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|Laura Loomer speaks to mostly empty chairs at|
the American Priority Conference in Washington, D.C.
Is the mask of legitimacy starting to fall from right-wing provocateur Ali (Akbar) Alexander? Are young conservatives, who seem to comprise most of Akbar's followers, tuning out to his nonsensical babblings -- not to mention his history as a felon and Grindr gay-sex troller?
If last month's American Priority Conference in Washington, D.C., is an indicator, the answer appears to be yes. Akbar co-founded the event, which featured such conservative luminaries as Roger Stone, Mike Cernovich, Corey Lewandowski, Katrina Pierson, Laura Loomer, Stefan Molyneaux, and Anthony Scaramucci -- and Breitbart Unmasked (BU) deemed it a "howling failure." The report, dated Dec. 8, 2018, is titled "American Priority Conference Headed By Convicted Felon Runs Off The Rails":
Hundreds of empty chairs along with a couple dozen Q-deluded fools showed up this weekend to witness convicted felon Ali Akbar’s latest self-embarrassment.
According to Politico, Akbar (calling himself “Ali Alexander” in a vain attempt to hide from his criminal past and deserved opprobrium) co-founded something called The American Priority Conference. It was a howling failure.
From the Politico report, titled "Wild theories and empty seats at CPAC-style conference for the MAGA set," which was written as the event unfolded:
American Priority, which brings together an impressive roster of right-wing social media agitators and Trump-world notables at a Washington, D.C., hotel, was envisioned as a Trumpist answer to CPAC. In reality, the three-day conference, which convened on Thursday, has been rife with conspiracy theorists, logistical snafus and empty seats.
It may also be the future of Republican politics.
“The right’s turning into a coalition and less of an ideological movement,” said conference co-founder Ali Alexander, a Republican operative and Twitter influencer who co-founded the conference but did not take an active role in organizing it.
The event apparently was such a flop that Akbar tried to distance himself from it in midstream -- using the "I co-founded this thing, but I didn't have anything to do with organizing it" approach. Way to man up and take accountability, Ali.
|Ali Akbar, at Grindr gay-sex app|
As for the American Priority Conference, Akbar apparently laid quite an egg with that one. From Politico:
Despite the convergence of several figures with large, devoted social media followings — including Molyneux, Loomer, right-wing agitator Mike Cernovich and dirty trickster Roger Stone — attendance at this weekend’s conference was sparse.
On Thursday, speakers mostly addressed two- to three-dozen attendees amid a sea of hundreds of empty chairs in a ballroom.
When Stone spoke on Thursday afternoon — condemning [Special Counsel Robert] Mueller and defending his “iconic” 2016 tweet predicting imminent catastrophe for John Podesta — actual conference attendees were nearly outnumbered by members of the media hungry for any morsel of Mueller news, most of whom dispersed after Stone left, having offered none.
Just days after Loomer attracted worldwide attention by handcuffing herself to Twitter’s headquarters in protest of her banishment from the platform — a setback she has compared to the Holocaust — she spoke to a nearly empty room. After a reporter for The Daily Beast tweeted a photo highlighting the low attendance, Loomer commiserated in the hallway with a conference attendee about “retarded” left-wing reporters and also complained about “self-loathing Jew” George Soros.
BU noted the irony of the dark-skinned Akbar founding an event largely based on white nationalism:
If anything run by Ali Akbar is truly the future of Republican politics, that can only be good news for Democrats.
|Ali Akbar mugshots|
Politico says the conference Akbar co-founded was created to foster American Nationalism. One wonders when Akbar will come to realize that this brand of “Nationalism” doesn’t bode well for people of his skin tone.
Or, more likely, perhaps he already realizes it but is only too happy to tap-dance to please White Supremacists in the hopes that they will need a few race traitors to at least attempt to appear “inclusive”?
|Albemarle Estate at Trump Winery|
Donald Trump has paid roughly $30 million to settle child-sex complaints brought against him since 1989, according to a D.C.-based investigative journalist.
Wayne Madsen Report (WMR), which is a subscription site, describes the settlements in a Jan. 14-15 post titled "Why is Trump so afraid of Cohen's testimony?" From the article:
Donald Trump continues to lash out at his former lawyer and "fixer," Michael Cohen, as the February 7 public testimony by Cohen before the House Oversight and Government Reform Committee, chaired by Representative Elijah Cummings (D-MD), draws nearer. Cohen said he wants to "give a full and credible account of the events that have transpired."
While Cohen will avoid certain subjects still under investigation by Department of Justice special counsel Robert Mueller, he may provide some insight into the types of embarrassing things he "fixed" for Trump, before they ended up in scandalous court trials. This may include Cohen assisting Trump in paying off victims of Trump's sexual assaults over the years.
The cases go way beyond those widely reported in the mainstream press, WMR reports. They also go beyond cases that involve women and adults. They indicate Trump has a disturbing taste for children:
In addition to Stephanie Clifford, aka porn actress "Stormy Daniels," and former Playboy model Karen McDougal, Cohen reportedly helped settle a number of rape cases involving Trump. WMR received a list from a reputable Republican source of these settlement claims, all of which involve male and female minors:
(1) Michael Parker, 10-years old, oral rape, Mar-a-Lago, Palm Beach, FL, 1992. Trump paid his parents a $3 million settlement.
(2) Kelly Feuer, 12-years old, $1 million settlement paid in 1989, allegations of forced intercourse, Trump Tower, NY, NY.
(3) Charles Bacon, 11-years old, $3 million, allegations of oral and anal intercourse, 1994, Trump Tower, NY, NY.
(4) Rebecca Conway, 13-years old, intercourse and oral sex. Trump Vineyard Estates, Charlottesville, VA, 2012, $5 million settlement.
(5) Maria Olivera, 12-years old. Her family was paid $16 million to settle allegations of forcible intercourse occurring in Mar-a-Lago, Palm Beach, FL, 1993.
(6) Kevin Noll, 11-years old, anal rape, Trump Tower, NY, NY. 1998. Settlement details unknown.
Five of the six alleged incidents took place at two of Trump's best-known properties -- Trump Tower in New York City and Mar-a-Lago in Palm Beach, FL. The exception is incident No. 4, which is the most recent (2012) and took place at Albemarle Estate at Trump Winery. Donald and Eric Trump opened the facility as a bed-and-breakfast in May 2015.
The child-sex settlements might explain Trump's reluctance to disclose his tax returns, WMR reports, and documents indicate our "president" is a deeply disturbed individual:
WMR's GOP source indicated that Trump has refused to release his tax returns because they will reveal the many out-of-court settlements he has paid to silence his assault victims and their families. The list of Trump's child victims came with an interesting reference point that was apparently part of the documentation in the settlement cases. Trump was designated with a psychiatric disorder referenced in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM–5). The referenced disorder is "Pedophilic Disorder (F65.4)."
Trump attorney-general nominee William Barr said at his confirmation hearing this week that he "can conceive" of jailing journalists "as a last resort." I am the most recent U.S. journalist to be incarcerated -- from Oct. 23, 2013 to March 26, 2014 -- and my five-month stay behind bars was the third longest in American history. It was, by far, the longest for a journalist in a purely civil matter, and it apparently was the only one involving an alleged violation of a preliminary injunction that was unlawful on its face--running contrary to more than 200 years of legal precedent.
In short, Judge Claud Neilson's arrest order in my case likely was the most unlawful First Amendment ruling in U.S. history.
The issue of jailing journalists hits close to home, and I've written extensively on the topic. Since Barr did a poor job of explaining U.S. law on the matter -- in fact, he seemed flummoxed by the question from U.S. Sen. Amy Klobuchar (D-MN) -- I decided, in the interest of clarity, to help him out. (And yes, it's scary that an incoming chief law officer in the United States knows so little about a profound constitutional issue that he needs my help.) From a report at Yahoo News:
During his confirmation hearing on Tuesday, attorney general nominee William Barr was asked by Sen. Amy Klobuchar, D-Minn., whether his Justice Department would “jail journalists for doing their jobs.”
Barr, President Trump’s pick for the nation’s top law enforcement officer, said he could envision a situation where a news organization or individual journalist could be held in contempt of court.
“I think that, uh, you know I know there are guidelines in place,” Barr said after a seven-second pause. “And I can conceive of situations where, uh, you know, as a last resort, and where a news organization has run through a red flag or something like that, knows that they’re putting out stuff that will hurt the country. There might — there could be a situation where somebody could be held in contempt.”
Barr is correct that contempt of court often is an issue that leads to the incarceration of a journalist. A judge might order a reporter to produce documents related to a criminal matter, or to avoid publishing an article that could affect national security -- and if the reporter refuses, he can lawfully wind up behind bars. Do I agree with that? No. Is it the law of the land? Yes.
And it is not just a matter of "guidelines." It is based on a U.S. Supreme Court (SCOTUS) ruling -- Branzburg v. Hayes, 408 U.S. 665 (1972) -- in a case that is getting close to 50 years old. Here is how we explained it -- and compared jailings related to criminal matters and my incarceration on a 100-percent civil matter -- in a March 2015 post:
Five of the six American journalists who have been jailed in the 2000s, had their freedom taken away based largely on a U.S. Supreme Court case styled Branzburg v. Hayes, 408 U.S. 665 (1972).
The sixth journalist is me, and my freedom was taken away for five months based on . . . nothing. No U.S. law supports it. In fact, a long line of U.S. Supreme Court and state high-court cases specifically state that a preliminary injunction in a defamation case is an unlawful prior restraint under the First Amendment--and yet, I spent five months in the Shelby County, Alabama, jail after Republican political figure Rob Riley and lobbyist Liberty Duke sought my arrest because I allegedly had violated a preliminary injunction in their defamation case, a civil matter that involved no criminal allegations of any kind.
Never mind that the material in question was not found to be defamatory at trial. That's because, under specially appointed judge Claud Neilson, there was no trial--only a hearing, with no discovery, no cross-examination, almost no evidence, no jury . . . well, you get the idea. It was, in fact, a joke--as I stated to the court that day.
The other five U.S. journalists to be arrested in this millennium, whether I like it or not, were lawfully arrested under Branzburg:
What separates my case from the other five that involve incarceration of journalists? Numerous differences come to mind, but the main one is this: Branzburg was the primary governing law in the other cases, and while I don't agree with the finding in Branzburg, it means that the other incarcerations probably were legal. Mine clearly was not legal, and even knowledgeable legal analysts who differ with me politically, agree on that.
The key issue in the other five cases involved efforts by journalists to protect confidential sources in criminal matters. Here is the core finding from Branzburg:
The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.
Bottom line: If a U.S. reporter fails to appear and answer questions, per a court order in a criminal investigation, he can lawfully wind up behind bars. I suspect many Americans have no idea the First Amendment can become so squishy under certain circumstances --and William Barr did a poor job of explaining it.
it's never been proven false or defamatory, as a matter of law) hardly is a matter of national security.
