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Thursday, May 28, 2015

How badly does Alabama Republican operative Rob Riley struggle with the truth? Let us count the ways


Rob Riley
Alabamians long have had reason to wonder about the honesty of Rob Riley, Homewood lawyer and son of former governor Bob Riley. After all, the Federal Election Commission (FEC) fined the junior Riley $10,000 in 2008 for shadowy actions connected to one of his father's Congressional campaigns. Published reports indicate the same case involved money laundering, connected to a Virginia-based company called Triad Management Services--and Riley likely escaped prosecution only because of his father's political connections.

On top of that, Riley has claimed to be morally opposed to gambling, even though his connections to the gaming industry, via a company called Crimsonica, apparently date to at least 1985.

Want further proof that Rob Riley has a fractured relationship with the truth? Just check out court papers and published reports about the defamation lawsuit he and fellow GOPer Liberty Duke filed against my wife and me. Both Riley and various attorneys connected to the case (mostly from Riley's own firm) demonstrate an uncanny ability to twist the truth beyond recognition.

We will examine this subject in a series of posts, starting today with perhaps Rob Riley's most widely circulated lie about his lawsuit against me, my wife, and the Legal Schnauzer blog. This whopper comes from an article Campbell Robertson wrote about the case at The New York Times.

Robertson tracked down Riley for an interview and came away with this pearl:

Mr. Riley said Mr. Shuler’s refusal to engage with the legal process had given the judge the leeway to make a final ruling.

“If someone can continually ignore the judge just by saying, ‘You don’t have jurisdiction over me,’ then the whole system breaks down,” Mr. Riley said, adding that Mr. Shuler could not plead ignorance of the legal process. “This is not the first time Roger Shuler has been in court.”

These two paragraphs contain so many falsehoods that I'm struggling to keep track of them with one hand:

(1) Riley claims I refused "to engage with the legal process"; the public record shows that is false--My wife, Carol, and I engaged the process by filing a Motion to Quash Service because a deputy from Shelby County, Alabama, conducted an unconstitutional traffic stop to "serve" us with the Riley/Duke complaint. (See motion at the end of this post.) Our motion, under the law, put the burden on Riley/Duke to prove that service was conducted properly, and the record indicates they never did that.

(2) Riley claims Judge Claud Neilson had "the leeway to make a final ruling"; more than 200 years of First Amendment law show that is false--Neilson's three primary rulings--granting Riley/Duke a temporary restraining order, preliminary injunction, and permanent injunction--all are wildly contrary to U.S. Supreme Court precedent. That is perhaps most clearly spelled out in a foundational case styled Near v. Minnesota, Erwin Chemerinsky, one of the nation's foremost First Amendment scholars, has shown in scholarly articles and legal briefs that all three remedies Riley/Duke sought are unconstitutional. And that means Neilson had no "leeway" to grant them. In fact, experts quoted elsewhere in the Times article state that Neilson's actions were unlawful.

Liberty Duke
(3) Riley claims I was continually able to "ignore the judge"; the record shows that is false--Again, I engaged the court by filing a Motion to Quash Service, which is the first order of business in any case where service is questionable. Without proper service, the court has no jurisdiction over defendants and no authority to decide the case. A 2012 Alabama Supreme Court ruling styled Ex parte Trust Company of Virginia shows that, where plaintiffs fail to meet their burden of proving that service was properly executed (as Riley/Duke failed to do here), the court's orders directed to defendants "are void and due to be vacated." Trust Company of Virginia is right on point with our case, and we wrote about its implications here.

(4) Riley makes light of our claims that the court did not have jurisdiction over us; in fact, a recent U.S. Supreme Court ruling helps show our claim was correct--In Rodriguez v. United States, a ruling issued on April 21, 2015, the nation's highest court found that a traffic stop prolonged beyond the time for an officer to complete his traffic-based inquiries is "unlawful," especially where there is no reasonable suspicion of any criminal activity connected to the vehicle. That has been the law for years, but Rodriguez drives it home in the context of law enforcement's use of a drug-sniffing dog. A traffic stop long has been considered a seizure under the Fourth Amendment, and the court found in Rodriguez:

Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been completed. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention . . . but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket. . . .

Without additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded.

Alabama officer Mike DeHart never even hinted that he had suspicion of criminal activity connected to our automobile, so he had no grounds to prolong the traffic stop by giving us court papers. By law, he had to allow us to depart, but he did not do that, making the stop unconstitutional and service unlawful. That means the court, despite Rob Riley's smart-alecky comments to The New York Times, did not have jurisdiction over us. And that has profound legal implications, which we will discuss in detail shortly.

For now, we know that Team Riley/Duke does not have much to show for its dubious defamation lawsuit. My reporting never has been found to be defamatory at trial, because there was no trial. That's because Riley/Duke did not ask for a trial and they did not seek a jury to hear their claims; instead, they wanted Neilson to act as a one-man censor, in violation of First Amendment precedent, as set out in a case styled Bernard v. Gulf Oil Company, 619 F. 2d 459 (Fifth Cir., 1980).

(Hmmm . . . wonder why Riley and Duke did not want a jury to hear their case. How odd.)

Rob Riley has proven, as if we didn't already know, that he and his legal minions have a hard time staying in touch with the truth. More evidence of that is coming up.


