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Monday, August 31, 2009

Justice in the Siegelman Case Will Start in Montgomery, Alabama

What have we learned about Karl Rove's Congressional testimony from our back-and-forth with veteran broadcast journalist and fellow Alabama blogger Tim Lennox?

The big lesson, for me at least, is that justice in the Siegelman case probably will not come from Washington, D.C. It is more likely to come from Montgomery, Alabama, which is Lennox' home base.

I'm not sure if Lennox would agree, but for me, three notions have become clear:

* The Rove testimony, not under oath and not in public, wasn't designed to accomplish much. And in that sense, it was a "success";

* The truth in the Siegelman case will not come out without a serious bottom-to-top investigation, focusing on hard evidence (e-mail records, phone records, etc.), as opposed to broad questions that can easily be sidestepped;

* That investigation needs to start not at the top, with Rove, but farther down the food chain--with some prominent Montgomery folks, particularly U.S. attorney Leura Canary and her husband, Business Council of Alabama president William Canary. Rove's former Alabama point person, Kelley McCullough Robertson, is another key figure.

In his most recent contribution to our exchange, Lennox acknowledges that a strong argument can be made that the Don Siegelman/Richard Scrushy transaction did not constitute a crime and that prosecutors showed signs of wanting to somehow get Siegelman, at all costs.

To his credit, Lennox interjects some humor into the proceedings. I had noted that "living in Montgomery was enough to corrode anybody's brain a little bit." (I didn't exactly say that Lennox' brain had corroded.) Lennox responded by posting a photo of himself from his Birmingham radio days in 1977 aside one from his recent television days in Montgomery--presenting compelling evidence that he certainly looks smarter now than he did then. Touche.

Unfortunately, Lennox misstates my positions in a couple of instances. For one, he states:


I previously posted about Karl Rove's testimony, asking a question that neither fellow blogger Mr. Roger Shuler nor others seem to be willing to answer: what did they expect Rove to say under oath? Why were they even remotely surprised that he failed to "confess", and instead testified he didn't remember?

Actually, I wasn't surprised at all. As I stated in a post dated August 13:


The bottom line? The Rove/Mincberg deposition was not conclusive about much.

Did Mincberg nail Rove, with bombshell testimony or evidence that "Bush's Brain" clearly was behind the Siegelman prosecution? No, but I doubt that any rational human being thought that was going to happen on this go-around.

Then, Lennox takes me to task for pointing out that prosecutors filed their case against Siegelman and Scrushy well after the statute of limitations had expired. He offers me this advice:


But try for a minute to be dispassionate about it, to examine the facts. You include the "statute of limitations" in your list of argument in favor of Mr. Siegelman, saying prosecutors filed too late. If ever there was a "technicality" in the law, the statute of limitations is it. Should prosecutors be required to file on time? Of course. But it's a sign of desperation to spend much time making that argument when you are defending a man who is truly innocent.

First of all, the statute of limitations (SOL) in any case is hardly a "technicality." It is an absolute deadline that decides many cases, both civil and criminal--and prosecutors in the Siegelman/Scrushy case missed it by several months.

But aside from that, I went on to cite four other issues where both the trial and appellate courts erred in the Siegelman/Scrushy case. Had any one of these four points been decided correctly, the defendants--by law--would have been found not guilty.

I focused on the statute of limitations to show that the Siegelman/Scrushy case never should have gotten off the ground. The other four points show that they were, in fact, innocent.

Where do Lennox and I differ the most? I think he lacks a sense of urgency about this issue? His use of the word "dispassionate" is perhaps a clue.

For better or worse, I do have a sense of urgency--and I definitely am "passionate" about it. And as I've stated before, it goes way beyond the Siegelman case, the Paul Minor case in Mississippi, or even my own case.

I wish Lennox could talk to the numerous lawyers who have shaken their heads as they've told me the unlawful actions they've seen taken by judges in Shelby County, Alabama. I wish he could talk to the people who have told me about their horrific experiences in Jefferson County Domestic Relations Court. That court is so bad that I know of at least two instances where lawyers have filed federal lawsuits against judges. That's "man bites dog" stuff.

