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Friday, August 29, 2008

Riley's Hypocrisy on Gambling Reaches New Heights

You've got to give Governor Bob Riley credit. The guy can make breathtakingly hypocritical statements and not bat an eye.

The latest example of Big Bob's hypocrisy comes on the subject of gambling.

Mayor Larry Langford announced this week that he wants to bring electronic bingo back to the Birmingham Race Course. Riley poohed-poohed the idea. "I don't believe in gambling," the governor said. "I don't believe in it as a revenue source. It might make a lot of people wealthy, but I don't think it's the best thing for the state of Alabama."

Let me repeat: Bob Riley said he does not believe in gambling as a revenue source. If you have a mouthful of liquid, try not to spew it across the room when you read that sentence.

This is the same Bob Riley who was more than happy to take $13 million in Mississippi Choctaw gambling money to help him get elected. And Riley didn't mind one bit that the money was laundered through disgraced GOP lobbyist Jack Abramoff.

So there you have it: Gambling is not a good revenue source for the City of Birmingham, but it is an excellent revenue source for Bob Riley.

Blows the mind. And this guy got elected governor--twice.

Thursday, August 28, 2008

Gruesome Murders Shine Light on Alabama Corruption

It's sad that it takes the gruesome murders of five men for the mainstream media to shine a small spotlight on the corruption that permeates Republican-run Shelby County, Alabama.

But that was the case this week as John Archibald, a columnist for The Birmingham News, took off his paper's red-colored glasses long enough to scorch Shelby County officials for their handling of a case in which five Hispanic men were found in a suburban Birmingham apartment, bound with their throats cut execution style.

Four men were arrested and charged with capital murder on Tuesday, nearly a week after the bodies had been discovered. News reports indicated that drug trafficking might have been a factor in the crime.

As one of Archibald's regular readers, I sense that he is more progressive and forward-thinking than the people he reports to at The News. One can only wonder what kind of revelatory reporting Archibald could produce if he was unleashed.

But even The News' right-leaning honchos could not hold back Archibald in the aftermath of the murders. The columnist laid it on the line about the mindset that exists in what is generally considered Alabama's wealthiest, fastest growing, and most Republican county.

Archibald blasted Sheriff Chris Curry for the secretive, unprofessional way he handled the murder story. Wrote Archibald:

"Shelby County did what Shelby County always does. It sat on the facts, telling the world it knew best. . . . Nobody won in the vacuum behind Shelby County's Iron Curtain."

This all hit close to home for my wife and me because we happen to be among the small, but growing, number of Democrats and progressives who live in Shelby County. Our legal nightmare, which is at the heart of this blog, originated in Shelby County. And these murders took place about four miles from our house.

Regular readers might remember Sheriff Chris Curry. He played a starring role in the unlawful auction of our house a few weeks back.

For those not familiar with Alabama's largest metro area, Shelby County sits due south of Jefferson County, home to Birmingham. The apartment complex where the murders took place is in the Inverness area, about two miles east of the Cahaba River, which divides the two counties on Highway 280.

A number of high-end neighborhoods dot the north Shelby landscape, earning the county its "wealthiest in Alabama" status. Michael Jordan lived in the north Shelby Greystone development while he played baseball for the Birmingham Barons a few summers back.

But Shelby County is not all McMansions and big bucks. A whole bunch of folks, like my wife and me, are middle class (at best), and significant slices of the population are at or near the poverty level.

Most of the county's population is to the north, nearest to Birmingham, but government is run in a little hellhole called Columbiana, way to the south. Having the county seat in an "out of the way" location helps create what Archibald calls the "Iron Curtain" of Shelby County.

My theory is that Shelby County officials don't feel they are accountable to anyone. They are almost all Republican, and once in office, they are unlikely to ever be seriously challenged. And the press is either too disengaged, or too far removed, to pay much attention to governmental misdeeds.

One gets the feeling that Archibald knows Shelby County government resides in a corrupt backwater, and the murders give him a forum to let his readers in on a poorly kept secret. Shelby County, Archibald writes, makes Birmingham and Jefferson County "look like a freedom-of-the-facts" Valhalla.

But Archibald doesn't stop there:

Shelby is no longer Hazzard County, with its Duke boys and smoke-filled rooms. It's all grown up now, and needs to act it. Not just when five men are killed, but every day.

This is the same county, and the same sheriff who schemes to meet individually with county commissioners to talk about something as public as a budget. Curry wants to avoid prying eyes, and that little thing called the law.

Curry's boys don't just act like buffoons when it comes to handling quintuple murders. They act that way on a regular basis. Just check out this scene from the day our house was "auctioned" on the courthouse steps by one of Curry's boys, Bubba Caudill:

Showdown in Shelby County

Curry is hardly the only Shelby County official who wants to avoid prying eyes. The Shelby County Courthouse is filled with those types, led by presiding judge J. Michael Joiner. Regular readers will remember Joiner as a key player in our Legal Schnauzer story. The judge has repeatedly gotten away with federal crimes (honest-services mail fraud) because Bush-appointed U.S. Attorney Alice Martin is not about to go after a member of the "home team."

In a case of sickening irony, it appears that Joiner will be handling the quintuple-murder case. That's truly a case of a criminal overseeing criminals. How bad is Joiner? Here is one of many posts I've written about "His Corruptness:"

Republican Hypocrisy Up Close

His editors might never let him write the real story of Shelby County corruption, but John Archibald apparently knows what's going on. Here's what he says about the Shelby County approach to government:

It's a slap in the face to all who respect the law and admire the reason it exists.

Amen, brother.

Wednesday, August 27, 2008

Unmasking Alice Martin's Latest Mess--in Real Time

Rarely does the public have an opportunity to see the weakness of a government prosecution in real time--while the trial is going on.

In the case of former Alabama Governor Don Siegelman, many people did not begin to realize how weak the government's case was until well after Siegelman and codefendant Richard Scrushy had been convicted. The same was true in the Paul Minor case in Mississippi.

But the case of Alabama Representative Sue Schmitz, currently unfolding in Decatur, Alabama, allows us to witness the machinations of the Bush Justice Department as they happen.

How do we unmask the dirty deeds of Alice Martin, U.S. attorney for the Northern District of Alabama and one of the most loyal of Bushies? It takes a knowledgeable tour guide, someone who has followed the case closely and has the professional background to understand a federal criminal trial.

David Fiderer, who writes at Huffington Post, is just the guy. Fiderer has worked in banking for more than 20 years, covering the energy industry for several global banks in New York City. He is trained as a lawyer and currently is working on several journalism projects dealing with corporate and political corruption.

Fiderer has followed the Schmitz case as an apparent example of a politically driven prosecution. In this case, the motivation seems to be the Republican Party's desires to take over the Alabama Legislature. And one way to do that was by going after Schmitz, charging that she had been paid $177,251 (over almost four years) by a two-year college program but did little or no work.

Martin's prosecution team finished presenting its case on Tuesday afternoon, and the defense began to call witnesses. U.S. Judge David Proctor earlier today postponed the trial until next Tuesday, with his clerk saying, "something had come up." No further explanation was given.

That seemed strange. But perhaps the strangest thing of all, Fiderer says, is that the Schmitz case ever was brought at all.

After learning that the prosecution had rested its case, Fiderer had this blunt assessment: "The case against Sue Schmitz isn't weak. It's nonexistent. To understand why, you need to go through the legal elements of a fraud."

If you read The Birmingham News, Alice Martin's personal mouthpiece, you probably have little idea about what Schmitz actually is charged with. The News makes vague references to fraud and "double dipping," but usually doesn't go beyond that.

This is reminiscent of the Mobile Press-Register's coverage of the Siegelman case. Reporter Eddie Curran wrote more than 100 articles, outlining all sorts of activities surrounding Siegelman that somehow seemed "wrong." But in going over Curran's articles, I've yet to see one where he clearly states what law Siegelman was alleged to have violated.

Fiderer takes a different approach. He makes an effort to actually understand the applicable law. And what do we learn?

Schmitz is charged with committing fraud under two federal statutes--18 U.S. Code 1341 and 18 U.S. Code 666(a)(1)(A)(2). You can check out the statutes here and here.

Federal statutes are notorious for being broadly written and seriously confusing. But the gist of a fraud charge includes five elements:

(1) A false statement of a material fact;
(2) Knowledge on the part of the defendant that the statement is untrue;
(3) Intent on the part of the defendant to deceive the alleged victim;
(4) Justifiable reliance by the alleged victim on the statement; and
(5) Injury to the alleged victim as a result.

How about a real-world example? Fiderer provides one:

A dealership sells a used car after representing that it has only 10,000 miles on it, when in fact the dealer knew that the odometer had been turned back, and that the car had 90,000 miles on it. The material fact, which could be demonstrably proven, was that the car had 90,000 miles on it.

What was the fact that allegedly Sue Schmitz misrepresented? Schmitz’ own state of mind. According to the prosecutor, Schmitz misrepresented her intention to perform her duties as required by her employer. The fraud began before she ever took the job, and the fraud continued for over three years, while she was employed at the job.

