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Thursday, October 23, 2014

One year ago today, Alabama's Riley Machine caused me to be unlawfully beaten and arrested in my home


Rob Riley
Today marks one year since I was beaten inside my own home, Maced in the face, dragged out of my home, dumped in the backseat of a squad car, and incarcerated in an Alabama jail for five months--all because I write this blog about judicial and political wrongdoing, in a state that ranks No. 6 for corruption, according to a recent survey.

Ironically, the first anniversary of my arrest comes during the same week that House Speaker Mike Hubbard (R-Auburn), a prominent member of the Riley Political Machine, was arrested on corruption charges. According to published reports, the Riley Machine could be dismantled when the Lee County criminal probe and its aftermath are completed.

According to the indictment against Hubbard, former Governor Bob Riley and his daughter, Minda Riley Campbell, are among a number of prominent political and business figures to cut apparently corrupt deals that allowed Hubbard to use his public office for personal gain. Published reports have shown that Rob Riley, the former governor's son, was involved with Hubbard in funneling $100,000 in Poarch Creek Indian gaming money to Citizens for a Better Alabama, a group supposedly opposed to gaming.

Where's the irony? Rob Riley clearly orchestrated my arrest, and now we know that one of his closest allies, Mike Hubbard, faces 23 counts of criminally abusing the public trust.

My arrest and incarceration, which analysts from both the left and right have said runs contrary to more than 200 years of First Amendment law, grew from a defamation lawsuit that Rob Riley filed against me. It caused me to be the only journalist in the western hemisphere to be incarcerated in 2013. God only knows how many years it's been since a journalist has been arrested under similar circumstances in the United States. I'm doubtful that it ever has happened before.

As we showed in a recent post, Riley's lawsuit bore no resemblance to a standard defamation lawsuit, for at least three major reasons:

Mike Hubbard's mugshot
* Riley sought both a temporary restraining order and a preliminary injunction, but a foundational U.S. Supreme Court decision from 1931 says both represent unlawful prior restraints under the First Amendment. A 2012 case from Virginia drives home the same point.

* Riley did not seek a trial, but U.S. Supreme Court precedent holds defamation only can be found after a full adjudication on the merits. A 2007 California case spells out that principle in considerable detail.

* Riley did not seek a jury to hear his case, but longstanding law holds that defamation and other First Amendment matters must be heard by a jury. Otherwise, a single judge could impose censorship without a full hearing on the matter.

If Rob Riley's lawsuit was not about defamation, what was it about? I would suggest it was about intimidation of an online journalist the Riley Machine could not control. In the process, Team Riley engaged in gross civil wrongs and might well have stepped into criminal territory.

What specifically drove Rob Riley to file his lawsuit, and what was the real motivation behind it?

We will be addressing those questions, and more, in upcoming posts.

Wednesday, October 22, 2014

Hubbard seems to be clueless or deceitful with PR blitz in the wake of his indictment on corruption charges


Mike Hubbard mugshot
Indicted Alabama House Speaker Mike Hubbard (R-Auburn) has said he's done nothing wrong during his time as a public official. In a press conference yesterday, Hubbard said the attorney general's office is trying to make it a crime to own a business while serving in a public capacity.

Those two comments indicate Hubbard is clueless about the legal challenges he faces--or he intentionally is trying to deceive the public.

The issue in any criminal case is not whether the accused thinks he has done something wrong; it's whether he has violated the law.

In Hubbard's defense, white-collar statutes often are written in such a murky fashion that hardly anyone can tell the difference between legal and illegal conduct. I challenge anyone to read 18 U.S. Code 666, which governed much of the Don Siegelman prosecution, and figure out what it means. Documents in that case indicate lawyers on both sides gave up on trying to figure out what the statute means and focused instead on case law.

How many public officials are going to look up case law to determine if they have stepped into criminal territory? Answer: very few.