I've heard of people ruined financially and damaged emotionally, I've seen families torn apart, I've heard of children being placed in situations that put their welfare at great risk.

And that doesn't count people like Siegelman, Scrushy, and Minor, who have gone to prison for crimes they did not commit.

I'm guessing that Lennox, like me, is in his 50s. Perhaps he has been fortunate enough to have lived that long and not been cheated in court--or to have not seen hard evidence about others being treated unlawfully in court.

I have not been so fortunate. I have seen the ugliness firsthand, and that almost certainly is where my sense of urgency comes from.

When you pull back the curtain and look into the grotesque face of our justice system, I don't know how anyone could remain dispassionate about it.

Death on the Football Field: Case Raises Troubling Questions About Prosecutors

A football coach in Louisville, Kentucky, goes on trial today on criminal charges connected to the heat-related death of one of his players last August.

Coach David Jason Stinson is charged with reckless homicide and wanton endangerment in the death of Max Gilpin, 15, who collapsed while running sprints on a day when the heat index reached 94 degrees. Gilpin died three days later from complications of heat stroke, according to his death certificate.

The case ultimately might be more about the questionable actions of prosecutors than anything that happened on a football field. It is the first time a high school or college coach has faced criminal charges related to the death of a player, and legal experts say prosecutors face huge obstacles in trying to prove their case.

Gilpin's parents have filed a lawsuit, which is common in such cases. But charging a coach with a crime? That has never been done before, causing many experts to question the motives of Commonwealth Prosecutor R. David Stengel.

Prosecutors have looked shaky in recent days. First, they added the wanton endangerment charge late in the proceedings, creating the appearance that it is a fallback for a weak reckless-homicide case. Second, they were accused of concealing a meeting with an expert who determined that Gilpin's death was a "tragic accident," probably caused by his use of a prescription drug for attention-deficit hyperactivity disorder (ADHD). Third, prosecutors gave defense attorneys a coroner's report only last week; the report declared that Gilpin's death was an accident.

Criminal charges in the case looked questionable from the outset.

The reckless homicide statute from the Kentucky Code is short and to the point.

Even if the prosecution is successful at the trial level, our research indicates that reckless-homicide convictions often do not hold up on appeal. In a 2001 Kentucky case, a father was convicted of reckless homicide based partly on his failure to obey the state's seatbelt-restraint law in an accident that caused the death of his daughter. The conviction was overturned.

In a 2007 Kentucky case, a man was convicted of reckless homicide based partly on the fact that his vehicle had worn tires when he was involved in an accident that led to a death. That conviction was overturned.

State of mind is a critical component in this crime. The Kentucky statute states in pertinent part:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

The opinion in the 2007 case gives examples of behavior where a reckless homicide was held to be appropriate:

Published Kentucky cases relating to reckless homicide convictions have involved circumstances such as driving under the influence, Commonwealth v. Runion, 873 S.W.2d 583 (Ky.App. 1993), running a stop sign while driving at twice the speed limit, Commonwealth v. Harrell, 3 S.W.3d 349 (Ky. 1999), or causing a disabled woman’s death through neglectful care. West, 935 S.W.2d 315.

The Louisville Courier-Journal quotes one veteran attorney:

“The classic example of reckless homicide is firing a gun into a crowded building and killing somebody,” said defense lawyer Steve Romines of Louisville. “Having kids run wind sprints doesn't equate to that.”

The wanton endangerment charge looks flimsy, too. Reports the Courier-Journal:

It may be even harder for the prosecution to convict Stinson on the wanton endangerment count because it requires proof that he knew about the risks to Max's health and consciously disregarded them, said University of Kentucky professor Robert Lawson.

“They must prove he saw the risk . . . and said, ‘To hell with it, I'm going to do it anyway,'” said Lawson, the main author of Kentucky's laws on crime and punishment.