It’s not hard to prove that an odometer has been turned back, but it’s very hard to prove Schmitz’ state of mind before and after she got her job. Lots of people break promises that they originally intended to keep. The prosecutor has the burden of proving beyond a reasonable doubt that Schmitz never intended to keep her promise to do her job.

Schmitz' job was with the Community Intensive Training for Youth (CITY) program, which tutors young people referred by the juvenile-court system. Prosecutors must prove that Schmitz knew the job was bogus before she even started it. And that, Fiderer says, is a tough task.

The prosecution has presented evidence that Schmitz and others pulled strings to get her the position with the CITY program. The prosecution has also presented evidence that Schmitz did not do her job. Taken at face value, that circumstantial evidence may support an inference that Schmitz knew from the start that she would never do her job. But no reasonable person could infer that the evidence proves Schmitz’ intent beyond a reasonable doubt, because, again, lots of people make promises that they intend to keep at the time.

The prosecution has rested its case, and Fiderer says the evidence was flimsy at best. Here are key points from the prosecution, followed by Fiderer's analysis:

* AEA chief Paul Hubbert and two-year colleges chancellor Roy Johnson went through back-door channels to get Schmitz her job.

That only proves that Schmitz wanted a job.

* Schmitz never used her office or her computer.

Don’t they have Blackberries or laptops in Alabama? Schmitz was a state legislator who operated out of Montgomery and out of Toney. If Schmitz is like most of the professionals I know, they spend a lot of time on the go and do their work just about anywhere.

* Schmitz was derelict in turning in her time sheets.

Administrative sloppiness is not the same thing as not doing your job. And again, not doing your job is not the same thing as operating with the specific intent not to do her job.

So we've established that the government has no case. But does this mean that Sue Schmitz definitely will be found not guilty? Absolutely not. Remember, this is Karl Rove's Alabama, and guess who appointed Judge R. David Proctor? Yep, it was George W. Bush, and the nomination was approved in November 2002.

It's tempting, though probably not fair, to assume that any Bush appointee is corrupt. And given what has happened in the Siegelman and Minor trials, both overseen by Republican-appointed judges, one could be forgiven for thinking the fix is in on the Schmitz case.

The key might come when Proctor provides jury instructions--if the case gets that far.

At the close of the prosecution's case, defense attorney Jake Watson moved for the charges to be dismissed, saying that no reasonable jury could find Schmitz guilty because there was no evidence of criminal intent by Schmitz to defraud the college system. My understanding is that such motions rarely are granted, particularly in high-profile cases. But Fiderer says Proctor had strong grounds for granting this one. (Proctor probably will have another chance to dismiss the charges at the close of the defense case.)

Without clear evidence pointing to Schmitz’ state of mind, the prosecution has failed in its burden to present a material “fact” that has been misrepresented by Schmitz. . . . To put it charitably, Judge Proctor is wrong.

Tuesday, August 26, 2008

Siegelman to Democrats: Grow a Spine

Former Alabama Governor Don Siegelman has repeatedly criticized Republicans in the Bush Administration for politicizing the United States Justice Department.

But yesterday at the Democratic National Convention in Denver, Siegelman criticized Democrats who allowed it to happen.

In asking Democrats to be tough enough to hold wrongdoers accountable, Siegelman presented a brief history lesson:

"Democrats didn't pursue Watergate when Carter came in. They didn't pursue Iran-Contra when Clinton came in, and they are not going to pursue this when Obama comes in," Siegelman said. "Democrats are going to say, `Listen guys, we have a positive agenda, we want to move forward, we want to solve the problems of this country and we don't need to get bogged down in this kind of stuff.'"

Some Democrats have expressed concern that Karl Rove and others might get away with their misdeeds if Republican John McCain is elected president in November. But Siegelman said Rove and others might get a "Get Out of Jail Free" card if Democrat Barack Obama is elected, too.

"It's this let bygones be bygones view that is wrong and why this week is so critical, the timing so important in trying to reach as many members of Congress as I can reach," Siegelman said.

Specter of Rove Looms Over Paul Minor Case

Anyone who has closely followed the Paul Minor story in Mississippi might think it impossible for the case to become even more riven with politics than it already was.

But anyone making that assumption would have been wrong.

On August 15, Judge Priscilla Owen of the Fifth Circuit Court of Appeals upheld a lower-court ruling that denied Minor release from federal prison pending appeal. And to whom does Owen pretty much owe her career? Why, none other than Karl Rove, the former Bush strategist who is alleged to have been behind the Minor prosecution from the outset.

Thanks to Larisa Alexandrovna and Lindsay Beyerstein at Raw Story, we learn how legally and ethically questionable it was for Owen to be involved in a decision on the Minor appeal.

Readers who have followed the Bush Justice Department's machinations might remember the name Priscilla Owen. Alexandrovna and Beyerstein provide the background:

Priscilla R. Owen was one of the Bush administration’s most conservative and most controversial judicial appointees. The Senate Judiciary Committee voted against Owen’s confirmation as a federal judge in 2002. A New York Times op-ed excoriated Bush for nominating Owen a second time over the objections of the Senate Judiciary Committee, saying that “ignoring the committee's decision is only one in a growing list of ways the White House and its allies have politicized judicial selection.”

Ultimately, Bush got his way and Owen was confirmed following a second battle in Congress. It was Karl Rove’s interest in seeing Owen on the bench that kept her nomination alive, despite strong criticism of her hard-right interpretation of the law.

Why was Rove pushing so hard for Owen's confirmation?

Rove had a longstanding interest in Owen’s career, beginning in 1994, when Owen hired him as a campaign consultant in her successful bid for a seat on the Texas Supreme Court, paying him $250,000 for his efforts. Rove helped Owen raise over $900,000 for that campaign.

Jim Moore, a long-time Texas journalist who has chronicled Rove’s career in several books, including Bush's Brain: How Karl Rove Made George W. Bush Presidential, explained the unique relationship between Rove and Owen in a Wednesday phone interview.

"He did everything for her. He created her career. He handpicked her to go to the Texas Supreme Court when he was trying to take over the Texas Supreme Court,” said Moore. “He was looking for people to groom and raise money for and have in his pipeline. Rove went and plucked her out of obscurity. She was an unknown lawyer in Houston.”

Raw Story lays out the process that is supposed to prevent cases from being decided by judges who have conflicts:

Lawyers familiar with the judicial process say Owen could not have been assigned the case by means of favoritism because it would be impossible to interfere with the process of randomly assigning cases to judges without implicating the clerk of court and possibly other judges in a conspiracy.

Yet the appearance of impropriety, even when none actually exists, is often reason for recusal. According to canon two of the US Code of Conduct for United States Judges, “A judge should avoid impropriety and the appearance of impropriety in all activities.”

It's unknown whether Owen was aware of allegations Rove had been involved in the prosecutions of Minor, Diaz, Whitfield and Teel. However, the public record and legal filings both either mention Rove by name or reference the White House’s alleged involvement in political prosecutions in general terms. For example, in a letter (pdf) from Paul Minor to the U.S. House Judiciary Committee, dated Oct. 22, 2007, Minor expresses his belief that Rove was directly involved in his prosecution. “I am writing to you because you are the only people who can help me prove that the Bush Justice Department’s prosecution of me and Justice Oliver Diaz, Jr., and Judges Wes Teel and John Whitfield was politically motivated," he writes. “Over the past few months, it has become increasingly clear that Karl Rove, political strategist for Bush and other Republicans, conceived a strategy to dry up political money to Democratic candidates which included using the Justice Department as an instrument to prosecute prominent Democrats, particularly trial lawyers.”

Owen repeatedly has been criticized for not recusing herself in cases brought by corporate donors to her judicial campaigns:

According to Andrew What, the Research Director for the non-profit legal watchdog Texans for Public Justice, Owen’s career has been rife with questionable decisions."When we followed her on the Texas Supreme Court, she was an activist jurist that was results oriented," What wrote in an email late Wednesday. "Her record suggests that she was keenly aware and sensitive to what side her bread was buttered on. She threw out precedent out again and again to deliver decisions that benefited the business community that paid her bills."

Monday, August 25, 2008

Siegelman Shines Spotlight on Rove at Convention

Former Alabama Governor Don Siegelman asked Colorado Democrats today to push for a contempt citation against former Bush White House advisor Karl Rove.

Siegelman spoke to the 70 delegates at a kickoff breakfast for the Democratic National Convention in Denver.

Two Colorado Congressmen attended the meeting and split on Siegelman's proposal. One, Rep. Ed Perlmutter, said he would enthusiastically vote for a contempt citation. The other, Rep. John Salazar, said his main focus is on winning the November election. "I've never been one for digging up bones," Salazar said.

It seems certain that's the kind of limp-wristed response that Republicans want to hear.

After the speech, Siegelman made a sheet of information available to delegates as to how they could contribute to his effort to clear his name.