The "I didn't know the law" excuse doesn't work, however, for Hubbard. The indictment primarily cites Code of Alabama 36-25-5(a), and it's language is not hard to decipher:

Section 36-25-5

Use of official position or office for personal gain.

(a) No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person is associated unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain.

As white-collar statutes go, that is a paragon of clarity--and Hubbard had every reason to know what it says.

That's what makes the following remark from Hubbard, as reported by the Montgomery Advertiser, so disingenuous:

The Auburn Republican said he was being targeted for "shaking up the status quo" in state government after winning control of the Legislature in 2010, and angering those "who liked things as they are."

"Why does the Attorney General's Office think it's a crime to own a business?" Hubbard said during the press conference. "And think it's a crime to do business with anyone you didn't know before you were elected to office?"

The indictment makes no such claim. In count after count, the indictment says Hubbard used his office for personal gain, via his various business interests. And that, if proven in court, is a violation of the law.

Hubbard has given every indication that he intends to fight the charges, and he and high-priced lawyer Mark White might figure out a way to coax a not-guilty verdict from an Alabama jury.

But for now, Hubbard gives the impression of a man who does not understand the charges against him--and who doesn't understand how much trouble he might be in.

Tuesday, October 21, 2014

Mike Hubbard represents the tip of a corrupt iceberg that remains anchored in Alabama's political waters


Mike Hubbard's mugshot
Does yesterday's indictment and arrest of House Speaker Mike Hubbard (R-Auburn) mean Alabama soon will lose its place among the 10 most corrupt states in the country?

Don't bet on it.

Alabama was the No. 6 most corrupt state in a recent Fortune magazine ranking and probably deserved to be No.1, thanks to our tendency to elect self-serving "leaders" like Hubbard.

Hubbard is a major public figure, and if he is convicted, it would represent a rare instance of a white, conservative Republican being held accountable for his misdeeds. That hardly has ever happened since Karl Rove arrived on the Alabama political scene in 1994, followed a few years later by Jack Abramoff and millions of dollars in Mississippi gaming cash.

Rove and Abramoff helped lay the foundation for the Riley Machine, led by former Governor Bob Riley (2002-2010) and driven largely by his children, Birmingham lawyers Rob Riley and Minda Riley Campbell.

Without the support of Team Riley, Hubbard probably never would have risen to political heights. One publication recently called Hubbard "Riley's second son." Hubbard even named one of his son's "Riley," in honor of the former governor.

Yesterday's indictment provides details about deals Hubbard tried to make with several members of the Riley Machine--including Bob Riley, Minda Riley Campbell, and political consultant Dax Swatek. According to a report at al.com, most of those approached gave Hubbard what he wanted. From Mike Cason's article:

According to the indictment, Hubbard solicited favors from some of Alabama's rich and powerful. They include former Alabama Governor Bob Riley, Business Council of Alabama CEO Billy Canary, Hoar Construction CEO Rob Burton, Great Southern Wood CEO Jimmy Rane, former Sterne Agee CEO James Holbrook, lobbyist Minda Riley Campbell, Harbert Management Corp. vice president Will Brooke and political operative Dax Swatek.

Most gave Hubbard what he wanted, according to the indictment, including major investments into Hubbard's company, Craftmaster Printing.

That raises this question: Did most of these deals amount to illegal "quid pro quos," where there was an agreement for the giver to receive something in return for his gift? If so, both parties in the deals should be subject to prosecution, as happened in the case of former Democratic governor Don Siegelman and former HealthSouth CEO Richard Scrushy.

That probably would be covered by federal bribery law (see 18 U.S. Code 666), but we do not know at this point if the U.S. Department of Justice is involved.

So far, Hubbard is the only major team member to have his mugshot taken. That means the question now about the Lee County grand jury is this: What's next?

If Mike Hubbard proves to be the "big fish" that was caught in the net, not much will have been accomplished. The real big fish--members of the Riley family--are still swimming in Alabama's murky political waters.

That's where the attention of law enforcement needs to turn next.

