings and Loan Scandal, Iran-Contra, and CIA gun- and drug-running operations that likely led to the assassination of federal judge Robert Vance Sr., via a mail bomb sent to his home in the Birmingham suburb of Mountain Brook.
Michael Gerson goes off the tracks by ignoring these realities. From his opinion piece, which originated in The Washington Post and drew major attention late last week:
To many observers on the left, the initial embrace of Seth Rich conspiracy theories by conservative media figures was merely a confirmation of the right's deformed soul. But for those of us who remember that Rush Limbaugh and Sean Hannity were once relatively mainstream Reaganites, their extended vacation in the fever swamps is even more disturbing. If once you knew better, the indictment is deeper.
The cruel exploitation of the memory of Rich, a Democratic National Committee staffer who was murdered last summer, was horrifying and clarifying. The Hannity right, without evidence, accused Rich rather than the Russians of leaking damaging DNC emails. In doing so, it has proved its willingness to credit anything — no matter how obviously deceptive or toxic — to defend Donald Trump and harm his opponents. Even if it means becoming a megaphone for Russian influence.
The basic, human questions are simple. How could conservative media figures not have felt — felt in their hearts and bones — the God-awful ickiness of it? How did the genes of generosity and simple humanity get turned off? Is this insensibility the risk of prolonged exposure to our radioactive political culture? If so, all of us should stand back a moment and tend to the health of our revulsion.
Gerson is missing the big picture. The problem of diseased conservative thinking goes way beyond conspiracy theories about Seth Rich, or anyone else. It goes to very real and damaging actions, including those in the George W. Bush administration -- of which Gerson was part. Consider just a few of the "icky" events that happened on Bush's watch:
* Likely theft of the 2000 presidential election in Florida, ruled by Gov. Jeb Bush, with an infected U.S. Supreme Court sweeping out the apparent winner, Al Gore, and sweeping in the outrageously unqualified George W. Bush.
* The attacks of 9/11, of which the Bush administration had advanced warnings, but failed to take any actions to stop them.
* Use of political prosecutions to ruin Democratic foes, most famously being the Don Siegelman case in Alabama.
* The firings of U.S. attorneys, who refused to carry out prosecutions for political reasons.
* The instigation of a war in Iraq, based on flawed intelligence information.
* The outing of CIA operative Valerie Plame.
If we still have a semi-functional justice apparatus, Trump and dozens of his comrades should be indicted in the next year or so. If that happens, it will be the ultimate illustration of diseased conservative thinking. But that sort of thinking hardly began with Donald Trump.
It's been going on for roughly 50 years, at least.
|U.S. Eleventh Circuit Court of Appeals in Atlanta|
-- Monroe H. Freedman, founder of legal ethics
Eight of the 11 filled seats on the U.S. Eleventh Circuit Court of Appeals now are occupied by Bill Clinton or Barack Obama appointees (with one seat vacant, to be filled by Donald Trump if he isn't indicted first). Does that mean the Atlanta-based court slowly is turning from a judicial sewer, which it has been for decades, to a place where the rule of law might actually make a comeback?
That should be a compelling question for anyone living in Alabama, Georgia, or Florida -- the three states that comprise the Eleventh Circuit. It is a profoundly important question in the Schnauzer household because we have two pending appeals before the Eleventh Circuit, and in theory, that should have us feeling pretty confident that justice will be done. After all, judges who sit on circuit courts are just one rung below the U.S. Supreme Court, so they should be more capable -- and have more integrity -- than district judges who act at the trial-court level, right?
In reality, the Eleventh Circuit consistently has churned out the kind of opinions that disgusted the late Monroe H. Freedman, who was a law professor at Hofstra University and is considered the founder of legal ethics as an academic field. Much of the Eleventh Circuit's chicanery has been shrouded in "Do No Publish" opinions, which do not become part of the official "reporter-based" body of law and can be used to hide the court's dishonest work.
But even in high-profile cases that produce published opinions, the Eleventh Circuit has proven adept at generating opinions that violate its own precedent. A classic example is the case of former Alabama governor Don Siegelman. We presented the gory details in a five-part series titled "The Cheating of Don Siegelman," then we boiled it down to a one-part, easy-to-digest summary of the Eleventh Circuit's cheat job.