Glynn Wilson, at Locust Fork World News & Journal, provides an overview of the Siegelman speech and offers a reply for the John Salazars in the Democratic Party. Writes Wilson:

We say what good is winning elections if the Constitution is trampled in the process? Some Democrats are willing to sell their soul to the company store. You?

Steven Rosenfeld, of Alternet, covered Siegelman's talk on Sunday night at an election integrity panel in Denver. Here is an excerpt from that talk:

I am from Alabama. I know something about how votes are suppressed. I know how those in power seek to control elections.

The spirit of the civil rights movement was not deterred by police dogs. The spirit of the civil rights movement was not beaten back by billy clubs, or dampened by the water cannon. The spirit of that movement was built upon the belief that every person should have the right to vote, and that those votes should be counted.

And we watched this country come from a place where woman and slaves, African-Americans could not vote, where they built into state constitutions that you had to be white, male and 21 and own 40 acres of land or be married to somebody who owned 40 acres of land to vote. Then we came up with the poll tax and hard questions, and they were designed to keep people from being able to register to vote. And later we became more sophisticated, when votes were stolen. Dead people were voted so they could swing elections at the tail end of elections on Election Day. And then there were prosecutions of African-Americans who were activist in their community, trying to get people to register to vote or cast absentee ballots. And now we have come to the point when we are becoming even more sophisticated, requiring photo IDs that put an added burden on some people, particularly those who happen to vote democratic.

And then there is this new wave, or process, of trying to control elections, which is the electronic manipulation of the vote. And I think that Rove has come up with a new one, which is using the federal indictment and prosecution process as a way to eliminate his political enemies.

I'm going to be at this convention, and my sole purpose here is to see that Karl Rove does not walk away quietly into the sunset. The U.S. Congress has a duty and an obligation to dig for the truth. The House Judiciary Committee has votes that Karl Rove be held in contempt for failing to show up after having been subpoenaed to testify before the Judiciary Committee about my case and about the firing of the U.S. Attorneys.

Karl Rove has refused to show up. Congress now has an obligation to vote on that contempt citation. The full House must be encouraged to bring that up for a vote when they come back in September. To do otherwise, is to say to the American people that we have two standards of justice. One for the powerful and those connected to the White House, and another for the rest of us.

Karl Rove should be made to show up before the Judiciary Committee, just like you or I or any of the members of our family members would have to do if we were subpoenaed. And he can either answer truthfully. He can lie under oath or he can plead the fifth -- and it does not matter to me. But to do otherwise is to also send a message to Rove's band of right-wing extremists who have participated in this conspiracy to abuse power and use the Department of Justice to win elections to gain and maintain power. And frankly, that would be a terrible disservice to our democracy.

McCain, Reality, and the Military Draft

The possibility that Republican presidential candidate John McCain, if elected, might reinstitute a military draft has become hot news lately.

Keith Olbermann devoted major time to the topic last Thursday and Friday on MSNBC's Countdown. The Keith O pieces were driven by McCain's answer to a woman's question at a town-hall campaign stop in New Mexico.

Here at Legal Schnauzer, this got us to thinking about the draft in larger terms--particularly terms that apply to the current resident of 1600 Pennsylvania Avenue.

A strong case can be made that George W. Bush is both the worst and the dumbest president we've ever had. But bad, dumb people can teach us valuable lessons--in a "never again" kind of way.

To borrow a phrase from Keith O, the real "Worst Person in the World," perhaps was Adolph Hitler. But he taught horrible and indelible lessons, which are embodied in the Jewish Defense League's motto--Never again.

I can think of two "never again" lessons that George W. Bush has taught us:

* Never again must we allow anyone to corruptly use our Justice Department for political reasons.

* Never again must we go to war--a defensive (just) war, a preemptive war, or any other kind of war--without instituting a military draft.

When Congress abolished the military draft in 1973--I was a junior in high school at the time--I doubt that any Americans could envision a day when the United States would start a war, when we would attack a sovereign nation that posed no clear threat to our national interests.

But the Bush administration has shown that such a thing can happen. And without a military draft, it can happen with only a tiny fraction of the population making any sacrifice--and an even more tiny fraction actually serving.

This creates a political sense of unreality that my wife and I witness most every day, primarily because we live in what is generally considered the most conservative county in Alabama. I would guess that at least 95 percent of the people in our neighborhood who voted in the last two presidential elections, voted for George W. Bush. And quite a few of those people had boys (and girls) who were in the prime draft age range--or soon would be.

But the conservatives in my middle-class neighborhood aren't the least bit concerned that their Justins and Jessicas are going to wind up in Iraq. In fact, I doubt that it's ever crossed their minds. So they can slap a "Support Our Troops" bumper sticker on their SUV and drive around feeling patriotic, knowing they helped put Dubya in charge.

As a result we are living in a Through the Looking Glass world that even Lewis Carroll could not have imagined. The people who actually lived through World War II, and sacrificed as a result, must think, "Something isn't right with this picture."

What isn't right? We are at war without a military draft. And it must never happen again. We've allowed an incompetent president to redefine what war means to a democratic society. It has sanitized and marginalized war. And it has made it all too easy for the United States to actually initiate a war--something that once was unthinkable.

How bad is it for our men and women who are serving in the military? Time magazine recently reported that the stress is so great that antidepressants are being given in mass quantities to keep the troops functional.

Perhaps worst of all, our modern ability to conduct a "war without pain" has perverted our political process. A voter can mindlessly vote for a supposed "hawk" (like Bush) without ever having to worry that anyone he knows or cares about will actually have to sacrifice.

So what should we do about it? I don't like the thought of a military draft any more than most people. But I've decided we must have a draft, under certain circumstances, if for no other reason than to protect us from our own worst urges.

Our Schnauzer proposal: In times of peace, we will have a volunteer military. But we cannot go to war, or even prepare for the possibility of war, without instituting a military draft.

We could call it the "No War Without a Draft Law (NWWDL)."

I don't know what kind of political and legislative action would be needed to turn such an idea into law. But I think it is critical that action is taken so that we "never again" will have another George W. Bush fiasco.

Consider these questions:

* With NWWDL in place, what would the chances have been that the Bush administration would initiate the Iraq War? Almost zero.

* If Bush had started the Iraq War, with NWWDL in place, what would have been his chances of getting re-elected? Absolutely zero.

I'm liking this idea more and more.

And perhaps it would add a touch of sanity to modern politics. For now, the draft is such a touchy topic, that even veterans groups can't seem to agree on it.

On Countdown with Keith O last week, Jonathan Soltz of votevets.org said the majority of vets are against a draft. The reasoning? No one wants to be serving on a dangerous mission alongside someone who doesn't want to be there.

The next night, Paul Rieckhoff of Iraq and Afghanistan Veterans of America told Keith O the majority of vets support a draft. The reasoning? Those who serve are tired of putting their lives on the line while a huge majority of draft-age Americans don't contribute to the war effort.

Rieckhoff's reasoning rings more true to me. Even those who serve voluntarily probably cannot honestly say they "want to be there" when a dangerous mission comes up. They'd probably rather be back home on a base playing war games.

But if they are on a dangerous mission, they probably would like to be sharing that responsibility with a cross-section of their fellow Americans. And NWWDL would help ensure that we have enough bodies to conduct a war properly, without having our troops stretched nearly to the breaking point.

Sunday, August 24, 2008

A "Verdict" on Dan Abrams

The news that a show hosted by Rachel Maddow will replace The Verdict with Dan Abrams on MSNBC drew mixed reaction here in SchnauzerWorld.

Maddow is one of the sharpest liberal voices to come along in years, and she richly deserves an hour-long slot on the network that is becoming must-see TV for folks who enjoy a little thinking along with their politics.

I had become disenchanted with The Verdict in recent months. But anyone who cares about justice issues, particularly those of us who live in Alabama, will miss Dan Abrams.

Abrams did more than anyone else in broadcast journalism to bring the Bush Justice Department scandal to public awareness. And his focus on the Don Siegelman prosecution was both enlightening and appropriate, given that the scandal's roots, to a great degree, are in Alabama.

As The Verdict exits stage right, I'm disappointed that the show didn't fulfill its considerable potential. I believe there is a significant appetite out there for justice news and analysis that is presented in an understandable and compelling way. Abrams, at his best, showed he could fill that need.

But for reasons I will never understand, the show in its last weeks moved away from justice stories and meandered into celebrity/gossip territory, with the occasional sashay into the Greta Van Susteren neighborhood. (Dear God, a white female is missing somewhere on the planet!)

Even The Verdict's most recent reports on the Justice Department scandal missed the mark. A few weeks back, Abrams had a segment featuring Don Siegelman and former New Mexico U.S. Attorney David Iglesias. Both were excellent choices to be on the program, and you could see that they were itching to make critical points about the evolving scandal. But they must have said about three sentences between them as Abrams focused on Newsweek reporter Michael Isikoff, who seemed mainly interested in serving as Karl Rove's water boy. It was a depressing case of Abrams missing a chance to educate the public about a vitally important subject.

