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Wednesday, January 28, 2015

Alabama reporter Kyle Whitmire admits to ignoring information about a politician's extramarital affair


Kyle Whitmire
An Alabama newspaper reporter admitted in an article yesterday that he had court documents related to a public official's extramarital affair, prior to the 2014 elections, but did not write anything about it.

Kyle Whitmire, of al.com, made the revelation in an article titled "When is it OK to out a public official or expose a politician's infidelity?" It came in the wake of reports that State Rep. Patricia Todd (D-Birmingham) threatened to expose affairs of any state officials who spoke against marriage equality for gays, especially on "family values" grounds.

Todd's statement came after a federal judge in Mobile struck down Alabama's same-sex marriage ban as unconstitutional. That sparked negative reactions from a number of the state's conservative politicians, including House Speaker Mike Hubbard and Attorney General Luther Strange. Todd fired back in an emotional statement on her Facebook page, stating in part:

I will not stand by and allow legislators to talk about 'family values' when they have affairs, and I know of many who are and have. I will call our elected officials who want to hide in the closet OUT.

Whitmire entered the fray by essentially asking his readers, "When is it OK to report on a public official's personal failings?"

The answer to Whitmire's question, in my view, is, "Always--if you can verify that you have solid information." I have a degree in journalism and more than 35 years of professional experience in the field, and I was dumbfounded that a reporter would feel the need to ask such a question. I was even more dumbfounded when Whitmire revealed that he had received information about a public official's extramarital shenanigans prior to last year's state elections--and chose to report nothing on it. From the Whitmire article:

During the most recent state elections last year, like a lot of other state political reporters, I got leaked some court documents. Those documents, which have since been sealed, included sworn testimony regarding an extramarital relationship that involved a public official.

Whitmire admitted that the information was about as solid as it gets:

That isn't just gossip. That isn't seeing a frumpy old lawmaker having a candlelit dinner with an attractive lobbyist to whom he (or she) is not married. There wasn't any is-they-or-ain't-they. That's as close as it comes to, as we say, having the story cold.

So what did Whitmire do?

I stuck it away because, quite frankly, I didn't know where the line was. I'm still not sure.

Has the mainstream press really become that timid and weak? No wonder the newspaper industry is crashing as Americans increasingly turn to nontraditional sources for news.

If Kyle Whitmire needs to know where "the line" is, I will be happy to address that issue. Adultery, by any definition, involves unethical conduct. Most public officials take some sort of oath to serve in an ethical fashion--and most of them know that opens up their personal lives to scrutiny. Many of them also tout their families and so-called "moral values" in efforts to get elected.

Recent history teaches us that politicians should know that personal actions can have professional repercussions. Just ask Bill Clinton, Newt Gingrich, George H.W. Bush and others who have had apparent extramarital affairs exposed in the press.

When an individual pledges to act in an ethical manner, takes taxpayer dollars to perform a public duty, and then is found to be acting in an unethical manner that could impact his official performance . . . that is news. And reporting news is at the heart of journalism.

Is it easy to report on such stories? No, it isn't--and I know from personal experience. I had been a journalist for 35 years without being sued until I wrote a pair of stories about alleged extramarital affairs involving public figures/officials in Alabama. I was sued twice for defamation, with the cases apparently coordinated among political allies.

(Note: I started this blog in June 2007 and had never broken a sex-related story until January 2013. Certain reporters have stated that I frequently take on "salacious" subjects, and the record shows that is not true. Such stories apparently are outside Kyle Whitmire's comfort zone, and the same holds true for me. But reporting sometimes requires us to go outside our comfort zones, especially when matters of hypocrisy are at hand--when private acts don't square with public statements.)

As has been widely reported, I was arrested in one of the cases, allegedly for violating a preliminary injunction--even though more than 200 years of First Amendment law says a preliminary injunction in a defamation case is an unconstitutional prior restraint. I became the only American journalist to be incarcerated in 2013, and I'm the only U.S. journalist in this century to be jailed over a purely civil matter. In fact, the reporting in question for that case never was found to be defamatory at trial, because there was no trial--again, in violation of black-letter law. I remain under a "permanent injunction" that is not supported by an law.

After spending five months in the Shelby County Jail--I don't think I previously had even a speeding ticket on my record--I know about the dangers of taking on difficult stories.

Did Kyle Whitmire fail to act on his story because he was afraid of being sued? I don't know, but he let his readers down. They had a right to know information, in public documents, about a public official who apparently was playing fast and loose with their trust.

Tuesday, January 27, 2015

I am the only American journalist in the 2000s to be jailed in a civil case that had no criminal implications


Judith Miller, former reporter for The New York Times
It has been widely reported that I was the only journalist to be incarcerated in the United States (in fact, in the western hemisphere) in 2013. Our research, however, indicates the jailing of journalists in the U.S. is not as rare as you might think--at least when it involves criminal court cases. But the jailing of journalists connected to a civil matter--as was the situation with me--is extraordinarily rare.

The jailing of a journalist in circumstances such as mine--involving a preliminary injunction in a case of alleged defamation that was never proven at trial--is so rare that . . . well, we will address that in an upcoming post.

To put it another way, Alabama Republican Rob Riley (the son of former governor Bob Riley) apparently is the only U.S. litigant in this century to seek incarceration of an opposing party for "violation" of an unlawful preliminary injunction, in a case of "defamation" that never was proven at trial.

In fact, there was no trial in my case. My only appearance in court on the matter, on November 14, 2013, was billed as a hearing. (See embedded document at end of this post.) There had been no discovery in the case, almost no relevant testimony, little or no cross-examination, little or no evidence entered, no jury seated--in short the hearing was hardly even a legitimate hearing, and it certainly was not a trial.