How does this happen? Well, for one, ample evidence suggests the court during the George W. Bush years was tainted by the unlawful influence of GOP strategist Karl Rove, the U.S. Chamber of Commerce, and other corporate interests. It has been reported in multiple news outlets that Birmingham-based Bill Pryor, he of the badpuppy.com gay-porn photos, serves as a fixer on the Eleventh Circuit, at the direction of Rove and other moneyed interests.
On top of that, Siegelman had the misfortune of "drawing" a three-judge panel that consisted of all Republican appointees -- Gerald Bard Tjoflat, J.L. Edmondson, and James C. Hill. I put the word "drawing" in quotation marks because this panel likely was not the result of random selection, as required by law; political forces almost certainly made sure the Siegelman appeal landed before three GOP-appointed con artists.
I know from first-hand experience that Tjoflat and Edmondson are crooks. They were on the panel for the appeal of my unlawful termination at UAB. The Eleventh Circuit upheld the trial court's finding of summary judgment for the defendants, even though no discovery had been conducted in the case. That blatantly violated precedent from Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988), which held that summary judgment cannot even be considered (much less granted) until discovery has been completed.
Tjoflat and Edmondson hid their dirty work by issuing a "Do Not Publish" opinion, which means their bogus ruling, conflicting with black-letter law, will not be part of the official recorded body of law.
We know the Eleventh Circuit has an ugly past. But is it possible that brighter days are ahead? Well, Edmondson has gone on senior status, and Hill died earlier this year. We can hope that Tjoflat will retire, be indicted, or die in the not-too-distant future. Of the 11 judges on active status, five are Obama appointees and three were appointed by Clinton.
Does that mean the Eleventh Circuit is headed into an era of light and integrity? Not necessarily. For one, we know that Democrats can be just as crooked on the bench as Republicans. (See Vance, Robert Jr.) Two, five of the seven judges on senior status are Republican appointees, and they have mysterious ways of turning up on cases, even though they technically are retired. (In the real world or work, retiring usually means you are gone; in the judicial world, you can be retired and still come back -- sort of like a herpes sore.)
As for our pending appeals, let's focus on "The Jail Case," which involves my unlawful incarceration in Shelby County, Alabama, and was the first of our two appeals to be filed. (The other we call "The House Case" and involves the unlawful foreclosure on our home of 25 years in Birmingham.)
The Jail Case appeal never should have been necessary. The law is clear that the court is required to issue summonses and execute service for in forma pauperis (indigent) litigants, a status for which judges in both cases have found we qualify.
The law is a matter of simple common sense. If your resources are so limited that you can't afford to pay a filing fee (usually around $500) and can pay only a partial fee, then it figures you can't afford to pay for service, which can get quite expensive in a case involving a dozen or more defendants, such as ours.
As a matter of law, the Eleventh Circuit cannot rule against us. Our system of "justice" is built on precedent, which is supposed to guarantee consistency and clarity in application of the law. And the precedent in our case is clear: Courts, specifically clerks' offices, are required to execute service for indigent litigants. That already has been done in our other case, "The House Case," so it's not only a matter of getting it right, it's a matter of consistency.
If the Eleventh Circuit ruled contrary to precedent in our case, it would not just be an act of fundamental dishonesty toward us. It also would screw up the case law, ensuring that other litigants facing similar issues down the road will get the shaft also.
But that's where "Do Not Publish" opinions play their nasty role. They are not included in official reporters, so they do not wreak havoc with precedential law. And I'm not the only one who has noted that they often are used for perverse reasons. The late Monroe H. Freedman, who was professor and dean at the Hofstra University School of Law, noticed it almost 30 years ago, long before I ever dreamed of having legal problems.
Consider Freedman's words, from a 1989 speech, reproduced at the beginning of this post. They make me want to stand and shout "Bravo!" I, too, have had enough of bogus judicial opinions that abuse no-publication rules. Notice Freedman's use of the term "cover up." That term is apt, and it points to criminal intent, as in obstruction of justice, maybe more.
Will the heavy presence of Democratic appointees now on the Eleventh Circuit signal an end to the kinds of bogus opinions that infuriated Prof. Freedman? Perhaps the outcomes of our two appeals will provide a clue.
Like Prof. Freedman, I'm fed up with such judicial chicanery, and if we get another such opinion in our pending case before the Eleventh Circuit, I'm going to do everything in my power to make sure the responsible judges are unmasked and held accountable.
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|Sergey Kislyak and Jeff Sessions|
This comes on top of reports that Sessions, during his Senate confirmation hearings as Trump attorney general, failed to disclose two meetings with Kislyak -- and Sessions failed to disclose the meetings on his security-clearance forms.