So what were prosecutors thinking when they brought criminal charges against the football coach? That is hard to figure. Stengel, a Democrat, has been in office since 1996 and ran unopposed in his last two elections, so it doesn't appear that he needed to bring the case for political reasons.

But winning the case figures to be an uphill climb, former federal prosecutor Kent Wicker said:

Even if prosecutors persuade the jury that Stinson made excessive demands on his players, Wicker said, “There is a difference between a football coach who was too tough on his players and a criminal—and I think jurors will see him as the former.”

Friday, August 28, 2009

Did Bob Riley Try to Corruptly Influence the Alabama Supreme Court?

Governor Bob Riley recently tried to interfere with the Alabama Supreme Court in a gambling-related case, according to a report in the Montgomery Independent.

The story might raise again questions about Riley's ties to Mississippi gaming interests and disgraced Republican lobbyist Jack Abramoff.

In a story published online yesterday, the Independent reports that Riley contacted one or more members of the Alabama Supreme Court in an effort to overturn a recent decision by Chief Justice Sue Bell Cobb in a case involving bingo at White Hall in Lowndes County. Reports the Independent:

The matter involved a judge assignment in a case brought by the governor and his task force on gambling against a bingo operation at White Hall in Lowndes County. The operation uses electronic machines for customers to play bingo permitted under a special constitutional amendment for White Hall.

Cobb, a Democrat who defeated Riley appointee Drayton Nabers in 2006, assigned the case to Jefferson County Circuit Judge Robert Vance, who already was hearing a similar case in Walker County. Vance, a Democrat, was appointed to his current position by former Alabama Governor Don Siegelman.
The Independent reports that Riley went "ballistic" upon learning of Cobb's decision and vowed to overturn it. He might have stepped over a number of ethical boundaries in his efforts, the Independent reports:

Last week this newspaper received information that on or about July 29, 2009, the governor, a party to the lawsuit, placed a telephone call to one or more of the justices, urging them to overrule Cobb and remove Vance from the case. The information we received was that the phone call was while the governor was in Washington and that one of the lawyers hired to advise his gambling task force, may have been with the governor at the time. A communication with a judge in a case by a party or a lawyer for one side without the lawyers representing other parties being present violates all kinds of judicial ethics rules and laws.

The Independent apparently smells a potentially explosive story:

We have not seen the governor's telephone logs, but we do know that the governor was in Washington on July 29 because of his Twitter messages. For example at 6:51 a.m. on July 29, he twitted the following message: "Headed to Washington to discuss Water Wars strategy with the congressional delegation."

Since neither the governor nor his office has returned our call, we do not know who, if anyone, was with him in Washington, but we will be watching for the next post of those traveling on state planes.

Several justices denied receiving such a call or refused to answer questions about it. They voted 9-0 to uphold Cobb's appointment of Vance. But the Independent is urging an investigation:

If there was any attempt to improperly influence the court, the vote demonstrates such was rejected by the justices and that is to their credit.

However, we believe this is not a trivial matter and urge the Judicial Inquiry Commission, Attorney General Troy King or Montgomery DA Ellen Brooks to obtain the phone records and determine whether or not the governor made these calls and, if so, were any laws or ethics rules violated?

This is not the first report about Riley's possible attempts to interfere with the justice system. Scott Horton, of Harper's, reported that Riley urged U.S. Attorney Leura Canary to bring a prosecution against insurance executive John Goff--after Goff had filed a lawsuit against Riley and several Republican operatives. Canary did, in fact, bring a case against Goff in a matter that already had been settled in an administrative-law court.

It raises anew questions about Riley's ties to the gaming industry in Mississippi and disgraced GOP lobbyist Jack Abramoff. It also is another example of Riley's stunning hypocrisy on gambling.

A U.S. Senate committee reported that Riley was elected governor in 2002 with the help of $13 million in Mississippi Choctaw funds, laundered through Abramoff. Throughout his term as governor, Riley has opposed gambling initiatives in Alabama, in an apparent effort to protect the interests of his Mississippi gaming supporters.