Even though Abrams did better than anyone else in broadcast journalism on the Bush DOJ story, he still missed numerous opportunities. Why not look into the Paul Minor case in Mississippi, the Georgia Thompson case in Wisconsin, the Cyril Wecht case in Pennsylvania? Why not look into all of the U.S. attorneys who were fired and what led to their dismissals? Why not look into the issue of corrupt federal judges, focusing on Mark Fuller in Alabama and Henry Wingate in Mississippi? And as Siegelman himself suggested, why not look at figures other than Karl Rove in his story--people like Bill and Leura Canary, Alice Martin, Rob Riley, Eddie Curran, and Brett Blackledge?

At other times, Abrams slipped into that familiar "he said/she said" format, where a Democrat is paired with a Republican to present some appearance of balance. This is the kind of thing that Arianna Huffington has rightly criticized, and Abrams (unfortunately) had become one of its regular practitioners.

For example, why on earth was Pat Buchanan on The Verdict so often? The world doesn't already know what Buchanan thinks about most issues?

At least Buchanan can be interesting at times. But the real debacle on The Verdict was making right-wing mouthpiece Brad Blakeman a regular "contributor." Blakeman is the worst sort of partisan shill, and any segment on which he appeared quickly became a waste of airtime.

I wouldn't be surprised if the decision to make Blakeman a regular was the single biggest factor in The Verdict's demise.

Abrams still will serve as legal analyst for NBC. I hope that he or someone else will eventually fill the need for a program about justice that isn't watered down and educates its audience about a justice system that is badly broken.

In Honor of Our Pets

A thoughtful reader from the Mississippi Gulf Coast sent the following item today, and I wanted to share it with others at Legal Schnauzer.

Regular readers know that this blog is named for, and inspired by, the memory of a beloved pet. So I figured our little place in the blogosphere seemed like a good place to print this:

A PET'S TEN COMMANDMENTS

1. My life is likely to last 10-15 years. Any separation from you is likely to be painful.

2. Give me time to understand what you want of me.

3. Place your trust in me. It is crucial for my well-being.

4. Don't be angry with me for long and don't lock me up as punishment. You have your work, your friends, your entertainment, but I have only you.

5. Talk to me. Even if I don't understand your words, I do understand your voice when speaking to me.

6. Be aware that however you treat me, I will never forget it.

7. Before you hit me, before you strike me, remember that I could hurt you, and yet, I choose not to bite you.

8. Before you scold me for being lazy or uncooperative, ask yourself if something might be bothering me. Perhaps I'm not getting the right food, I have been in the sun too long, or my heart might be getting old or weak.

9. Please take care of me when I grow old. You too, will grow old.

10. On the ultimate difficult journey, go with me please. Never say you can't bear to watch. Don't make me face this alone. Everything is easier for me if you are there, because I love you so.

Take a moment today to thank God for your pets. Enjoy and take good care of them.

Life would be a much duller, less joyful experience without God's critters.

We do not have to wait for Heaven, to be surrounded by hope, love, and joyfulness. It is here on earth and has four legs!

Amen.

Saturday, August 23, 2008

Madness in Mississippi

We long have called Alabama "Ground Zero" for the Bush Justice Department scandal and other assorted Republican shenanigans that appear to be driven by acolytes of Karl Rove.

Mississippi long has been running a close second in the "Ground Zero" sweepstakes, and now the Magnolia State looks like it might be ready to pull into a first-place tie.

Not content with the blatant corruption of the Paul Minor case, Mississippi Republicans are stretching ethical boundaries on a couple of new fronts.

One involves the U.S. Senate race between Roger Wicker, who took over Trent Lott's old seat, and Democratic challenger Ronnie Musgrove. Scott Horton reports at Harper's.org that Jim Greenlee, a Bush-appointed U.S. attorney for northern Mississippi, appears to be orchestrating a federal investigation that is designed to disrupt Musgrove's campaign.

Greenlee just so happens to have been a donor to Wicker's Congressional campaign. Hmmm.

A four-year-old investigation into the failed Mississippi Beef Processors plant came to a head recently with guilty pleas from three Georgia businessmen. The three were mostly let off the hook on the most serious charges, but they pled guilty to charges that they tried to buy influence with Musgrove in his failed 2003 re-election campaign for governor.

A Mississippi journalist who had been skeptical of charges that the Bush administration has engaged in political prosecutions now says the Mississippi Beef case doesn't pass the smell test.

In an even more bizarre event, Mississippi Supreme Court Justice Oliver Diaz was barred by his colleagues from having a dissenting opinion published in a particular case. Diaz was one of four defendants in the Paul Minor case, which resulted in federal prison sentences for Minor, an attorney and prominent Democratic supporter, and former state judges Wes Teel and John Whitfield. Diaz, a moderate Republican, was prosecuted twice by the Bush Justice Department and acquitted both times.

The Emptywheel blog reports that the case dealt with the statute of limitations on wrongful-death cases and established that the statute would begin to run at the time of injury, before the victim had even died. This type of ruling evidently has been a longtime goal of the Republican-backed "tort reform" movement. Let me repeat what this ruling says: The statute of limitations on a wrongful death case will begin to run before the victim dies.

This is rubber-meets-the-road conservatism, what the modern "conservatism" movement is all about. But the vast majority of citizens don't have a clue about what "strict constructionist" judges are doing in state courts.

The folo blog is THE place to go for legal news in Mississippi, and it has an excellent overview of the Diaz story. It also includes coverage from two of Mississippi's largest newspapers.

Ultimately, the Diaz dissent was released, but not before the folks at folo had a chance to call his colleagues "knuckleheads." Explanations from Diaz' fellow Supremes ring pretty hollow, and one can only wonder what they really were thinking.

Thursday, August 21, 2008

Is Alice Martin in Bed With The Birmingham News?

How big a scumbucket is Alice Martin, U.S. attorney for the Northern District of Alabama? How weak is the case she is currently trying against Alabama Rep. Sue Schmitz, a Democrat? How cozy is Martin's relationship with The Birmingham News? And how has the paper's coverage of the Schmitz case--and the entire two-year colleges scandal--been colored by its pro-prosecution agenda?

Reporter David Fiderer provides answers to these questions with a splendid piece today at Huffington Post.

By focusing on what we are NOT reading in The Birmingham News, Fiderer provides the most compelling analysis I've seen about the Schmitz case. And it adds evidence to support what many of us have suspected for some time: Certain Alabama newspapers are actively engaged in helping prosecutors and Republican politicians execute a politically driven form of "justice" in our state.

How tight is the Martin/News lovefest?

In April 2006, The Birmingham News began running a series of articles on "corruption" within Alabama's two-year college system. The reporting focused on a number of House Democrats who were engaged in "double-dipping" at the expense of Alabama taxpayers. "Double-dipping" became a political catchphrase in Alabama. What wasn't The Birmingham News talking about? The outside employment and business interests of Republican politicians, among other things.

A few weeks after The Birmingham News started going after Democratic representatives who "double-dipped" within the two-year college system, U.S. Attorney Alice Martin started hauling in witnesses for her grand jury investigation. The first case she brought to trial, over two years later, is against Sue Schmitz.

Who knows how the Schmitz case will turn out? Who knows what is motivating the judge and what kind of jury instructions he might concoct? But Fiderer reveals the weakness of the case against Schmitz:

Prosecutor Martin isn't alleging that Schmitz pulled strings to get a cushy part-time job and then failed to perform. That isn't a crime. Instead, Martin alleges that Schmitz had the specific intent, before she ever got a job offer, to take the money and in return do nothing. And Martin says she can prove this beyond a reasonable doubt. Again, at the risk of being didactic, beyond a reasonable doubt means there can be no plausible alternative explanation.

The Birmingham News fails to acknowledge this critical legal distinction, and thereby misleads its readers:

"The prosecutor told jurors the case will boil down to a few questions. 'Did Sue Schmitz do the things she told the CITY program she did? Did she work the number of hours she said she worked? Did she perform the tasks she said she did? The answer to those questions is no, she didn't.'"

If it boils down to those questions, then the prosecution's case is fatally flawed and the judge was bound to dismiss the case. More likely, the reporting at The Birmingham News is fatally flawed.

Again, unsatisfactory job performance is not a crime. Martin is engaged in the type of prosecutorial overreaching that mirrors the case against Don Siegelman, where the prosecutor essentially argued that a political donation was the same thing as a bribe.

Martin's actions also are reminiscent of the Paul Minor case in Mississippi. In that case, prosecutors argued for exclusion of evidence that was critical to the defense; in fact, the evidence went to the fundamental defense that was available, and by law, had to be allowed. But the judge sided with prosecutors.

