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Thursday, November 15, 2007

Assault on the Law

A story in the sports section one day recently caught my attention and caused me to jump ahead a bit in our story of legal intrigue.

The story was about baseball player Jose Offerman, who during a minor-league game last summer in Hartford, Conn., rushed the mound and attacked the opposing pitcher with a bat. The attack came after Offerman had been hit in the leg with a pitch and left both the pitcher and the catcher injured.

Offerman's punishment came down recently, and he received probation and was ordered to undergo anger-management treatment. The 38-year-old Offerman was a longtime major leaguer and was an all-star infielder with the Los Angeles Dodgers in 1995 and the Boston Red Sox in 1999.

Here's where the Offerman story connects to our Legal Schnauzer tale: Offerman had faced up to 10 years in prison on two felony assault charges.

The key word here is felony. The AP story doesn't go into this, but my guess is that Offerman was charged with second degree assault, a felony, because he used his bat in the attack.

You can read Alabama assault law here. Criminal law in most states is based on the Model Penal Code, so Connecticut law probably is the same as Alabama's.

Why does this matter to your humble blogger? I was the victim of a felony assault in October 2006. My troublesome neighbor, Mike McGarity, essentially stalked me and then hit me in the back with a roadside sign, leaving a bleeding abrasion. There was an eye witness to the attack.

As I've noted in other posts, McGarity has the trappings of a normal suburban soccer dad--wife, two kids, nice house, job at Blue Cross and Blue Shield of Alabama. But after he filed a bogus lawsuit against me, I conducted a little research on his background and discovered that he has at least eight criminal convictions in his background. (How in God's name do you get and keep a job at a reputable employer like Blue Cross and Blue Shield with a record like that?)

We will go into considerable detail later on the assault itself and actual Alabama law that governs such offenses. (We also will look into how BC/BS came to hire someone with a big-time criminal record.) But for now, suffice to say that this assault clearly was a felony.

Just as in the Offerman case, McGarity used a "dangerous instrument" and caused "physical injury." Under the law, that's a felony.

But not in the corrupt little kingdom of Shelby County, Alabama. The magistrate's office there has insisted on calling it a misdemeanor. When I complained and showed them the actual law, they said I would need to speak with the district's attorney office. I tried to reach DA Robby Owens, but he won't respond to e-mails or a snail-mail letter.

The statute of limitations on a felony offense is three years in Alabama, so there is still time for justice to be done. But evidently if Robby Owens has his way, Mike McGarity (an eight-time criminal, at least) will get away with a felony. And Owens has the audacity to run for office on a tough-on-crime stance.

Owens recently has received all kinds of public support over his rift with Alabama Attorney General Troy King. I'm no fan of Troy King, but Robby Owens does not deserve public support. From what I've seen, the Shelby County DA's office is a disgrace, and I will be laying out my experiences with Owens' bunch in detail.

This is another example of what can happen when, through no fault of your own, you become entangled with corrupt lawyers, judges, and prosecutors.

How did two innocent people, my wife and me, become involved in this? We were the victim of a crime. Mike McGarity trespassed on multiple occasions, after being warned repeatedly to stay off our property. When we sought to have him prosecuted for criminal trespass, third degree, he was acquitted by Shelby County District Judge Ron Jackson (even though, according to the trial transcript, McGarity inadvertently confessed to the crime; Jackson made up law from the bench in order to justify his acquittal).

The acquittal allowed McGarity to sue me for a tort called malicious prosecution. And that's what started my nightmare in Alabama's civil "justice" system. By law, McGarity's bogus lawsuit had to be dismissed (summary judgment) in six to eight months time. (Almost all lawsuits, even the worst ones, take at least that much time to be resolved.) But thanks to repeated unlawful rulings by Republican judges in Shelby County (J. Michael Joiner and G. Dan Reeves), the case dragged on for five-plus years, costing me and Alabama taxpayers thousands of dollars.

What do I mean by unlawful rulings? Well, Joiner and Reeves probably combined to rule contrary to law on 30 to 40 occasions in my case. But the key rulings involved summary judgment, and this is real simple stuff.

If one party files a properly executed and supported motion for summary judgment (MSJ), the opposing party must file a response and present evidence to counter the MSJ, showing that there are reasons for the case to go to trial.

My MSJ was properly supported because it provided evidence in the form of multiple affidavits, showing that we had "probable cause" to seek McGarity's prosecution for criminal trespass and we moved forward on the case without "malice." (In fact, our evidence showed that we had more than probable cause on the criminal complaint; we presented evidence from the criminal trial transcript showing that McGarity inadvertently confessed to the crime, so we had "actual cause.")

My first two of three MSJs were prepared by high-priced attorneys from a well-known Birmingham law firm. The third was prepared by yours truly and came after I was acting pro se (representing myself in court). The three MSJs all presented distinct issues of fact and law--in other words, the case had to be dismissed on so many grounds that multiple MSJs were possible; we weren't just regurgitating the same stuff over and over. (In fact, I probably could have done a fourth or fifth MSJ, but it became pretty clear after a while that would be a waste of time.)