A former U.S. senator from Alabama and the first major political figure to jump on the Trump train, Sessions already was the focus of Russia-related scrutiny. Last night's report appears to increase the likelihood that Sessions will be at the center of a scandal that threatens to bring down the Trump administration. It also adds to our report last week that Sessions' history of dishonesty and cover ups goes back many years in Alabama. From CNN:
Congressional investigators are examining whether Attorney General Jeff Sessions had an additional private meeting with Russia's ambassador during the presidential campaign, according to Republican and Democratic Hill sources and intelligence officials briefed on the investigation.
Investigators on the Hill are requesting additional information, including schedules from Sessions, a source with knowledge tells CNN. They are focusing on whether such a meeting took place April 27, 2016, at the Mayflower Hotel in Washington, DC, where then-candidate Donald Trump was delivering his first major foreign policy address. Prior to the speech, then-Sen. Sessions and Russian Ambassador Sergey Kislyak attended a small VIP reception with organizers, diplomats and others.
Congressional investigators aren't the only ones on Sessions' trail:
In addition to congressional investigators, the FBI is seeking to determine the extent of interactions the Trump campaign team may have had with Russia's ambassador during the event as part of its broader counterintelligence investigation of Russian interference in the election. The FBI is looking into whether there was an additional private meeting at the Mayflower the same day, sources said. Neither Hill nor FBI investigators have yet concluded whether a private meeting took place -- and acknowledge that it is possible any additional meeting was incidental.
Sessions' recent history of evasive behavior regarding Russia probably does not help his cause -- and likely invites heightened scrutiny:
Asked at a news conference on March 2 whether there were any other meetings with Russians besides those two, Sessions told reporters, "I don't believe so -- you know, we meet a lot of people -- I don't believe so."
Later that week, when Sessions updated his sworn testimony to the Senate judiciary committee, he acknowledged the two meetings with Kislyak but did not mention any encounter at the Mayflower Hotel.
"I do not recall any discussions with the Russian ambassador, or any other representative of the Russian government, regarding the political campaign on these occasions or any other occasion," Sessions wrote.
Why could a meeting at the Mayflower Hotel have special significance? Consider the timing:
Russia was already trying to help Trump before the Mayflower Hotel speech, according to a US intelligence community assessment released in January. The report concluded that by March 2016, Kremlin-backed news outlets began supporting Trump and Russian military intelligence had kicked off its election-related cyber operations.
One day before the speech, Trump won commanding primary victories in five Northeast states, cementing his front-runner status and putting him on a track to secure the bitterly contested Republican nomination.
In the speech, Trump stressed his "America first" message and talked about the fight against terrorism. He offered an olive branch to the Kremlin in line with his comments throughout the campaign -- but out of step with much of the US foreign policy establishment and all of his fellow presidential hopefuls.
|ICBM defense test in California|
Hypocrisy, thy name is Alabama.
The successful intercept test was launched on Tuesday from a silo at Vandenberg Air Force Base in California. That was encouraging news in a time of heightening tensions with North Korea. But it prompted massive amounts of political hypocrisy in Alabama.
Yellowhammer News (YH), a right-wing propaganda Web site, reported with jubilation that the ICBM defense system was housed, and largely had been created, at Boeing's site in Huntsville, Alabama. From the YH report:
In a critical exercise over the Pacific Ocean yesterday, the U.S. Military successfully intercepted a mock ballistic missile similar to the ones North Korea has been testing or attempting to test. The mock target was an intercontinental ballistic missile (ICBM), the same type weapon North Korea would use to deliver nuclear payloads if it attempted a real strike on the United States.
Huntsville, Alabama is the proud home of the defense system used yesterday that is so critical to our national security. Built by Boeing, the Ground-Based Midcourse Defense (GMD) was recently featured in an article by Forbes as the only system that can successfully protect the U.S. from an ICBM. Yesterday’s exercise again proves its capability in detecting and destroying these advanced ballistic missiles.
As Boeing stated, “GMD is an integral element of the United States’ layered ballistic missile defense architecture, with interceptors at Vandenberg Air Force Base and Fort Greely, Alaska. The program comprises command-and-control facilities, communications terminals and a 20,000-mile fiber-optic communications network that interfaces with ballistic missile defense radars and other sensors.”