Will the judge in the Schmitz case side with prosecutors? Martin evidently is counting on it. She wants to exclude any references to a lawsuit in which Schmitz was found to have been wrongfully terminated:

Here's the giveaway of the prosecution's bad faith. Alice Martin wants the judge to, "prohibit the defendant from referencing this lawsuit at any fashion at trial, including its filings as well as any rulings or determinations issued." She says that the lawsuit isn't relevant, and that "the admission of such evidence will only serve to confuse, distract, and mislead the jury." Martin is shamelessly insulting the intelligence of everyone involved. Schmitz' willingness to invite judicial scrutiny into the circumstances of her employment reflects her state of mind, which is central to the government's case.

The prior lawsuit also touches on another point. It's impossible for someone to be employed in a phantom job for three years without the supervisor being similarly culpable. Schmitz' employer would not have willingly invited judicial scrutiny if this were part of some criminal enterprise.

But Martin does not stop there:

Martin wants the judge to "prohibit the defendant from suggesting to the jury that Schmitz could fulfill her obligations to the CITY Program by advocating on its behalf, or providing any advice or assistance on matters concerning the Legislature." Even though Schmitz' written job responsibilities included:

"II. External Affairs
A. "Develop and maintain a positive working relationship with members of the State of Alabama legislative delegation, various city and county officials relative to CITY locations.

B. "Establish a positive working relationship with various state service providers (i.e. Department of Human Resources, Department of Mental Health, and Department of Youth Services."

Hmmm, seems Schmitz got in trouble for doing her job, and Alice Martin played a major role in the whole affair. Boy, does that sound familiar.

Fiderer's conclusion?

The foregoing is what The Birmingham News is not talking about. The paper's coverage has essentially been spoon fed by Martin.

"Prosecutors outlined the case they'll present against Schmitz in a 41-page trial memorandum. After it was reviewed by The Birmingham News, that document was sealed by a federal judge."

Wonder how the News came to possess the trial memorandum.

I'm not too familiar with the alleged facts and the relevant law in the Schmitz case. But I am intimately familiar with the facts and the law in the Paul Minor case. And as I read material related to the Minor case, I remember thinking to myself, "Good God, these prosecutors are arguing for the judge to make rulings that they know are not lawful. These people are interested in convictions, not justice. If they had been interested in justice, this case never would have been brought."

I sense the same thing happening in the Sue Schmitz case. It's shocking to think that public prosecutors, people who are paid by taxpayers to do the people's business, intentionally try to bastardize the law in order to win politically driven cases.

Even as the George W. Bush era draws mercifully to a close, his Justice Department still is conducting its business in shockingly unethical ways.

The Original Legal Schnauzer, Part IV



Here's Murphy and her "Mom" at Oak Mountain State Park, just south of Birmingham.

The Murph loved to go for rides in the car, and probably her two favorite destinations were the Sonic Drive-In in Pelham, Alabama, and Oak Mountain State Park.

On this day, I think we followed up our visit to the park with a stop by Sonic. So this was a "red-letter day" for our girl. I'm sure she slept well that night--right between us.

Wednesday, August 20, 2008

UAB, Bloggers, and Double Standards, Part II

How did my old buddy Doug Gillett get in hot water at UAB?

My memory is fuzzy on some details, but here is how I think it went down:

Doug had not been at UAB long when he became a volunteer with John Kerry's 2004 presidential campaign. That's one difference between Doug and me. I vote Democrat; Doug is a Democrat, through and through. He puts shoe leather to pavement on behalf of the Democratic Party, and I admire that.

Doug also wrote a blog, with the not-so-subtle title "George W. Bush, Will You Please Go Now."

In the course of volunteering for Kerry, writing his blog, and participating in various online political forums, Doug must have somehow made a Republican enemy. (Imagine that!)

It seems that said enemy alerted a reporter at The Birmingham News about Doug's online activities during work hours, and our local right-wing rag was delighted to write a story that portrayed Doug as a thief of Alabama's treasure. The story got picked up by the wire services and wound up being run in newspapers all over creation.

I don't believe the original Birmingham News story is online anymore. But a blog post about the whole brouhaha is available here. And the blog Practically Harmless (written by Doug's sister, Ann) had a good post about the whole affair, with links to several articles.

Doug's case was clear cut. He was blogging at work. He was engaging in political activity (defined as involving political candidates, organizations, or campaigns). He almost certainly violated state law.

But he kept his job. In fact, I see no evidence that his job was ever seriously in danger. (Doug, by the way, is still in the blogging business, although Hey, Jenny Slater is more about sports and babes, less about politics and elections.)

Why did UAB not fire Doug? I wasn't involved in any meetings, but I can only guess. One, I think UAB kept its head and realized that Doug did not have any improper intent. He was an enthusiastic young guy who was getting his work done, and in his spare time on the job, made the mistake of doing something he shouldn't have been doing.

Also, I suspect that UAB realized that while it has policies regarding the use of university equipment for improper reasons, it has no clear-cut policy (at least one that I've been able to find) regarding the use of computers and the Web. For example, UAB has a policy titled "Safeguarding UAB Equipment." (See page 69, You & UAB Handbook.) Within that policy is this sentence: "You are not to use UAB Equipment for personal reasons." But the overall policy says nothing about computers. I've been around UAB a long time, and I'm pretty sure this policy predates the use of personal computers in the work environment, and it certainly predates the widespread use of the Internet. This policy seems aimed at equipment that can be moved and taken outside the work environment for personal use. And its title suggests that it is concerned primarily with taking care of UAB equipment, not damaging it. In other words, don't take a UAB vacuum cleaner home to clean your house; don't check out a UAB vehicle and take the family to Disney World. And whenever and wherever you use UAB equipment, take care of it. But this policy makes no clear statement regarding computers or the Web, and I suspect that's one reason Doug kept his job.

Why does UAB not have a clear policy regarding use of computers and the Web? I suspect it's because, as an institution of higher learning, UAB does not want to establish a policy that would inhibit academic inquiry and make it more difficult to recruit faculty members. If word got around that a university was run by a bunch of "computer Nazis," I suspect potential teachers and researchers would avoid joining the faculty.

The only other policy issue that could be applied to Doug's case--or my case--is "Political Activities of UAB Employees." (See page 48, You & UAB Handbook.) This one is pretty clear: No UAB employee is permitted to use university resources, time, or property for political activities, which are defined as activities "on behalf of any political candidate, campaign, or organization."

Doug probably violated this one. He was, as I understand it, blogging and conducting other political activity on UAB time, with UAB equipment. Even the title of his blog had a clearly partisan, political tone. But I suspect UAB realized that Doug had no malicious intent--and he pretty clearly was the victim of political backstabbing by someone who alerted the local newspaper--so it did not fire him. And I wholeheartedly supported that decision.

But what about me and Legal Schnauzer? UAB's own investigation showed that I was not blogging at work. I was not engaged in political activity. I didn't write about political candidates or tout a certain political organization or campaign. Evidence suggests that UAB was concerned that my blog covered the Don Siegelman case, but Siegelman was a federal prisoner, not a political candidate, for most of the time I've written the blog. And I didn't write about Siegelman, or anyone else, on UAB time or with UAB resources.

I didn't violate any UAB policies or state laws or engage in any form of misconduct.

So why am I out of a job? Three reasons, I think:

* The age difference--My situation is about far more than age discrimination, but that certainly is present. I enjoyed most of my 12 years working for Pam Powell, but as I've noted before, she clearly has shown a preference for younger people, especially in the positions closest to her. This has been apparent for a long time, but Powell's superiors (Dale Turnbough and Shirly Salloway Kahn) have turned a blind eye to it. The fact that Doug was, and still is, in his 20s has a lot to do with why he still works at UAB. Pam went to bat for him; she stabbed me right between the shoulder blades--repeatedly, like the shower scene from Psycho (with a reversal of gender roles).

* The timing difference--Doug's "issue" arose in 2004. GOPers, I'm sure, were sensitive to criticism at that point. But that was before much of the blatant corruption in the Bush administration began to surface. It definitely was before the U.S. attorneys scandal broke, followed by stories about the politicization of the Justice Department. My "issue" arose with the Justice Department scandal in full swing, and I think things really started to boil when Don Siegelman's story appeared on 60 Minutes and then when he was released from federal prison pending appeal. As the actions of U.S. attorneys began to receive scrutiny--particularly in Alabama--I suspect GOP honchos in our state became more than a little agitated. They also might have begun to have visions of seeing themselves in federal prison someday. It appears that folks connected to a particular U.S. attorney decided to lash out by costing me my job. Doug might have gotten fired, too, if his "issue" had arisen in 2008, rather than 2004.

* The nature of the blogs--Doug's political blog was filled with opinion, and apparently that peeved some minor GOP politico. But most of the big dogs, on either side of the political aisle, can handle folks who disagree with them or even poke fun at them. But my blog, Legal Schnauzer, is a different animal. It presents plenty of opinion--and like Doug, I view things through a liberal or progressive prism. But a major chunk of my blog involves "citizen journalism." I'm reporting facts, about events that have taken place in the public arena--and the facts reveal that certain folks with Republican leanings have committed federal crimes. That makes certain powerful people nervous, particularly when it's clear that I've done my homework, and I know what I'm talking about. Plus, much of the wrongdoing I've written about isn't being covered anywhere else.