In CBS, Inc. v. Davis, 510 U.S. 1315 (1994), SCOTUS addressed the "exceptional cases" where a prior restraint might be proper. The opinion is from Harry Blackmun:
Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96 S.Ct., at 2802, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.Ct., at 2804.
William Barr probably was interested mainly in obtaining a fancy title and more or less phoned it in for his confirmation hearing. He certainly did a poor job of educating the public. Hopefully, we have helped fill in some gaps.
We are talking about the Sixth Amendment right to counsel. It generally has been held to mean that an individual cannot be subject to incarceration in a criminal trial if he has not been afforded assistance of counsel, even if he cannot afford to pay for one. SCOTUS most recently addressed this issue in a case styled Alabama v. Shelton, 535 U.S. 654 (2002)
This issue hits close to home because Missouri Judge Jerry Harmison violated Sheltonwhen he imposed a suspended imposition of sentence (SIS) on my wife, Carol in the bogus "assault" case brought against her related to our unlawful eviction, where deputies broke her arm. Carol did not have counsel in the case, and she did not waive her right to counsel. The SIS means Carol could be subject to incarceration if she violates terms of her probation -- and that is not allowed under Shelton.
Why is that not allowed? Well, we can thank the court's liberal-to-moderate bloc at the time (Stevens, Souter, Breyer, Ginsburg), who, surprisingly, were joined by Sandra Day O'Connor. The court's right-wing bloc (Scalia, Rehnquist, Thomas, Kennedy) dissented, trying their best to plunder a constitutional right. In what should be a surprise to no one, former Alabama Attorney General Bill Pryor argued for the state, siding with the right wingers.
Here is the primary holding in the Shelton majority opinion, written by Ruth Bader Ginsburg:
Held: A suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. Argersinger, 407 U. S., at 40.
(a) The controlling rule is that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense ... unless he was represented by counsel at his triaL"Argersinger, 407 U. S., at 37.
Ginsburg's opinion was grounded in Argersinger v. Hamlin, 407 U.S. 25 (1972), which held:
The right of an indigent defendant in a criminal trial to the assistance of counsel, which is guaranteed by the Sixth Amendment as made applicable to the States by the Fourteenth, Gideon v. Wainwright, 372 U. S. 335, is not governed by the classification of the offense or by whether or not a jury trial is required. No accused may be deprived of his liberty as the result of any criminal prosecution, whether felony or misdemeanor, in which he was denied the assistance of counsel. In this case, the Supreme Court of Florida erred in holding that petitioner, an indigent who was tried for an offense punishable by imprisonment up to six months, a $1,000 fine, or both, and given a 90-day jail sentence, had no right to court-appointed counsel, on the ground that the right extends only to trials "for non-petty offenses punishable by more than six months imprisonment."
The right of an indigent defendant to have assistance of counsel in any prosecution where his liberty might be at stake has been solidly grounded in U.S. law for more than 45 years -- but right wingers tried to chip away at it in 2002. Even Brett Kavanaugh's predecessor -- the renowned swing voter Anthony Kennedy -- sided with Scalia and Co. on the issue.
|Ruth Bader Ginsburg|
Do you like the idea of Brett Kavanaugh, famed for his buddies "Squee" and "Moose", being involved in such profound decisions? I sure don't. Do you believe a "president,"who apparently has acted as a Russian asset, should have two nominees (Kavanaugh and Gorsuch) help take away rights that long have been grounded in the U.S. constitution? I don't.
But that is what we could be facing. And it's because the Brett Kavanaugh hearings were more than a grotesque example of political theater. They were, in essence, an attack on our constitution.
Jefferson County Circuit Judge Carole Smitherman, a black Democrat, made the ruling while dismissing Newsome's complaint at summary judgment -- proving that white Republicans do not have the market cornered on judicial corruption in the Heart of Dixie. That is not breaking news to us, having been the victims of Judge Don Blankenship (another black Democrat) and his baseless $3.5-million defamation default judgment, benefiting Jessica Medeiros Garrison -- the one-time campaign manager and girlfriend of GOPer and former Attorney General Luther Strange.
Still, Smitherman's ruling against Newsome is a stunner for its brazenness, coming after Balch Bingham has been unmasked as the crooked firm at the heart of the North Birmingham Superfund scandal. With pending criminal charges against former Balch environmental stooge Trey Glenn, you would think Smitherman might be a little more cautious in a volatile environment. You also would think she might take note that former State Rep. Oliver Robinson (like Smitherman, a black Democrat) is the only one, so far, to land in federal prison (in Oklahoma City) for the Superfund shenanigans.
But Smitherman apparently is clueless about the harsh realities of white "big law" firms in downtown Birmingham -- or she wrongly thinks she is coated in Teflon. How brazen is Judge Smitherman? Individuals and entities connected to Balch Bingham have funneled more than $30,000 in campaign contributions to Smitherman and her husband, State Sen. Rodger Smitherman.
Was the donors' reward a monstrous cheat job against Burt Newsome? It sure looks that way. Newsome is appealing the summary judgment and award of attorney fees against him, but we still have this question: Should Carole Smitherman, who once enjoyed a stellar reputation, have the words "Property of Balch and Bingham" stamped on her forehead?
The details of the invoices were mostly redacted to a degree that the description of the fees and work done were indeterminable. Some fees billed on the invoices and submitted were not even related to this case.
Although the Queen of the Star Chamber Judge Carole Smitherman has ruled against Burt Newsome by approving Balch and Bingham’s summary judgment, she refuses to unseal the court records, even though the case is over in the lower court, according to an appeal filed with the Alabama Supreme Court. . . .
Smitherman’s actions prove she’s nothing more than a stooge for Balch and Bingham and confirms what civil RICO experts have said: The manipulation of the pay-to-play judiciary branch in Alabama is real and tangible.
This should be mind-blowing to everyone who lives in Alabama -- or has any concern about justice. Here is more from banbalch.com:
We ask again, what in the hell could Smitherman be hiding? Perjury? Possible criminal conduct? Corruption? Obstruction of justice?
But now an even bigger disgrace has been exposed.
Smitherman approved over $192,000 in redacted attorney fees against Burt Newsome. In other words, Newsome and his legal team were given bills that were blacked-out, they couldn’t read, and then told to pay up. . . .
This is more than a miscarriage of justice against Newsome.
This is a horn, a loud horn exposing to the world what unconscionable and unsavory depths to which Balch and Bingham and its stooges will allegedly go to destroy the rule of law and to carry on an arrogant march of defiance with impunity.
Are the Smithermans headed down the same path to prison that ensnared Oliver Robinson? Ban Balch already has addressed that question:
Will Smitherman allow Balch and others to abuse her credibility as a respected constitutional law professor like Balch abused Robinson’s credibility and legacy as a UAB basketball star?
Will Smitherman protect her legacy as the first African-American female mayor of Birmingham, who served with distinction on the city council or toss it aside for 30 pieces of campaign silver?
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|Barack Obama and George W. Bush|
Are you looking for someone to blame for Brett Kavanaugh's ascendance to the U.S. Supreme Court (SCOTUS), a position he is not remotely qualified to handle? Well, one place to start is with former President Barack Obama.
Eoin Higgins makes that suggestion in a recent piece at The Intercept, and we think he is on target -- even though I voted twice for Obama and recognize his many attributes as a leader, including his ability to save us from a likely Great Depression II.
Obama should not receive a pass for his numerous failings on justice issues because the Kavanaugh confirmation process is not just an example of gross political theater -- it represents an assault on our constitutional rights.
Higgins' ire, and ours, dates to Obama's nonsensical claim -- made on Jan. 11, 2009, less than two weeks before he took office -- that he intended to "look forward, not backwards" on the rampant corruption that plagued the George W. Bush years. This essentially was a "Get Out Of Jail Free" card for Bush criminals and we've written scathingly of it many times over the years. (See here, here, here, and here.)
One of those possible Bush-era criminals to escape justice is . . . Brett Kavanaugh. Here is how Eoin Higgins puts it in a piece titled "Obama's resistance to investigating the Bush administration allowed Brett Kavanaugh to skate onto the Supreme Court." Writes Higgins:
In January 2009, George W. Bush left office with an abysmal 22 percent approval rating, the lowest ever recorded. Almost everyone with anything to do with his administration was considered politically toxic.
With full Democratic control of the federal government, calls came for an investigation into the scandals of the Bush administration, including torture, mass surveillance, and war profiteering. While some called for criminal prosecutions, others wanted hearings or an independent investigation that would — at minimum — put into the public record the details of who did what and when. At the least, the argument went, Democrats could ensure that the GOP had to wear the Bush administration for years; that the officials involved in wrongdoing would be written out of polite society; and that future administrations would not revert to those practices.
Obama refused. “We need to look forward as opposed to looking backwards,” he said famously on January 11, 2009, days before he took office.
Imagine how many Bush criminals might have landed in prison -- Rove, Cheney, Rumsfeld, Gonzalez, Dubya himself, perhaps dozens more. Among them might have been Brett Kavanaugh, who served as an attorney for the Bush-Gore campaign battle in 2000 and then was staff secretary in the Bush White House. In fact, documents are expected to be released that could point to Kavanaugh's role in decisions that were wrong-headed, contrary to established precedent, and maybe even criminal. Writes HIggins:
Three allegations of sexual assault — the first was broken by The Intercept— and FBI investigation weren’t enough to sink Kavanaugh. Nor were indications of perjurious testimony — in part because a trove of documents relating to Kavanaugh’s time with the Bush administration that is currently being analyzed by the National Archives, including emails and memos about surveillance, torture, and Kavanaugh’s involvement with a hacking scandal, won’t be released until the end of October.
At least 100,000 documents relating to Kavanaugh’s involvement in developing policy during his time as associate counsel to the president from 2001 to 2003, and his time as staff secretary from 2003 to 2006, have been withheld by the Trump administration, citing executive privilege. But the National Archives revealed, in response to a lawsuit from the Electronic Privacy Information Center (EPIC), that there are hundreds of emails in the separate, 300,000 document cache that the agency is reviewing for publication. “The communication to EPIC revealed that Kavanaugh sent 11 e-mails to John Yoo, the architect of warrantless wiretapping; 227 e-mails about ‘surveillance’ programs and the ‘Patriot Act;’ and 119 e-mails concerning ‘CAPPS II’ (passenger profiling), ‘Fusion Centers’ (government surveillance centers), and the Privacy Act,” EPIC said in a statement announcing the revelation.
With proper public understanding of Kavanaugh’s role in the unpopular policies of of the Bush White House, that role may have been disqualifying by itself.