Monday, October 20, 2014

Now that Mark Fuller's divorce file has been unsealed, what about the case of Jessica Medeiros Garrison?


Jessica Medeiros Garrison, with Bill
Pryor and Jeff Sessions
An Alabama state judge has ruled that the divorce file of wife-beating federal judge Mark Fuller should, for the most part, be unsealed. That's a step in the right direction, but Fuller hardly is the only white, conservative politico to have his divorce file kept from public view.

We know of at least one other such case, and it belongs to Jessica Medeiros Garrison, former campaign manager for Alabama Attorney General Luther Strange.

In making her ruling last Friday, Montgomery County Circuit Judge Anita Kelly more or less confirmed there never were any lawful grounds for sealing Fuller's divorce case from his first wife. Fuller now stands charged with beating his second wife in an Atlanta hotel room back in August, drawing widespread calls for his resignation or impeachment.

If there were no lawful grounds for sealing the Fuller divorce case, that almost certainly is the case with Jessica Medeiros Garrison's divorce from Lee Garrison, a Tuscaloosa insurance man and chair of the city's school board.

The Garrisons were divorced in October 2009, and records from a subsequent custody action involving their son have remained public. Records from the divorce case itself were sealed, at Jessica Garrison's request, and the Fuller case now stands as evidence that the Garrison case almost certainly should have remained a public record.

Jessica Garrison is not a federal judge, but she is a prominent player in Alabama Republican politics. In addition to her ties to Luther Strange, she works for the Republican Attorneys General Association (RAGA) and holds a position with the corporate Balch and Bingham law firm of Birmingham. She also has worked for U.S. Sen. Jeff Sessions and U.S. Circuit Judge Bill Pryor. She is president of something called the Rule of Law Defense Fund, which apparently is an extension of RAGA.

In his Facebook coverage of the Mark Fuller wife-beating case, attorney Donald Watkins has said Alabama is ruled by a white, Republican "oligarchy," whose members enjoy certain privileges that most citizens do not. One of the those privileges apparently involves the easy sealing of divorce files that might contain embarrassing or unpleasant information.

Mark Fuller clearly belongs to the oligarchy, and it appears Jessica Garrison holds a comfortable position there as well.

In 2012, a group of independent journalists (including me) moved the Montgomery circuit court to unseal the Fuller divorce file, and that request was denied. It wasn't until the mainstream al.com media conglomerate made a similar request last week that the court decided to pay attention and more or less follow the law.

If Mark Fuller's divorce file is fit for public consumption, surely the same applies to Jessica Medeiros Garrison. We challenge al.com to petition the Tuscaloosa County Circuit Court and demand that the case be unsealed.

The Garrison divorce documents are public records, and they should be treated as such.


Thursday, October 16, 2014

I Know All About The Kind Of Police Thuggishness That Led To Tragedy In Ferguson, Missouri


Famed academic Cornel West
is arrested in Ferguson, MO
Almost a year before Michael Brown was shot and killed in Ferguson, Missouri, setting off a string of protests that continued over this past weekend, I had my own encounter with a thuggish cop.

Alabama law that is more than 100 years old says a warrant should be properly signed and executed. In my case, courtroom evidence shows there was no warrant at all.

My encounter with a rogue cop happened inside my own home. I don't think I even had a speeding ticket on my record when an Alabama deputy named Chris Blevins entered my home without showing a warrant, stating he had a warrant, or that he intended to arrest me--and then proceeded to knock me down three times and spray me in the face with Mace.

What crime had I allegedly committed. None. An Alabama judge claimed I was in contempt of court, even though I had filed court papers showing I had not been lawfully served with papers in a lawsuit. That meant the court had no jurisdiction over me, and Officer Blevins had no grounds to be in my garage.

What about that case that dates back more than 100 years? It's from 1903 and is styled Oates v. Bullock, 136 Ala. 537, 33 So. 835. Oates is so old that we can't find the full case on the Web. But the gist of Oates can be found in a case styled Kelley v. State, 316 So. 2d 233 (1975), which is more or less from the modern era.