Even political big dogs get worried, and more than a little agitated, when a blogger is exposing them, or their brethren, as corrupt reptiles. (An apology to reptiles; they don't deserve to be compared with the lowlifes at the heart of Legal Schnauzer.)

Doug has written about uncomfortable opinions. I've written about uncomfortable truths. There is a big difference between the two. That difference, to a large extent, explains why Doug still has a job at UAB--and why I do not.

How has that difference manifested itself?

In Doug's case, the university actually followed its own policy. UAB has a progressive discipline process, and its stated goal is "to retain employees and to improve an employee's performance while at the same time documenting the efforts of the employer in the event of discharge." (See page 57, You & UAB Handbook.) Doug's actions probably merited some level of progressive discipline, and the university applied the policy the way it should have. Best I can tell, the university was honest with Doug, and his coworkers, every step of the way.

What about my case? Well, UAB has butchered its own policy in almost every respect. UAB's own employee grievance hearing, which I sat through in its entirety, showed that I shouldn't have been disciplined at all, much less terminated. But the university seemingly couldn't wait to rid itself of a 19-year employee, apparently because I had used my university computer to keep up with Alabama-related news, as I was required to do by my job description. In other words, I got fired for doing my job. Is that Rovian or what?

How badly did UAB fail to achieve the goals of its own policy? Let's go step by step:

* The goal is to retain employees--I wasn't retained; I was fired. UAB's grade: F.

* The goal is to improve an employee's performance--UAB's own investigation showed there was nothing wrong with my performance. The annual review I had received in September 2007 showed my performance was good. Anyone's performance can improve, including mine. But did UAB accomplish that stated goal? Not exactly. Research has shown that wrongfully terminating an employee is not a good way to improve performance. UAB's grade: F.

* The goal is to document the employer's effort in the event of discharge--This might be the biggest joke of the whole affair. At my grievance hearing, my supervisor Pam Powell repeatedly was asked to provide documentation regarding her allegations that my performance had declined. She didn't turn over one document--unless she did it while my back was turned. Why no documentation from my supervisor? Because my performance hadn't declined, and UAB management knows it. And I had violated any policies either, and UAB management knows that, too.

Clearly, something is amiss with my firing. And the evidence shows that could only be caused by improper, and probably unlawful, external pressure applied to UAB for political reasons.

As I noted above, the university appeared to deal honestly with Doug Gillett. Have they dealt honestly with me? Consider President Carol Garrison's recent "statement" issued to several folks who had voiced concern about my termination. Garrison says my firing had nothing to do with politics and was based solely on work performance.

Let's take the "work performance" statement first. Garrison's own grievance committee has found I shouldn't have been terminated at all. So in addition to being defamatory, Garrison's statement is boldly dishonest.

And what about the "politics" statement? Heck, Garrison's own employees don't believe that. In an unguarded moment, Employee Relations director Anita Bonasera spilled the beans about what was really behind my termination. You can listen to that conversation between Bonasera and me, and judge for yourself:

UAB, Siegelman, and Blogs

So you have a large institution engaged in a coverup, with the president right in the middle of it. Richard Nixon would be proud.

Did Leaks to Blackledge Signal Criminal Activity?

Glynn Wilson, of Locust Fork World News, raises that question today with a post about former News reporter Brett Blackledge.

After winning a Pulitzer Prize for his reporting on the Alabama two-year colleges scandal, Blackledge recently left Birmingham for a position with Associated Press in Washington. Wilson presents several video segments that raise questions about both the quality of Blackledge's reporting and possible criminal activities involving his newspaper and federal prosecutors.

The News' reporting led to the criminal prosecution of Democratic State Rep. Sue Schmitz in a trial that started this week.

Blackledge states in the video that he was handed information in a box. How could that indicate criminal activity? Well, it depends on what was in the box and who gave it to Blackledge.

Reports Wilson:

"If the materials include grand jury materials, then this may have been a criminal act,” says New York attorney and writer Scott Horton, who keeps up with the cases in Alabama for his blog “No Comment” on the Harper’s magazine Website at Harpers.org.

Horton has written before, referencing the Don Siegelman case, about the serious nature of grand-jury leaks:

The leading newspapers in two of Alabama’s major cities—Birmingham and Mobile—are sibling publications under joint ownership. They gave extensive and tendentious coverage of the investigation and prosecution of Don Siegelman. And these papers had access to nearly every aspect of the prosecution’s case, including its witnesses and its evidence. They knew the charges before their formal presentation; they even knew in some detail what transpired before the grand jury. The press is free to make inquiries and publish what it learns, and the more the better. However, the prosecution is obligated to maintain the secrecy of the proceedings, and the disclosure of grand jury secrets by the prosecution is a very serious violation of Rule 6(e) of the Federal Rules of Criminal Procedure. Usually the publication of grand jury secrets in the press is taken as sufficient for a judge to trigger an inquiry into violations of Rule 6(e) by the prosecution. In this case, the federal prosecutors openly and publicly lauded the newspaper reporters who were disseminating their materials. This practice of “poisoning the well” is extremely abusive and the judge should have stopped it.

So who would be criminally liable here? It appears it would be federal prosecutors. Could criminal liability fall on reporters and editors at the newspaper? The answer appears to be no. But it raises this question: What if the reporters and editors knowingly engaged in a conspiracy to leak grand-jury information as part of a plan to ensnare Democrats in legal proceedings and allow Republicans to take over all branches of Alabama government?

An excellent article at ethicsscoreboard.com addresses many of the issues connected to grand-jury leaks. This article was based on the steroids-related case of former San Francisco Giants slugger Barry Bonds.

As for Blackledge, Wilson wonders if his work truly merited consideration for a Pulitzer:

It also raises some doubts about the qualifications of the reporting for the award, since it doesn’t look like he did much “investigating,” and was perhaps just handed the information by federal prosecutors in possible violation of judicial codes of ethics.

The stories came preliminary to charges being brought against a number of legislators, including Sue Schmitz of Huntsville, who worked in a program that helps troubled teenagers. Her trial is ongoing in the federal courthouse in Decatur, and her lawyers have indicated an interest in this video as evidence.

The Pulitzer committee awards the prizes each year for “a distinguished example of investigative reporting by an individual or team, presented as a single article or series, in print or in print and online.” The prize pays a cash award of $10,000.

Blackledge’s award is billed as a reward for “his exposure of cronyism and corruption in the state’s two-year college system, resulting in the dismissal of the chancellor and other corrective action.” It was moved by the board from the Public Service category.

Tuesday, August 19, 2008

UAB, Bloggers, and Double Standards

My case is not the first time UAB has received unwanted attention because of an employee who writes a blog.

In fact, it's not even the first such case in my old office, UAB Periodicals.

One of my former colleagues, Doug Gillett, got into some hot water a few years back because of his blog. Did UAB exhibit consistency in its handling of Doug's case and my case? Uh, not exactly.

In fact, it's hard to imagine two employment-related cases being handled in a more disparate manner. What's the biggest difference between the handling of the two cases? Well, as you can see by checking the personnel roster of UAB Periodicals, Doug still works there.

I do not.

Are there other differences between the two cases? Oh gosh, let me count them all:

* Doug actually was violating UAB policy; I was not;

* Doug actually was using UAB equipment and time to write a blog; I was not;

* Doug actually was using UAB equipment and time for political activity (as defined by university policy); I was not;

* Doug probably violated state election and ethics law; I did not;

* I was harassed for roughly five months by our supervisor, Pam Powell; Doug was not;

* Pam Powell repeatedly made false statements regarding my job performance and behavior; I see no evidence that she ever made false statements regarding Doug;

* Pam Powell launched an "investigation" of my computer use, just five days after I had told her via e-mail that I knew she was lying (and had written proof of it) in a recent statement she had made about my job performance. Was Doug's computer use ever investigated? I don't think so.

* I was placed on administrative leave; Doug was not;

* I was immediately discharged, contrary to university policy; Doug was not;

* Doug, to my knowledge, received a written warning and never missed a day of work; I was immediately fired, and I've been out of work for roughly three months.

Oh, a couple of other differences: I was 51 at the time of my "event," and Doug was around 25. I was a 19-year UAB employee; Doug had worked at UAB for about a year, I think.

Why did UAB handle these two cases so differently? Well, I think there are two reasons, and we will examine those.

But first, let me make this editorial note: I like Doug Gillett a heckuva lot. He's a smart, funny, irreverent "character," and I like "characters." (Heck, I married one.) He and I are on the same page politically, we both like sports and hot French broadcasters, and I considered Doug to be a breath of fresh air in the workplace--a genuine hoot. He's one of many "worker bee" colleagues that I miss a lot.