If the Obama Department of Justice (DOJ) had investigated and prosecuted Bush-era criminality, Kavanaugh's career probably would have never advanced beyond the D.C. Circuit. Many American voters might be dense, but they tend to recognize corruption and foul play when it is spelled out for them. And when Republicans create horrific messes, which they have a tendency to do, voters tend to run into the arms of Democrats to save them. Here is how we described the scenario in a November 2016 post, shortly after Donald Trump's "election":
A genuine investigation of the Bush administration probably would have led to dozens, maybe hundreds, of criminal convictions. The sight of Rove, Chaney, Rumsfeld, Gonzalez, and others heading off to prison in orange jumpsuits probably would have caused even the most heart-headed conservatives to say, "You know, I'm starting to get the feeling that reflexively voting straight GOP might not be such a good thing. Maybe I need to study up a bit, or just stay home on election day." Under that scenario, Democrats probably take back both chambers of Congress in 2012 or '14, and the 2016 presidential race is not even close -- regardless of who the general-election candidate turned out to be. And Obama gets much of his agenda passed, without obstruction from Republicans. Obama might have truly been a great president if he had not worked against his own interests by giving GOP crooks a free pass.
If Obama had appointed a tough, competent attorney general, instead of the woefully ineffective and compromised Eric Holder, Democrats likely would not have needed to worry about taking back both houses of Congress; they never would have lost them in the first place. And Hillary Clinton would have been set to wipe the floor with Donald Trump in the 2016 presidential election -- which she probably did anyway, without the assistance Trump received from Russian interests. Bottom line: Most Americans never hear of Brett Kavanaugh if a real Obama AG cleans house on Bushes. Here is more from Eoin Higgins:
Over the past decade, the political world has done everything possible to minimize and forget the crimes of the early to mid-2000s. The effect has been felt ever since. Members of the Bush administration and their hangers-on have spent their time working diligently to return to good standing in the social and professional worlds they once dominated in Washington and New York. Allowing them to reintegrate into elite society has had almost as catastrophic an effect on American politics as Donald Trump.
It’s not just Kavanaugh. The confirmation of Gina Haspel, an admitted proponent of torture who ran a Thailand black site in 2002 — a fact that became a minor issue before the Senate sent her back to Langley to run the CIA — was a perfect example of the insufficiency of the American political system to properly deal with the Bush regime toppling established norms around war and detainees. . . .
Kavanaugh’s career should have ended at the U.S. Court of Appeals for the D.C. Circuit. His new role as Supreme Court justice is what happens when democratic societies don’t hold criminals in the government accountable for their actions. At a bare minimum, everyone involved with the Bush administration’s war in Iraq and post-9/11 torture and detainee programs should have been thoroughly discredited and rejected from polite society. That they weren’t may end up being one of the defining moments in the 21st century.
|Roger Stone, striking a Nixonian pose|
Roger Stone, the latest indictee in Robert Mueller's Trump-Russia investigation, apparently has tried some of the dirty tricks for which he is renowned here at Legal Schnauzer. Why do we say that? Well, it goes back to a post we wrote in January 2017:
Evidence in our spam folder here at Legal Schnauzer suggests a Donald Trump ally and former Richard Nixon dirty trickster somehow is involved in a series of harassing, profanity-filled e-mails we started receiving about seven weeks ago.
The ugly e-mails started around the middle of November  after we wrote posts about two Alabamians -- Jeff Sessions (Trump's pick for U.S. attorney general) and Bill Pryor (a Sessions protege and likely Trump nominee for a seat on the U.S. Supreme Court).
Who is the notorious Trump ally, known as "The High Priest of Political Hijinks," who appears to be involved with the dozens of nasty missives we've received -- most of which I've deleted or sent to spam because they are so utterly devoid of taste, rational thought, meaningful discourse (or all three)? We are talking about Roger Stone, who has been involved with every Republican campaign or administration since Nixon and perhaps now is best known as a regular guest on Alex Jones' conspiracy-filled InfoWars show.
Wouldn't a veteran political thug of Stone's stature have better things to do than fool around with our little Birmingham blog? A rational person might think so. But then again, Sessions was set to become Trump's AG, and Pryor (at the time) was consider a strong candidate to be a Trump nominee to the U.S. Supreme Court. And we had been writing a series of highly unflattering posts on both. (See here, and here.)
What specifics point to Stone, or his surrogates, targeting Legal Schnauzer? Here you go:
Would Stone, or someone close to him, actually have time to mess around with our little blog? After all, this is the guy credited with orchestrating "The Brooks Brothers Riot," which helped give us eight years of George W. Bush in the White House. Stone even has ties to Watergate; some surely would say Stone is too much of a heavyweight to mess with Legal Schnauzer. But there is evidence to suggest it is true. How do we know?
Quite a few of the argumentative and ugly e-mails came from someone who has gone by the name "Sarah." I tried engaging "Sarah" a few times in rational back-and-forth, but that proved to be an exercise in futility. So I started deleting or sending most of her comments to spam. Such e-mails generally have an identifier attached, such as "Anonymous" or "Sarah," if the person chooses to use a first name -- which might or might not be her actual name.
I've received so many such e-mails in recent weeks -- maybe more than 200 -- that I occasionally scroll through the spam folder just to keep a rough track of how many have arrived. During one recent scroll, I noticed that at least one spam e-mail had more than a one-word identifier; it had two words -- "Sarah Jameson."
Sarah Jameson? Who in the heck is that? Well, she has a Facebook page that is pretty much a shrine to Roger Stone -- and it doesn't appear to have changed much since we first encountered it more than two years ago. Here are our thoughts upon finding the Jameson Facebook page in January 2017:
That was enough to make me go "hmmm." A Google search produced the Facebook page for a Sarah Jameson, who apparently lives in Plantation, Florida. That is in Broward County, close to Stone's home in Oakland Park. What does the "Sarah Jameson"Facebook page reveal? It's devoted almost entirely to videos and memes of Donald Trump and Roger Stone -- mostly Stone, also known as "The dapper don of dirty deeds."
There is a video of Stone hawking his books. Here is Stone touting the choice of Steve Bannon as Trump's chief strategist. There is Stone being touted as a "genius" in an interview after Trump's "victory."
"Sarah Jameson" sure seems to dig Roger Stone. In fact, she apparently has no time for anything else. She only has 18 Facebook friends, and I know squirrels in the forest who have bigger followings than that.
I'm still not sure what to make of Sarah Jameson and her fascination with Roger Stone. Here is a link to her Twitter account, which seems to consist mostly of more flagellation of Roger Stone. From our earlier post:
The Facebook page makes me wonder if "Sarah Jameson" is even real. Did someone pick clip art of an anonymous young blonde woman and use it to create a fake page, one that actually is run by Roger Stone or one of his surrogates?
My best guess is that Stone is concerned about our unflattering reports (both completed posts and those that are coming) about Jeff Sessions and Bill Pryor and is trying to harass me into inaction or avoidance. I would suggest that Stone come up with something better than that, because his current track is not going to work.
As a progressive blogger from Alabama, who has been unlawfully jailed for my reporting on GOP corruption, perhaps I am a thorn -- maybe small, maybe big -- in their side. And so, Roger Stone has been assigned, or taken it upon himself, to mess with me.:
How is this for irony? The New York Times reports that Mueller's primary interest with the Stone indictment might not be the dirty trickster himself, but rather his electronic devices:
Federal agents were “seen carting hard drives and other evidence from Mr. Stone’s apartment in Harlem, and his recording studio in South Florida was also raided.”
The F.B.I., in other words, was executing search warrants, not just arrest warrants. Even the timing and manner of Mr. Stone’s arrest — at the absolute earliest moment allowed under federal rules of criminal procedure without persuading a judge to authorize an exceptional nighttime raid — suggests a concern with preventing destruction of evidence: Otherwise it would make little sense to send a dozen agents to arrest a man in his 60s before sunrise.
What if a review of Stone's electronic devices provided clues about attacks on Legal Schnauzer? What if it provided clues about the identify of Sarah Jameson? We suspect Mueller's team will have bigger issues on their plates than those, but we will have our ears in the "upright and locked position" in case tidbits that hit close to home rise to the surface.
|Carol Shuler X-ray No. 1|
My wife, Carol, is recovering nicely from the broken left shoulder she sustained from a fainting spell at the Social Security Administration Building in Springfield, MO. In fact, her doctor stated on her most recent visit ( 1/9/19 ) that her range of motion in the joint is good enough that she does not need to continue with formal physical therapy. She will continue with at-home exercises, and her diligence with those probably helps explain her solid recovery.
|Carol Shuler X-ray No. 2|
Fortunately, we were covered by Medicaid to repair the thug-cops' handiwork. But the forced move, and one other move due to unhealthy living conditions at our residence, caused paperwork to not reach us in the mail -- and our Medicaid coverage lapsed. Social workers at Burrell Behavioral Health helped us get on Medicaid, but they have been unwilling or unable to help us with much of anything -- especially since we learned they were responsible for the bogus 911 call that caused cops to appear at our home in SWAT gear. Bottom line: We've been without health insurance for about 30 months.
|Carol Shuler X-ray No. 3|
X-ray No. 2 (left, above), taken on 11/17/18, shows fracture lines in the shoulder that are faint to the untrained eye.
X-ray No. 3 (right), dated 11/28/18, still shows faint fracture lines, but it also shows a white area on the outer shoulder, which is a sign of healing and new-bone development.
X-rays No. 4 and 5 (below), dated 1/9/18. are the most recent we have and show more signs of healing and new-bone development. Carol's doctor said she almost certainly will experience ongoing stiffness in the shoulder, so it never will be "good as new." But we are grateful for a solid recovery.
(Note: Legal Schnauzer needs your help. Loyal readers have sustained this blog for years, and support is urgently needed now that my wife, Carol, is recovering from a fainting spell, which led to a recent broken arm. The healing process has started for Carol, but statements from her doctors indicate this likely was fallout from political thugs cheating both of us out of our jobs [and health insurance] in Birmingham -- and the stress of dealing with financial wreckage that comes from being targeted for right-wing attacks. If you are able to help along our journalism journey, please click on the yellow donate button in the upper right corner of the blog, under the "Support the Schnauzer" headline. We are deeply grateful for your support through the years.)
|Carol Shuler X-ray No. 4|
|Carol Shuler X-ray No. 5|
|Scott J. Wells|
A Missouri man, whose conviction for child sexual abuse was overturned due to my brother's ineffective assistance of counsel, remains in legal jeopardy -- and our investigation indicates the legal tribe is retaliating against him for fighting back against bogus criminal charges and suing the lawyer (David Shuler) who almost caused him to receive five life sentences.
Scott J. Wells, of Springfield, faces federal charges of receiving and distributing child pornography, with a tentative trial date of Feb. 11. Our review of the public record suggests the charges are preposterously weak, with no sign of probable cause that Wells committed the offenses under 18 U.S. Code 2252(a)(2) and (b)(1). But Wells' two court-appointed lawyers -- U.S. Public Defender David Mercer (no longer on the case) and private attorney Shane Cantin (of Springfield's Carver Cantin and Mynarich) -- have done virtually nothing to defend him.