Kelley was about a search warrant, but the text makes it clear that the finding applies to arrest warrants--in fact, the Kelley opinion was based largely on a finding in Oates regarding an arrest warrant. Here is the key section from Kelley:

Often rules relating to arrest warrants parallel those applying to searches and vice versa. Significantly unsigned arrest warrants have been held void. Oates v. Bullock, 136 Ala. 537, 33 So. 835 (warrant utterly void).

Returning to matters at hand, the Kelley court then stated the following about the search warrant before it:

Since the search warrant was not signed by the municipal judge, it is our opinion that it was void on its face and any search and seizure made thereunder was unauthorized and illegal.

If an arrest in 1903 was illegal because of an unsigned arrest warrant, it seems clear that a 2013 arrest would be illegal when courtroom evidence shows there was no warrant at all.

What can we learn from all of this? I would submit that all Americans should pay attention to events in Ferguson, Missouri. You never know when you might be victimized by a thuggish cop--and it could happen inside your own home.

Wednesday, October 15, 2014

Wife-beating federal judge Mark Fuller now faces scrutiny over procurement of prescription drugs


Donald Watkins
Federal judge Mark Fuller, who is charged with beating his wife in an Atlanta hotel room, now faces an independent investigation into the possibility that he illegally obtained prescription drugs.

That is from veteran Alabama lawyer and businessman Donald Watkins, via posts on his Facebook page. Watkins, chairman and CEO of Masada Resource Group LLC in Birmingham, says he has a team of investigators working on the Fuller story. The results of their work are "mind boggling," Watkins says, and he plans to develop a criminal case against Fuller and his drug supplier.

Watkins says his reporting on the Fuller case, plus his posts about an overtime-pay scandal involving Gov. Robert Bentley and a state trooper, have led to threats against his family.

Fuller's apparent abuse of prescription drugs was an issue in his 2012 divorce case. Watkins is taking a closer look at the issue, and this is from one of his recent posts:

While the Alabama Media Group is fighting to get access to Mark Fuller's sealed divorce records, and while the 11th Circuit Court of Appeals is trying to determine whether Fuller beat his wife Kelli on August 9th, I am tracking down the person who supplied Fuller with illegal prescription drugs.

As I reported yesterday, we are making substantial progress with our ongoing Fuller investigation. The progress has been so good that I am starting to get threats to me and my family.

We are verifying the source and location of the drug supply. This investigation has taken us all of the way back to Fuller's hometown of Enterprise. The leads are pouring in to us now. They are appear to be very credible and corroborated by other independent evidence.

We are about to blow this Mark Fuller sex, illegal prescription drugs, alcohol abuse, and wife-beating scandal wide open. The truth about all of this is simply mind-boggling. Stay tuned.

How serious could this get? Watkins provides insight in a comment to his post:

Facebook friends, nobody is big enough to crush truth on a permanent basis. They can stall it momentarily, but they cannot suppress it forever. I may have found a possible second source for the illegal drugs. My team is on the case. This part of our investigation may be bigger than the wife-beating incident. Dispensing controlled substances/narcotics without a prescription is a criminal offense. Asking for these drugs on an illegal basis makes the person requesting the drugs equally guilty. I am working to develop a criminal case for knowingly participating in a scheme to acquire and use controlled substances/narcotics without a prescription.

Someone apparently is not thrilled with Watkins' investigative efforts. Reports Watkins, in a separate Facebook post:

At 9:50 p.m. EST Sunday night, I received a threat from someone on Facebook posing as "Gary Globalmiddleman". This person is not one of my Facebook friends. The threat came through my private message inbox feature. It stated, "worry about your own family. stop friending people just for shock value".

Judge Mark Fuller
(via Phil Fleming)
 I obviously struck a nerve with my posts yesterday. Based upon my investigative experience and the many death threats I have received during my 41-year legal career in Alabama, this particular threat came from either Robert Bentley's political camp, or one of Mark Fuller's die-hard supporters. For the past two months, I have placed both men under heightened scrutiny and what the public has seen is truly shocking and disgusting.