This raises all kinds of troubling questions about Claud Neilson, the judge who sent me to jail for five months in Shelby County, Alabama, and the Alabama Supreme Court (led by Ten Commandments justice Roy Moore), who appointed the retired Neilson to my case. We will examine those questions later, but for now, let's put the broader issue into perspective.

For example, how many journalists have been incarcerated in the United States in the 2000s? The answer is six, with yours truly being the most recent. Here is a brief summary of each such case in this century: (Sources: Committee to Protect Journalists [CPJ], Wikipedia, The New York Times, CNN, Reporters Committee for Freedom of the Press [RCFP].)

* Timothy Crews (2000)--Editor and publisher of the Sacramento Valley Mirror in California, Crews spent five days in jail for refusing to reveal his source in a story about the sale of an allegedly stolen firearm by a state patrol officer.

* Vanessa Leggett (2001)--A free-lance writer in Houston, Texas, Leggett was jailed without bond for refusing to turn over research for a book she was writing about the 1997 murder of Houston socialite Doris Angleton. Leggett was in jail from July 20, 2001, to January 4, 2002.

* Jim Taricani (2004)--A television reporter in Providence, Rhode Island, Taricani, was sentenced to six months of home confinement for refusing to reveal who leaked him a Federal Bureau of Investigation surveillance tape. A federal judge ordered Taricani, who has a heart condition, not to leave his home for any reason except medical treatment. The judge also barred him from using the Internet and from making any public statements. The tape, showing a municipal official, Frank E. Corrente, accepting a bribe from an FBI undercover agent, was sealed under court order at the time. Corrente and Vincent "Buddy" Cianci Jr., the long-serving Providence mayor, were later convicted of corruption.

* Judith Miller (2005)--A New York Times reporter, Miller was jailed for refusing to name her sources in reporting on the outing of CIA operative Valerie Plame Wilson. Miller was incarcerated from July to September 2005.

* Joshua Wolf (2006)--A free-lance blogger and videographer in San Francisco, Wolf was jailed for refusing to turn over a videotape of a 2005 protest. Wolf taped clashes between demonstrators and San Francisco police during a June 2005 protest by anarchists against a Group of Eight economic conference. Wolf sold footage of the protest to San Francisco television stations and posted it on his Web site. Investigators wanted Wolf's testimony and portions of his videotape that were not broadcast, as part of a probe into possible criminal activity, including an alleged attempt by protesters to burn a police vehicle. Wolf was in prison from August 2006 to April 2007.

* Roger Shuler (2013)--A veteran journalist with more than 30 years of professional experience, Shuler started the progressive blog Legal Schnauzer in 2007 from his home in Shelby County, Alabama. Sheriff's deputies arrested (and maced) him in the garage of his home after Alabama Republican Rob Riley filed a defamation lawsuit, seeking both a temporary restraining order (TRO) and preliminary injunction. A long line of U.S. Supreme Court and state high-court cases, dating back more than 200 years, states that TROs and preliminary injunctions constitute unlawful prior restraints under the First Amendment. But Riley, who has a law degree from Yale, has made multiple public statements claiming there is legal precedent for his actions and Judge Claud Neilson had "leeway" under the law to order Shuler's incarceration. Both statements are false, and even right-wing legal analysts (such as Ken White, of the Popehat blog) have blasted both Neilson and Riley's lawyer (Jay Murrill, from Riley's own firm) for their actions and statements in the case. Shuler was in the Shelby County Jail from October 23, 2013, to March 26, 2014.

As you can see, my case does not fit with the others. The first five cases all involve the possible disclosure of confidential sources or information in criminal matters, and under a U.S. Supreme Court ruling from the early 1970s, all of those incarcerations probably were legal. We will take a look at the relevant law in those cases next.

Meanwhile, here is the No. 1 reason my case is different from the other cases in this century: It was flagrantly illegal. Contrary to Rob Riley's public claims, no legal precedent supports my incarceration. In fact, a first-year law student probably could have seen that Riley's defamation complaint sought remedies that are prohibited by law--meaning I was the victim of a false arrest and wrongful imprisonment.

Makes you wonder what Riley, a Yale law grad, was thinking. Makes you wonder if the whole charade, which cost me my freedom for five months, was planned with an ulterior motive in mind.





Monday, January 26, 2015

More than 1,000 documents about Leura Canary's "recusal" in Siegelman case are hidden from public


We have shown that U.S. Magistrate Charles S. Coody lied when he stated in a public order that he had "thoroughly reviewed" documents related to the recusal of prosecutor Leura Canary in the Don Siegelman case. Two sets of legal briefs (see here and here) show that Coody did not even order the Canary-related material, so the judge certainly could not have reviewed it.

Coody is not alone when it comes to deceitful acts related to the Canary-recusal issue. Officials with the U.S. Department of Justice (DOJ), under both George W. Bush and Barack Obama, also have displayed dishonesty, incompetence (or both) when pressed about the documents.

John Aaron, an attorney from Alabaster, Alabama, has been doing most of the pressing, via a Freedom of Information Act (FOIA) request in 2006 and a FOIA lawsuit in 2009. Here we are in 2015, and at last report, Aaron had received little or no meaningful material that was responsive to his request--in fact, the DOJ can't seem to even decide how many Canary-related documents exist, although we now know it is a lot.

A summary of John Aaron's journey through the murky world of FOIA presents the impression that bureaucrats in Washington, D.C., are desperate to ensure that regular citizens never learn the truth about what really went on "behind the curtains" in the Siegelman case. Perhaps Justice Department officials want citizens to continue believing that they have a fundamental right to an impartial prosecutor--even though the Siegelman case shows that right, plus other due-process rights that the U.S. Constitution supposedly guarantees, mean nothing in the postmodern court system.

Let's consider some of what John Aaron has learned during a FOIA odyssey that is approaching nine years in length. (The FOIA summary is embedded at the end of this post.)