Cantin recently sent a letter to Wells stating that he had no defense and that Wells was almost certain to be convicted -- likely receiving a stiffer sentence if he goes to trial rather than pleading guilty. (More on the letter in an upcoming post.) Despite that, Cantin appeared at a recent pre-trial hearing and told U.S. Magistrate David P. Rush that he was "ready for trial." Sources tell Legal Schnauzer that Cantin has not even shown his client the government's evidence against him, which Wells is entitled to see under the Sixth Amendment, so how can Cantin be ready for trial?
Here is perhaps the most disturbing part about U.S. v. Scott James Wells (17-mj-2020-DPR). Wells has been detained for almost two years, spending all of that time at a facility in Leavenworth, Kansas, or various county jails in Missouri. Wells has been behind bars because the trial court apparently considers him a threat to society. Wells is virtually blind in one eye and has a benign brain tumor that forces him to use a walker or wheelchair to get around, but he's a threat to the public?
(Note: The criminal complaint in U.S. v. Wells is embedded at the end of this post.)
Chief prosecutor James J. Kelleher apparently pushed for detention based on the child sexual abuse case where the conviction against Wells was overturned. Let that sink in for a moment: A U.S. citizen has been behind bars for almost two years largely because of an earlier case where a conviction was overturned after a complaining witness was found to have lied under oath about Wells having scars on his penis.
Kelleher was the state prosecutor in the child sexual abuse case, so perhaps he wants to punish Wells for beating weak charges the first time around. Wells agreed to an Alford plea of child endangerment to dispense with the first case. Trial Judge Don Burrell probably could have dismissed the whole case once a complaining witness was found to have lied about penis scars. But Burrell chose to overturn the conviction and give the state a chance to re-try, meaning Wells faced the prospect of going before a pro-prosecution jury in conservative Southwest Missouri.
With an Alford plea, a criminal defendant does not admit to the unlawful act and asserts his innocence. In essence, it is a type of guilty plea that allows the prosecution to save face for bringing a weak case. Nothing in the record even hints that Scott Wells actually endangered a child. Federal prosecutors now are trying to hold that case against Wells, even though he ultimately won it.
Allan's actions make no sense because his client was one of the few who gets almost to trial in a legal-malpractice case, and expert witness Daniel Dodson had provided devastating deposition testimony against David Shuler. The court file is voluminous, but we've found no sign that David Shuler even had an expert witness -- a lawyer who was willing to go under oath and state that Shuler handled the Wells case with the proper standard of care.
By the way, public records show the Missouri Bar has disciplined John J. Allan at least twice. That raises this question: What kind of lawyer did Scott Wells have in his legal-malpractice case? Did someone dangle incentives that caused John J. Allan to leave his client high and dry on the verge of a major court victory?
Why is the child-porn case against Scott J. Wells so lacking? Here are just a few reasons, based on our review of the record:
* A fundamental provision of the relevant law is that the accused must "knowingly" receive or distribute child pornography. We see no probable cause that Scott Wells did either.
* A fundamental provision of the relevant law is that the alleged child victims must be minors, age 17 or younger. We see nothing in the criminal complaint that proves the alleged victims were minors -- or, more importantly, that Scott Wells knew they were minors.
* Case law holds that an accused must take "affirmative actions" to show knowing receipt, possession, or distribution. The record indicates that a woman in Tennessee was a Facebook friend of Scott Wells and sent him an explicit photo of her daughter. There is no evidence that Scott Wells asked for the photo or even knew what it was when he clicked on it. Wells sent the photo to the daughter to alert her to the mother's actions. There is no indication he did anything else with it, but federal prosecutors apparently claim warning a victim amounts to distribution of child porn.
* We see no grounds in the record for detaining Scott Wells as a threat to the community, and there is nothing on file to suggest either of his court-appointed attorneys tried to keep him out of detention or get him out of detention once he was wrongfully behind bars.
Despite the utter lack of probable cause on central elements of the offense, U.S. Magistrate David P. Rush approved Wells' arrest, a search of his home, and his detention. Is Rush little more than a rubber stamp for prosecutors? Is he part of a scheme to punish Scott Wells for standing up to the legal tribe?
We will address those questions and many more in upcoming posts.
|Austal USA in Mobile, AL|
Former Alabama Gov. Bob Riley is the chief lobbyist for a Mobile ship-building company that federal investigators raided last week. Austal USA, with its international headquarters in Henderson, Western Australia long has been a pet project for Riley -- both while he was governor and since he left office.
Austal USA is one of Mobile's largest employers, with a workforce of about 4,000. It builds Littoral Combat Ships and Expeditionary Fast Transports for the U.S. Navy, and al.com reports it is competing in a selection process for a series of next-generation frigates.
The nature of the investigation remains unclear, but it appears to have grown from a financial probe in Australia. From a report at maritime-executive.com:
Australian ferry and defense shipbuilder Austal is cooperating with an Australian probe into market disclosures it made in 2015 regarding cost overruns on LCS-6, the Littoral Combat Ship USS Jackson. Austal builds one of the U.S. Navy's two LCS variants, the aluminum-hulled Independence-class ships.
In a filing released through the Australian Stock Exchange on Thursday, Austal confirmed that it is "assisting an investigation by ASIC (the Australian Securities and Investments Commission) into market announcements . . . with respect to earnings from its Littoral Combat Ship program."Its American division, Austal USA, confirmed Friday that it is also cooperating with the U.S. Navy in an unspecified investigation. Local media reported that officials from the Department of Defense, the NCIS and the Defense Criminal Investigative Service were spotted at the Austal USA yard in Mobile, Alabama.
A report at usni.orgprovides additional details about the possible focus of the investigation and the U.S. agencies involved:
Federal agents visited Littoral Combat Ship manufacturer Austal USA in its Mobile, Ala., shipyard as part of an unspecified investigation involving the U.S. Navy, according to local media.
“Department of Defense, NCIS and [the Defense Criminal Investigative Service] have been seen on site,” according to NBC 15 in Mobile, Ala. “Investigators are expected to be on site for several hours.”
In a brief Thursday statement, Austal said the company was cooperating with authorities but gave no additional details as to the nature of the inquiry.
“Austal USA is working with the U.S. Navy on an open investigation,” reads the statement. “We are unable to provide additional details due to the nature of the investigation. We are continuing business as usual, executing our existing and recently awarded contracts.”
Here is more from usni.org about Austal's operations in south Alabama and the company's unstable financial picture:
The Mobile shipyard employs 4,000 workers and builds the Spearhead-class Expeditionary Fast Transport and Independence-class Littoral Combat Ship for the Navy. Austal USA is the American branch of Australian aluminum shipbuilder Austal. Earlier Thursday, Australian media reported Austal was under investigation by the Australian Securities and Investments Commission over market updates related to losses around the Independence-class LCS.
The Australian authorities are said to be focusing on statements issued by Austal regarding the blow out, or sudden increase in costs, associated with finishing USS Jackson (LCS-6)
Jackson was a challenging ship in two respects. First, it was the first ship Austal USA had built as the prime contractor, whereas USS Independence (LCS-2) and USS Coronado (LCS-4) were built at the Austal yard with General Dynamics serving as the prime contractor on the project. Second, Jackson was the first LCS to be built under a block buy contract from the Navy. Austal implemented a new manufacturing process for the block buy ships meant to reduce cost and schedule down the line through serial production, but Jackson being the first serial production ship still meant there were lessons to be learned and procedural kinks to be worked out.
Austal's finances have been shaky since 2015-16, according to usni.org:
Austal officials conceded in the Dec. 2015 statement that their ability to boost LCS earnings through these new production processes did not live up to expectations. Savings on the LCS-8 and LCS-10 production were also more limited than anticipated, Austal officials said in the Dec. 2015 statement.
“Austal’s ability to apply lessons learnt and productivity enhancements from LCS 6 to vessels in advanced construction, namely LCS 8 and LCS 10, has been more limited than anticipated,” the statement said.
“The LCS program is maturing more slowly than we had expected, however we are working hard to manage the risks and expect an improvement across the program after delivery of LCS 10,” Andrew Bellamy, who then served as Austal’s chief executive, said in the December 2015 release.“Austal has a strong balance sheet and is generating good cash flow, which is enabling further investment in the business during the 2016 financial year to best position the Company to win additional contracts and service work to build our order book, revenue, and earnings into the future.”
However, according to Austal’s Fiscal Year 2016 annual report, the company reported a loss of A$84.2 million, compared to a profit of A$53.2 million in 2015.
Could this develop into a full-blown scandal, with Bob Riley at the center of it? It's too early to tell, but Riley (often in conjunction with one or both of his oily children -- Rob Riley and Minda Riley Campbell) has been tied to corruption for years. So far, the Rileys have managed to mostly dodge accountability. But if they are found to be involved in an international financial scam, involving misuse of U.S. defense funds . . . that tune could change.
Either way, Alabamians should be keeping a close eye on this story. Riley and his successor as governor, Robert Bentley, dumped millions of taxpayer dollars into Austal USA. Right now, it looks like that could have been a bad bet -- with everyday Alabamians being left holding the bag.
(To be continued)
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|Scott J. Wells|
How do we know probable cause is lacking in U.S. v. Wells? Well, the case file is public record, and anyone with reasonable reading ability can come away suspecting probable cause is iffy. My conclusion is that probable cause is nonexistent -- meaning Scott Wells' arrest, a search of his home, and his detention at Leavenworth, Kansas, and various Missouri county jails are unconstitutional. (The criminal complaint in U.S. v. Wells is embedded at the end of this post.)
Probable cause is one of those amorphous legal concepts where you could ask 10 knowledgeable people to define it and get 10 different answers. Here is the gist: If a law-enforcement officer has reasonable suspicion that a crime has been committed,and the accused committed it, he can go before a judge to seek a finding of probable cause. If the judge agrees that probable cause exists, the accused can be arrested, have his property searched, and (in child-porn cases) even be detained without being convicted of anything.
Federal child-pornography statutes are unusual in that they essentially hinge on one word -- "knowingly." A person's computer can be overflowing with child-porn images, but that is only a crime if he took "affirmative actions" to receive it, possess it, control it, or distribute it. Without the "knowing" element, there is no crime, no matter how many disturbing images agents might find on your computer. Let's look at the key language under 18 U.S. Code 2252(a)(2) and (b)(1):
(a) Any person who — (2) knowinglyreceives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct;
You see that key word right there in the first sentence. Scott Wells is charged with receiving and distributing child pornography, but he must do it "knowingly"; otherwise, there is no crime. And there can be no probable cause without at least some evidence -- even a suggestion -- that Scott Wells acted knowingly. But the charging document in U.S. v. Wells utterly fails on that front.
|U.S. Magistrate David P. Rush|
Let's consider some of the relevant language from the Holdman affidavit, under the heading "Probable Cause," beginning on page 3:
7. On March 8, 2017, Southwest Missouri Cyber Crimes Task Force (SMCCTF) Officer (TFO) Lee Walker reviewed two CyberTips, 16533`142 and 16099575, from the National Center for Missing and Exploited Children (NCMEC). Both CyberTips were initiated by Facebook. . . .
