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Wednesday, June 4, 2008

Alice and Me, Part III

By spring of 2007, I had learned enough about Alice Martin to decide that she almost certainly would not do anything about the federal crimes I had witnessed.

But as spring began to turn into summer, I thought, "What the heck, let's give it a try."

So I wrote the Queen another snail-mail letter, filled with the kind of "focused detail" she requested.

Again, I will focus here only on events in Shelby County, subjects that I've covered extensively on the blog:

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Roger Shuler
5204 Logan Drive
Birmingham, AL

June 14, 2007

Alice H. Martin
U.S. Attorney’s Office
Northern District of Alabama
1801 4th Ave. North
Birmingham, AL 35203-2101


Ms. Martin:
This is in response to your letter dated January 22, 2007, in which you ask for detailed allegations of mail and/or wire fraud committed by members of the Alabama State Bar and members of the Alabama Judiciary.

I estimate that this case involves 20-50 instances of mail fraud. Almost every ruling in this case was unlawful, depriving Alabama citizens of honest services. And in most every instance, the individual cited caused the U.S. mails to be used. Due to the volume of infractions, I will not cite each one. In the interest of keeping this letter at a manageable length, I will cite what I consider to be the most important infractions for the individuals noted. I will be happy to provide more instances later.

I allege, and an investigation will show, that the individuals noted below conspired to commit mail and wire fraud, depriving the citizens of Alabama of their intangible right to honest services under 18 U.S. Code 1346. Because the limitations period begins to run after the last overt act in furtherance of the main goals of a conspiracy (United States v. Fletcher, 928 F.2d 495), all of these acts fall within the five-year mail fraud statute of limitations.

William Swatek, Pelham attorney

• Mr. Swatek filed a lawsuit against me, on behalf of his client Mike McGarity (Shelby Co., CV-00-1248), alleging malicious prosecution and false imprisonment, later amending the complaint to drop the false imprisonment claim but adding a claim for conversion. During the course of litigation, Swatek filed a Motion to Clarify (dated November 16, 2001), seeking to join three additional neighbors in the lawsuit against me. The motion claims that the three additional neighbors had viewed photographs of property belonging to them and wanted to assert conversion claims against me. However, one of the neighbors, Eric Hallmark, told me in a phone conversion that he was not familiar with the motion and had no intention of joining a lawsuit against me. At a deposition on December 3, 2003, Swatek stated that prior to filing his Motion to Clarify, seeking to add Hallmark (and two other neighbors) to the lawsuit against me, he had a meeting with them in his office. Swatek further stated that he was “positive” the motion was drafted with their permission. Obviously these statements by Swatek are at odds with Hallmark's statements, which I have on tape. The motion Swatek crafted clearly was fraudulent, and he used the U.S. mail to send it to me in order to seek an advantage during litigation.

J. Michael Joiner, Shelby County Circuit Judge

• Joiner made an unlawful and dishonest ruling, allowing McGarity’s Amendment to Complaint adding claim for conversion, which was untimely filed. The case was originally set for trial on August 20, 2001, and McGarity filed his Amendment to Complaint on September 12, 2001. Rule 15(a) of the Alabama Rules of Civil Procedure (ARCP) requires a party to obtain leave of court to amend a pleading after 42 days before the first trial setting. McGarity failed to obtain leave of court prior to filing his amendment. For an amendment without leave of court, McGarity was some 65 days late in filing. In fact, he filed the amendment after I had already filed my first Motion for Summary Judgment (MSJ). In Malone v. Malone, 854 So.2d 109 (Ala., 2003), the Alabama Supreme Court found that written notice seeking leave of court is required, with notice to all parties. The record clearly shows that was not done in this case. Therefore, as in Malone, said amendment must not be allowed. But Joiner allowed it and used the U.S. mails to commit this fraudulent act.

• Joiner made an unlawful and dishonest ruling, denying my first Motion for Summary Judgment (MSJ), to which McGarity failed to respond in a timely or appropriate manner. On July 20, 2001, the court entered an order setting my MSJ for hearing on September 19, 2001. Rule 56(c)(2) ARCP states: “Subject to subparagraph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing.” Subparagraph (f) did not apply because McGarity did not file a timely affidavit giving reasons why he could not present by affidavit facts essential to justify his opposition. McGarity filed his affidavit on September 27, 2001, eight days after the hearing. Thus, it was untimely and invalid. Since McGarity presented no timely evidence in opposition, my MSJ had to be granted by law. The Alabama Supreme Court has held: “When party opposing properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court must consider the movant's evidence uncontroverted, with no genuine issue of material fact existing.” Voyager Guar. Ins. Co., Inc. v. Brown 631 So.2d 848 (Ala., 1993). Joiner denied the MSJ and used the U.S. mails to commit this fraudulent act.