* In February 2006, Aaron requested the Confidential Conflict of Interest Certification and all other documents related to Canary's recusal in the investigation of state employees, including then Governor Siegelman;

* After being told that his request had been received, and then being told that he would have to resubmit it, Aaron received word that the DOJ had no documents that were responsive to the request;

* Aaron appealed that ruling and won, with the DOJ essentially saying, "Never mind our earlier claim that we had no such documents. Actually, we have 516 documents related to the Canary recusal--and you can have two of them, which constitute a press release about her recusal";

* Aaron again appealed in 2007, and almost two years went by before the DOJ released 187 pages of newspaper clippings--and nothing else;

* In May 2009, Aaron filed a lawsuit seeking the FOIA documents. During the course of the case, Aaron learned that more than 1,000 documents exist that are responsive to his request--and they were not disclosed until the lawsuit was filed;

Why is the DOJ withholding information that apparently is supposed to be public, under the law? We addressed that question in a 2010 post:

Among other reasons for withholding the records, the Justice Department argues that they involve communications between Canary and agency legal staff that are covered by attorney-client privilege.

While Canary is a high-level public official, the Justice Department also says that releasing the information could result "in harassment in her private life" and expose her to "derogatory inferences ... in connection with the underlying criminal case."

Are the DOJ's responses legitimate? Here is what Harper's legal-affairs analyst and Columbia University law professor Scott Horton had to say:

On June 21, 2006, (Aaron) received a response. It stated that no documents would be provided. It cited as the main grounds for withholding them Leura Canary’s desire for confidentiality. Generally a person is entitled to confidentiality concerning health issues and personally identifying information (a social security number, a birth date, bank account numbers and the like). The fact that information would be embarrassing to a public official is not a reason to withhold the information.

The bottom line? It seems the DOJ can't keep its stories, or its numbers, straight while unlawfully withholding documents that Siegelman, codefendant Richard Scrushy, and the public are entitled to see.

Thanks to Judge Charles Coody, we've seen signs of a cover-up in Montgomery, Alabama. Now we see signs that it stretches to Washington, D.C. Who knows how many nasty fingerprints have been involved along the way?


Thursday, January 22, 2015

Supreme court outlaws e-bingo in Alabama as Mississippi casinos report worst numbers since 1997


Silver Star casino
The Alabama Supreme Court effectively outlawed electronic bingo in late 2014, not long after casinos in neighboring Mississippi reported their worst year since 1997. Is that a coincidence? Probably not. Is it a case of history repeating itself? Probably so.

Mississippi gaming interests long have worried about possible competition from Alabama. Republican felon Jack Abramoff admitted in his book that he spent $20 million to help defeat Democrat Don Siegelman and his proposed education lottery, a plan designed to protect $400 million in Mississippi Choctaw annual gaming revenue.

History teaches that Mississippi gaming bosses especially worry about Alabama competition when their own facilities aren't performing well. We also know that certain Alabama politicos, of the Republican stripe, tend to help their Mississippi buddies endure tough times.

Is that happening now with the Alabama Supreme Court's recent ruling on e-bingo? Let's look at some facts.

How bad have things been next door in Mississippi. The numbers aren't in for 2014, but the ones for 2013 were the worst since Bill Clinton was in the White House. Reports the Mississippi Business Blog, from a January 2014 article:

Last year was the weakest gaming revenue year for Mississippi casinos since 1997, according to numbers released today by the Mississippi Gaming Commission.

In 2013, the 30 Mississippi casinos collected $2.136 billion in gross gaming revenue, which is money leftover after players’ winnings are subtracted from wagers. That’s the lowest since 1997 when 24 casinos collected $1.984 billion. The high mark for revenue was $2.891 billion in 2007. The 2013 total represents a 5.1 percent drop from the $2.251 billion collected in 2012.

Mississippi casino figures have been falling steadily since 2007 as more states legalize gaming in an effort to keep their gaming dollars at home. That competition has hurt the Mississippi River casinos (and especially the Tunica area), which have seen revenue fall from a high of $1.589 billion in 2007 to $1.072 billion in 2013.


Those figures do not include information from the Mississippi Choctaws' three casinos, which do not have to report to the state commission. Reports for tribal gaming, from Casino City's Indian Gaming Industry Report, tend to run about two years behind schedule--and the 2012 numbers paint a grim picture for Indian facilities, too. Revenue growth at Indian facilities in 2012 fell behind non-tribal facilities for the first time in almost two decades, according to a report from the Jackson Clarion-Ledger:


Casino City’s report shows revenue at Mississippi’s three Choctaw Indian casinos declined 6 percent in 2012.

The Mississippi Band of Choctaw Indians announced in December that a new loan and refinancing of another loan would allow it to fully reopen its Golden Moon Hotel and Casino and renovate Silver Star Hotel and Casino.

Golden Moon has operated only on weekends since the start of 2009, when its operating days were slashed during the depths of the recession as casino visitorship dwindled.

How did Mississippi Indian gaming compare to tribal facilities around the country? Only Connecticut saw a steeper revenue decline.

If the Alabama Supreme Court is trying to help the Choctaws in a time of need, it probably isn't the first time relief has come from Alabama officials. Former Governor Bob Riley, the beneficiary of Abramoff's millions in 2002, picked a curious time to launch raids against non-Indian facilities in Alabama, claiming electronic-bingo there was illegal.

We reported on Riley's actions with a couple of posts--"Mississippi Choctaws were hemorrhaging money at the time of Riley's raids in Alabama" and "Choctaws faced huge debt payment when Bob Riley launched bingo raids in Alabama."

Attorney General Luther Strange, another GOPer who claims to be anti gambling, has continued Riley's policy of raiding privately held gaming facilities in Alabama. And the Alabama Supreme Court has consistently sided with Riley and Strange, at times ignoring the court's own precedent.