So, right-wingers now are proud to have Boeing in Alabama. A few years ago, those same wingers opposed Boeing in the bidding for a $40-billion tanker-refueling contract. That's mainly because the competition, European Aeronautic Defence and Space Co. (EADS), planned to build a large assembly plant near Mobile, Alabama. The competition was so fierce that journalist/attorney Andrew Kreig reported at Huffington Post that the political prosecution of former Alabama governor Don Siegelman likely was driven, in part, by desires to land the project for EADS. From our post on the Kreig report:
According to an article by veteran attorney and journalist Andrew Kreig, Siegelman was prosecuted as part of a broad, Republican-driven campaign to land the $35-billion contract for the European Aeronautic Defense and Space Co. (EADS).
How did Siegelman get caught up in a heated competition that pits EADS against U.S.-based Boeing? If it wins the contract, EADS has pledged to build a large assembly plant near Mobile, Alabama. And Kreig's sources say "pro business" forces in Alabama decided the state would stand a better chance of landing the assembly plant if a Republican was governor instead of Siegelman, a Democrat.
The Republican turned out to be Bob Riley, who defeated Siegelman in 2002 when votes for the Democrat mysteriously disappeared overnight in heavily Republican Baldwin County, near Mobile.
Kreig's reporting had the ring of truth, according to the man at the center of it:
Siegelman himself has discussed the possibilities that his ties to Boeing helped make him a target. Writes Kreig:
The EADS-led plan would replace Boeing Corp., the previous tanker builder. Years ago, EADS used competitive intelligence agents to show that Boeing had bribed an Air Force procurement officer. My article noted that an EADS victory would enable an assembly plant in Alabama, as advocated by four European heads of state, major global financiers and some U.S. politicians.
"The ring of truth in the article," Siegelman wrote me last week after publication and follow-up, "is that Republicans wanted EADS, and I was close to Boeing because I had helped them expand their National Missile Defense Center in Huntsville and had them locate a manufacturing facility for the Delta IV and Delta II Rockets in Decatur, AL."
Richard Shelby so bitterly opposed Boeing on the tanker contract that he put a hold on many of President Barack Obama's federal nominees. When EADS lost the contract competition, Shelby pouted and took a shot at Obama, blaming it on "Chicago politics."
But Shelby was aglow after Boeing's ICBM-defense system passed a big test on Tuesday. From the YN report:
Senator Richard Shelby provided a great summary of the test on his Facebook page, writing “Great news for our country and for Huntsville! Yesterday the U.S. Missile Defense Agency (MDA), based on Huntsville’s Redstone Arsenal, successfully intercepted and destroyed an intercontinental ballistic missile (ICBM) target during the first live-fire test of MDA’s Ground-Based Midcourse Defense (GMD) system. The GMD is designed to stop missiles – such as North Korean missiles – during the midcourse of their flight through space. This is critical in defending our homeland from U.S. adversaries.”
Alabamians probably will keep sending Shelby to Congress when he is a corpse. But they should remember that he is a world-class phony -- and he's un-American, too. The EADS proposal, as we reported in 2011, was not all that good for Alabama, and it certainly was not good for the United States. It mainly would have been good for Alabama politicos, like Shelby and Jeff Sessions (who seemingly can't accomplish anything these days without running into a Russian ambassador):
The pro-EADS crowd cited the contract as a possible jobs bonanza for Alabama. But our source says that is way overstated. Most of the jobs in Alabama would have been in construction and would have been over in two to three years, our source says. The actual manufacturing would have been done mostly by workers in France, Spain, and Italy, with aluminum from Russia. About 2,700 permanent workers would have put those parts together in Mobile. But the Boeing deal, our source says, means about 50,000 jobs in America--from Washington to South Carolina and several points in between. Boeing has a major presence in north Alabama, and the contract is likely to mean a growth in jobs for that part of the state.Bottom line: The EADS deal would have been a moderate boost for Alabama, but it would have been a major net negative for our country. Richard Shelby, of course, didn't care, as long as the outcome made him look good. That's why he's crowing about Boeing now.
Selfishness, thy name is Alabama.
Here is video of Tuesday's missile-intercept test:
|Virginia Emerson Hopkins|
We've already shown that Hopkins acted corruptly when denying our Rule 59 Motion to Alter or Amend Judgment in our "House Case," currently on appeal before the Eleventh Circuit. Now, we examine Hopkins' actions in denying our Rule 60 Motion to Vacate in the same matter.