The nonmoving party to an MSJ is required by law to respond in a certain way and within a certain timeframe. McGarity's responses failed on every count. On the first MSJ, his attorney filed a timely response, but evidence was filed eight days late. My attorney moved to strike the response, but the judge never ruled on it. (It shouldn't have mattered because McGarity's affidavit was a bunch of inadmissible gibberish anyway. He couldn't deny trespassing because he had already confessed to it in the criminal trial. A denial would have put him at risk of a perjury charge.)

Joiner denied the first MSJ, even though McGarity had presented no timely evidence to counter my motion. Joiner denied the second MSJ, even though McGarity made no response at all. By the time of the third MSJ, Reeves was the judge (Joiner having recused himself for an obvious conflict that should have disqualified him from the outset), and he denied the MSJ, even though McGarity again made no response at all.

A key point: Under Alabama law (and probably law in all 50 states), a motion for summary judgment calls for a "nondiscretionary" ruling. In other words, a judge can't just do whatever he wants to do. To paraphrase Alabama law, if the filings show there is no reason for the case to go to trial, summary judgment MUST be granted, "forthwith." And if the nonmoving party presents no countering evidence, the moving party's evidence must be considered "uncontroverted," and summary judgment MUST be granted.

See how easy this law is? I've got a stump in my backyard that could have decided this case correctly.

By law, I was due summary judgment in my favor. Joiner and Reeves didn't do what the law required them to do. And I was due summary judgment "forthwith." Well, it's seven years and counting, so I guess Shelby County, Alabama, has an interesting definition of forthwith.

But let's return to this notion of "malicious prosecution." One of the key goals of this blog is to teach Alabamians, actually all Americans who care to visit here, that the victim of a crime can be sued if the perpetrator is found not guilty.

You heard that right: You can be the victim of a crime, then you can be victim of a lawsuit. In many ways, you are better off letting the criminal get away with it. (In fact, I had a lawyer tell me I should have just let the trespassing go. He said he tells clients all the time to just look the other way when they are victims of crime.)

Under the law, a malicious prosecution lawsuit should almost never happen. Malicious prosecution is defined as a "disfavored tort." But such lawsuits happen all the time, mainly because dishonest lawyers abuse the system, with some improper purpose in mind (getting a little insurance money?) And corrupt judges, like the ones in Shelby County, let it happen. (Who knows, some corrupt judges might let it happen so that they can share the insurance proceeds with corrupt lawyers.)

What is the fallout of this corruption? I've already noted the severe financial and emotional toll that comes with being the victim of Alabama's corrupt justice system. Now, my physical safety has been put at risk, thanks to this assault.

Why has this happened? Because Judge Jackson decided to acquit a criminal defendant who admitted he was guilty as charged. Because attorney William E. Swatek decided to file a fraudulent malicious-prosecution case on behalf of a client with a criminal history. And because Shelby County judges J. Michael Joiner and G. Dan Reeves repeatedly made unlawful rulings that caused a bogus lawsuit--one that by law had to be dismissed (summary judgment) in 7-8 months time--drag on for five-plus years.

Why did Swatek (whose son, Dax Swatek, is a Republican "consultant"); and Jackson, Joiner, and Reeves (all Republicans) take these actions? And why did Alabama's Republican-dominated appellate courts allow unlawful trial-court rulings to stand?

Those are the central questions at the heart of this blog. We've recently seen the outrageous Alabama Supreme Court ruling in the ExxonMobil case, cheating Alabama citizens out of $3.5 billion in punitive damages in a contract/fraud case. But unlawful rulings from our Republican-packed appellate courts are old news here at Legal Schnauzer.

My case hardly involved the kind of money that was at stake in the Exxon case. But the Legal Schnauzer case illustrates the mindset that allows "conservative" judges to ignore settled law in order to favor certain parties, cheating everday citizens in the process.

As for our story about assault, I know what that minor-league pitcher must have felt like when he saw Jose Offerman coming after him with a bat. (Actually, that's not quite true; the pitcher could see Offerman coming, but McGarity hit me in the back, as I was walking away from him.) I do know what it feels like to be struck by a "dangerous instrument." It hurts--a lot. And it hurts even more to know that, in my case, the perpetrator probably is going to get away with it.

The Shelby County magistrate's office said I was free to file a misdemeanor assault complaint, and they would swear out a warrant for McGarity's arrest. But I refused to do it. First, I'm not going to sign a document under oath saying someone committed a misdemeanor when I know they committed a felony. Also, this case should not be based on a citizen's complaint. The usual procedure for a felony, as I understand it, is that the DA's office brings the case following an investigation. That's the way this case should be handled.

Finally, misdemeanors are heard in district court, before Judge Jackson in a bench trial. I've been down that road before. By law, as I understand it, the victim of a felony is entitled to have the case heard by a jury. I'm not about to have another case heard by a corrupt judge like Jackson.

We'll move away from the matter of assault for now. But consider this loaded social question: What if I had been assaulted by a black man? Or what if I had been assaulted by a poor man of any color? Or what if I had been assaulted by someone of Middle Eastern descent?

Think it would be considered a felony? I sure do.

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