The high court's recent ruling to unilaterally ban electronic bingo is particularly curious because it seems to have no basis in fact or law. Is it based largely on the fact that tribal casinos in Mississippi are struggling? Does our all-Republican court somehow benefit from Choctaw cash that has been flowing into Alabama for more than a dozen years?

We suspect the answer to both questions is yes.

Wednesday, January 21, 2015

Rob Riley's communications with prosecutor helps show the Don Siegelman investigation was political


Rob Riley
Recent news that Alabama Republican Rob Riley communicated with a prosecutor during the Don Siegelman investigation adds to the mountain of evidence that the case against the former Democratic governor was political. It also adds to the credibility of Dana Jill Simpson, the lawyer and former GOP operative who testified under oath before Congress that the Siegelman prosecution was a political hit job, orchestrated by former Bush White House strategist Karl Rove and his allies in Alabama.

Most importantly, the recent reports indicate Rob Riley was at the heart of a plot against Siegelman, perhaps from the very beginning. This has dark implications because no one benefited more from the Siegelman case than Bob Riley (Rob's father), who went on to serve two terms as governor after "beating Siegelman" in a 2002 election where votes for the Democrat disappeared overnight in heavily Republican Baldwin County.

Former Time magazine reporter Adam Zagorin revealed the Rob Riley e-mail communication in a piece last month at Project for Government Oversight (POGO), and we picked up on the story here at Legal Schnauzer. Many questions remain about Rob Riley's e-mail correspondence--at a time when he was serving as his father's campaign manager, against Siegelman--and here are just a few of them:

* With which prosecutor did Riley communicate? Was he in contact with more than one on the case?

* What was the full extent of the e-mail exchange? For now, we have only a few words that the self-described "conservative prosecutor" wrote to Riley, saying he felt "thwarted" on the case. What was Rob Riley's response? What other issues were addressed?

* Did Rob Riley offer to take action to help the "conservative prosecutor"? If so, what did he do?

* Did Rob Riley offer to contact anyone on the "conservative prosecutor's" behalf? If so, who did he contact?

* Isn't this grounds for the U.S. Department of Justice to subpoena all of Riley's e-mail and phone records, to get a full view of exactly what he was doing? At the moment, Riley's actions point to possible obstruction of justice and perhaps even more serious crimes.

Rob Riley's e-mail communications with a prosecutor become even more alarming when you consider them in light of what Jill Simpson already has stated before Congress. Here are key points Simpson made about Rob Riley, from a summary of her testimony published in The New York Times. (The full summary is embedded at the end of this post.)

Ms. Simpson described a 2005 conversation with Rob Riley in which Mr. Riley stated that, in late 2004, Karl Rove had contacted the Public Integrity Section of the Department of Justice to press for further prosecution of Don Siegelman, and had also stated that the case would be assigned to a federal judge who “hated” Mr. Siegelman and who would “hang Don Siegelman.” (50-57) According to Ms. Simpson, Mr. Riley stated:

* that the case against Don Siegelman in the Northern District had been “miserably messed up” by United States Attorney Alice Martin and had been dismissed by a federal Judge in 2004 (48-50);

* that, with that case out of the way, Mr. Siegelman was “the biggest threat” to Governor Bob Riley – Rob Riley’s father – in the coming 2006 Governor’s race (48);

Karl Rove
 * that, in late 2004, Bill Canary and Governor Riley had spoken to Karl Rove about Mr. Siegelman and that Rove had approached the head of the Public Integrity section of the Department about bringing another case against Mr. Siegelman and giving more resources to the prosecution (50-52);

* that the new case against Mr. Siegelman would be brought in the Middle District of Alabama and would be assigned to Chief Judge Mark Fuller, whom Rob Riley knew from college (50-53);
* that “Fuller would hang Don Siegelman” because he believed Mr. Siegelman had caused Fuller to be audited in a former position which had exposed some questionable financial dealings by Fuller (56-57); and

* that Mr. Siegelman would be indicted on charges related to Richard Scrushy because Mr. Scrushy was very unpopular and it would be useful to link the two men together. (84-85, 106).

Jill Simpson's sworn testimony before Congress points to possible criminality on the part of Rob Riley and others. Now, we know that Rob Riley was communicating via e-mail with at least one member of the prosecutorial team.

Just when you think the Siegelman saga can't get more disturbing . . . well, along comes this.


Tuesday, January 20, 2015

Jeffrey Toobin's call for a presidential pardon leads a flurry of new coverage on the Don Siegelman case


Jeffrey Toobin
One of the nation's leading legal experts has called for a presidential pardon in the case of former Alabama Governor Don Siegelman.

Jeffrey Toobin's piece at The New Yorker, titled "Why Obama Should Pardon Don Siegelman," leads a flurry of new coverage about a case that has become perhaps the most notorious political prosecution in American history.

Toobin, who has been legal-affairs analyst at CNN since 2002, says now is the time for President Barack Obama to act on a high-profile case of injustice:

Since the midterm elections, President Barack Obama has been acting as if he feels liberated from parochial political concerns. After taking action on immigration, Cuba, and climate change, he should take on another risky, if less well-known, challenge by commuting the prison sentence of Don Siegelman, the former governor of Alabama. . . .

Throughout Siegelman’s legal ordeal, the Supreme Court has been in the process of deregulating American politics, most notably in the 2010 Citizens United decision. In that case, the Justices found that money is speech—that contributing to a political campaign amounts to a protected activity under the First Amendment. As the appeals court in Siegelman’s case noted, the charges in his case “impact the First Amendment’s core values—protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of these constitutionally protected activities.”