The first sign of Hopkins' laziness is found simply from looking at the dates on the documents involved. Our Rule 60 motion was filed at 2:30 p.m. on March 13, 2017, and it raised a number of substantive issues, including fairly complex constitutional matters like due process and equal protection of the law, as found in the Fourteenth Amendment. But Hopkins' order denying our motion is time stamped at 10:43 a.m. on March 17, 2017; in other words, it took a federal judge (whom one assumes has a fairly heavy docket) less than four days to churn out an order on a motion that presents some pretty deep foundational issues. How can that be?
You can begin to form an answer when you view Hopkins' order, see that it is less than four pages long, and contains less intellectual heft than most fortune cookies. (The Rule 60 motion and Hopkins order are embedded at the end of this post.)
The issue in our motion is relatively simple: When a judge issues a number of orders in a case, and it's then found that he had a conflict that should have forced recusal, his orders generally are due to be vacated. A case styled Liljeberg v. Health Services Acquisition Corp, 486 US 847 (Supreme Court, 1988) deals with a violation of the federal statute (28 U.S.C. 455) that requires a judge's recusal. From Liljeberg:
These facts create precisely the kind of appearance of impropriety that § 455(a) was intended to prevent. The violation is neither insubstantial nor excusable. Although Judge Collins did not know of his fiduciary interest in the litigation, 868*868 he certainly should have known. In fact, his failure to stay informed of this fiduciary interest may well constitute a separate violation of § 455. See § 455(c). Moreover, providing relief in cases such as this will not produce injustice in other cases; to the contrary, the Court of Appeals' willingness to enforce § 455 may prevent a substantive injustice in some future case by encouraging a judge or litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered. It is therefore appropriate to vacate the judgment unless it can be said that respondent did not make a timely request for relief, or that it would otherwise be unfair to deprive the prevailing party of its judgment.
It's undisputed that we made a timely request for relief, via Rule 60. It's also undisputed that original trial-court judge R. David Proctor made the laughable claim that his conflict had arose only after he had dismissed our case. Our motion shows that Proctor's contention is, to put it bluntly, bullshit. And our motion touches on issues that are very much in the news, via the evolving Donald Trump-Jeff Sessions KremlinGate scandal. From the Rule 60 motion:
In his recusal order . . . , Proctor acknowledges that a member of his family worked for then-U.S. Senator and current Attorney General Jeff Sessions -- and had a financial interest in Sessions' office.
In their recusal motion No. 2 . . . , the Shulers state that at least four defendants in the instant matter -- Jessica Medeiros Garrison, Rob Riley, Cliff Sims, and Yellowhammer News -- had strong political, professional, and financial connections to AG Sessions. Proctor did not deny this in his recusal order.
Based on publicly available documents, Judge Proctor's son, Jake Proctor, worked for then-Sen. Sessions in summer 2015.
Based on publicly available documents, Judge Proctor's other son, Luke Proctor, entered the U.S. Military Academy in roughly 2009, with the assistance of then-Sen. Sessions.
Both of Judge Proctor's sons have financial/professional connections to Jeff Sessions, and those ties date back eight years or more.
The conflicts go well beyond Proctor's kids:
Judge Proctor himself, while in private practice, represented Sessions (then Alabama AG) in a case styled USX v. Tieco that dates to the mid-1990s. That means Judge Proctor has financial connections to Sessions, and it's likely Judge Proctor owes his judicial career to Sessions. Court documents indicate Proctor and his firm were hired in USX specifically to help Sessions get black federal judge U. W. Clemon off the case, adding to Sessions' already dubious record on matters of race.
Our little case touches on international intrigue because of Proctor's ties to Jeff Sessions, who could plunge into disgrace because of his undisclosed ties to Russian figures who might have manipulated the 2016 presidential election:
The Washington Post recently disclosed that Sessions made false statements to Congress regarding meetings with a Russian ambassador, raising questions about Sessions' ethics (not to mention possible criminal charges) and those of individuals affiliated with him - including members of the Proctor family and at least four defendants in the instant case. In his recusal order, Judge Proctor acknowledges that his son, Jake Proctor, now works for Luther Strange, a defendant in this case and Jeff Sessions' replacement in the U.S. Senate. Judge Proctor recused himself based on this clear conflict, but claimed the conflict arose after he had dismissed the Shulers' complaint on 1/13/17 . . . . Publicly available documents indicate Jake Proctor went to work in the U.S. Senate on 1/3/17. Jake Proctor presumably went to work at that time for Luther Strange, although Strange was not formally appointed until February 2017. Public information indicates Judge Proctor is mistaken, or he is flat-out lying, about the start date of his son's employment in the U.S. Senate, presumably with Luther Strange. The 1/3/17 start date means, by Judge Proctor's own admissions, he was disqualified when he dismissed the Shulers' complaint on 1/13/17.