8. CyberTip 16533142 was initiated by Facebook, after a file . . . containing suspected child pornography had been uploaded from a Facebook account. The suspect file was uploaded from a Facebook account with a screen name of scott.wells.79 and user ID 11033732066. The account listed a verified email address of firstname.lastname@example.org. The suspect file was uploaded on December 15, 2016, at 15:18:55 hours UTC, using IP address 22.214.171.124. This affiant reviewed the image from CyberTip 16533145. The image depicts a minor, prepubescent female lying on what appears to be a bed with her pants pulled down, her legs spread and up in the air, exposing her vaginal and anal area. The minor female's hands are on her bottom.
This section raises two important issues:
(A) Holdman multiple times says Wells "uploaded" the suspect image from his own Facebook account. I don't claim to be an expert on computer terminology, but I'm pretty sure there is a difference between an "upload" and a "download." Here is how one Web site puts it:
Uploading is the process of putting web pages, images and files onto a web server. Downloading is the process of getting web pages, images and files from a web server.In other words, when an image originates with a user and is placed on the Web, it is uploaded. When an image already is on the Web and someone clicks on it, perhaps saving it, that is a download. Scott Wells has said he received a Facebook file from a woman in Tennessee and clicked on it without knowing what it was and without asking for it. When he saw the image, he thought it was the woman's daughter, that the mother essentially was enticing Facebook users with pornographic images of her own child. Wells has said he forwarded the image to the daughter in an effort to alert her about the mother's unlawful acts. Federal prosecutors now claim this act of alerting a victim amounts to distribution of child porn.
To make a file visible to everyone on the internet, you will need to upload it. When users are copying this file to their computer, they are downloading it.
The evidence we have now suggests Scott Wells downloaded the image, and the woman in Tennessee uploaded it. We are pretty sure Special Agent Holdman, who claims to be highly trained on matters of child porn, has his terms mixed up. If that's the case, it makes you wonder what else is mixed up in his affidavit.
(B) Nothing in the section even hints that Scott Wells acted "knowingly," so based on this material, there is no crime.
What about the rest of the affidavit? We will look at that in upcoming posts.
(To be continued)
The gravy train for Austal USA began in 2008 when Bob Riley gave $5 million in economic-development grants to the company. Riley repeated that gift in 2009, with Robert Bentley kicking in $5 million in 2012 and $10,255,470 in 2013. According to an Alabama Political Reporter (APR) post dated June 9, 2014, Bentley added another $4 million in the first quarter of that year.
From the APR story, titled "The High Cost of Public Corruption":
The lucrative nature of these taxpayer fund so-called “job creation projects,” has even lured former Gov. Bob Riley to become one of the State’s most visible lobbyist. Just seven months after leaving office in 2011, Riley launched Bob Riley and Associates and registered as a lobbyist, along with his daughter, Minda.
Riley has been involved with the hundred million dollar Airbus deal in Mobile as a registered lobbyist for EADS North America.
Riley is also a lobbyist for Austal USA, LLC, a company that, as governor, he gave $5 million in economic development grants, in 2008, and $5 million again in 2009.
The payments stopped in 2010 (an election year) and did not resume in 2011,(budgeted during election year session). The payments to Austal began again under Gov. Bentley’s administration with the state giving $5 million in 2012 and $10,255,470.9 in 2013. So, far in 2014, Austal has received almost 4 million in grants and benefits.
We do not have figures for the past four years, so it's likely the total figure going to Austal USA is way more than $30 million.
The Austal investigation began last week at its international headquarters in Henderson, Western Australia. The next day came press reports that officials with the Department of Defense, the NCIS and the Defense Criminal Investigative Service were spotted at the Austal USA yard in Mobile.
What could the Austal USA investigation mean for Alabama? The APR article from 2014, perhaps unknowingly, looked into the future and provided some possible insight. Warning: It's not a pretty picture:
A recent study in Public Administration Review shows the negative impact of public corruption on a state’s economic future. Alabama is listed in the top ten most corrupt states in America.
In a report entitled, “The Impact of Public Officials: Corruption on the Size and Allocation of U.S. State Spending,” authors Cheol Liu of the City University of Hong Kong and John L. Mikesell of Indiana University, Bloomington define public corruption as “misuse of public office for private gain.” In their work, they find that public and private corruption results in “lower-quality work, reduced economic productivity and higher levels of income inequality and poverty.”
This investigation also found that states with the highest levels of corruption tend to spend more taxpayer funds on construction, highways, and police protection programs. This, in turn, facilitates corrupt officials to use public money for personal gain and less money on education, healthcare and welfare.
A February article in USA Today cites a Gallup-Healthways survey, in which participants were asked a “large range of questions to determine the well-being” of a state’s citizen. In the poll, Alabama ranked fourth lowest, only ahead of West Virginia, Kentucky and Mississippi.
Ironically, I don't have he first day of law school, and I can think of at least a half dozen ways to defend Scott Wells. But Shane Cantin, who touts his 25-plus years of experience on the firm Web site, can't think of anything?
Let's check out Cantin's letter, which is dated Nov. 26, 2018, and was sent to Wells at the Leavenworth Detention Center in Kansas. Wells currently is held at the Greene County (MO) Jail, with a tentative trial date set for later this month. (The full Cantin letter, in two parts, and the criminal complaint against Scott Wells are embedded at the end of this post.):
. . . If the government is allowed to present testimony as outlined in the discovery file, you will be convicted as charged.
Notice the reference to the "discovery file." That's the evidence the feds supposedly have gathered against Wells, but at last report, he has no idea what is in it. That's because Cantin apparently has not gone over it with him, even though Wells has a Sixth Amendment right to review it. I understand that Wells has been told he cannot review the evidence because it includes images that allegedly constitute child pornography. The actual law on this is found at 18 U.S.C. 3509(m)(2):
(A) . . . a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title), so long as the Government makes the property or material reasonably available to the defendant.
(B) . . . property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.
Bottom line: Wells may not reproduce the child-porn evidence, but he has an absolute right to review it, along with his attorney and any expert witness the defense intends to call -- although Cantin apparently has not bothered to line up such a witness. Let's return to the contents of Cantin's letter:
I see no viable defense to these charges. Further, because you proffered to federal agents with your prior counsel (federal public defender David Mercer), your admissions made during the proffer will be used to impeach you, should you testify at trial that you did not knowingly obtain an image of child pornography from the internet.
Admissions? Of what? The court record indicates Wells received an image via Facebook from a woman in Tennessee. He apparently did not ask for it and did not know what it was when he clicked on it. When Wells saw the content of the photo, he thought it was an image of the woman's daughter, whom he believed to be 19 years old (according to Wells' statement to officers). Wells' best course of action probably would have been to report the matter to authorities, but he chose to send the image to the daughter, hoping to provide an alert that the mother was using her image in an unlawful way. None of this constitutes a crime on Scott Wells' part, so it's not clear Cantin has familiarized himself with the bare essentials in the criminal complaint. Let's return to the letter:
The government computer forensic expert will testify that the images found on your device did not come to that device by means of "pop-ups," nor were they saved in a location on your hard drive that would suggest otherwise. Further, the internet search history is consistent with a user seeking out images of child pornography. This is consistent with the forensic expert at the Federal Defender's Office who also examined the device. You will not overcome this evidence at trial, and you will be convicted.
Actually, the government's forensic evidence gives no clue in the criminal complaint where the images came from. We certainly see no evidence that Scott Wells took affirmative steps to put them there and exert control over them.
The government was able to review Wells' device because they used the Facebook image to get a search warrant from U.S. Magistrate David "Rubber Stamp" Rush. But there is nothing in the criminal complaint to suggest Wells took "affirmative actions" to obtain the Facebook image, and there is no proof it is of a minor, anyway. That means it's quite likely there was no probable cause for a search of Wells' home, and any evidence obtained there should be suppressed as obtained via violations of the Fourth Amendment. I asked Cantin via email if he intended to file a motion to suppress, and he has not responded -- to that or any other questions.
|Scott J. Wells|
“child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where— (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
Mere nudity or erotica, even of a minor, does not constitute child pornography. The image must involve an "identifiable" minor "engaging in sexually explicit conduct. That is defined under Sec. 2256 as follows:
“sexually explicit conduct” means—
(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;
(ii) graphic or lascivious simulated;
(II) masturbation; or
(III) sadistic or masochistic abuse; or
(iii) graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person;
Scott Wells has voiced concern that this federal case is being prosecuted by the same guy (James J. Kelleher) who saw his child sexual abuse charges against Wells fall apart in a state case when a complaining witness was found to have lied under oath about scars on Wells' penis. Here's how Cantin addresses that concern:
The fact that Jim Kelleher is prosecuting this case does nothing for your defense, and I am confident that the judge will not allow us to talk about that fact at trial.
Meanwhile, Kelleher reportedly plans to call the complaining witnesses from the earlier state case -- even though Wells' conviction was overturned and at least one of the witnesses was found to have lied under oath. Other complaining witnesses presented wildly inconsistent testimony, which his defense attorney at the time (my brother, David Shuler) failed to adequately pursue, resulting in a baseless conviction against Wells and a finding of ineffective assistance of counsel against Shuler. That suggests Wells could be convicted based on alleged conduct that is not even charged in the current case and for which his conviction was overturned in the first case.
In our review of the court file, we can find no proof that Scott Wells knowingly received or distributed any image that would constitute child pornography, and we see no proof that the images even involve "identifiable minors." Here is the parting shot from Shane Cantin, the lawyer who can't figure out a defense for his client:
As outlined by your prior attorney, and during our discussions, you will receive a substantially longer sentence if convicted after a trial, and a potentially shorter sentence following a guilty plea and acceptance of responsibility. I know this is not what you want to hear, but it is my obligation to give you my legal opinions based upon my review of your file and experience in federal court.
Gee, does that sound like Cantin is trying to scare Wells into pleading guilty -- even though Kelleher stated at a recent pre-trial hearing that no such plea offer is on the table? If the government's case is so strong, why is Cantin trying to intimidate Wells into a guilty plea? As for Cantin's obligations, what about the one where he is obliged to defend his client? It appears he has no intention of doing that.
(To be continued)
|Scott J. Wells|
How many defenses does Scott J. Wells have to federal child-pornography charges? His lawyer, Shane P. Cantin of Springfield, MO, says in writing that he can't think of any. Without a single day of law school, I can think of about a half dozen -- under two or three broad categories.
Let's start with perhaps the most important category in this area of law -- age. Under 18 U.S.C. 2256, an image can be child pornography only if it is a "visual depiction" of a "minor" who is "engaged in sexually explicit conduct." Details on alleged crimes involving child pornography can be found at 18 U.S.C. 2252A.