• Joiner made an unlawful and dishonest ruling, denying my second Motion for Summary Judgment (MSJ), to which McGarity filed no answer, presented no evidence, and gave no response of any kind. On January 10, 2002, I filed a second properly executed and supported MSJ, citing law and fact distinct from that cited in the first MSJ. McGarity made no response at all. The Alabama Supreme Court has held: “When party opposing properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court must consider the movant's evidence uncontroverted, with no genuine issue of material fact existing.” Voyager Guar. Ins. Co., Inc. v. Brown, 631 So.2d 848 (Ala., 1993). Joiner was required by law to grant summary judgment but denied my motion in a ruling dated February 28, 2002, using the U.S. mails to commit this fraudulent act.

G. Dan Reeves, Shelby County Circuit Judge

• Reeves became judge in the case when Joiner granted my Motion to Recuse after Joiner admitted in court that he and Swatek regularly play golf and were longtime neighbors. On September 4, 2003, I filed a Motion for Counsel Fees and Costs under the Alabama Litigation Accountability Act, Code of Alabama 1975, 12-19-270 et seq. Reeves denied the motion on November 25, 2003. By law, no decision could be made on my motion at the time Judge Reeves made his ruling. Code of Alabama, 1975, 12-19-272 (a) states: “Except as otherwise provided in this article, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed (emphasis added), reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that the court determines to be without substantial justification, either in whole or part.” Alabama case law has held: “This statute does not create a new or separate cause of action to be brought after a case is litigated and given a final adjudication on its merits; rather, it indicates that the motion for attorneys' fees must be made during the pendency of the case.” Baker v. Williams Bros., 601 So.2d 110 (Ala. Civ. App., 1992). I made my motion during the pendency of the case, as required by Alabama law. No ruling could be made on the motion until the case had been given a final adjudication on its merits. Since no final adjudication had been given, the court's denial of the Motion for Counsel Fees and Costs was unlawful and dishonest. Reeves caused the U.S. mails to be used in furtherance of this fraudulent act.

• Reeves made an unlawful and dishonest ruling, denying my Motion for Joinder of Additional Parties (filed on February 4, 2004) to my counterclaim, under Rule 13(h) ARCP. Rule 13 ARCP is clear in its intent to join claims that turn on the same facts as the original claim. The committee comments to Rule 13 state: “Though any claim against an opposing party may be presented as a counterclaim, the rule also provides that such a claim must be pleaded as a counterclaim if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim. . . . The purpose of this provision is to avoid circuitry of actions, and to require assertion as counterclaims of those claims which are likely to turn on the same facts as the original claim.” All of the parties and claims I sought to join are related to McGarity's original claim, which stems from his underlying prosecution for criminal trespass, third degree. A major portion of both my defense and my counterclaim was that, despite being acquitted in the criminal trial, McGarity actually did trespass, both criminally and civilly, in part because he improperly erected a fence that enclosed some 400 square feet of my property. Discovery indicated that several parties I sought to join were liable for the fence winding up on my property, leading both to McGarity's trespass and the instant lawsuit. Other parties were liable for defamation related to the criminal trial. And another party, McGarity's attorney Swatek, was liable for repeated and gross abuse of the judicial process. My motion was proper under both Rule 18 and Rule 19 ARCP, and the parties sought to be joined were indispensable, necessary, and proper in order to have just adjudication of my claims. In these parties' absence, I could not be accorded complete relief, pursuant to Rule 19. Finally, the trial court's ruling was in error for simple technical reasons. A Motion to Joinder Additional Parties is a form of amended or supplemental pleading. And when there has been no responsive pleading (McGarity had not responded to my counterclaim), a party may amend as a matter of course. McGarity's failure to answer my counterclaim, over a period of some 16 months, made it clear that I was entitled to joinder additional parties. Reeves’ ruling was unlawful and dishonest, and he caused the U.S. mails to be used in furtherance of this fraudulent act.