Watkins apparently has the resources to deal effectively with those who might issue threats:

My security team has locked the electronic footprint on this message. Whoever sent it to me overlooked one critical electronic tracer. We will identify, find, and deal with the person who made this threat.

For the record, I do not respond to threats. I work all over the globe, and some of my work is performed in really tough places. I have an excellent security team, including the best information technology experts on the planet. The question is not whether this person will be found, but when this event will occur.

Meanwhile, I will continue to report the truth about Bentley and Fuller. These men are twins of deception. I did not make these men do bad things. I only shined the spotlight on their despicable conduct. Whichever one of them authorized the threat against me and my family is a real criminal.

Tuesday, October 14, 2014

The nontraditional press did all of the heavy lifting on the story of wife-beating federal judge Mark Fuller


Mark Fuller
Alabama's largest news organization is asking a state court to unseal a divorce file involving federal judge Mark Fuller, who is charged with beating his second wife in an Atlanta hotel room.

The file of Fuller's divorce from his first wife includes questions about domestic violence and drug abuse, al.com writes in an editorial, and that information should be available to Congress if it initiates impeachment proceedings against Fuller.

That's fine as far as it goes, but al.com leaves out a critical piece of information--it and other mainstream news outlets have done a miserable job of covering the Fuller story. In fact, nontraditional news sites, including our Legal Schnauzer blog, have done almost all of the heavy lifting.

Al.com, with its major operations in Birmingham, Mobile, and Huntsville, now is taking the moral high road on the Fuller story. But when news of Fuller's divorce broke in 2012, al.com was nowhere to be found. We did a search at al.com on "Mark Fuller divorce 2012" and found nothing on the case. We did a search for Fuller's first wife, "Lisa Boyd Fuller," and found nothing other than a brief reference to her in the new editorial.

How late is al.com to the party? It isn't even the first news organization to ask for the divorce file to be unsealed. Andrew Kreig, director of the D.C.-based Justice Integrity Project, led an effort to do that in May 2012. Bob Martin, publisher of the Montgomery Independent, and I lent our support to Kreig's effort, and you can read the petition here. Montgomery County Circuit Judge Anita Kelly, to whom al.com now addresses its request, did not unseal the file then.

Consider these ironic words from al.com's editorial:

Court documents available before the record was sealed give us insight into what the record contains.

We know that Fuller's wife asked him to confirm or deny whether he had physically abused her.

We know that she subpoenaed records from at least six pharmacies, asking each of them to list what prescriptions they had filled for Fuller.

How does al.com know that? It's because of reporting from more than two years ago in the nontraditional press. Does al.com make any mention of that? Nope.

Bob Martin, of the Montgomery Independent, broke the divorce story in his weekly print publication on May 16, 2012. We picked up on the story at Legal Schnauzer the next day and wound up writing four posts on the subject. We also published five documents from the case file to the Scribd online document-sharing site, including documents that strongly hinted at domestic violence and drug and alcohol abuse. (See the Request for Admissions at the end of this post.)

Three days after our first post, Fuller's lawyer moved for the file to be sealed, and the motion was granted--even though court files in Alabama generally are considered public records.

Al.com is correct to state that Fuller's 2012 divorce case shines important light on the charges the judge now faces. It also is correct to state that the divorce file should be made available to Congress in the event of impeachment proceedings. But al.com should be honest enough to admit that it did nothing to inform the public about ugliness in Mark Fuller's personal life when it had the chance in 2012.

Does the nontraditional press matter in the United States of 2014. The Mark Fuller story provides evidence that the answer is a resounding yes.


Thursday, October 9, 2014

In Ferguson, Missouri, and elsewhere, questionable use of police force deserves heavy scrutiny


Protests in Ferguson, MO

Roughly two months have passed since a white police officer shot and killed an unarmed black teen-ager named Michael Brown in Ferguson, Missouri, sparking weeks of protests in the St. Louis suburb. Tensions remain high in Ferguson, with four days of protests planned for this weekend, over the Columbus Day holiday.