Have Riley's efforts to protect the Choctaws' business interests finally caused him to step in some serious ethical doo-doo?

The Montgomery Independent apparently intends to find out.

Thursday, August 27, 2009

Alabama Produces a New Kind of Bogus Prosecution

You have heard of political prosecutions, as practiced by the U.S. Department of Justice under George W. Bush. Now let us introduce you to a "financial prosecution."

That is the best term we can think of to describe what is happening to Edmond H. "Eddie" Smith IV, a well-known Mobile, Alabama, outdoorsman. Smith has been a federal prisoner for more than seven months, even though a handful of public documents show that he did not commit the crime with which he was charged.

Smith is at the heart of a story we have dubbed "a non-political version of the Don Siegelman case." And it is a cautionary tale--showing that Barack Obama might now be president, but Bush-like shenanigans still are taking place in the Justice Department.

Why do we call the Smith case a "financial prosecution"? Well, Smith appears to be a non-political sort. He is known for his hunting and fishing, a man more comfortable with guns and tackle boxes than campaigns and legislation.

So why did Smith become a target of a Bush-led Justice Department? Evidence suggests it's because he held control over an attractive piece of property in Mobile, one that has vast potential for commercial and/or residential development.

We've already seen how a lust for political power caused Don Siegelman to become a target of certain Alabama conservatives. It appears that good, old-fashioned greed prompted certain Alabama conservatives to target Eddie Smith.

Like a South Alabama fishing hole, the Eddie Smith story is murky. It raises many questions, with few clear-cut answers: What is this piece of property, and what makes it so alluring? How did Eddie Smith come to control the property? Who are the people who want to wrest it from Eddie Smith, and what was their plan for pulling it off? Will they get away with it?

We will address all of those questions in upcoming posts. First, let's establish this: Eddie Smith is a big man, a former University of Alabama football player with an outsized personality that has led him into some legal difficulties, of both a civil and criminal (misdemeanor) nature. But he is being held in the Mobile County Jail for a federal crime that he did not commit. And it's relatively easy to prove it.

We can explain it in a few steps:

(1) In late 2007 or early 2008, Smith was charged with unlawful possession of a pistol under Alabama state law. On February 13, 2008, Smith pleaded guilty to a violation of Code of Alabama 13A-11-72(b) and was sentenced to six months of imprisonment;

(2) Code of Alabama 13A-11-72 is a "hybrid statute," meaning it authorizes a range of punishment both below and above the dividing line that separates a misdemeanor from a felony. What is that dividing line? Code of Alabama 13A-1-2(9) defines a misdemeanor as "an offense for which a sentence to a term of imprisonment not in excess of one year may be imposed." Statutory law, case law (Newberry v. State, 493 So. 2d 995), and court records indicate that Smith pleaded guilty to a misdemeanor;

(3) On November 21, 2008, Mobile County Sheriff's deputies searched Smith's residence and seized 780 rounds of ammunition. Smith was charged with a violation of 18 U.S. Code 922(g)(1), which reads:

It shall be unlawful for any person--(1) who has been convicted in any court of a crime punishable by imprisonment for a term EXCEEDING one year . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.


(4) The federal law could not be more clear: It applies only to an individual who has been convicted of a felony--a crime punishable by imprisonment for a term exceeding one year.

(5) The federal indictment predicated the charge against Smith on his guilty plea in the state case on February 13, 2008. But that presented a slight problem for the feds: Smith had pleaded guilty to a misdemeanor. That meant the federal statute did not apply to him. That meant it was not unlawful for him to possess the ammunition that was seized from his home.

How did the federal government manage to bring a prosecution that is bogus on its face? How did the feds get a conviction in such a case?

The answer to the first question is simple: The Bush Justice Department brought the case.

The answer to the second question also is simple: The judge in the Smith case is a Bush appointee who has an awful lot in common with Mark Fuller, the judge who ramrodded the Don Siegelman case.

Much more on that in upcoming posts.

(To be continued)

Wednesday, August 26, 2009

What's Going On With UAB Layoffs in Communications Group?