(To be continued)



Wednesday, May 27, 2015

Hearing on motion to vacate $3.5-million default judgment has been postponed again, now to June 18


A hearing on a motion to vacate a $3.5-million default judgment in the Jessica Medeiros Garrison case has been postponed for a second time. The hearing originally was scheduled May 20 in Jefferson County Circuit Court, but Judge Don Blankenship, on his own motion, moved it to June 4.

Blankenship now has reset the hearing for 10 a.m. on June 18 in Room 600 of the Jefferson County Courthouse. Attorney Davy Hay, of Prattville, is representing me in the case.

Bill Baxley, of Birmingham, represents Garrison, the former campaign manager for Attorney General Luther Strange. Baxley also has represented a number of individuals in the ongoing grand-jury investigation in Lee County, with indicted House Speaker Mike Hubbard at its center. In at least one instance, Baxley co-represented a party in Lee County with Rob Riley, who filed a dubious defamation lawsuit that led to my five-month incarceration.

Here is Blankenship's order, postponing the hearing for a second time:


Judge B. Avant Edenfield, who covered up hunting-club scheme in Alabama divorce cases, has died


B. Avant Edenfield
A federal judge, who helped ensure that alleged hunting-club corruption in Alabama divorce courts would stay under wraps, died recently (May 9) in Savannah, Georgia.

A prominent Georgia lawyer wrote a glowing tribute of  B. Avant Edenfield, calling him a "judge for the ages." Edenfield's legacy will be far from glowing in Alabama, where he ensured that mothers, fathers, and children will continue to suffer from divorce courts that are designed to bring in big, easy bucks for lawyers--while leaving unlucky litigants holding crumbs.

That's not just my opinion. Multiple Alabama lawyers--victims themselves of corrupt divorce courts--have filed federal lawsuits, alleging that certain judges and lawyers gather periodically at remote, woodsy locations to rig divorce cases. Documents in one of the lawsuits allege that hunting-club participants also rigged criminal cases, and we see no sign that the court seriously considered that issue.

One of those lawsuits, filed by retired Cumberland School of Law taxation professor Joseph W. Blackburn, landed before Edenfield, who was specially assigned to hear it from the Southern District of Georgia. Here is how we set the stage in a post from September 2010:

A hunting club in rural Alabama provides the setting for Alabama judges and lawyers to fix divorce cases, according to two lawsuits filed in U.S. district court. Public documents indicate the club also might be involved in fixing criminal cases.

The allegations do not come from a regular citizen; they come from a legal insider--attorney Joseph W. Blackburn, who teaches tax law at Samford University's Cumberland School of Law.

Both lawsuits claim that a hunting club--which sources tell Legal Schnauzer is in Lowndes County, near Hayneville--served as the base for a criminal enterprise under the Racketeer Influenced and Corrupt Organizations Act (RICO).

Note that Blackburn presents a precise location for the hunting club; he wasn't just talking in generalities. Who was behind the alleged ugliness? It included some big names in the Birmingham legal community, and Blackburn named them:

Included as defendants in the lawsuits are Birmingham attorneys Charles Gorham, George Richard Fernambucq and L. Stephen Wright--in combination with "unknown defendants"--who hunted and fished together as controlling members of the hunting club. Judge John C. Calhoun, who lost his re-election bid in 2006, and Judge R. A. "Sonny" Ferguson, who remains on the domestic-relations bench (now retired), also are defendants.

In the first lawsuit, filed in 2007, Blackburn was a plaintiff, claiming he was injured by the corrupt actions of lawyers and judges during his divorce from Sharon Lovelace Blackburn, a federal judge. In the second lawsuit, filed in August 2009, Blackburn serves as attorney for plaintiffs claiming they were victimized in Jefferson County domestic-relations court.

How did the enterprise function? Blackburn explains it, but be forewarned, this is nauseating stuff to read:
According to court documents, Blackburn accuses the judges and lawyers of conspiring to run "a 'good ole white boys' club,' aimed at ensuring that only white males, to the exclusion of everyone else, would run the Jefferson County, Alabama circuit-court system."

The hunting club is at the heart of the illegal activity, Blackburn alleges, and it involves substantial sums of money. Why was the club formed? Court documents provide the answer, stating that "RICO enterprise" aims were to:
(a) stream illegal benefits to any "club" judges;
(b) inflate attorney fee awards--at the expense of hapless litigants--to club lawyers; and
(c) defraud the public, specifically women and minorities, by keeping the club secret from them while insiders benefited from favorable judicial treatment.

If proven, those charges could have sent any number of lawyers and judges to prison. On the civil side, they would have resulted in sizable damage awards for injured plaintiffs. But Edenfield made sure that wouldn't happen by denying Blackburn an opportunity for discovery--butchering simple procedural law in the process.

What happened? Both sides presented "matters outside the pleadings," in the form of affidavits, and that meant that the defendants' Motion to Dismiss had to be converted to a Motion for Summary Judgment--with both sides given a chance to conduct discovery.

We explained the applicable law in the following post, and even showed that Edenfield knew the proper procedure under Rule 56 of the Federal Rules of Civil Procedure--but failed to apply it. (See opinion at the end of this post.)