But the No. 1 element, per Sec. 2256, is that the image must depict a "minor," which is described as "any person under the age of 18 years." Under U.S. law, you can view an image of stomach-churning pornography to your heart's content -- if it depicts an 18-year-old. If it depicts someone who is age 17 years, 11 months, and 28 days, you could land in the federal slammer for 20 years or more.
How tricky can this get? Let's consider two age-related elements in the federal statutes:
(1) Must prosecutors present evidence of name, address, and birth date in order to prove "beyond a reasonable doubt" that a person depicted is a minor? A reasonable person might conclude the answer is yes, given the fundamental importance of age in this area of the law. But our research indicates prosecutors, in the real world, do not have to prove age with particularity -- or, with certain judges, they can get away with guessing at it, obtaining arrest and search warrants by more or less stating, "This person looks like a minor to me." Scott Wells has been detained at Leavenworth, KS, or Missouri county jails for roughly two years, and yet, the criminal complaint offers zero proof that he ever knowingly received or distributed an image of someone under 18 years of age.
(2) After age, the second most important element in these offenses involves the term "knowingly" -- and the two elements can merge. It is not a crime to accidentally stumble upon child pornography. It also is not a crime to have child pornography on your computer, without signs that you took "affirmative actions" to obtain and control it. Both go to whether the accused acted with "knowing" intent -- and the affidavit against Scott Wells provides little or no evidence of such conduct. [The criminal complaint, including an affidavit from a Homeland Security special agent, is embedded at the end of this post.] On top of that, federal law requires that an accused "know" an image depicts a minor. We will provide details on the relevant law in an upcoming post, but for now, let's consider this mind-blowing fact: The Wells complaint contains evidence that he did NOT know a subject was a minor -- and feds apparently can't prove otherwise -- but he still has been detained for two years and faces a trial this month.
|U.S. Magistrate David P. Rush|
From the Holdman affidavit:
This affiant reviewed the image from CyberTip 16533142. The image depicts a minor, prepubescent female lying on what appears to be a bed with her pants pulled down, her legs spread and up in the air, exposing her vaginal and anal area. The minor female's hands are on her bottom.
How does Holdman know the female is a "minor" and "prepubescent"? Is he an expert on human development? He doesn't say. I've seen an affidavit from another pending child-porn case in the Western District of Missouri where the affiant declares a female is "prepubescent" based on "body shape" and "the absence of pubic hair." Body shape can determine whether someone is 16 or 18? These federal experts aren't aware that folks of all ages and genders can shave "down there," accounting for a lack of pubic hair?
Is our "justice system" warped? Holdman appears to be guessing that the female is "prepubescent," but prosecutors used this information to get arrest and search warrants from U.S. Magistrate David P Rush (Western District of Missouri). During a search of Wells' home, which almost certainly was unlawful under the Fourth Amendment, agents seized Wells' laptop computer, along with a number of other items -- some of which belonged to other family members.
Michael Costello, a computer forensic analyst (CFA) with the Springfield Police Department, conducted a review of Scott Wells' laptop, and that's where age again enters the picture. From Holdman's affidavit:
On March 23, 2017, CFA Costello began his examination of Wells' Dell Inspiron Laptop. This laptop had Windows 10 Home installed, and the only user account was "scott." [Does that mean Scott Wells was the only one to use the computer? Not necessarily. Family members say he generally signed in to it and left it running, so that any number of people could access it.] CFA Costello found 60 images of child pornography, that being children under the age of 18 engaged in sexually explicit conduct.
How did Costello know the "children" were "under the age of 18"? He doesn't say, and he provides no birth dates or identifying characteristics, and like Holdman, he appears to be guessing.
Under federal law, Costello and Holdman do not have the final say. Scott Wells' thoughts regarding age also matter, and this is from page 7 of the affidavit:
Wells admitted to communicating with another user with the Facebook account name of Kara Adkins, but claimed he never sent the user any images. Wells then stated that he quit communicating with Adkins because she sent him an image of a 19-year-old showing her butt.
Did Kara Adkins, who apparently lives in Tennessee and is the mother of the girl in the Facebook image, tell Wells that her daughter was 19? That remains unclear, but it is clear that Wells thought the girl was not a minor. And that matters, a lot, under the law. The U.S. Supreme Court says so.
(To be continued)
The U.S. Supreme Court (SCOTUS) found in a case styled United States v. X-Citement Video Inc., 513 U.S. 64 (1994) that the accused in a child-porn case cannot be found guilty unless the government proves he knew an individual in a suspect image was a minor (under 18 years of age). The feds' own documents in the Missouri case show Wells did not know the female depicted in a image sent to him via Facebook -- without him asking for it or knowing of its contents -- was a minor. (The criminal complaint and affidavit in U.S. v. Wells is embedded at the end of this post.)
Prior to X-Citement Video, the accused in a child-porn case could be convicted if he "knowingly received, possessed, or distributed a visual depiction of a minor engaging in sexually explicit conduct;" The term "knowingly" had been found to modify only the verbs "receiving,""distributing," etc. SCOTUS found in X-Citement Video that "knowingly" also modifies the word "minor." In other words, the accused now must know the image depicts a minor in order to be convicted.
Here is the court's central finding in X-Citement Video:
The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement. . . .
For all of the foregoing reasons, we conclude that the term "knowingly" in § 2252 extends both to the sexually explicit nature of the material and to the age of the performers.
That's a fancy way to say that Scott Wells (and others charged under Sec. 2252) cannot be convicted unless he knew the female in the Facebook photo was under age 18. And the following segment from the feds' affidavit shows he did not:
Wells admitted to communicating with another user with the Facebook account name of Kara Adkins, but claimed he never sent the user any images. Wells then stated that he quit communicating with Adkins because she sent him an image of a 19-year-old showing her butt.
Is there anything in the affidavit to suggest the feds can prove the girl was not 19, that she was under age 18? More specifically, can they prove Wells had no reason to believe she was 19. I don't see it. That means, in essence, that the feds have no case -- that Wells never should have been charged or detained for two years, with his home searched -- producing evidence that likely should be suppressed as obtained contrary to the Fourth Amendment. Will Wells' court-appointed attorney, Shane Cantin of Springfield, pursue such defenses? We have asked via email, but Cantin has not responded. He has told Wells in writing that there are no defenses to the charges against him.
How does Traci Lords enter the picture? Well, she was at the heart of the X-Citement Video case. From the SCOTUS opinion, written by William Rehnquist (citations omitted):
Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.
These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U. S. C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U. S. C. § 371. Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. . . . ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scienter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F. 2d 1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case, the Ninth Circuit had held § 2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.
On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U. S. C. § 2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. . . . It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. . . . The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. . . . Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari . . . and now reverse.
That, in a deluge of legalese, is how a twisting and turning case involving Traci Lords wound up at the nation's highest court. If a federal judge in Missouri can properly apply the law -- and that's a big if -- Scott Wells should receive some measure of justice. The charges against Wells should be dismissed, but it's unlikely prosecutor James J. Kelleher possesses the ethical infrastructure to make such a request.
Perhaps a judge will make the decision for him, especially if Wells winds up with a real defense attorney.
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The ruling from U.S. Magistrate David P. Rush came after Cantin filed a Motion to Withdraw on Monday (2/4), and defendant Scott J. Wells filed a pro se Motion to Vacate Counsel -- including a copy of Cantin's letter -- on Tuesday. (The Cantin letter is embedded at the end of this post; Cantin filed his withdrawal motion on the same day I reported about his letter to Wells.)
Rush, during a hearing at the federal courthouse in Springfield, clearly was displeased by the turn of events and asked Wells a series of pointed questions about why he wanted Cantin off the case -- as if being told your own lawyer was convinced of your guilt and had no real plans to defend you wasn't enough. Wells pointed out that Cantin had done nothing to have him released from detention, where he has been for almost two years, without being convicted of anything; that Cantin had not taken any depositions, and had not lined up any expert or character witnesses.
Prosecutor James J. Kelleher, in what probably sounds like an absurdity to most normal humans, is seeking to have complaining witnesses from an earlier child sexual abuse case he brought in state court against Wells -- that's the one where my brother, David Shuler, provided ineffective assistance of counsel, and a conviction was overturned when one witness was found to have lied under oath about scars on Wells' penis.
Kelleher has filed the motion under Federal Rule of Evidence 414, and if granted, it would mean Wells could be convicted based on allegations with which he is not charged now -- and for which his earlier conviction was overturned. A number of legal scholars and commentators have written scathing reviews of Rule 414, including this article for the Alabama Law Review. An article in the William and Mary Bill of Rights Journalcalls Rule 414 "fundamentally unfair," violating the Due Process Clause of the U.S. Constitution.
For those interested in a scientific response to the dubious politics that led to Rule 414, we strongly recommend "Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes," from the University of Cincinnati Law Review.
An in-depth look at the problems with Rule 414 is an issue for another day. But for now, we can say that Cantin did file a Motion to Preclude the Government from Using 414 Evidence. But other than that, and his Motion to Withdraw, the record shows Cantin has done pretty much nothing on U.S. v. Wells. God only knows how much he will charge taxpayers for his "services."
In a moment that almost made this reporter guffaw, Judge Rush said he felt Cantin had "vigorously represented" Wells -- and that the case clearly did not amount to "ineffective assistance of counsel."
On the first point, a check of the court docket and Cantin's own letter show Rush's assessment is way off target. On the second point, I agree with Rush. Cantin's work on Wells' behalf would have to improve to reach the "ineffective assistance of counsel" level. It could more accurately be deemed "no assistance of counsel."
Rush did not say who he would appoint as Wells' new lawyer and gave no clue when that decision might be forthcoming. It appears the current trial date of Feb. 12 will have to be changed.
We can find little or no evidence in the feds' complaint/affidavit against Wells (embedded at the end of this post) to suggest he acted with knowing intent. In fact, the complaint against Wells is so weak on this point that probable cause for his arrest, two-year detention, and a search of his home probably does not exist. U.S. Magistrate David P. Rush allowed the government to essentially, bully, intimidate, and kidnap Wells, which becomes less surprising when you learn of Rush's pro-prosecution background. (More on that in an upcoming post.)
All of this makes court-appointed lawyer Shane Cantin's claims that he could think of no defenses for Wells pure horse excrement. In fact, it suggests Cantin's letter encouraging Wells to plead guilty because he had no hope of an acquittal should be sent to the Missouri bar for review. It also suggests federal authorities should investigate the circumstances around the letter for signs of possible conspiracy and obstruction of justice, which could send one or more individuals to prison.