In fact, as I noted in a recent post, Doug and another one of my 20-something colleagues, Stanley Holditch, pretty much inspired me to write a blog--or at least to think about writing a blog. Without them, I probably still wouldn't know what a blog is. And I probably would have just sat back and taken the royal screw job that corrupt Alabama judges were dishing out.

The point of this post is not to swipe at Doug in any way. The point is to illustrate UAB's duplicitous behavior in its handling of my case, particularly in comparison to a previous case that was far more serious regarding the use of university equipment.

One final point in my editorial note: When Doug got into hot water, I think everyone in our office was afraid he was going to be fired. But I thought UAB handled it the right way. Gary Mans--the same guy who issued President Carol Garrison's goofy statement about me--gathered everyone in our office together and said that Doug had been warned, but was not going to lose his job. Gary reminded all of us that we should not blog or do any kind of political activity at work. But he also added-and I'm paraphrasing here--that the department and the university didn't want to be "computer Nazis." He knew that we all used the Web extensively for our work, and he also knew that most everybody occasionally checked a news site, a sports site, a music site, etc. He said that was fine and he wanted to maintain a relaxed, productive atmosphere. Mainly, he said, just don't blog or engage in political activity at work.

I've not been shy about criticizing Mans for his role in Carol Garrison's statement about my case. The statement was false and defamatory, and it contradicted the findings of UAB's own employee grievance committee. Mans should have been smart enough, or bold enough, to head that off. But in Doug's situation, I thought Mans handled everything just right. Doug should not have been fired, and I think Mans set the right tone, and sent the right message, for Doug and our entire office.

Which brings us back to UAB's double standard. More on that coming up.

(To be continued)

Is Deborah Bell Paseur Toast?

I hope the answer to the question in our headline is no. But based on Paseur's recent speech before the Birmingham chapter of the Federalist Society, I'm afraid the answer is yes.

According to a report in The Birmingham News, Paseur made a number of excellent proposals:

* She supports the appointment of appellate judges. (I would expand this to include appointment of all state judges.)

* She would push for an increase in oral arguments heard by appellate courts;

* She would push for more opinions that explain rulings. (I would call for abolishment of the no-opinion affirmance rule, which allows appellate courts to affirm trial-court findings without issuing an opinion.)

But she evidently said nothing about the Alabama Supreme Court's infamous ExxonMobil ruling. Paseur was speaking before a conservative organization, and perhaps she didn't want to raise the ExxonMobil case in that forum. But I'm not aware of her raising the issue in any forum.

According to a report at Left in Alabama from November 2007, a Paseur supporter used a sign to mock the Republican jurists who sold out to ExxonMobil. But Paseur herself has shied away from spotlighting the case, and I think that's a mistake.

Here is the background on the ExxonMobil case: In an 8-1 ruling last fall--with the court's lone Democrat, Sue Bell Cobb, providing the dissenting vote--the Supreme Court overturned most of a $3.6 billion verdict against the oil giant and in favor of the state of Alabama. The ruling was a devastating hit to the state's financial picture, but more important it was a violation of clear procedural and legal precedent.

In other words, the ruling was corrupt, and Cobb had the cojones to pretty much say that in her dissent. Paseur is going to have to show similar cojones if she is going to win in a state where a major proportion of the white population reflexively votes Republican--particularly in judicial races.

The ExxonMobil story is not complicated. Republicans on the Supreme Court violated the law and cheated the citizens of Alabama. Most citizens understand that kind of language, and they don't like cheaters, by and large.

Paseur needs to take that message, put it in a short, sweet, simple package, and let it loose on a regular basis between now and election day. Former Democratic Governor Don Siegelman has publicly pushed for such a campaign, but Paseur seems unwilling to do it.

I don't think there is any question that Paseur is a far superior candidate to her GOP opponent. She has strong support from law enforcement and from women's groups. But that will not be enough for her to win. The Republicans on the Supreme Court gift wrapped a winning campaign issue for her, and if she is not bold enough to use it, she probably doesn't deserve to win the race.
Perhaps someone close to Sue Bell Cobb, or some of Paseur's own advisors, can convince her that she has to come out swinging between now and election day. Playing nice in judicial races is not going to get it done with the snakes who back GOP jurists.

If Paseur doesn't toughen up, I'm afraid we are in for more 8-1 rulings in the future.

Raising Judicial-Corruption Issue Sparks Vigorous Debate

Your humble blogger has taken to occasionally writing diaries at Daily Kos, that vast repository of progressive opinion and debate.

One of my recent scribblings drew an interesting response from what I assume is a pretty liberal crowd at the Kos.

The subject was judicial corruption, and I presented several proposals for addressing the problem. I also raised the issue of a California-based organization called Jail 4 Judges, which proposes a Judicial Accountability Initiative Law (J.A.I.L) that would rework the concept of judicial immunity in our country.

J.A.I.L., the brainchild of a man named Ron Branson, would not eliminate judicial immunity. But it would subject the concept to citizens' panels of Special Grand Jurors who would determine if immunity should apply in specific cases. My understanding is that J.A.I.L. would apply to cases where a judge's application of procedure, statutory law, case law, or legal precedent is alleged to be clearly wrong; it is not aimed at discretionary rulings.

I don't consider myself an expert on J.A.I.L., but I have followed the movement for a while. I think Branson has identified a significant problem in our country, and his proposals seem reasonable and deserving of serious public debate.

So I was a bit surprised at the response my Daily Kos piece attracted the other day. It drew 70-plus comments, which is not a lot by Daily Kos standards, but it was the most any of my diaries had drawn. And quite a few of the comments were negative or dismissive. A few people even accused me of being a Republican. (Ouch! Dear God, call me anything, but please don't drop that label on me!)

The diary and the comments, along with my attempts to defend my position, can be read here.

A few thoughts from my most recent Kos experience:

* It's almost as if a squadron of lawyers is assigned to check out Daily Kos and swoop down upon anyone who raises questions about the nobility of the legal profession. I would guess that eight to 12 lawyers were involved in our discussion, and almost all of them were taking the opposing side from yours truly.

* I certainly don't mind folks disagreeing with me, and indeed, you expect that to happen when you write at a heavily traveled site like Daily Kos. But some of the comments had a tone of "You must be a right-wing nut job if you raise questions about the judiciary or the legal profession in general." I think progressives are making a mistake if they take that approach. After all, the Bush Justice Department scandal is driven largely by corrupt conservatives who have legal credentials of some sort. And the victims have been Democrats or moderate/honest Republicans. I think it's important for liberals to view this as a matter of right and wrong, not right and left.

* In defense of my DK challengers, most of them I'm sure had not read my blog and had little if any background about my case. Had they known more about the facts of my case, and that the judicial wrongdoers are all Republicans, we might have been more on the same wavelength. But it is interesting that lawyers, no matter where they live, tend to almost reflexively use certain arguments when they feel their turf is being threatened. One tactic is the familiar "You are a layperson, so you can't possibly understand the law" routine. Another is the "It might seem like the judge is wrong, but due to some incredible nuance of the law (that is way over your head), he surely must be right" routine. Another is the "Rule X might read a certain way to you, but the law gives Judge Y discretion to rule however he wants to" gambit.

Here are a couple of specific examples of what the DK legal crowd was throwing at me:

(1) I stated a very simple principal of law: That when one party files a properly supported motion for summary judgment and the other party does not respond and offers no evidence, the movant's evidence is considered uncontroverted and summary judgment must be granted. This scenario happened three times in my case, but Shelby County judges J. Michael Joiner and G. Dan Reeves denied summary judgment, favoring corrupt opposing attorney Bill Swatek (and his family ties to Karl Rove) and causing a case to go to trial when it could not, by law, go to trial. The DK legal squadron pulled out all of the stops in trying to convince me I didn't know what I was talking about. One commenter even suggested that my affidavit, and that of my wife, must have been immaterial to the case, that we had said something like, "We were born on planet Earth." Please. Our affidavits were about matters central to the case, that our troublesome neighbor had indeed trespassed on our property as had been charged. Finally, I cited Alabama case law, Voyager Guar. Ins. Co., Inc. v. Brown, 631 So. 2d 848 (Ala., 1993), which states that when the movant presents a properly supported motion for summary judgment and the nonmovant presents no evidence to counter it, summary judgment must be granted. When I proved that I could cite case law, the DK crowd seemed convinced. One commenter said, "Oh, you mean a 'properly supported' motion for summary judgment. That's the key term.'" I had said it was properly supported all along.

(2) I stated another very simple principal of law: When a party tries to amend his complaint roughly 65 days after the deadline for doing so, and he fails to seek leave of court, the amendment cannot possibly be allowed. This is not complicated stuff, folks. But the DK crowd went into all kinds of contortions to convince me I was clueless. One stated that the request for leave of court was "implicit" when the late amendment was filed. Well, this fellow (I'm assuming it's a fellow) evidently is not familiar with Alabama law. And I suspect the law is the same in all 50 states.