The line between legal and illegal behavior in the campaign-donation environment has become so thin as to put numerous politicians and their donors, from both parties, at risk, Toobin writes:

It seems clear that Siegelman was conducting the seedy, but routine, business of contemporary American politics. Scrushy contributed because he wanted something in return, which is why many, if not most, people contribute to political campaigns. (George Will made this point in a column in defense of Siegelman.) Why do “bundlers” become Ambassadors in congenial countries? Why do local contractors support mayoral candidates? Why do real-estate developers give to prospective (and incumbent) governors? Because they want something. Siegelman was convicted because the quid pro quo was too “explicit”—but, beyond the conversation about what Scrushy might want, there was no clear evidence that it was. Thanks to the courts, the line between illegal bribery by campaign contribution and the ordinary business of politics has all but disappeared. Throwing a man in prison for activity at the murky barrier between the two is simply unjust.

At Justice-Integrity Project, Andrew Kreig applauds Toobin's conclusion, but notes that the prominent commentator has joined a long line of journalists (including yours truly) who has gotten certain key facts wrong about the Siegelman case. In fact, Kreig uses quotations from codefendant Richard Scrushy to help set the record straight.

The most common error involves reports that Scrushy gave Siegelman $500,000 for an education-lottery campaign. In fact, Scrushy states, the amount was $250,000, and it came from his company, HealthSouth, not from him personally. Kreig reports:

The former HealthSouth CEO commented that Toobin is among the many journalists who have accepted a false prosecution narrative that Scrushy donated $500,000 in 1999 to the non-profit Alabama Education Foundation in order to obtain appointment to a governor-appointed regulatory board.

Scrushy . . . said the sum was $250,000 and it came from HealthSouth at the request of a fellow businessman, not Siegelman -- and Scrushy did not want to serve on the board. . . .

In a comment posted Jan. 14 on the Free Don Facebook page maintained by Siegelman supporters, Scrushy disputed Toobin's factual summary of the case, including regarding that of the chief prosecution witness, former Siegelman aide Nick Bailey. Scrushy's comments, with minor typographical changes made here, were:

I never gave a single dime to Governor Siegelman and the facts show this but for some reason the jury didn't care about the facts either and neither did the prosecutors or the judge.

First, I never wrote a check to him [Siegelman] and he never received any money. HealthSouth did donate $250,000 to the Alabama Democratic party along with Alabama Power, Alfa Insurance and many other companies and those funds were used to pay back the money the party had borrowed to pay the marketing expenses for the Educational lottery foundation.

The prosecutors kept saying that I gave the Governor $500,000. They said it in the courtroom and to the press over and over till they got it to stick in the minds of the jury and people everywhere. The press played right into their lies and propaganda. This actually helped them win the case and till this day every single article that is written about this case states that I gave the Governor $500,000 which is totally false.

I have repeatedly told the press, newspapers, magazines and television that I never gave the Governor a dime, but the press continues with the lies of our Government prosecutors. Their PR campaign was effective and it continues to have legs regardless that it is totally false.

Finally, Joan Brunwasser, of OpEd News, has an interview with me about the latest developments in the Siegelman case--especially revelations that U.S. Magistrate Charles S. Coody never ordered (or reviewed) documents related to the supposed recusal of prosecutor Leura Canary, and then lied about his actions in court documents. Brunwasser's piece is titled "Magistrate's Deceit Discovered in Siegelman case--Does Anyone Care?"

From the interview:

Brunwasser: Pragmatically speaking, what difference does it make? If the judges are corrupt, incompetent or both, what makes you think that anyone will give your revelations the attention they deserve?

Shuler: Good question. The Eleventh Circuit Court of Appeals certainly is not going to do anything about it. They've already denied Richard Scrushy's appeal, in which he raised the Coody issue, and the three-judge appellate panel just ignored it. It looks like the Obama DOJ is going to sleepwalk through the entire eight years he's in office. So, I don't necessarily think my revelations will receive much attention--beyond what I give them on Legal Schnauzer. And I have more posts coming on the subject. The only way I see to advance this issue is for the public to become engaged and somehow reach key media outlets that might take it to a broader audience. This is a case of a judge cheating and lying in a way that has caused individuals to go to prison and have unjust felony convictions on their records. If the public doesn't care about a story like that . . . well, God help our democracy.

Monday, January 19, 2015

Confusion reigns as Alabama high court finds electronic bingo illegal not long after hinting it's legal


VictoryLand casino
The justices of the Alabama Supreme Court seem convinced that electronic bingo is legal--except, of course, when they are declaring it illegal. Is it any wonder the public is confused?

In a case styled Houston County Economic Development Authority (HEDA) v. State of Alabama, the high court recently found that bingo can be played only outside of "machines and electronic circuitry." In reaching this conclusion, the Supremes pointed to Barber v. Cornerstone, 42 So. 3d 65 (2009), a case in which they concocted a six-point test to define bingo.

But get this: Just one week after releasing the Cornerstone decision, the high court issued a ruling that indicates the machines at VictoryLand casino in Macon County are legal. That case is styled Macon County Greyhound Park Inc. v. Knowles (2009). In that case, a woman named Sherry Knowles claimed she had won a jackpot of at least 40,000,000 credits, while VictoryLand argued that the play was not a valid win.

In the Knowles ruling, the Supremes state that bingo in Macon County is allowed by Amendment No. 744 to the Alabama Constitution, and they note the prominent role the county sheriff plays in overseeing the game. From Knowles:

Amendment No. 744 further authorizes the sheriff of Macon County to “promulgate rules and regulations for the licensing and operation of bingo games within the county.” In force at all times relevant to this action were the “Second Amended and Restated Bingo Regulations for the Licensing and Operation of Bingo Games in Macon County” (“the sheriff's regulations”), promulgated by the Macon County sheriff pursuant to Amendment No. 744.