Cantin's letter (embedded at the end of this post) is galling because Wells has so MANY defenses. And they start with this: Case law holds that the government, to prove the "knowing" element, must show that an accused took "affirmative actions" to obtain images of child pornography -- to have them "under dominion and control." From a 2009 article at Harvard Law Review:
Juries and reviewing courts often treat affirmative actions aimed at obtaining or preserving child pornography as compelling evidence of knowing receipt and subsequent possession. In United States v. Stulock, for example, the defendant was acquitted on a knowing possession charge that was based on images saved in the defendant’s browser cache. The circuit court noted the district court’s explanation “that one cannot be guilty of possession for simply having viewed an image on a web site . . . without having purposely saved or downloaded the image.” Similarly, in United States v. Riccardi, the government presented testimony that the defendant had received several pornographic images — including some depicting minors — in a “zip file” that he later unzipped and saved on his hard drive. Government testimony suggested that Riccardi had created the directory in which the images were saved and that Riccardi would have had to direct the images to that directory. The court concluded that these actions constituted “affirmative steps to preserve the child pornography on his computer,” which was indicative of knowing possession.
Let's take a closer look at U.S. v. Stulock, 308 F. 3d 922 (8th Circuit, 2002), which is from the federal circuit that includes Missouri, Arkansas, Iowa, Nebraska, Minnesota, South Dakota, and North Dakota. Here are the central facts of the case:
In 1999, federal and state law enforcement officers raided a company engaged in distributing child pornography on the internet. Using a list of customer names and email addresses recovered from that company, the agents emailed offers to sell pornographic materials to Stulock and many other individuals included in the list. Stulock responded to the offer with a request for a list of materials containing "mostly girls, age 7-14, hardcore." After receiving a list of videos, Stulock mailed a personal check in payment for a videotape entitled "No Way," described as "Daddy fucks 10 year old daughter."Federal agents made a controlled delivery of the tape and shortly thereafter executed a search warrant. During the search of Stulock's home, the agents found the tape hidden in a bedroom closet and seized a personal computer.
Examination of Stulock's computer revealed evidence of his involvement with child pornography. Numerous images of children younger than 18 engaged in sexual acts were recovered from several locations on the computer. In addition, the web browser history indicated that Stulock had visited several web sites having names associated with child pornography, including www.hairless-lolita.com, www.preteenlinks.com, www.littlepussy.com, www.peachfuz.com, and www.lolitahardcore.com.
In Stulock, the court had to wrestle with technical issues that often are present in child-porn cases:
The agent who examined the computer explained to the district court that when a computer file is deleted, the contents of the file are not irretrievably lost. The space occupied by the file is flagged as available, and until new data is stored in that location the deleted file can be recovered using an undelete tool. In addition to the contents of the file, information about when the file was created, last modified, and last accessed can be recovered. Thousands of previously deleted files were recovered from the temp directory on Stulock's primary hard disk and from a secondary hard disk designated by the computer as the F drive. The temp directory is where a program such as an image viewer or a word processor will store a duplicate of a file that is opened for use. Any changes are made to the copy and only applied to the original when the user saves the file. The copy in the temp directory is deleted when the user closes the file. More than 3,000 deleted files were recovered from the temp directory, including numerous examples of child pornography. Stulock's computer was configured to use the temp directory as the location where downloaded files that had been packaged in the ZIP file format would be stored. A ZIP file can contain hundreds of images or other files, thus allowing a user to download many files without having to save each one individually. Thus, the presence of an image in the temp directory indicated that Stulock had either purposely downloaded the image in a ZIP file or had opened an image stored elsewhere on the disk using a viewer that created a temporary copy. Among the deleted files recovered from the F drive were three identified as portraying a minor female in bondage. Three images were located in the internet browser cache. The browser cache contains images automatically stored by the computer when a web site is visited so that upon future visits the images need not be downloaded again, thereby improving the response time. Unlike the other files recovered, the images in the browser cache had not been deleted and then recovered.
Stulock was charged with knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and knowingly possessing child pornography in violation of § 2252A(a)(5)(B). After a bench trial, Stulock was convicted of knowingly receiving the child pornography videotape, but he was acquitted on the charge of knowingly possessing child pornography.
Stulock involved substantial evidence of the accused "knowingly" receiving child pornography, and the circuit court upheld his conviction on that count. The district court had acquitted Stulock on the possession charge, finding that he did not act knowingly. The circuit court agreed, and its reasoning is instructive for U.S. v. Wells and similar cases:
The possession charge specified only the images found in the browser cache. The district court explained that one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser's cache, without having purposely saved or downloaded the image.
The circuit court upheld the trial court's judgment -- finding Stulock guilty on the receiving count and not guilty on the possession charge. What were the two grounds for acquittal on the possession charge? Here they are again, from the highlighted passage above:
(2) For a guilty finding, the government must prove the accused "purposely saved or downloaded the image."
Can the government prove Scott Wells purposely saved or downloaded anything? From our review of the complaint/affidavit, I don't see how. In fact, I don't see probable cause for bringing charges against Wells at all.
(To be continued)
I had been online friends with Matt for a while, generally sharing his liberal views and keeping up with his writings at various Web sites -- mostly Osborne Ink andBreitbart Unmasked. I saw him as an important Web-based voice -- a talented, intelligent guy, who was pugnacious enough to do battle with underhanded conservatives, such as the felon poser, and gay-sex troller Ali (Akbar) Alexander and his nutty National Bloggers Club.
For about four years, Carol and I have assumed Osborne came to our home in good faith, from a genuine intention to help at a time of crisis. But I started to have doubts about that when Osborne contacted me in October 2017 -- about six weeks before the Doug Jones-Roy Moore U.S. Senate special election -- and informed me he was connected to the Jones campaign in some capacity, suggesting I should retract a post about a Russian-bot attack on the Moore campaign's Twitter account.
Why did Osborne's ties to Doug Jones alarm me? Well, I've known since spring 2008 that Doug Jones is a shady, ethically challenged guy -- mainly because of his lawyer-tribe ties to despicable Republican thug Rob Riley, the oily son of former Gov. Bob Riley. In fact, I was cheated out of my job at the University of Alabama at Birmingham (UAB), where I had worked for almost 20 years, after I reported on the dubious reasons Rob Riley joined Jones in a lawsuit against HealthSouth -- a story that originated with Sam Stein, of Huffington Post.
For the record, I don't think it's a coincidence that UAB concocted a bogus scheme to fire me -- falsely claiming I was blogging at work, contrary to the words of their own IT expert (Sean Maher) who had examined my work computer activity -- not long after my report on Jones, Riley, and the HealthSouth case. My blogging likely was seen as a threat to Jones and Riley's share of what would become $51 million in legal fees from the HealthSouth case, money that probably helped fund Jones' U.S. Senate campaign in 2017.
I also learned that Jones is a world-class backstabber, with a string of victims that include former Gov. Don Siegelman, late VictoryLand owner Milton McGregor, and Dothan developer Ronnie Gilley. Also, it became clear that Jones was prone to look the other way at the crimes of moneyed elites, such as University of Alabama honcho Paul Bryant Jr., whose company was tied to a massive insurance-fraud case in Pennsylvania.
In short, Doug Jones is a "bastard-coated bastard with bastard filling," and I've come to believe anyone affiliated with him has a shaky moral compass, poor judgment, a strong case of naivete -- or a combination of the three.
What about specifics that might lead us to have qualms about Matt Osborne? Let's consider:
The "RogerS" scam
Evidence suggests my arrest, at least in part, was driven by a narrative involving a mysterious character called "RogerS." Here's how we explained it in a post dated July 13, 2015:
Members of a right-wing bloggers' club concocted the notion that I was encouraging a federal lawsuit against them, and other conservative figures, and they wrote about it obsessively in the days leading to, and following, my October 2013 arrest.
At the heart of the matter is a commenter at a progressive Web site who goes by the handle "RogerS" and appears to have a fair amount of knowledge about legal matters--in fact, he was encouraging liberal activist Brett Kimberlin to file a federal RICO lawsuit against members of the bloggers club and other individuals on the right. When Kimberlin did, in fact, file a RICO suit, I wound up in jail roughly one week later. Coincidence? That's hard to say, but let's look at what we do know.
In certain corners of the blogosphere, it became popular to suggest that "RogerS" and Roger Shuler (me) were one and the same--even though I had nothing to do with the comments in question, I was not aware of any possible federal lawsuit, and I have no clue about the identity of "RogerS." Still, evidence suggests I might have paid a high price--loss of my freedom for five months and eventual loss of our home-- for something that did not involve me.
As for the National Bloggers Club, it operates under a media umbrella created by the late right-wing publisher and provocateur Andrew Breitbart--and its president, Ali A Akbar, has a criminal history and admitted connections to former Bush White House adviser Karl Rove. Akbar also has a history of trolling for gay sex on adult Web sites.
Where did RogerS originate? We've explained that, too:
"RogerS" apparently made his first appearance in a September 18, 2013, post at the progressive blog Breitbart Unmasked (BU). Interestingly, that was one day after I broke the Bill Pryor gay-porn story. "RogerS" commented about a possible lawsuit that Kimberlin was planning against a number of individuals connected to the Breitbart Network.
Another commenter on the same post replied: "RogerS is one of two very cool people in Alabama . . . Everyone should read his latest: A very "stiff" portrayal of a federal judge."That's the first sign I can find of connections forming between "RogerS," Roger Shuler, and the Bill Pryor story--and it came from a commenter at a liberal Web site.
So, RogerS grew from Breitbart Unmasked, and BU's editor at the time was . . . Matt Osborne. Let's consider a few of the questions that poses:
|Ali Akbar on Grindr gay-sex app|
(2) Was RogerS created to antagonize Ali (Akbar) Alexander and his right-wing blogging loons and scare them into having me falsely arrested -- probably with the assistance of the Alabama State Bar?
Matt Osborne's in-home visit while I was in jail
Was Osborne's visit to our house, while I was locked up, an act of good faith, or one with ulterior motives?
Well, we know my arrest, on the surface, was driven by a bogus defamation lawsuit that Rob Riley and his lobbyist "gal pal" Liberty Duke filed against me. We know Rob Riley and Doug Jones have been aligned in the legal tribe for more than 10 years. And we know Matt Osborne has been aligned with Doug Jones at least since 2017.
Could Osborne's alliance with Jones date back to 2013 and beyond? Could Jones, or someone tied to him, have directed Osborne to go to our house as a ruse, designed to assist Rob Riley's arrest scheme -- and perhaps stand up for Bill Pryor's "honor"?
Why would someone want to have access to our house just days after my arrest? I can think of all kinds of reasons, most of them dark and disturbing. I like to think that Matt Osborne would not go along with such a scheme, but we now know he engaged in deceptive election practices on Doug Jones' behalf, so what would keep Osborne from entering our home under false pretenses -- designed to assist Doug Jones and his lawyer pal, Rob Riley, perhaps in their shared desire to abuse the reporter who outed Bill Pryor as a closeted gay? By the way, Jones long has professed his undying respect for Pryor.