My former employer, the University of Alabama at Birmingham (UAB), recently laid off seven employees in its communications group, formally known as Public Relations and Marketing.

That happens to be the area where I used to work. At the risk of sounding self-obsessed, I think these layoffs raise a question that is worth pondering: Are they connected to my unlawful termination?

To some, that might sound like a ridiculous question. But if you understand the nature of employment lawsuits--and if you grasp just how grossly UAB violated federal law in my case--you see that the question might not be so ridiculous after all.

This takes some "splainin," but I hope you will follow me for a Schnauzer "teachable moment" in employment law.

UAB Public Relations and Marketing includes five groups--Media Relations, Creative & Marketing, Web Communications, UAB Reporter (the faculty and staff newspaper), and Periodicals. I worked all of my 19 years under this umbrella, seven with the UAB Reporter and 12 with Periodicals.

Everyone in the department answers to associate vice president Dale Turnbough, who I fondly remember as the person who signed my termination letter.

Highly placed sources tell Legal Schnauzer that three of the folks laid off--Doug Gillett, Cindy Cardwell, and Claire Burgess--were from Periodicals. Claire was hired after my firing, so I never met her. But I worked closely with Doug and Cindy for five or six years and consider them to be wonderful people and coworkers. UAB's loss is definitely going to be someone else's gain when it comes to Doug and Cindy. This might not help in their job searches, but I would give both of them glowing recommendations if I had the opportunity--the Legal Schnauzer "seal of approval," if you will.

As for the others laid off, there were two each in Media Relations (Deb Lucas and an administrative assistant I didn't know) and two in Creative & Marketing (Martha Bruce and Mike Turner).

Now, let's analyze this situation: It's clear that UAB and all other state entities are struggling in the Bush recession. UAB announced in early June that it was eliminating 245 jobs in its Health System.

So a story about more layoffs at UAB might not seem like a shock. But the Birmingham Business Journal article about the communications layoffs does not mention lost jobs anywhere else on campus.

And let's consider the scope of these layoffs in Public Relations and Marketing. If my memory is correct, the group has about 50 to 60 employees. The recent layoffs represent a staff reduction of more than 10 percent.

I'm sure other UAB departments have tightened their belts in various ways. But 10-percent staff cuts around the campus? If that was going on, I think it would be reported in the mainstream press.

So why the big hit in Public Relations and Marketing? And why was Periodicals, my old group, hit particularly hard. When I was unlawfully terminated on May 18, 2008, the group had 11 employees. According to its current Web page, it has nine employees, but that hasn't been updated. After the layoffs, it's down to six.

That's almost a 50 percent staff reduction over a 15-month period of time. Heck, the place is falling apart without me!

Yes, the economy is rough, but I wonder how many other UAB offices of any size have seen that kind of staff reduction during the recession. My guess? Zero.

I worked at UAB for 19 years and never heard of a 50 percent staff reduction in an office that wasn't on its way to totally being phased out. (With the critical role Periodicals plays in fund-raising and alumni support, which becomes even more important in tough economic times, it's hard to believe the office is being phased out.)

At the time I was terminated, Periodicals appeared to be the primary moneymaker in the Public Relations and Marketing service center. (What's a service center? It's essentially a fee-for-service business within an institution, one that is governed by a web of federal regulations that I don't begin to understand. The UAB Print Plant and Bulk Mail are other examples of service centers, which are also called cost centers.)

So what's really going on?

Well, let's examine a post I wrote on July 8 titled "Deception and Discrimination Continue at UAB." It contained two passages that might be worth a second look. The first:

About three weeks ago, a federal jury in Birmingham found that UAB discriminated against a former medical resident from India, based on her Hindu religion. That is one of several cases involving alleged discrimination against international medical residents. And those could raise issues about federal funding at UAB, which generally is predicated on a commitment to nondiscriminatory practices. Much more on that in future posts.