In Alabama, a family-law case styled Malone v. Malone, 854 So. 2d 109 (Ala. Civ. App, 2003) states the matter succinctly:

Rule 15(a), Ala. R. Civ. P., requires that a party desiring to amend a pleading less than 42 days before trial must seek leave of court; it states that leave will be granted "only upon a showing of good cause." The comments to Rule 15 indicate that the rule "REQUIRES A WRITTEN MOTION" seeking such leave and also requires notice to all parties. . . . The wife did not seek leave of the court and did not present any ground upon which the trial court may have allowed such late amendments. Therefore, the wife's purported amendments were never "allowed" and did not serve to inject additional claims.

So a party must file a written motion seeking leave of court; The request is not implicit in the filing of a late amendment. And notice must be given to all parties. If this is not done, the amendment cannot be granted.

This is exactly what happened in my case. Opposing attorney Bill Swatek never filed a written motion seeking leave of court, and notice was not given to all parties. But Bill Swatek has family ties (through his son Dax Swatek) to Karl Rove, so Bill Swatek does not have to follow the law in Alabama.

And this was not a minor procedural matter in my case. The late amendment added a claim of conversion, and that is the (bogus) charge upon which a jury made a finding of $1,525 against me. And that "judgment" was the basis of the unlawful "auction" of our house, which means my wife and I no longer own our own property free and clear. You see the kind of repercussions that can come from being before a corrupt judge.

I didn't have time or space to tell my whole story at Daily Kos. But when I finally got down to citing certain Alabama case law, it seemed to turn the tide of the conversation.

Did I rule the day? Heck, I don't know, and that's really not the point. But lawyers sure can be dogged in defending their profession against a "commoner" who dares to question the integrity of the process. It sure is interesting that some of the lame arguments I've heard from local lawyers turn up when the discussion becomes national (or even international) in scope at DK.

* I'm not through with the issue of judicial corruption and the self-policing nature of the legal profession, which I think fuels much of the sleaze that takes place in our courtrooms. We will deal with these subjects again, both here and at Daily Kos.

Monday, August 18, 2008

I'm Not Alone on the Blogger Firing Lines

Turns out I'm not the only one getting "fired" these days simply for writing a blog, on my own time.

It also happened recently to Michael J. McCarthy, a vice president at Citigroup. Bloomberg.com reports that the 35-year-old stock trader was fired after his employer realized he is "Large," the man behind the blog at http://www.takeareport.com/.

McCarthy's site, Bloomberg reports, "showcases women who manage to look insufficiently dressed, along with bawdy commentary on celebrities." Bloomberg further states the site "consists of remarks about homosexuals, excretory functions, concert reviews, and college football picks."

Lindsay Beyerstein has an insightful post about McCarthy's firing at her Majikthise blog and compares his situation to what happened to me at the University of Alabama at Birmingham (UAB):

I've seen an employer elide blogging and surfing to justify a firing before. The University of Alabama at Birmingham used the same studied vagueness against former university editor Roger Shuler.

Here's how the HR language game works: Implying that an employee regularly blogged at work suggests that he's a chronic goof off who might well deserve the boot for slacking. Whereas, if you say you fired a longtime salaried employee for a little web surfing, people are going to ask questions.

Citigroup cited "behavior that violated the firm's code of conduct and policies" in firing McCarthy, Beyerstein reports. The firing came even though McCarthy never blogged about his employer, mentioned Citigroup, or identified himself.

Bloomberg's anonymous source says McCarthy did not blog at work, but he was accused of "accessing and promoting the blog on company time," whatever that means.

Obviously this hits close to home here at Legal Schnauzer. Let's compare and contrast McGarthy's situation with mine:

* McCarthy writes under a pseudonym; I write under my own name;

* McCarthy's blog, according to Beyerstein, is "a bunch of locker-room babble. It's sexist, homophobic, and generally crude." My blog is about judicial corruption and the promotion of honest government;

* One reader says McCarthy's blog is "funny as hell;" mine is not.

* McCarthy did not blog at work; neither did I;

* McCarthy is alleged to have "accessed and promoted" his blog at work, although it is unclear what those terms mean; UAB's own investigation showed I never accessed my blog at work, and I never promoted my blog at work. I would say maybe five or six of my closest coworkers knew about my blog, and it wasn't because of any promotion on my part.

* Speaking of promotion, McCarthy must be pretty darn good at it. Bloomberg reports that his blog averages 60,000 page views a day. Man, I guess crudity pays off. If I get 1,000 page views, it's a banner day.

* Here's something I suspect McCarthy and I have in common: We both got fired because we've been relatively successful at achieving our blogging goals. McCarthy, it appears, set out to be funny and attract an audience. Evidently he did both quite well, and that probably made him a target. If he had 500 page views a day, I imagine he would still be at Citigroup. I set out to expose corruption in Alabama state courts, tie it to national justice issues, and educate people about what, all too often, really goes on in the legal process. The goal was to write truthfully and with transparency (under my real name, citing numerous public documents as evidence). I accomplished my goal well enough that Congress and a number of prominent bloggers picked up on what I was doing--and that made me a target. If I had been writing a bunch of baloney that wasn't supported by fact or law, nobody would have cared--and I would still be working at UAB.

The message seems to be this: If you are going to blog, don't do it well and don't attract attention.

While the subject matter of McCarthy's blog apparently is crude, it's hard to see how he violated any company policies. Beyerstein puts things into context:

Setting aside the particulars of the McCarthy case, there's still a larger issue here. It is completely unreasonable for employers to be able to fire employees for blogging on their own time. Blogging on company time shouldn't be judged more harshly than playing solitaire, making paper clip sculptures, or using an office phone to call the babysitter. Obviously, people deserve to get fired for overdoing these things--but we all know that minor infractions are the norm, even for diligent employees.

Currently, non-work related internet access is management's "get rid of employee free" card. The rules tend to be vague and therefore to give management vast discretion. I often wonder whether they want employees to do a certain amount of surfing at work so they have a pretext to fire them at will.

There's a fiction that employers provide internet strictly for work and that any non-work-related use is dereliction of duty. At this point, most workplaces treat internet access for salaried employees as an amenity as well as a tool, like an office phone. Employers install phones in every cube, even for employees who have no phone-related duties. Despite pretenses to the contrary, the web now serves a similar function for the average office worker.

Obviously, employers have the right to set whatever rules they want for the use of company resources including the web and the phone. If a company wants to ban all web surfing at work, they're entitled to do so. What's unacceptable is treating the internet as an amenity to be used with discretion until you want to fire someone and then selectively enforcing the rules to get rid of them.

In my case, "surfing" the Web at work was not an issue. It is undisputed that part of my job description was to use the Web to research news and issues connected to Alabama and higher education. This included keeping up with the Don Siegelman case, which was the biggest story in Alabama over a two-year period and included a former ex officio president of the University of Alabama Board of Trustees (Siegelman) and UAB's most famous alumnus (Richard Scrushy).

Evidence indicates that someone with ties to the Alabama Republican Party grew uncomfortable with the truths presented in my blog, discovered I worked for a state institution, and took steps to get me fired. Under that kind of pressure, UAB suddenly decided that my actions--which were part of my job description--were non-work related activity. That led to me being fired--for doing my job.

Here's a curious thought: What if McCarthy and I had essentially swapped subject matter and blogging methods? What if I had blogged anonymously, making various crude statements about women, homosexuals, excretory functions etc.? What if McCarthy had, for some reason, decided to blog under his own name about the Don Siegelman case?

If I had chosen McCarthy's subject matter, I probably wouldn't have attracted anywhere near his audience. For one, I'm probably not as funny as he is. And two, I wouldn't have promoted my blog the way he evidently did. I probably wouldn't have attracted much attention and nobody would have figured out who I was.

If McCarthy had chosen my subject matter, it's safe to say his daily page views would have dropped dramatically. And no matter how well he might have written about the Siegelman case, and general Republican corruption in Alabama, he would have been doing it at a distance. He would not have been able to present the kind of first-person "citizen journalism" that I have presented. McCarthy would have been limited to sharing his opinions, which might have mildly ticked off a few GOPers in Alabama, but it's unlikely they would have gone after his job.

Makes me wish McCarthy and I had known each other when I started Legal Schnauzer in June 2007. He and I could have "switched hats," if you will. And the result? I would still be working at UAB, and he would still be working at Citigroup.

I agree with Beyerstein that, no matter how crude McCarthy's blog was, Citigroup made a bad decision.

But I have to give Citigroup credit for one thing. It seems the company has been fairly upfront about its actions. UAB, on the other hand, has been conducting a fairly elaborate coverup for quite some time. For example, UAB President Carol Garrison issued a public statement saying my termination had nothing to do with politics and was based solely on job performance. But Garrison's own grievance committee found that I shouldn't have been fired at all. And the following audiotape, featuring yours truly and UAB Employee Relations Director Anita Bonasera, begs to differ with the notion that politics and blogging were not involved in my case:

Blogging and Siegelman Audio