The stated purpose of the sheriff's regulations is to “adopt the policy of the Attorney General in limiting the conduct of Class B bingo gaming in Macon County thereby allowing the Sheriff to more effectively regulate and enforce the proper conduct of bingo games.”

The high court even notes that it is up to the sheriff to define bingo. From Knowles:

“Bingo” is defined in § 1 as

“any game of chance known as bingo, including any bingo game permitted by federal law, (whether or not electronic, computer, or other technologic aids are used in connection therewith) which is played for prizes, with cards bearing numbers or other designations, and [in] which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards. The bingo game must incorporate the typical features of traditional bingo, including, but not limited to, a grid of five horizontal and five vertical squares, numbers randomly selected, and a preordained winning pattern. Alternative entertaining displays such as spinning reels and other video or mechanical graphics are permitted but must not affect game play. Just as in traditional bingo halls, players on electronic bingo machines must compete against one another. Consequently, the electronic machines must be linked so that players are competing against each other. . . . "

That is the Macon County sheriff's definition, and the Alabama Supreme Court seems to have no problem with it. The definition clearly states that bingo can be played in an electronic or computerized format, and the Alabama Supreme makes no objection to that. At no point do the Supremes state that Sherry Knowles was playing on an illegal machine.

A reasonable person could argue that Knowles trumps Cornerstone. After all, Cornerstone was issued on November 13, 2009, while Knowles was released on November 20, 2009, The cases involve a number of "disparate issues" (as lawyers like to say), so they are not exactly on point with each other. But it's clear that Knowles came after Cornerstone, and at the time of the Knowles ruling, the Alabama Supreme Court considered the machines at VictoryLand to be legal.

How deep does the confusion on electronic bingo get in Alabama? In a January 7 memo, Attorney General Luther Strange cited the HEDA ruling and encouraged state prosecutors to enforce laws against illegal gambling. Governor Robert Bentley responded by saying the state does not have the resources to relentlessly pursue gambling cases.

Some observers have suggested that Strange's memo indicates his office plans to step back from pursuing gambling cases. Writes Brian Lyman, of the Montgomery Advertiser:

However, Strange's memo was more reserved about what role, if any, the attorney general's office — which has engaged in high-profile activity against gambling over the past four years — would continue to have.

Strange said his office would continue to provide answers to legal questions, but told D.A.s to contact the newly-formed Alabama Law Enforcement Agency (ALEA) for "assistance or additional manpower" in enforcing the state's gambling laws.

Mike Lewis, a spokesman for Strange, said Thursday the memo was meant to instruct "local law enforcement on what is legal and illegal and encouraged to follow the guidelines and the law." However, he declined to say whether the attorney general's office would continue to take the lead on gambling prosecutions.

What does the future hold? That is anyone's guess, and clarity does not seem to be coming from courtrooms or law firms. The Alabama Supreme Court is not the only legal entity in the state that can't seem to get its story straight about electronic bingo. We know of at least one other one.


(To be continued)

Thursday, January 15, 2015

Alabama Supreme Court embraces judicial activism, and betrays conservatism, to outlaw electronic bingo


Center Stage Alabama casino
One of the primary tenets of postmodern conservatism is that "judicial activism" is bad, very bad. The theory goes that the executive and legislative branches of government should make laws while the judicial branch should play a restrained, interpretative role.

In short, the conservative doctrine holds that judges must never "make law" from the bench, but should craft rulings grounded in law that already exists.

Someone should get that message to the justices, all Republicans, who comprise the Alabama Supreme Court. That's because the Alabama Supremes recently engaged in one of the most blatant acts of judicial activism any of us ever are likely to see. In a unilateral action that is based on--well, pretty much nothing--the high court effectively outlawed electronic bingo in the state. As Dave Barry would say, "I'm not making this up."

Did this involve any legislative or executive action? Nope. Was it grounded in any legitimate legal precedent? Nah. Is it somehow based in Alabama's archaic and outdated constitution? Not on your life. In fact, it flies in the face of constitutional amendments that voters approved in various counties around the state.

Does it resolve the controversy that started in 2008 when then governor Bob Riley, the beneficiary of millions in Indian gaming money, decided to launch a string of raids against non-Indian bingo facilities in the state--and has continued under Attorney General Luther Strange, another Republican who has benefited from large chunks of Indian campaign cash? It sure looks that way to us.

The ruling in question, styled Houston County Economic Development Authority (HEDA) v. State of Alabama, was issued on November 21, 2014, and involved the Center Stage Alabama casino near Dothan. (The opinion is embedded at the end of this post.) Buried on page 30 of the 40-page opinion is the following:

In accordance with the foregoing, we reiterate today that the game traditionally known as bingo is not one played by or within an electronic or computerized machine, terminal, or server, but is one played outside of machines and electronic circuitry.

Did expert witnesses testify to this effect in the HEDA case? Heck, no. The state, which asked for the machines to be declared unlawful, presented no expert witnesses. The only experts on the record were from HEDA, and they testified that the machines did, in fact, play bingo and were lawful under the relevant constitutional amendment.

So how did the Alabama Supremes come to their conclusion? Citing no law as precedent, they declared that expert testimony was not necessary--and pretty much pulled the ruling out of their collective, berobed rear ends.

Oh, the Supremes did trot out their usual case--Barber v. Cornerstone, 42 So. 3d 65 (Ala., 2009)--in an effort to prove that bingo can be played only on paper cards, preferably by people who are at least 95 years old and have blue hair, white hair, or no hair. Almost as an aside, the Supremes declare in HEDA that the six-point test outlined in Cornerstone now applies to all other local bingo amendments in the state.

That's funny because Cornerstone itself doesn't say that. As we've shown in a previous post, Cornerstone clearly was about narrow issues regarding a preliminary injunction in Lowndes County. Back in September 2013, we wrote the following:

We invite readers to click on the link above and read the entire Cornerstone ruling. Taken as a whole, it states that the court was focusing narrowly on: (1) The electronic-bingo facility in Lowndes County; and (2) The lawfulness of the preliminary injunction against the Riley defendants.