The shooting of Michael Brown has focused national attention on questionable police actions in public places. It also has shined light on law enforcement's increasing use of military-style weaponry in the civilian environment.

These clearly are valid concerns, but my own experience indicates scrutiny of police should go even further. Almost one year ago, I was arrested (for the first time in my life) in a private place, inside my own garage. It was for alleged civil contempt of court and was not a criminal matter, and the arresting officer entered my home without showing a warrant or saying he had a warrant. In fact, Shelby County, Alabama, officer Chris Blevins did not even tell me he was there to arrest me until he had knocked me to a concrete floor three times and Maced me in the face.

At a subsequent legal proceeding, a judge instructed prosecutor Tonya Willingham to produce any warrants related to my address. She responded that she did not have any.

What does this mean? Long-standing Alabama law holds that an unsigned search warrant is "void on its face" and any resulting search is illegal under the Fourth Amendment to the U.S. Constitution. Evidence in my case suggests there was no search warrant at all, so that would appear to make Blevins' entry into my home illegal.

This all involves the Fourth-Amendment right to be free from unlawful search and seizure, and an Alabama stolen-property case shows it's important for warrants to exist and be handled properly.

The case dates to 1975, when an Alabama woman saw her arrest in a copper-theft case overturned because a search warrant was unsigned. At first glance, that case might seem to have little in common with my arrest on civil-contempt charges growing from a preliminary injunction in a defamation case. After all, analysts from all sides of the political spectrum seem to agree that the injunction in my case represents an unlawful prior restraint under the First Amendment.

Such weighty matters were not present in Effie Kelley's copper-theft case; it seemed to be a relatively straightforward criminal matter. But Kelley saw her conviction overturned because a municipal judge had not signed the search warrant. That's where Kelley v. State, 316 So. 2d 233 (1975) and the Legal Schnauzer case seem to intersect.

The Alabama Court of Criminal Appeals found the lack of a signature made the search warrant "void on its face," making the search "unauthorized and illegal."

My case involved an arrest warrant, not a search warrant. But the Kelley opinion makes clear that the same principle applies to both kinds of warrants. That notion dates to at least 1903, and we will take a closer look at it in an upcoming post.

For now, let's ponder the appellate courts key words in Kelley v. State:

Since the search warrant was not signed by the municipal judge, it is our opinion that it was void on its face and any search and seizure made thereunder was unauthorized and illegal. A judgment is void on its face when it only requires an inspection of the judgment roll to demonstrate its invalidity. . . The same is true of a search warrant when it shows on its face that it lacks the signature of any magistrate, such being the only authorized officer to put life in the paper.

Did any authorized officer "put life" in an arrest warrant for my case? Well, as we showed in previous post, courtroom evidence indicates there was no warrant in my case at all. Video played in court showed that Deputy Blevins never showed me a warrant, never told me he had a warrant, and never said I was under arrest until he had knocked me to a concrete floor three times and sprayed me in the face with Mace.

Based on evidence in court, there was no warrant in my case, making my arrest "unauthorized and illegal."

Unlike Michael Brown, I was fortunate to live through my encounter with rogue police officers. But I still have nightmares about it--and I doubt that they ever will go away.

Wednesday, October 8, 2014

Is Bryan Taylor's lawsuit designed mainly to go after Web site's news sources and financial supporters?


Bill Britt
Did State Sen. Bryan Taylor (R-Prattville) file a defamation lawsuit against the Web site Alabama Political Reporter (APR) for legitimate reasons, or is the case driven by ulterior motives?

Perhaps only Taylor can answer that question at this point. But a close look at his complaint raises serious concerns.