Both Rule 56 and Eleventh Circuit case law state that summary judgment cannot be granted when the nonmoving party (in this case, Blackburn and the other plaintiffs) have been given no opportunity to conduct discovery. As we explained previously, this is all laid out in a case styled Snook v. Trust Company Bank of Georgia, 859 F. 2d 865 (11th Cir., 1988). From our earlier post:

Snook states, in pertinent part: "This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits."

Sounds simple, doesn't it? So how could federal judges get it wrong? Well, Edenfield's own words show he intentionally cheated the plaintiffs . . .

How do we know that? Consider this:

The record shows that Blackburn and the other plaintiffs asked for an opportunity to conduct discovery, and they were denied. The record also shows that Edenfield considered at least two "matters outside the pleadings." As we've already shown, that means the motions to dismiss had to be treated under the rules for summary judgment--and discovery had to be conducted. So we've established that Edenfield got it wrong. Now, let's establish that he got it wrong on purpose. To do that, we visit page 24 of Edenfield's ruling. (See the ruling at the end of this post.) In footnote 17, Edenfield writes:

In that the Court is relying on evidence outside the pleadings, it will apply the summary judgment standards set forth in Part II(C) supra.

That tells us that Edenfield was not incompetent; he knew the rule. Unfortunately, it also tells us that Edenfield was a cheat. He unlawfully denied discovery to make sure the hunting-club scheme would not be exposed to the public. He wanted to make sure that lawyers Fernambucq, Gorham, and Wright (and probably others) would not have to sit for depositions or turn over sensitive documents that might have outlined the criminal scheme.

In other words, Edenfield engaged in a cover up. And that has led to untold misery for too many Alabama families. In terms of fixed criminal cases, it might have helped dangerous individuals return to the streets. Did Judge Edenfield care about the everyday people he harmed, or the lives he might have put at risk? Apparently not. It seems clear he found it more important to protect certain members of the legal tribe than to ensure the justice system worked according to law.

Patrick T. O'Connor, secretary of the State Bar of Georgia, wrote the following words in his "tribute" to Edenfield at Atlanta-based dailyreportonline.com:

Despite our close relationship, he never favored me or my clients. If anything, he bent the other way to ensure fairness. For Judge Edenfield, the law was always supreme and, when it came to the law, relationships came second.

Based on Edenfield's handling of the hunting-club case, those two sentences are a crock of pure manure. Perhaps the late judge got some cases right. But in one that mattered a lot to many Alabama families, he was little more than a crook in a snazzy robe. In my experience, a judge who is crooked in one case almost certainly was crooked in others.

The law was "always supreme" for Judge Edenfield? The hell it was. In at least one case, protecting members of the legal tribe clearly was No. 1--and Edenfield's own words prove he ignored the law.



Tuesday, May 26, 2015

My incarceration in Shelby County, Alabama, was the third longest for a journalist in American history


California journalist Joshua Wolf, who was
incarcerated for 226 days
My incarceration, ordered by retired Alabama Circuit Judge Claud Dent Neilson, was the third longest for a journalist in American history. It was, by far, the longest for a journalist in a purely civil matter. And it 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.

All of that means Neilson's order sending me to jail likely was the most unlawful First Amendment ruling in U.S. history.

I never set out to make history by being abducted from my own home and thrown in jail. But research shows that is exactly what happened.

The record for longest incarceration of a U.S. journalist belongs to Joshua Wolf, a freelance videographer from San Francisco, who spent 226 days behind bars in 2006-07. Second on the list is Houston freelance writer Vanessa Leggett, who spent 168 days behind bars in 2001-02. No. 3 is yours truly, who spent 155 days in the Shelby County Jail in 2013-14.

While I disagree with the courts' actions in the Wolf and Leggett cases, all indications are that those were lawful under a U.S. Supreme Court holding in Branzburg v. Hayes, 408 U.S. 665 (1972), which allows the jailing of journalists who refuse to turn over information related to criminal matters. Here is how we described the Wolf case in an earlier post:

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.

Here is how we described the Leggett case:

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.

Wolf and Leggett were held longer than I was, but their incarcerations involved reporting on criminal matters and likely were lawful. Mine involved a purely civil matter--a preliminary injunction in a defamation case, which has been a forbidden prior restraint under First Amendment law for more than 200 years.

We've found two other cases of American journalists being incarcerated related to civil matters. Both involved refusal to turn over information about sources during depositions. New York gossip columnist Marie Torre was ordered jailed for 10 days, in a case involving actress Judy Garland. And Belleville, Illinois, editorial writer Richard Hargraves was jailed for three days, in a case involving critical reports of a county supervisor.

How do the numbers stack up? My incarceration was more than 15 times longer than any other for a U.S. journalist in a civil matter.

My incarceration was widely covered in the press, both Web and mainstream. Every serious account I've seen--including those from writers on the opposite side of the political spectrum from me--have stated it was clearly unlawful. Multiple social-interest organizations, including the ACLU and the Reporters Committee for Freedom of the Press, filed court briefs stating it was unlawful.

But my sense is that the general public still does not fully understand the grotesque nature of what happened in Shelby County, Alabama. The comparable events cited above show it truly was off the charts.

In fact, it appears to be unprecedented in American history.