That's it--nothing about any other bingo facility in Alabama, nothing beyond a right or wrong ruling on a preliminary injunction.

But now the Alabama Supreme Court cites Cornerstone to essentially outlaw electronic bingo in counties where voters have approved bingo-related constitutional amendments? And those amendments were crafted through the legislative process? And in some locations, electronic bingo was played lawfully for up to five years before Bob Riley came along, with Indian cash dripping out of his pockets, to launch a crusade against non-Indian gaming facilities?

Heck, we've even found a Supreme Court case, issued AFTER Cornerstone, that seems to uphold the provisions of the constitutional amendment in Macon County and finds the e-bingo machines at VictoryLand are legal. Specifically, the case seems to uphold the amendment's language that it is for the county sheriff, not the courts, to define bingo and set rules for its play.

Why should the HEDA ruling scare the bejeebers out of Alabamians, even those who don't give a hoot about bingo or gambling of any kind? The ruling clearly is based on the whims and personal biases of the Supreme Court justices--and not on any legal precedent. In fact, it circumvents the law-making process and overrides the will of voters who approved constitutional amendments.

That hints that Alabama's high court is tainted on the subject of electronic bingo. It also suggests that some of the Indian gaming money that flowed to Bob Riley and Luther Strange has found its way into the pockets of Supreme Court justices.

Thanks to the reporting of The Montgomery Independent's Bob Martin, we already have seen frightening signs of collusion between the Riley team and members of the Supreme Court. In fact, we've written about that issue multiple times, in 2009, 2010, and 2013. (See herehere, and here.)

The HEDA ruling suggests that something of that sort still is going on. If that's the case, it would represent a criminal conspiracy that, if unmasked by the U.S. Department of Justice, would rock Alabama government to its foundation.

At first glance, the HEDA ruling seems to be about little more than bingo. But we suspect something much more sinister is going on beneath the surface.


Wednesday, January 14, 2015

U.S. 11th Circuit has once ignored revelations about Charles Coody's misconduct in Don Siegelman case


Eleventh Circuit Court of Appeals
Will recent revelations about misconduct of U.S. Magistrate Charles S. Coody have an impact on Don Siegelman's appeal before the U.S. Eleventh Circuit in Atlanta, where oral arguments were heard yesterday? Not if the Eleventh Circuit's handling of the Coody issue in the appeal of codefendant Richard Scrushy is any indication.

Scrushy's lawyers, in their 2012 appellate brief, showed that Coody claimed to have "thoroughly reviewed" documents related to the recusal of former U.S. Attorney Leura Canary and found no "exculpatory matter"--when, in fact, Coody had not even ordered the documents.

The Scrushy team showed that Coody's statements were "at odds with the record." (Translation: The judge cheated the defendants and then lied about it.) But when the Eleventh Circuit released its ruling in July 2013, denying Scrushy a new trial, the three-judge panel made no mention of Coody's chicanery. If anything, the appellate court only added to the high-level deceit that has marked the Siegelman case from its inception. (The Eleventh Circuit ruling on the Scrushy appeal is embedded at the end of this post.)

We're not talking about a minor issue here. Scrushy (and later Siegelman, in his appeal that was heard yesterday) were seeking discovery to show that Canary did not abide by her recusal, trampling their constitutional right to an impartial prosecutor. Coody essentially claimed he had done the discovery for the defendants, checking the documents in his chambers and finding nothing that would help them. In truth, we now know, Coody didn't review the documents because he did not even order them.

Did this concern the Eleventh Circuit? Apparently not. Without mentioning Coody by name, the appellate court references a magistrate judge--but it simply ignores the profound implications, and inherent dishonesty, of his actions.

The appellate court notes that trial judge Mark Fuller denied Scrushy's request for discovery on the recommendation of a magistrate judge, who supposedly had ordered all requested Canary-related documents, conducted an in camera review, and found nothing to support defendants' claims. That magistrate, of course, was Charles S. Coody--and the record shows he could not have reviewed any Canary documents. From page 26 of the Scrushy ruling:

Judge Fuller referred Scrushy’s motion for production to a Magistrate Judge for a report and recommendation on whether any of the requested discovery was needed to decide any of the grounds for a new trial and thus should be made available to Scrushy’s counsel. The Magistrate Judge ordered the Government to produce the discovery in camera. The Government complied. After examining the discovery, he concluded that none of it supported any of Scrushy’s grounds for a new trial. He therefore denied Scrushy’s motion for discovery.

Scrushy appealed the Magistrate Judge’s discovery decision to the District Court, arguing that the Magistrate Judge erred in concluding that the discovery provided no support for his motion for a new trial. Judge Fuller rejected Scrushy’s argument and denied his motion. Without saying so explicitly, the Magistrate Judge, and thus Judge Fuller, found Scrushy’s grounds for a new trial facially insufficient as a matter of law.

Did the Eleventh Circuit essentially jump on Coody's train of deceit? The answer is yes. Let's consider the three key points made in the first paragraph above:

* "The Magistrate Judge ordered the Government to produce the discovery in camera." That is not true. Coody ordered only discovery items related to witness Nick Bailey; he ignored the request for material related to Leura Canary;

* "The Government complied." That is not true. The full request was for discovery material related to both Bailey and Canary. The government did not comply with the request for Canary items because Coody didn't order them to do it.

* "After examining the discovery, [Coody] concluded that none of it supported any of Scrushy's grounds for a new trial." That is not true. Coody could not have examined the Canary discovery because he didn't order it. The magistrate had no idea whether or not discovery would support Scrushy's grounds for a new trial.