Taylor appears to borrow a trick from Birmingham attorney Bill Baxley, who along with Rob Riley, represents Deputy Attorney General and Team Riley member Sonny Reagan in an ongoing Lee County grand-jury investigation. The probe focuses on House Speaker Mike Hubbard (R-Auburn) and reportedly could involve a take down of former Governor Bob Riley's political machine.

So what about those tricks Taylor might have picked up from Bill Baxley? In his complaint, Taylor lists fictitious defendants A, B, and C and refers to them as "those persons, firms, associations, or corporations unknown to Plaintiff who funded, fomented, directed, or, jointly with the named Defendants, maliciously published, or caused to be published, the false and defamatory article complained of herein, each of whom will, upon discovery, be substituted by amendment pursuant to Rule 9(h), Alabama Rules of Civil Procedure."

That language is almost identical to that Baxley used in a lawsuit against me, on behalf of former Luther Strange campaign aide Jessica Medeiros Garrison. What does it mean?

It means Taylor wants to use the discovery process to learn the identity of APR's news sources and its financial supporters. He then wants to add those individuals and entities to his lawsuit.

Translation: As a public official subject to the high bar of "reckless disregard," Taylor might not have a winnable defamation case against APR's Bill and Susan Britt. But he might be able to sue, and essentially terrorize, the Britt's sources and backers. That, in an indirect way, could chill the Web site's investigative reporting.

If that proves to be the real goal of Taylor's lawsuit, he would not be the first Riley Machine member to file a defamation lawsuit with an ulterior purpose. As we showed in a post yesterday, Rob Riley's lawsuit that led to my unlawful incarceration roughly one year ago bore no resemblance to a regular defamation lawsuit. That strongly suggests it was filed with some other purpose in mind.

Most alarmingly, Riley did not seek a jury trial, which a long line of case law says is required in defamation cases. That means Riley wanted his case to go only before Judge Claud Neilson and not a group of his fellow citizens.

Taylor deserves credit for fashioning a complaint that at least looks like a legitimate defamation case. But when you consider the timing of his lawsuit, so soon after APR's breaking stories about Sonny Reagan and the Riley Machine, and his apparent desire to get at the Web site's sources and backers . . . well, it raises questions about what's really going on.

Can the Britts do anything about it, other than defend themselves? I think the answer is yes. I would suggest they consider a countersuit for abuse of process. That is a tort that involves several elements, but it mainly is designed to fight lawsuits filed with an ulterior purpose.

If the Britts were to file a counterclaim for abuse of process, I suspect it might give Bryan Taylor considerable pause. It would give the Britts a chance to learn who, if anyone, might be backing Bryan Taylor's lawsuit. Valid countersuits have a way of "turning the tables."

Here is a question for readers to ponder: If Rob Riley did not want his case to go before a jury, and Bryan Taylor is interested mainly in APR's sources and backers, what does that say about the quality of their defamation claims?

Tuesday, October 7, 2014

Is Bryan Taylor drawing from Riley Machine playbook with defamation suit that smells of ulterior motives?


Bryan Taylor
A lawsuit from State Sen. Bryan Taylor (R-Prattville) against Alabama Political Reporter (APR) appears, at first glance, to be a legitimate complaint for defamation.

But when you consider that Taylor is a high-profile ally of former Governor Bob Riley, and his lawsuit came less than 10 days after APR broke multiple stories about the possibility that the Riley Machine will be targeted in a Lee County grand-jury investigation, a reasonable person might ask: Is the Taylor lawsuit more about intimidation than defamation?

That question especially resonates when you consider that, as a public official, Taylor has a tiny chance of overcoming the "reckless disregard" standard he would have to reach in order to win a defamation lawsuit. The question resonates even more when you consider that Taylor might be borrowing a page from Rob Riley, a Birmingham attorney and the former governor's son.

I know from firsthand experience that Rob Riley has, on at least one occasion, filed a lawsuit that wasn't what it seemed. In fact, it's been almost one year since Riley's defamation lawsuit caused me to be unlawfully arrested and incarcerated for five months in the Shelby County Jail. I became the only imprisoned journalist in the western hemisphere for 2013, and analysts from both the left and right roundly criticized Judge Claud Neilson's actions as wildly unlawful.