Friday, May 22, 2015

Will UA trustees gut undergraduate programs at UAB and UAH to help pay off massive debt in Tuscaloosa?


UAB campus
The University of Alabama Board of Trustees plans to address a debt of almost $1 billion by gutting undergraduate programs at UAB and UAH, according to a report from an associate professor at a Southeastern Conference school.

A misguided growth program at the Tuscaloosa campus is "unsustainable," according to the report, and the killing of UAB football is the first step toward turning the Birmingham campus into mostly a medical school, with the campus in Huntsville designated for math and science programs only.

Students who want a comprehensive undergraduate experience will have to go to the campus in Tuscaloosa--to help bail trustees out of a spiraling debt.

John Knox, an Alabama native and UAB mathematics graduate, is an associate professor of geography at the University of Georgia. He has shown that UA has "non-current liabilities"--mostly long-term debt--of $951.8 million, up 169 percent in just five years. Knox says the debt bubble likely will burst, leaving a nightmarish mess at the feet of Alabama taxpayers.

How did this happen? Knox traces it to a growth plan that UA President Robert Witt (now chancellor of the UA System) launched in 2003, built largely on recruitment of out-of-state students, with the goal of turning UA into a top-tier research institution. The plan coincides with Paul Bryant Jr.'s rise to power on the Board of Trustees, beginning in 2000--and Knox says it is failing miserably.

Enrollment at the Tuscaloosa campus shot up by 126 percent from 1982 to 2014, while the population of Alabama rose only 24 percent during that period. Where did those students come from? Mostly from out of state, and recruiting students from faraway places is expensive. That was a key factor in fueling the current debt.

With the Witt/Bryant initiative about to implode, a scheme was developed behind the scenes to deal with the debt. Knox received a message several months ago from a UA insider that let him in on the plan. In part, the message read:

"The hidden agenda is to focus UAB as medical school only, UAH as math and science only . . . (board of trustees) presidents have pushed this agenda . . . Deep pockets of trustees allow them to buy whatever they want."

Who provided this insight? Knox explains:

(It was) no less than a former member of the University of Alabama System Board of Trustees responding to my queries concerning Ray Watts and the imminent termination of football (and bowling, and rifle, as it turned out) at UAB. This source is the ultimate insider, who refuses to go public out of deep fear of retaliation.

From that moment forward, I knew that the battle for football at UAB was about much more than athletics. It is a last stand by Birmingham against those on the UA board who wish to crush autonomous public higher education in the Magic City.

In other words, Birmingham and Huntsville are supposed to pay the price for a bone-headed growth plan that originated in Tuscaloosa. Here is more perspective from Knox:

This debt is the result of a growth plan run amok at the Capstone, without any UA board restraint. Current UA System Chancellor Robert Witt created this plan as UA president in 2003, with dreams of UA at last becoming a tier-one research university, growing a larger student body, and serving the citizens of the state.

The plan didn't work. The research university dreams at UA have crashed and burned. Witt's big push barely moved the needle on the national ranking of UA among research universities (UA was a miserable 190th in the nation in research expenditures in 2013). I have recently learned through sources at the Capstone that there will soon be zero "hard money" funding for any college-based research centers or institutes on the UA campus, a tacit admission of failure.

UAH campus
Instead of research, the big bucks have been poured into metastatic growth for growth's sake, centered on extracurriculars, not academics. To try to cover the ensuing debt, UA has gone after out-of-state tuition payers with such vigor that the Capstone's dearth of Alabamians has become national news. But without steadily increasing out-of-state tuition revenues, the debt will be unsustainable—the Moody's reports on recent bond issues for UA imply as much.


Is there any chance the Witt/Bryant growth plan could work out in the end? Knox says it isn't likely:

How bad is the situation? A respected academic colleague at another flagship university with inside knowledge of the situation in Tuscaloosa gave me his assessment: " . . . a very unsustainable model . . . they are driving 100 mph toward a brick wall."

How can Witt, Bryant, and their Tuscaloosa cronies avoid crashing into the brick wall? By gutting UAB and UAH, Knox reports:

This is where the over 17,000 undergraduates at the Birmingham and Huntsville campuses likely come in. UA needs more in-state undergraduates to maintain the illusion of a commitment to the state of Alabama and keep the state's power-brokers happy. How many more in-staters are needed? A lot—because at the same time, UA is going to have to keep bringing in even more out-of-staters to try to grow its revenues faster than its spiraling debt. Where could UA magically find thousands upon thousands of in-state students to enroll? The perfect solution: Shut down UAB and UAH at the undergraduate level and herd those students to Tuscaloosa. Judging from the current mission statements of UAB and UAH that curiously omit the word "undergraduate," this plan has been in the works for a while. My trustee source confirms this.

A reasonable person might say, "But UAB and UAH have been extraordinarily successful campuses--driving economic growth, bringing in research dollars, offering top-notch educational opportunities in metropolitan centers. No way the UA System could shut them down."

Knox's reply: Don't be so sure about that.

Could a Board of Trustees be so short-sighted and venal as to contemplate the gutting of two universities in order to pay off the irresponsible billion-dollar debt of a third? This is Alabama. Yes.

In summary, the decisions made at UAB during the past six months regarding athletics, by a president servile to the UA board are the beginning of the end of UAB as we know it. Sports will go first, followed by the undergraduate programs.