• Reeves made an unlawful and dishonest ruling, denying my third Motion for Summary Judgment (filed on January 30, 2004). This MSJ was properly executed and supported and presented facts and law distinct from my first two MSJs. Again, McGarity failed to respond at all. Rule 56(e) ARCP states: “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him.” (Emphasis added.) The Alabama Supreme Court has ruled that a trial court's ruling on a motion for summary judgment is “nondiscretionary.” Terry v. Phillips 66 Co., Inc., 591 So.2d 33 (Ala. 1991). The Supreme Court also has addressed the “if appropriate” clause of Rule 56(e), stating that the clause refers to cases where the moving party has not yet responded, adequately or at all, to the opposing party's discovery requests. Bean v. BIC Corp., 597 So.2d 1350 (Ala. 1992). I had responded appropriately to all discovery requests, so the “if appropriate” clause was not a factor. And because of the nondiscretionary nature of a trial court's ruling on a motion for summary judgment, Judge Reeves was required by law to implement a “hard-and-fast rule.” He failed to do so, exercising judgment and choice that, under Alabama law, he did not have. Rule 56(c) ARCP states: “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In the instant case, where my motion was properly executed and supported, and McGarity did not respond with any opposing evidence, the trial court must consider the movant's evidence uncontroverted, with no genuine issue of material fact existing. Voyager Guar. Ins. Co., Inc. v. Brown, 631 So.2d 848 (Ala., 1993). Furthermore, the Alabama Supreme Court has held: “Ordinarily any issue as to denial of summary judgment would be moot because sufficiency of evidence at trial would be the significant question on appeal. However, a movant who conclusively establishes that a summary judgment is appropriate, with no pertinent opposition from the nonmovant, is 'entitled to a judgment as a matter of law' and 'the judgment sought shall be rendered forthwith.'” Superskate, Inc. v. Nolen, 641 So.2d 231 (Ala., 1994). In Superskate, the court pondered the possibility that, because of wrongful denial of an MSJ, a litigant could be forced improperly to go to trial. The court stated: “On the other hand, if it appears that the plaintiff has changed testimony or other evidence based on experience gained during the proceedings on the motion for summary judgment, the defendant may have a legitimate argument that the case should never have gone to trial.” In the instant case, it's not a matter of McGarity changing testimony. He never presented any testimony in the first place. I was forced to defend myself at trial only because two judges, both of whom should have disqualified themselves from the outset, denied three properly executed and supported MSJs, none of which drew any pertinent opposition from McGarity. Finally, it should be noted that the trial court, in its order denying my third MSJ, stated: “The Defendants presented no additional evidence or arguments other than was previously submitted to the Court on Defendant's Second Motion for Summary Judgment. Therefore, the Motion is DENIED.” This statement is patently false, and a simple review of the record shows that it is false. I clearly presented facts and law that had not been presented before. Reeves caused the U.S. mails to be used in furtherance of this fraudulent act.

Judges Thompson, Crawley, Pittman, Murdock, and Bryan—Alabama Court of Civil Appeals

• Once again, the Alabama Court of Civil Appeals shows blatant disrespect for the law by issuing a no-opinion affirmance (2040161) to uphold unlawful trial-court rulings, this time in the McGarity case outlined above. This affirmance was issued on June 24, 2005, and it includes citations to 15 cases in an apparent attempt to justify the affirmance. But when one looks up these cases, it is almost laughable to see what our appellate judges have done. For example, the court cited several cases [including McLemore v. Fleming, 604 So.2d 353 (Ala., 1992)] stating that, where an appellant fails to cite authority or make an argument, the court may affirm. (“It is neither our duty nor our function to perform legal research for an appellant.”) At least seven of the 15 cases cited by the court in the instant case, involve this issue. The court evidently found that I did not cite authority, make an argument or otherwise follow the requirements of Rule 28 ARAP. This finding is outrageously incorrect. In my appellant's brief, I cited proper authorities on 30 occasions. All 18 of my primary arguments were supported by citations to proper authorities. Furthermore, I followed Rule 28 ARAP to the letter. I should note that there was no appellee's brief filed in this case, so the Statement of Facts in my appellant's brief is the controlling factual document here. Alabama courts have held: “In absence of brief for appellee, facts and record as stated in appellant's brief will be accepted as true.” United Sec. Life Ins. Co. v. Dupree, 146 So.2d 91 (Ala., 1962.) Even a cursory glance at the record shows that the court was wrong when it apparently contended that I failed to comply with Rule 28 ARAP. Finally, the court's no-opinion ruling cites Judge v. Bolan, 642 So.2d 486 (Ala. Civ. App, 1994), apparently finding that the trial-court's rulings are to be affirmed because I did not include a trial transcript in the record. Rule 10 ARAP, however, makes it clear that the appellant is not required to include a trial transcript. That is particularly true in the instant case, where the pre-trial record is filled with mistakes of legal issues that bear no presumption of correctness on appeal (Bostrom Seating v. Adderhold, 852 So.2d 784). These mistakes make the trial-and any transcript-irrelevant. The Alabama Supreme Court noted in Superskate that it's possible for a defendant to show on appeal that a case never should have gone to trial. The instant case involves just such a situation. The case only went to trial because of multiple legal errors by the trial court, and those errors were due to be reversed, had the appellate court bothered to follow the law. Instead it issued a dishonest affirmance and used the U.S. mails, which constitutes mail fraud.

I should mention that I have become acquainted with a prominent Montgomery attorney who has told me he knows of numerous instances where Alabama’s Court of Civil Appeals has improperly used “no-opinion affirmances” to uphold unlawful trial-court rulings. This individual says numerous attorneys have told him of experiencing such practices, but they are afraid to come forward for fear of judicial retribution. I would be glad to give you this attorney’s name and contact information. My research indicates that the problem of judicial corruption in Alabama goes way beyond my case.

I request that the wrongdoing outlined above be investigated and prosecuted as soon as possible. I stand ready to provide more information and assistance.

Sincerely,


Roger Shuler

cc: Carmen Adams, special agent in charge
Federal Bureau of Investigation
1000 18th Street North
Birmingham, AL 35203

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