Rob Riley, however, has mostly escaped the criticism he deserves for filing a lawsuit that bears little resemblance to an actual defamation complaint. First, Riley asked that the case be sealed, contrary to Alabama law. Second, he repeatedly asked the court for remedies that are not authorized by law. Third, Neilson behaved as if he was Riley's nearest cousin, violating procedural law, longstanding case law, and simple due process--favoring Riley at every turn.

All of that suggests the Riley lawsuit, from the outset, was about incarceration, not defamation. He also sought to have my wife arrested, even though at the time of the lawsuit, she had nothing to do with this blog, which was the focus of Riley's complaint.

Is Bryan Taylor using a similar form of misdirection and intimidation with his complaint against APR? Perhaps only Taylor knows for sure at this point, but he clearly has powerful connections to Rob Riley. And my case shows that Rob Riley has no qualms about abusing the legal process in an effort to chill online reporting.

How do we know? Let's consider a few elements of Riley's claim--and contrast them with actual defamation law:

* Riley immediately asked for a temporary restraining order (TRO), followed by a preliminary injunction--A long line of state and U.S. Supreme Court cases show that TRO's and preliminary injunctions are barred as unconstitutional prior restraints in defamation cases. One of the most recent examples is a Virginia case styled Dietz v. Perez, which involved a woman writing a negative review about a construction contractor on a couple of Web forums. The foundational case on the subject is a 1931 U.S. Supreme Court case styled Near v. Minnesota, which was built on roughly 200 years of First Amendment law.

* Riley did not ask for a trial--Longstanding law holds that an injunction in a defamation case is proper only after a full adjudication on the merits, at trial.  This principle is spelled out in a 1973 U.S. Supreme Court case styled Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376. It is discussed in more full detail in a 2007 California case styled Balboa Island Village Inn v. Lemen, 156 P.3d 339 (Cal. 2007).

* Riley asked for a judge to rule on the case, not a jury--The law holds that the First Amendment enjoys an exalted place in our democracy, and such cases are to be decided by a jury. To allow bench trials on such matters is to invite censorship by a single judge. Juries are deemed necessary to protect the cherished right to free speech. This principle is perhaps best discussed in Bernard v. Gulf Oil Co., 619 F. 2d 459 (Fifth Circuit, 1980).

Rob Riley
Rob Riley sought an unlawful TRO and preliminary injunction, he did not seek a trial, and he did not ask for a jury. All of this violates clear law, and indicates his lawsuit was really about something other than defamation. In fact, his case never even looked like a defamation claim.

As the victim of Riley's lawsuit, I have strong feelings on this subject. It involved an unlawful request for a preliminary injunction, plus an accelerated court process that almost ensured I was going to be held in contempt of court. That provided the excuse to have me arrested--and I'm convinced that was the suit's primary purpose. It also provided an excuse to level some $34,000 in unlawful sanctions against my wife and me, another example of the financial terrorism for which certain Southern Republicans are known.

A number of online analysts, who all say Neilson's rulings were unlawful, have questioned my handling of the case--that I should have addressed the preliminary injunction more directly, that I should have hired a lawyer, etc. (Never mind that I was arrested before I could address the injunction, plus I talked to two lawyers in jail, and my wife tried mightily to seek legal representation for me.) I'm convinced I was going to be arrested, no matter what I did.

Bryan Taylor, to his credit, has fashioned a defamation complaint against APR that at least has the appearance of legitimacy. He does not ask for a preliminary injunction, and he does ask for a jury trial. He does request injunctive relief near the end of the complaint, but that would be lawful if it were to come after a full adjudication on the merits--if a jury were to find the APR article defamatory, with writers Bill and Susan Britt having an opportunity for appellate review.

So what might be Taylor's ulterior motive? Is he interested in a full adjudication, based on the facts and the law? I doubt it, and I will tell you why in an upcoming post.