In doing so, the board is killing the goose that has laid the golden eggs.

Thursday, May 21, 2015

Eleventh Circuit panel uses cheat job on Richard Scrushy to justify its latest cheat job on Don Siegelman


Don Siegelman
If the U.S. Eleventh Circuit Court of Appeals cannot uphold the law and dispense justice, it can at least provide consistency. That seems to be the lesson from the court's opinion yesterday that upheld convictions against former Alabama governor Don Siegelman by pointing to its earlier ruling against codefendant and former HealthSouth CEO Richard Scrushy.

In the process, a three-judge panel virtually ignored perhaps the single most important issue raised on the Siegelman appeal--that, under the law, the former governor is entitled to discovery on whether former U.S. attorney Leura Canary abided by her supposed recusal in the case.

How did the Eleventh Circuit paper over this inconvenient truth? By essentially saying, "Well, we screwed Scrushy on this issue, so in order to be consistent, we have to screw Siegelman, too."

The panel didn't actually use those words. Instead, they used a fancy legal term called "law of the case." But when considered in the context of numerous erroneous rulings in the Siegelman matter, "law of the case" pretty much means, "We've made huge numbers of mistakes in this case, so we've got to keep right on making them."

How's that for postmodern American justice? Ain't it grand?

Ironically, the appellate ruling came just two days after our most recent post showing that a U.S. magistrate in Montgomery, Alabama, made unlawful rulings on discovery issues in the case--and lied about it in court documents.

Is Siegelman out of options? Technically, the answer is no. He could seek an en banc hearing of the full Eleventh Circuit (minus Birmingham-based Bill Pryor, who has enough conflicts in the matter to sink the USS Missouri.) He also could seek review from the U.S. Supreme Court, which already has declined to hear the case once. A presidential pardon is not out of the question. But the grim truth is this: The federal judiciary and the Obama Department of Justice (DOJ) are deeply invested in covering up scandalous actions in the Siegelman case, so it's hard to see help coming from either of them.

What if the public became enraged enough to conduct street protests, around the country, similar to those recently seen in Baltimore? The Siegelman fiasco merits that sort of outrage, but large numbers of Americans have moved on to other concerns--like when will Bruce Jenner officially become a "she."

As for the Eleventh Circuit's ruling yesterday, the appellate judges clearly based their Siegelman finding on the wildly deceitful actions of Charles Coody, a U.S. magistrate in the Middle District of Alabama. The panel judges also provided cover for their corrupt colleague. Neither of those moves should surprise anyone.

Coody is noted for denying Siegelman/Scrushy discovery requests on the Canary issue, after claiming to have reviewed all relevant documents himself in camera--and announcing they provided no helpful evidence for the defendants. Unfortunately, court documents show that Coody didn't even order the Canary documents from the DOJ (totaling some 1,000 pages), so he could not possibly have reviewed them.

How do the Eleventh Circuit judges deal with this slight problem? One, they reference a magistrate judge and his rulings, but they never mention Coody's name. Two, they act as if the Siegelman legal team didn't bring up the Canary discovery issue.

The truth, of course, is that the Siegelman appellate brief puts that issue front and center. This is from "Statement of the Issues" on page 1 of the brief:

1. Whether the participation in Siegelman’s prosecution by United States Attorney Leura Canary, after she had ostensibly disqualified herself from the case due to a conflict of interests, necessitates a new trial, or at least warrants an evidentiary hearing.

Beginning on page 29 of the brief, Siegelman lawyers devote almost three full pages to Canary-related discovery, under the heading, "At a Minimum, Siegelman Was Entitled to Discovery on this Issue." Here is the heart of the argument:

Even if these manifestations of Canary’s continuing involvement were not, by themselves, sufficient to warrant reversal, the district court erred by refusing to order further discovery. When discovery is sought in support of a motion for a new trial, discovery should be ordered “where specific allegations show reason to believe that the [defendant] may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Arthur v. Allen, 459 F.3d 1310 (11th Cir. 2006) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997))

In other words, Siegelman was entitled--under Eleventh Circuit case, backed up by U.S. Supreme Court precedent--to fully develop the facts. And that's because he made specific allegations that Canary's participation violated his constitutional right to a disinterested prosecutor.

How did the appellate panel deal with this central issue? It's a struggle to find it, in footnote 7 on page 13 of the ruling:

We also affirm the magistrate judge’s denial of Siegelman’s related motion for additional discovery on this issue. See Scrushy, 721 F.3d at 1303 n.27.

Again, the court is saying, in so many words, "We butchered this issue for Scrushy, so the law requires us to do the same thing with Siegelman."

That brings us back to the fancy "law of the case" notion. Here's how the court explains it:

As most commonly defined, the law-of-the-case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case .” Pepper v. United States, 131 S. Ct. 1229, 1250 (2011) . . .  Importantly, we also have held that the doctrine applies to those issues decided on a co-defendant’s earlier but closely related appeal. See United States v. Bushert, 997 F.2d 1343, 1356 (11th Cir. 1993) (holding that the co-defendants’ prior appeal mooted any subsequent appeal by the defendant under the law-of-the-case doctrine because the defendant’s appeal would have challenged the same joint motion that his co-defendants’ appeal had unsuccessfully challenged).