OK, let's look at the second passage, which deals with my own case:

Age and gender discrimination, conspiracy, retaliation, wrongful termination, and defamation also appear to be present in my case, which currently is under investigation by the Equal Employment Opportunity Commission (EEOC). I intend to file a lawsuit against UAB (the University of Alabama Board of Trustees is the legal entity), along with a number of folks acting in their individual capacities, once that investigation is completed.

What happened two days after that post was published? The layoffs of seven people in Public Relations and Marketing came down.

Is that a coincidence? Maybe. Maybe not.

But let's consider those two passages again. The first refers to a discrimination lawsuit brought against UAB by Dr. Seema Gupta, a former medical resident from India. The case went to a jury verdict, and Dr. Gupta prevailed on her claim of discrimination based on her Hindu faith. UAB prevailed on two other key questions: (1) Did the university discriminate against Dr. Gupta based on national origin; and (2) Did the university's actions result in a "constructive discharge" of Dr. Gupta?

I was on hand for almost the entire Gupta trial, and we will go into much more detail about it in upcoming posts. The case speaks volumes about how UAB discriminates against its employees and students--and then shamefully tries to cover over the discrimination in court. While Seema Gupta proved that UAB discriminated against her on one ground, the case as a whole was a gross miscarriage of justice--and we will be showing exactly why we came to that conclusion.

For now, let's move on to our second key passage. It simply raises the issues that are present in my legal case against UAB (along with First Amendment violations). None of it should be a surprise to anyone at the university. Heck, their own grievance committee found I should not have been terminated, so we're not dealing with state secrets here.

But here's my point: Did that July 8 post, or perhaps something else in that general time frame, cause someone at UAB to slap his or her forehead and say, "Holy crap, we're going to have to figure out a defense in this Shuler case, and we don't have one."

What do unethical people, like some of the ones currently running UAB, do in such a situation? They create a defense after the fact--ex post facto, if you will.

I can hear some of you now: "Schnauzer, surely UAB wouldn't pull such a disgusting stunt." Oh yes, they would. (And don't call me Shirley--an inside joke for you fans of Airplane!)

How do I know? I saw them try it in the Gupta case, another instance where UAB really did not have a defense.

How could this happen? Remember this critical word regarding employment-discrimination lawsuits: comparators. That refers to people who are comparably situated, but were treated in a more favorable way than the complainant.

To put it in non-legal terms, let's consider this story that is told by a Birmingham employment lawyer: A woman came to him with a potential case. "The problem is my boss," she said. "He treats me terribly."

"How does he treat the other employees?" the lawyer asked.

"Oh, he treats all of us terribly."

The lawyer had to suppress a laugh. "Ma'am, your problem is that you work for a jerk. But you don't have a discrimination case."

In so many words, one defense to a discrimination case is to say, "Hey, we didn't discriminate against Joe. We treat everybody like crap--regardless of race, gender, age, or what have you."

It sounds absurd, but such a defense might actually gain some traction in court. Could UAB be trying to fashion such a defense, way after the fact, in my case?

Consider the recent layoffs: It included men and women, covering the gender base; it included people over 40 and under 40, covering the age base; it covered my old group, Periodicals, but also included folks from the other groups, making it look like an across-the-board "lay off."

And get this: By nailing Doug Gillett, they got rid of the most obvious comparator on my age and First Amendment claim. As I've reported before, Doug had actually blogged and conducted political activities at work, a clear violation of university policy and probably state law. He was about 25 at the time, and received only a warning--which I fully supported; Doug's a great guy who didn't mean any harm, and I was pleased that he was not fired.

I, on the other hand, did not blog at work, according to UAB's own witness at my grievance hearing--and did not violate any policy. But I was 51 at the time, and I got canned.

So try to wrap your mind around this question: Did UAB recently cheat seven people out of their jobs in an effort to cover its ass for the unlawful behavior in my case?

"Ridiculous," you might say. I would tend to agree, in theory. Such a scheme should have no impact on my case. For one, I imagine case law frowns on after- the-fact efforts to paper over discrimination. Two, I was terminated, as opposed to a layoff for budgetary reasons, so there is no comparison between the two outcomes--no matter how UAB might try to spin it. I doubt that a layoff even is considered an "adverse job action" under the law; a termination most certainly is.