The Eleventh Circuit panel goes on in its ruling to declare:

Moreover, there is no evidence that Canary’s emails influenced any decisions made by the U.S. Attorney’s office in prosecuting Scrushy. Canary’s limited involvement in his case did not deprive Scrushy of a disinterested prosecutor. In fine, Judge Fuller did not abuse his discretion in rejecting ground (4) of Scrushy’s motion.

That's right, there is no evidence about Canary's actions because Charles S. Coody didn't look for any--and then he lied about what he had done. But the Eleventh Circuit says nothing about it, which probably means it doesn't want the public to know what happened.

We have suggested that Charles Coody was part of a criminal conspiracy that started from his post in Montgomery, Alabama. Now, we see signs that the conspiracy spread to the Eleventh Circuit headquarters in Atlanta. Will the appellate panel further the corruption by ignoring Coody's dishonesty in its Siegelman ruling?



Tuesday, January 13, 2015

Oral arguments in Siegelman case might be overshadowed by reports about magistrate's deceit


Don Siegelman
Oral arguments in the Don Siegelman case are set to be heard today before the U.S. Eleventh Circuit Court of Appeals in Atlanta. But the proceedings might be overshadowed by revelations over the past week that a U.S. magistrate failed to review key documents in the case and then lied about it in his ruling.

We broke the story last week that U.S. Magistrate Charles S. Coody, from the Middle District of Alabama, claimed he had "thoroughly reviewed" documents related to the supposed recusal of former U.S. Attorney Leura Canary. But as we reported yesterday, lawyers for both Siegelman and codefendant Richard Scrushy state in court filings that Coody never even ordered the Canary-related documents from the U.S. Department of Justice, so he could not possibly have reviewed them. Subsequent rulings, at both the trial and appellate level, have gone against the defendants, based to a considerable extent on Coody's finding that the Canary documents presented no "exculpatory" matter.

Now we know that Coody lied about having reviewed the documents. And while our research indicates we are the first news site to break the story, we have found references--even in the Alabama mainstream press--that Coody did, in fact, fail to order the Canary documents. Also, a review of the case history shows that Siegelman and Scrushy moved for Coody to recuse himself--twice--and the judge refused to step down.

Based on developments of the past few days, is it any wonder that the defendants did not want Coody anywhere near their case? What kind of judge--what kind of person--claims he has reviewed material that could lead to reversal or a new trial for wrongly convicted parties, and then lies about it? Did Coody cross the boundary into criminal territory?

To be sure, this is not a matter of defense attorneys whining mindlessly about a judge in hopes their clients might catch a break. In an article dated November 3, 2011, reporter David White, of The Birmingham News/al.com, hinted at Coody's deceit, but did not shine a heavy light on it. White focused primarily on Coody's order requiring that prosecutors turn over a three-ring binder of notes that chief witness Nick Bailey allegedly used.

White never mentions Leura Canary by name, but his story includes:

U.S. District Court Magistrate Judge Charles Coody this morning ordered U.S. Attorney George Beck to present for Coody's inspection a copy of a binder used by a key prosecution witness [Nick Bailey] in the 2006 corruption trial of former Gov. Don Siegelman and HealthSouth founder Richard Scrushy.

Coody's order came a day after attorneys for Siegelman and Scrushy asked the magistrate to make government officials release documents that could show the two men deserve a new trial. Coody's order did not deal with any other documents.

White's readers probably did not know at the time what that last sentence was about. But now we know that it means the defendants asked for documents related both to Bailey and Canary--and Coody ordered only the ones related to Bailey.

Siegelman and Scrushy apparently did not trust Coody from the outset because they moved twice for his recusal. What were the grounds for asking the judge to step aside? Here is part of what the Tuscaloosa News reported:

Siegelman, former HealthSouth Chairman Richard Scrushy and former Siegelman transportation director Mack Roberts filed recusal motions, citing alleged conflicts of interest Coody has in the case. They included Coody’s wife hearing two of her students discuss frustrations by their road contractor father, who was a witness before a grand jury that indicted Roberts, and Coody’s grown children’s employment with or ownership of some of HealthSouth’s 396 million shares of stock.

Here is part of Coody's explanation for staying on the case, according to a report at onlinemontgomery.com:


U.S. Magistrate Charles Coody said his ability to remain impartial won't be affected by his son-in-law's position as a HealthSouth executive. Scrushy, who has pleaded not guilty to charges he bribed former Alabama governor Don Siegelman, had said Coody should recuse himself.

"My son-in-law has never discussed with me anything about internal corporate information to which he is privy," Coody said. "I have assured myself that my son-in-law's position with HealthSouth did not bring him into contact with any matter in dispute in this criminal case." . . .

Siegelman and two former cabinet members charged in the corruption case had sought Coody's recusal as well, saying he coached a debate team whose members included daughters of a potential witness. All the defendants have pleaded not guilty. Prosecutors opposed the requests, saying in a filing Thursday that Coody didn't "intimate that he could not be impartial."

Neither Coody nor prosecutors apparently bothered to check the required standard for making a determination on recusal. It is simply stated in 28 U.S. Code 455:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

What Coody's son-in-law might have said to someone is irrelevant. Whether Coody did or did not "intimate" anything about his impartiality is irrelevant. The question is: Given evidence regarding Coody's son-in-law role at HealthSouth, plus Coody's role as debate coach for daughters of potential witnesses, could the judge's impartiality be reasonably questioned? The answer almost certainly is yes, and that means--by law--Coody should have stepped down.

Those questions now seem trivial in light of what we now know about Coody's actions. It no longer is a matter of whether his impartiality could be "reasonably questioned"; he clearly was not impartial, he lied about it, and deprived the defendants of a fair hearing.

Did at least one judge, Charles S. Coody, commit criminal acts? That's the No. 1 question hanging over the Siegelman case now.