Does "law of the case" always apply? No, and the court writes:

There are some narrow exceptions to the law-of-the-case doctrine. See United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996) (“We have recognized narrow exceptions to the law of the case doctrine, where there is new evidence, an intervening change in controlling law dictating a different result, or the appellate decision, if implemented, would cause manifest injustice because it is clearly erroneous.”). We conclude that none of these exceptions apply here . . . 

This is a classic example of how a corrupt court works. It says that Siegelman could overcome "law of the case" with new evidence, but it denies the opportunity to obtain new evidence--even though Siegelman is entitled to it under the binding precedent of Arthur v. Allen.

Does binding precedent matter in federal cases that arise in Alabama, Georgia, and Florida--the three states covered under the Eleventh Circuit? The obvious answer is no, not when precedent would interfere with the court's predetermined outcome.



Wednesday, May 20, 2015

U.S. Eleventh Circuit Court of Appeals upholds convictions against former governor Don Siegelman


Don Siegelman
An appellate court today upheld convictions against former Alabama governor Don Siegleman in a case that has become widely known among many legal experts as the most notorious political prosecution in the nation's history.

The ruling from the U.S. Eleventh Circuit Court of Appeals can be read at the end of this post. We will have an analysis of the court's findings tomorrow.

Here is how the Montgomery Advertiser described today's ruling, which came on the heels of oral arguments in January:

A federal appeals court Wednesday denied former Gov. Don Siegelman's bid for a new trial, saying he relied on arguments that judges rejected in an appeal from his co-defendant in their 2006 trial on bribery and corruption charges.

Siegelman argued that the district court should have considered whether then-U.S. Attorney Leura Canary, who recused herself from Siegelman's investigation in 2002, had honored the recusal. Former HealthSouth CEO Richard Scrushy made the same arguments in his motion for a new trial, citing emails from a whistleblowers in which Canary suggested a gag order be placed on Siegelman during the trial; forwarded an email on its coverage and approved a staffing decision.

The three-judge panel rejected Scrushy's argument in 2013, writing "there is no evidence that Canary's emails influenced any decisions made by the U.S. Attorney's office in prosecuting Scrushy." In the former governor's case, the court wrote that it had to follow its decision on Scrushy.

"Regardless of whether Canary possessed a stronger conflict of interest with respect to Siegelman, our determination in Scrushy that there was no evidence that Canary influenced the prosecution team , , , binds Siegelman on this appeal," the opinion said.




Could crime-fraud exception to confidentiality rule thwart efforts to disrupt Mike Hubbard probe?


Mike Hubbard mailer from the 2014 campaign

During the 2014 election, Alabama House Speaker Mike Hubbard (R-Auburn) touted his Christian faith as a reason voters should re-elect him, even though he faced a 23-count indictment for alleged felony violations of state ethics laws. One pro-Hubbard mailer featured a photo of the Holy Bible with a compass--and a tag line that states: "Faith Is His True North."

Was that a reference to Mike Hubbard or to Jesus Christ himself? Sometimes, in right-wing Alabama politics, it's hard to tell where the candidate ends and the deity begins.

This much seems clear: The behavior of Hubbard, and various lawyers connected to him in the Lee County grand-jury investigation, is anything but Christ-like. In fact, it might be enough to test the gag reflex for any person of genuine faith.

What is most gag-inducing at the moment? Well, there is a close race for that "honor," but our vote goes to an apparently coordinated effort by various lawyers to use attorney-client privilege for purposes of gaining inside information about the criminal probe. Our research indicates the "crime-fraud exception" might help pierce the attorney-client privilege and produce additional damaging information against Hubbard--and perhaps some of the lawyers who appear determined to disrupt the grand jury's work.

Two members of Attorney General Luther Strange's office--Sonny Reagan and Gene Sisson--have been forced out amid allegations that they leaked grand-jury information to pro-Hubbard forces. Bill Britt, of Alabama Political Reporter, wrote in late April that Birmingham lawyers Rob Riley and Bill Baxley likely were among those participating in the Reagan/Sisson schemes.

How does the attorney-client privilege scheme work? Here is how we described it last December:

Britt reports that Rob Riley and others are taking extraordinary steps to undermine the investigation. At the heart of the scheme is a game of legal musical chairs, with Rob Riley and Bill Baxley representing multiple clients in an apparent effort to use attorney-client privilege as a way to get inside information.

The idea seems to be that Riley and Baxley can use their status as lawyers for multiple clients in the case to obtain inside information--and the attorney-client privilege will provide a shield to help them get away with it. The inside information, it apparently is hoped, will help their clients avoid criminal convictions--and maybe avoid prosecution altogether.

Attorney-client privilege, however, is not absolute--and a provision known as the crime-fraud exception might throw a wrench into the plans involving Riley and Baxley. What is the crime-fraud privilege? It is described in Rule 502 of the Alabama Rules of Evidence. Section (d)(1) of the rule states:

(d) Exceptions. There is no privilege under this rule:
(1) FURTHERANCE OF CRIME OR FRAUD. If the services of the attorney were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

How might this play out? Well, we know that Special Prosecutor Matt Hart already has subpoenaed Rob Riley to testify before the grand jury, and Riley lawyer William Athanas has fought it. (See Athanas letter to Hart at Exhibit J from the following link.)