Could Judge Hopkins be bothered to seriously examine such fundamental issues of justice. Apparently not. Her order, which can be viewed below, says almost nothing and analyzes even less.
Her order does accomplish one thing: It unmasks the kind of laziness that likely would get you or me fired
We agree with the WaPo assessment, and in fact, we've been concerned about the rise of tribalism in U.S. society long before recent events in Montana. In fact, we wrote a post on the subject last July, based primarily on the trial of former Alabama House Speaker Mike Hubbard.
If a divisive trend is percolating, you can bet it will manifest early on somewhere in the Deep South. Before we look at conservative tribalism in Alabama, let's examine the WaPo take on Greg Gianforte's win in Montana, even though Gianforte reportedly body slammed a journalist from The Guardian on election eve. Did that bother voters in bloody red Montana? Nah, not much. From WaPo:
Greg Gianforte admitted to attacking a reporter and apologized during his victory speech Thursday night, as he kept Montana's sole House seat in Republican hands. Now he and his party's leaders are trying to move on.
On the eve of the special election, the wealthy technology entrepreneur flipped out when the Guardian's Ben Jacobs asked him about the CBO's score of the health care bill. He now faces misdemeanor assault charges for reportedly throwing Jacobs to the ground and breaking his glasses.
"I made a mistake," the congressman-elect said at his party in Bozeman. "Not in our minds!" yelled a supporter. The Post's David Weigel, who was there, reports that some in the crowd laughed.
A few yahoos in the Montana outback are the only ones who seem unconcerned:
After [Gianforte's] comfortable six-point victory, Republican congressional leaders are making clear there will be no meaningful consequences for his behavior. "Elections are about choices and Montanans made their choice," Speaker Paul Ryan said in a statement Friday morning. "Rep.-elect Gianforte is an outsider with real-world experience creating jobs in Montana. He will bring that experience to Congress, where he will be a valuable voice in the House Republican Conference."
Never mind that Gianforte likely avoided a felony charge only because reporter Ben Jacobs escaped serious injury. Jacobs' glasses were broken, and journalists from Fox News reported that Gianforte threw several punches. Had one of those punches landed cleanly and caused, say, a broken nose, the GOP would be happily sending a likely felon to Congress:
The Montana donnybrook quickly became a Rorschach Test that highlighted the divide within the conservative media between the serious and unserious outlets. It also showcased how many prominent figures on the right reflexively rally behind Republican politicians, whether the president or a House candidate, even when they are very clearly in the wrong. This is part of a growing tribalism that contributes to the polarization of our political system.
Tribalism has been apparent in Alabama for years, as we noted in our reporting on the Hubbard case:
Conservative Tribalism, to a great extent, is at the heart of the legal difficulties that my wife, Carol, and I have experienced for roughly 16 years and gave rise to this blog.
What do we mean by tribalism? Here is one of the most useful definitions I've seen:
Tribalism is the state of being organized in, or advocating for, a tribe or tribes. In terms of conformity, tribalism may also refer in popular cultural terms to a way of thinking or behaving in which people are more loyal to their tribe than to their friends, their country, or any other social group.
For our purposes, the key element is this: Members of a tribe are more loyal to that unit than to most anything else, including their country and its laws, constitutions, and governing concepts. In our experience, tribalism has been particularly evident among those who identify as conservative. But I have little doubt that liberal and moderate tribes are out there as well.
To many of the defense witnesses in the Hubbard case, the former speaker was "a dear friend," despite overwhelming evidence that the speaker was a crook:
How was tribalism on display at the Hubbard trial? Remember all the businessmen -- Jimmy Rane (Great Southern Wood), Rob Burton (Hoar Construction), Will Brooke (Business Council of Alabama), and more -- who testified that they gave Hubbard "things of value," not because he was Speaker of the House but because they considered him a friend.
What were the business executives saying when they declared their undying friendship for Mike Hubbard? They were essentially saying this: "We are all part of the same tribe with Mike. We do favors for him, he does favors for us, and we all get rich from that arrangement. Alabama statutes might say Mike's actions were criminal, but that's not the case at all. We have the kind of tribal friendship that goes beyond business and politics."