Matt Osborne has proven he engaged in dishonest activities that deceived Alabama voters -- a false-flag scheme to benefit Doug Jones. I see no reason why he would not engage in a false flag directed at Carol and me.
Many of us spend major chunks of every day -- at home, work, on the go -- with our eyes glued to desktops, laptops, tablets, mobile phones, you name it. That means you -- even if you show zero signs of being a pervert -- could be caught in a child pornography trap.
Our review of U.S. v. Scott J. Wells, an ongoing federal child-porn case in Missouri, suggests authorities are likely to seek search warrants and arrest warrants -- with federal magistrates granting them in a rubber-stamp fashion -- and they even can seek detention of an accused who hasn't been convicted of anything. Scott Wells has been detained for two years -- in Leavenworth, Kansas (due to his health issues, such as a benign brain tumor) and various county jails in Missouri -- even though charging documents suggest the government likely cannot prove central elements of the offense, as described in statutes and case law. (The complaint and affidavit in Wells is embedded at the end of this post.)
Detained is a soft word for "imprisoned" Imagine being behind bars for two years when you have not been tried or convicted of anything -- and feds consider you a "threat to society," even though you must use a walker or wheelchair to get around.
Scott Wells and his middle-class family are living an American nightmare, but abuse of child-porn laws can hit any of us, especially if we use computers and other electronic devices.
Under federal law -- of which prosecutors and investigators tend to be ignorant or oblivious -- an accused in a child-porn case can be convicted only if he is found (beyond a reasonable doubt) to have acted "knowingly," taking "affirmative actions" to exert "dominion and control" over images that match the statutory definition of child pornography. (For example, images of naked children likely are "child erotica," not child pornography, and generally do not constitute contraband.)
But what if images of child pornography appear on your electronic devices without your knowledge? How can this happen? A 2009 article at Harvard Law Review spells it out. Here is an overview, under the heading (on page 2011) "MEANS OF INNOCENT RECEIPT AND POSSESSION VIA COMPUTER":
The ease of internet communication and the low cost of transmitting electronic files have created new ways for individuals to become unintentional recipients of child pornography, and these means of delivery bear little resemblance to the bricks-and-mortar exchanges that Congress envisioned when drafting the original statute in 1977. There are at least three new ways in which individuals might become unintentional recipients of child pornography in computer-based transactions: through unsolicited “spam” e-mails, pop-up advertisements during legal internet searches, and viruses. Suppose an unintentional recipient acquires illegal material, notices its presence on the computer, and either does not know how to delete it or thinks he need not delete it so long as he does not view it. That recipient may “knowingly” possess the material, yet still be the type of “unwary” recipient that Congress intended to protect by including the knowledge standard in the statute. This Part briefly surveys the mechanics of the internet that have made the possibility of unwitting receipt increasingly salient in cases involving computer-based receipt and possession of child pornography.
Let's take a closer look at each of the three new ways individuals might become unintentional recipients of child pornography. From Harvard Law Review (HLR):
(1) Spam e-mails
Child pornography can easily be transferred among individuals in the form of electronic images sent as e-mail attachments. Although e-mails containing illicit images can be solicited by participating in certain online chat rooms or websites, a person could also receive e-mails that are entirely unsolicited. Once an image is sent, the recipient’s computer may be equipped with software that automatically downloads the e-mail’s contents onto the computer’s hard drive. The user can, of course, choose to delete or retain any e-mails — including illegal spam — that he receives. This feature of e-mail communication suggests that while unintentional receipt may occur, subsequent knowing possession only occurs if a recipient chooses not to delete the file. In the course of evaluating probable cause to conduct a search of a defendant’s computer in United States v. Kelley, Judge Rymer, writing for the court, acknowledged “the possibility that these e-mails could have been spam,” but she ultimately found it unlikely that spammers would distribute the kind of illegal material that Kelley received. Judge Thomas, dissenting in Kelley, disagreed, citing to a string of sources indicating that spam messages can contain illegal child pornography or links to illegal sites. Though federal judges have disagreed about the likelihood that individual defendants came to possess electronic images of child pornography through unsolicited spam e-mails, they have nonetheless recognized that spam is at least a possible source of such images.
(2) Pop-up ads and caches
Personal computer web browsers have a “cache” function in which they store copies of web pages viewed by a user, creating a second way that users might accidentally possess child pornography. Because a computer’s cache has a limited capacity, files are automatically deleted through a “first in, first out” system. As an alternative, users can manually delete files from the computer’s cache or use commercial software to remove the files. Because web browsers automatically save cached files, a person need not take any affirmative step to acquire the files in order for them to be saved to his computer. Typically, because files are saved from websites that a computer user has viewed on his screen, people who possess images of child pornography in their computer cache have also sought out the websites that display the original images. But even accidental viewing of an illegal image can lead to caching, giving rise to the possibility that a person can possess child pornography — even knowingly, having seen the unsought image and realizing that his computer has saved it in the cache — without ever having had any intent or desire to do so. If an individual lacks the technological sophistication to remove files from his cache or to ensure their permanent deletion, he “knowingly possesses” electronic images of child pornography within at least one reading of § 2252(a)(4).
A third means of unintentionally acquiring child pornography arises when a computer becomes infected with a virus. United States federal courts have considered this possibility, but they have been slow to find that a virus was responsible for procuring the images on which child pornography charges are based. For example, in United States v. Miller, the court relied on expert testimony to conclude that “a person may come to knowingly possess a computer file without ever knowingly receiving it.” The court articulated one way in which unknowing receipt could lead to knowing possession: “This could happen . . . if the person’s computer is infected with a virus or ‘spyware’ software that surreptitiously installs advertising images. Thus, when a defendant is charged with downloading a computer file, the court must rigorously scrutinize whether there is sufficient evidence to establish the intent-element of the crime.”
In 2003, a British man was acquitted of child pornographycharges in Exeter Crown Court “after arguing that the material had been gathered without his knowledge by a rogue program created byhackers — a so-called Trojan horse — that had infected his PC, probably during innocent Internet surfing.” Mark Rasch, a former U.S. federal computer-crime prosecutor, expressed concern over the implications of the British case: “The scary thing is not that the defense might work . . . . The scary thing is that the defense might be right . . . . The nightmare scenario . . . is somebody might go to jail for something he didn’t do because he was set up.” While adequate forensic examination of a suspected individual’s computer should be able to determine whether a virus may have downloaded child pornography, the British case suggests that prosecutorial investigation and discretion in deciding which cases to bring may be imperfect mechanisms — on their own — for ensuring that only truly culpable individuals are charged and convicted in child pornography cases.
Do spam, pop-ups, or viruses account for the contraband allegedly found on Scott Wells' computer? We don't know yet. More importantly, prosecutors don't appear to know, and we see little sign they've even considered the possibility. The information we have so far suggests they simply wanted an arrest, followed by a likely guilty plea, and Scott Wells was a convenient target.
(To be continued)
|A food tray from the Etowah County (AL) Jail|
We invite you to check out the photo above of a food tray from the jail in Etowah County, Alabama. I spent five months -- from Oct. 23, 2013 to March 26, 2014 -- in the Shelby County (AL) Jail, and the tray of food above looks a lot like what we tended to have there.
Since my release, we've seen widespread reports of Alabama sheriffs taking funds intended for inmate food and using them for personal expenses and projects -- such as beach houses, in the case of former Etowah County Sheriff Todd Entrekin, who lost his re-election bid and stepped down last month.
Exposure to Alabama jail food can be dangerous -- both due to its sparse quantity and its dreadful quality. I have reason to worry about the impact it has had on my own health.
As for Todd Entrekin -- the poster boy for Alabama sheriff corruption -- he is not the only one to essentially starve inmates, so that his personal bottom line would benefit. Morgan County District Attorney Scott Anderson recently sued outgoing Sheriff Ana Franklin, alleging she used inmate-food funds to pay her legal expenses from battling corruption charges.
That's not the only food-related scam involving Alabama sheriffs. I have little doubt a normal-sized adult could starve in an Alabama jail; I lost 15-25 pounds in five months -- and not being a picky eater, I usually cleaned my plate, what little was on it. As you can see from the photo above, there wasn't much on it much of the time.
Also, you can check out my mugshot (below, left) from the night I entered the Shelby County Jail and another (bottom) after I spent about a week at the Jefferson County Jail, which was near the end of my overall five-month incarceration. You can see that the fullness in my face is pretty much gone, and my shoulders look shrunken. Do people suffer in jail? Can this kind of weight loss under the extreme stress of false criminal charges affect a person's health down the road?I think the answer is obvious, and something close to starvation is not out of the question.
In order to survive, many inmates while I was in jail would have family put money n an account for the "store" or "commissary" and use that for snacks. The Morgan County Whistleblower blog has reported on this double-dipping scam, and we borrowed from their commentary in a recent Legal Schnauzer post:
. . . as you walk into the doors of the jail you immediately have access to two machines, the first is so you can put money into their account so they can buy items from the jail including food. This seems like a racket to me; first, you don’t feed them adequately and then sell them overpriced food all the while getting rich off leftover jail food money. Next to the first money machine is another money machine to put money into an account so they can use the phones.
We will not address the jail-phone scam for now. But there is an element to the jail-food scam that you likely would only know if you have been in an Alabama jail -- as I have. And it goes beyond quantity of food and isn't even seen on a tray.
|Roger Shuler Mugshot No. 1|
Up until the night I was "arrested for blogging," I had been fortunate to enjoy pretty good health -- and so had my wife, Carol. But I'm not so sure that is still the case. Having been exposed to jail food for five months -- not to mention a wrongful foreclosure in Alabama, an unlawful eviction in Missouri (plus the accompanying financial stress), and the emotional strain of watching Missouri cops beat Carol and break her arm, then bring bogus "assault" charges against her, the victim of an assault -- I suspect one or two of my key health numbers are outside the normal range now. I know Carol has at least one key number that no longer is within normal.
Having someone cheated out of his job and health insurance, along with his freedom and the roof over his head, can come with health consequences for the victim and his spouse. That's one of many reasons why it is a stupid thing to do.
If we wind up with a negative health event, or dealing with a chronic, life-altering illness -- all because Alabama political thugs did not like the content of my blog -- someone is going to have hell to pay. There will be major legal liability, and we intend to make sure that dealing with that is going to be painful.
(Note: Legal Schnauzer needs your help. Loyal readers have sustained this blog for years, and support is urgently needed now that my wife, Carol, is recovering from a fainting spell, which led to a recent broken arm. The healing process is going well for Carol, but statements from her doctors indicate this likely was fallout from political thugs cheating both of us out of our jobs [and health insurance] in Birmingham -- and the stress of dealing with financial wreckage that comes from being targeted for right-wing attacks. If you are able to help along our journalism journey, please click on the yellow donate button in the upper right corner of the blog, under the "Support the Schnauzer" headline. We are deeply grateful for your support through the years.)
|Roger Shuler Mugshot No. 2|
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