Athanas, from the Birmingham firm Waller Lansden Dortch and Davis, cites Rules 1.6 of the Alabama Rules of Professional Conduct as primary grounds for his position that Riley should not be called to testify. But Rule 1.6 appears to be in line with the crime-fraud exception, including the following language (citations omitted):

First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(d). Similarly, a lawyer has a duty under Rule 3.3(a)(3) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(d) to avoid assisting a client in criminal or fraudulent conduct. . . .

If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw . . . 

E-mail evidence in the case indicates Rob Riley was among those who received leaked grand-jury information from Sonny Reagan. That points to likely obstruction, which would trigger the crime-fraud exception and require Rob Riley's testimony. Similar circumstances also could require Bill Baxley's testimony.

Curiously, Athanas points to advice from Tony McLain, general counsel for the Alabama State Bar, to buttress his argument that Riley should not be forced to testify. That raises at least two questions:

(1) Is the Alabama State Bar trying to protect Rob Riley, perhaps due to his status as the son of former Governor Bob Riley?

(2) Is Tony McLain familiar with the very rules he is supposed to uphold?

The bottom line? Mike Hubbard might use The Bible in an effort to maintain his seat of power, but when you examine his actions and the actions of those connected to him . . . well, it's hard to see anything holy about that.

Tuesday, May 19, 2015

Orders in Rob Riley and Liberty Duke defamation lawsuit were void, including the one that sent me to jail


Claud Neilson
A recent Alabama Supreme Court ruling suggests all of the orders in the Rob Riley/Liberty Duke defamation lawsuit against my wife and me were void and due to be vacated. That includes the order that unlawfully sent me to jail for five months.

What happens when a court takes action against defendants over which it does not have personal jurisdiction? Specifically, what happens when defendants challenge service as improper or invalid, and plaintiffs fail to prove otherwise?

A case styled Ex parte Trust Company of Virginia (Ala. Sup. Ct., 2012) addresses those questions and illustrates the importance of making sure defendants are properly served with a complaint. If service is not proven to be proper, or "perfected" as judges like to say, the court essentially has no authority to act.

That means Alabama judge Claud Neilson had no authority to send me to jail on a contempt-of-court charge for allegedly violating a preliminary injunction and temporary restraining order (TRO) in the Riley/Duke case. Of course, we already have shown--and analysts from all corners of the political spectrum have agreed--that Neilson's orders were unlawful on First Amendment grounds. But now we know Neilson's actions were worse than unlawful; they were void because he had no authority to make them.

How do we know? Let's consider the words from Ex parte Trust Company of Virginia. That was an estate case in which the Trust Company of Virginia (TCVA) had been appointed conservator of property owned by a woman named Amy Falcon Morris. Ms. Morris had been declared incapacitated in 2008, and when she died in 2011, an Alabama probate court issued several orders against TCVA. The trust company filed a motion to vacate those orders, which the trial court denied. TCVA then sought an interlocutory writ from the Alabama Supreme Court, directing the lower court to vacate the orders for lack of personal jurisdiction.

The TCVA case is right on point with what happened to us. We filed a motion to quash service after Alabama deputy Mike DeHart conducted an unconstitutional traffic stop to give us court papers in the Riley/Duke case. TCVA filed a motion to vacate and we filed a motion to quash, but the issue is the same--we both challenged service, and the Alabama Supreme Court makes it clear what is supposed to happen in such cases:

TCVA argues that the probate court lacked personal jurisdiction over TCVA because TCVA was not named as a party in the probate proceeding and was not served with notice of the proceeding in the probate court. We observe that TCVA maintains that it was never served with process of the proceeding in the probate court or provided with proper notice of that proceeding. This Court has held: . . .

"When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally." Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983).

We made the same argument in our motion to quash. (See motion at the end of this post.) In the TCVA case, the trial court conducted a hearing on the service/jurisdiction issue. In the Volkswagenwerk case, three hearings on the issue were conducted, apparently because it involved complex issues of international service.

Either way, Alabama law requires a hearing for both parties to submit evidence, with the burden of proof on plaintiffs to show that service was performed properly. In our case, I was arrested and thrown in jail before ever receiving notice of a hearing--and, in fact, the record shows that no hearing was held, and Riley/Duke never were required to meet their burden.

What does it mean when plaintiffs fail to meet their burden once service has been challenged? The Alabama Supreme Court spells it out in TCVA. Ms. Morris' son, as administrator of her estate, was given an opportunity to prove service had been perfected. But he came up well short:

Mr. Morris, as administrator of the estate opened in the probate court, has not alleged any facts before this Court that would prove that he served the conservatorship, nor has he contested TCVA's allegation as to the absence of service of process. It is axiomatic that a court does not obtain personal jurisdiction over a party upon which service of process has not been perfected and proper notice has not been provided. Because there is no evidence before this Court that the conservatorship ever received service of process or proper notice, the probate court does not have personal jurisdiction over the conservatorship, and its orders directed to the conservatorship are void and due to be vacated.

Like Mr. Morris, Riley and Duke never met their burden to show that service of process was perfected and proper notice was provided. That means Judge Claud Neilson never obtained personal jurisdiction over my wife and me--and all of his orders directed to us are void and due to be vacated.