The business execs did not see anything wrong with Hubbard's behavior because . . . he was one of them, a member of their tribe. And because of that, he should not be subject to following the law in the same way that you and I would.
That is precisely how a significant number of Montana voters viewed the Gianforte case. Some, either in the press or among voters, have suggested the reporter deserved to be smacked around. From WaPo:
Michelle Fields, the former Breitbart News reporter who Corey Lewandowski grabbed when she tried to ask Trump a question last year, believes some Republicans "have put party over civility.""From the age of the Gipper to our era of the Groper, the state of our politics has declined drastically," she writes in an op-ed for the New York Times. "It's hard to imagine the late, great William F. Buckley cheering on a politician who assaulted a reporter. But Buckley's nephew, Brent Bozell, did just that on Twitter in the aftermath of the Jacobs's incident." Bozell runs the Media Research Center:
Brent Bozell tweeted: Jacobs is an obnoxious, dishonest first class jerk. I'm not surprised he got smacked.
"Had Ben been attacked by a Democrat, many on the right who are refusing to believe the assault occurred - or outright praising it - would be hailing him as a victim of liberal rage," Fields adds. "Had Hillary Clinton's campaign manager, rather than Mr. Trump's, grabbed my arm, I would not have been abandoned by many of my friends and mentors at Fox News, or my employer, Breitbart News. But I was inconvenient to their political narrative."
Michelle Fields adds hard-won insight to this discussions, but I would slightly correct one point that she makes: Republicans have not just put "party over civility," they have put "party over the law."
If Donald Trump and dozens of his associates wind up being indicted in KremlinGate, it will be a classic example of conservatives putting "party over law" and "party over country." Tribalism does not get much more extreme than that.
The report, based on an internal document from the U.S. National Security Agency (NSA), provides perhaps the strongest evidence so far that Russia manipulated the voting process and had an impact on vote tallies. It could be the bombshell that causes the Trump-Russia scandal to blow wide open. As a side issue, it might make U.S. Sen. Al Franken (D-MN), a generally thoughtful fellow, look foolish for ill-considered comments he made late last week regarding 2016 Democratic nominee Hillary Clinton.
Is this serious stuff? Reality Leigh Winner, a 25-year-old federal contractor from Augusta, Georgia, was arrested yesterday and charged with leaking classified information to a news outlet. Her arrest apparently is connected to The Intercept story.
The Intercept is an online publication, started in February 2014, and created/funded by eBay founder Pierre Omidyar. It started as a platform to report on documents released by Edward Snowden. From yesterday's Russian-hacking story:
Russian military intelligence executed a cyber attack on at least one U.S. voting software supplier and sent spear-phishing emails to more than 100 local election officials just days before last November’s presidential election, according to a highly classified intelligence report obtained by The Intercept.
The top-secret National Security Agency document, which was provided anonymously to The Intercept and independently authenticated, analyzes intelligence very recently acquired by the agency about a months-long Russian intelligence cyber effort against elements of the U.S. election and voting infrastructure. The report, dated May 5, 2017, is the most detailed U.S. government account of Russian interference in the election that has yet come to light. . . .
The report indicates that Russian hacking may have penetrated further into U.S. voting systems than was previously understood. It states unequivocally in its summary statement that it was Russian military intelligence, specifically the Russian General Staff Main Intelligence Directorate, or GRU, that conducted the cyber attacks described in the document.
The document adds significant detail to an assessment released by the Obama administration in January 2017. That assessment focused on a Russian propaganda effort to undermine public faith in the Democratic process. But the new information goes much further than that:
The NSA has now learned, however, that Russian government hackers, part of a team with a “cyber espionage mandate specifically directed at U.S. and foreign elections,” focused on parts of the system directly connected to the voter registration process, including a private sector manufacturer of devices that maintain and verify the voter rolls. Some of the company’s devices are advertised as having wireless internet and Bluetooth connectivity, which could have provided an ideal staging point for further malicious actions.
The spear-phishing expedition was central to the Russian scheme and might have given hackers command over key computer systems:
As described by the classified NSA report, the Russian plan was simple: pose as an e-voting vendor and trick local government employees into opening Microsoft Word documents invisibly tainted with potent malware that could give hackers full control over the infected computers.
But in order to dupe the local officials, the hackers needed access to an election software vendor’s internal systems to put together a convincing disguise. So on August 24, 2016, the Russian hackers sent spoofed emails purporting to be from Google to employees of an unnamed U.S. election software company, according to the NSA report. Although the document does not directly identify the company in question, it contains references to a product made by VR Systems, a Florida-based vendor of electronic voting services and equipment whose products are used in eight states.