Is this profound? Well, I lost five months of my freedom because of an order from a judge who had no authority over me. My wife lost her husband for five months--and some might say that's not such a bad thing--but she also was terrorized for five months, fearful that she too would be arrested.

This adds more evidence to my claim that my arrest amounted to a state-sanctioned kidnapping--all because I write a blog that made a few powerful people uncomfortable.

I invite you to step into our shoes and ask yourself, "How would I feel if this was done to me and my family? How would I feel if a rogue judge ordered me or someone I care about to be kidnapped?"


Monday, May 18, 2015

U.S. Magistrate Charles S. Coody screwed up both the facts and law on Canary "recusal" in Siegelman case


Don Siegelman
A U.S. magistrate in Alabama clearly lied in a public ruling about his "review" of documents related to prosecutor Leura Canary's supposed recusal in the Don Siegelman case. Now we can show that the same magistrate butchered the applicable law on whether Siegelman and codefendant Richard Scrushy were entitled to discovery on the Canary issue.

The bottom line? U.S. Magistrate Charles S. Coody screwed up both the facts (and lied about doing it) and the law on an issue that is central in the Siegelman case--that the defendants apparently were denied their constitutional right to an impartial prosecutor. In fact, Coody laid the foundation for U.S. District Judge Clay Land's refusal last December to release Siegelman from prison, pending oral argument before the Eleventh Circuit in January. A ruling on that appeal has yet to be issued.

We already have shown how Coody failed to review Canary-related documents because he did not even order them. We also have shown that Coody proceeded to lie about what he had done. While Coody clearly cannot be trusted on matters of fact, he also has problems with matters of law.

For example, Coody denied Siegelman's discovery request largely because the former Alabama governor had "pointed to no prejudice he had suffered as a result of Canary's involvement"--even though Siegelman presented actual evidence, thanks to whistleblower Tamarah Grimes, that Canary failed to abide by her recusal.

What's the problem with Coody's finding? Well, under the law, "no prejudice" is not the proper issue. Coody used the wrong legal standard.

Let's take a brief trip through key legal documents to show where the judge went wrong. This is from Coody's order, dated June 27, 2012:

Siegelman points to no prejudice he suffered as a result of Canary's communications. He provides the court with no credible evidence that the United States Attorney directed, managed, influenced or controlled any aspect of the prosecution of the case.

In this instance, however, Siegelman is seeking discovery regarding Canary's communications--and he does not have to show actual prejudice. The real standard, on a discovery matter, is governed by a case styled Bracy v. Gramley, 520 U.S. 899 (1997). It is a U.S. Supreme Court case that has been cited in many lower-court rulings, including Arthur v. Allen 459 F. 3d 1310 (Eleventh Circuit, 2006). It is grounded in a 1969 U.S. Supreme Court case styled Harris v. Nelson, 394 U.S. 286 (1969).

This is from Bracy, citing the actual standard that governs Siegelman's discovery request:

In Harris, we stated that "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry."

As Siegelman's lawyers showed in an appellate brief, the defendant more than met the standard of providing "specific allegations." That meant Coody had a "duty" to "provide . . . for an adequate inquiry." But he did not do it; in fact, he lied about what he had done.

What does all of this mean for Siegelman's appeal? It shows how easy it would be to get at the truth--assuming the court wants to get at the truth. From the appellate brief:

Here, Siegelman not only provided specific allegations, but also actual evidence, which the Magistrate Judge and Judge (Mark) Fuller ignored, that discovery would have yielded facts supporting his new-trial claim. In addition to the emails showing Canary’s ongoing involvement, Siegelman’s discovery request was supported by Grimes’s letter to the Attorney General, in which she wrote that Canary “directed some action” in the case, made “suggestions” to Franklin, and wrote “all the press releases” issued under Franklin’s signature. . . . The district court could have sought testimony or evidence from Grimes—but did not. Siegelman also pointed to the FOIA suit, which turned up more than 500 pages of responsive documents relating to Canary’s disqualification. . . . The district court could have ordered the government to turn over these documents—but did not.

Most importantly, the district court could have ordered the government to disclose post-disqualification communications between Canary and the prosecution team regarding the Siegelman case—but did not. . . . A simple, targeted email search using terms such as “Leura” and “Canary” with “Siegelman” and “the Big Case” would have quickly answered whether Canary’s ongoing involvement was as extensive as Grimes claimed; if necessary, any responsive emails could have been reviewed in camera. Instead, the Magistrate Judge ordered no Canary-related discovery, based on his conclusion that Siegelman had “pointed to no prejudice he suffered as a result of Canary’s” involvement. . . . But a showing of prejudice is not required for a discovery request, which is proper if the defendant can provide “reason to believe” that his new-trial claim would be substantiated “if the facts are fully developed.” Arthur, 452 F.3d at 1247 (emphasis added). This error alone requires reversal, so that Siegelman’s discovery request can be evaluated under the proper standard. See Koon v. United States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”)

Until now, Charles S. Coody has been a relatively unknown player in the Siegelman drama. But we've shown that Coody's errors of fact and law require reversal--and a legitimate inquiry into Leura Canary's recusal.

Will the Eleventh Circuit ensure that Coody's errors are corrected? Or will the appellate court simply try to cover up for him?