The spear-phishing email contained a link directing the employees to a malicious, faux-Google website that would request their login credentials and then hand them over to the hackers. The NSA identified seven “potential victims” at the company. While malicious emails targeting three of the potential victims were rejected by an email server, at least one of the employee accounts was likely compromised, the agency concluded. The NSA notes in its report that it is “unknown whether the aforementioned spear-phishing deployment successfully compromised all the intended victims, and what potential data from the victim could have been exfiltrated.”
How disturbing could this scenario get? U.S. officials have said on multiple occasions that vote tabulations were not altered in the 2016 presidential election. But now, we know that might not be true. From The Intercept:
Mark Graff, a digital security consultant and former chief cybersecurity officer at Lawrence Livermore National Lab, described such a hypothetical tactic as “effectively a denial of service attack” against would-be voters. But a more worrying prospect, according to Graff, is that hackers would target a company like VR Systems to get closer to the actual tabulation of the vote. An attempt to directly break into or alter the actual voting machines would be more conspicuous and considerably riskier than compromising an adjacent, less visible part of the voting system, like voter registration databases, in the hope that one is networked to the other. Sure enough, VR Systems advertises the fact that its EViD computer polling station equipment line is connected to the internet, and that on Election Day “a voter’s voting history is transmitted immediately to the county database” on a continuous basis. A computer attack can thus spread quickly and invisibly through networked components of a system like germs through a handshake.
What could this mean for our country, for our democracy? The implications almost are too profound to imagine:
All of this taken together ratchets up the stakes of the ongoing investigations into collusion between the Trump campaign and Russian operatives, which promises to soak up more national attention this week as fired FBI Director James Comey appears before Congress to testify. If collusion can ultimately be demonstrated — a big if at this point — then the assistance on Russia’s part went beyond allegedly hacking email to serve a propaganda campaign, and bled into an attack on U.S. election infrastructure itself.
Whatever the investigation into the Trump campaign concludes, however, it pales in comparison to the threat posed to the legitimacy of U.S. elections if the infrastructure itself can’t be secured. The NSA conclusion “demonstrates that countries are looking at specific tactics for election manipulation, and we need to be vigilant in defense,” said Schneier. “Elections do two things: one choose the winner, and two, they convince the loser. To the extent the elections are vulnerable to hacking, we risk the legitimacy of the voting process, even if there is no actual hacking at the time.”
Throughout history, the transfer of power has been the moment of greatest weakness for societies, leading to untold bloodshed. The peaceful transfer of power is one of the greatest innovations of democracy.
“It’s not just that [an election] has to be fair, it has to be demonstrably fair, so that the loser says, ‘Yep, I lost fair and square.’ If you can’t do that, you’re screwed,” said Schneier. “They’ll tear themselves apart if they’re convinced it’s not accurate.”
That brings us to Hillary Clinton -- and Al Franken. Based on her comments last week at The Code Conference in California, Clinton clearly does not believe she lost an honest election. From a CNBC report on the event:
Clinton . . . said that the majority of content surrounding the election was "fake news," originated in Russia. She also alluded to data firm Cambridge Analytica, which has said it helped Donald Trump's campaign. . . .
It's important for people in tech and business to understand the marriage of the "domestic fake news operations," the sophisticated Russian cyber units and the Republicans' more flush data repository, Clinton said.
"Putin wants to bring us down," Clinton said. "It's way beyond me. .... I believe that what was happening to me was unprecedented. Over the summer we went and told anyone we could find that the Russians were messing with the election and we were basically shooed away. .... We couldn't get the press to cover it."
Many on the right have accused Clinton of spewing sour grapes, saying in so many words, that she needs to "get over it." Even a prominent Democrat, Franken, joined that chorus in an interview last week with Katie Couric. Franken was asked if he agreed with a Democratic operative who said it was time for Clinton "to move on." Here is his answer:
"Yep. Yeah, I mean, I love Hillary, I think she was very prepared to be president of the United States," Franken said. "I think she's the smartest, toughest, hardest working person I know, and I think she has a right to analyze what happened. But we do have to move on."
In so many words, Franken was saying that Clinton and other Democrats need to move on from an election loss. But we don't know for sure that it was an "election loss." It's looking more and more like an "election theft."
If our democracy is to survive, we can't "move on" from that.
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