But in the real world, I've seen UAB take desperate and absurd steps when it has no defense in a discrimination case. In the Seema Gupta case, I saw an attempted cover up that would have made Richard Nixon proud.

If the EEOC manages to complete its investigation of my case in this lifetime, and I am able to proceed with a lawsuit, it will be interesting to see if UAB tries to use these layoffs as some kind of warped defense for its discriminatory actions against me. If it does, that would indicate that these weren't truly "layoffs" at all; they were simply an ugly and despicable legal ploy.

At one time, I would have said that UAB wouldn't be capable of firing seven people just to cover its own ass. But with the current administration . . . I wouldn't put much of anything past them.

It Isn't Really About Don Siegelman

Karl Rove's Congressional testimony is receiving prominent display in the news, so perhaps it's a good time to put the larger Department of Justice story in perspective.

Thanks to Rove's history in the state, and the prosecution of former Governor Don Siegelman, the alleged use of the DOJ for political purposes has deep roots in Alabama. But even here, the public does not seem to grasp the seriousness of the issues involved. Even respected Alabama journalists (yes, there are a few) don't seem to fully "get" the story.

Consider my recent back and forth with Tim Lennox, a fellow Alabama blogger and veteran broadcast journalist. I started things by taking Lennox to task for writing that Rove had denied involvement in the Siegelman case, when Rove in fact did no such thing. Lennox countered with a post that hinted that blinders prevent some folks from seeing the Rove/Siegelman story clearly. I think he meant to include me among the blinders-wearing crowd.

Lennox has been around Alabama journalism for many years. I was a regular listener to his radio show in Birmingham. And I watched his Alabama Public Television program pretty regularly. I think he's a fair and capable guy.

But here is where he and I differ. Lennox has referred a few times in recent posts to "Siegelman supporters." Those apparently are the folks he considers to be wearing blinders--and he seems to put me in that crowd.

Don Siegelman has been in Alabama politics a long time, and I'm sure he has many backers--people who know and like him personally, have campaigned for him, supported him financially, etc. I'm not in that crowd, and I know a number of people who aren't in that crowd--but still think the Bush Justice Department emitted numerous noxious odors and should be examined closely.

Certain Alabama press outlets have created this notion that there is a "cult of personality" surrounding Siegelman, that his dynamic persona causes supporters to overlook his criminal wrongdoing. Lennox seems to buy into this, to some extent.

But Siegelman himself has said, correctly, that the story is not just about him or his case. The Web-based journalists who have done the heavy lifting on this story--Scott Horton, Larisa Alexandrovna, Glynn Wilson, and yours truly--are not "Siegelman supporters." The key whistleblower in the case, Alabama attorney Jill Simpson, wasn't even a member of Siegelman's party.

All of these folks, I feel certain, know the story isn't about Siegelman--or Rove, for that matter. It's about the rule of law. It's about big ideas, summarized in the 14th Amendment of the U.S. Constitution, such as "equal protection" and "due process." Do those ideas still matter, will they still be enforced?

Tim Lennox is a sharp guy, and I think, in time, he will grasp that the "Siegelman case" really isn't about Siegelman at all. Lennox, I'm guessing, has spent the past several years living in Montgomery, and that's enough to corrode anybody's brain a little bit.

I'm certainly no smarter than Tim Lennox, but I've had a personal experience that helps me understand what the Siegelman case really is about. I know what it's like to walk into a courtroom and, after later studying the relevant law, realize the judge had cheated me repeatedly. In fact, I would love to sit down with Lennox sometime and show him exactly what happened in my case. Perhaps that would help him understand how a corrupt justice system threatens our democracy.

And that's really the issue here. If you study the facts and the law involved, you see that Don Siegelman and Richard Scrushy did not commit a crime. That goes also for the Paul Minor case in Mississippi. And yet, four men sit in prison from those two cases, and a fifth (Siegelman) might be heading back to prison.

Did Karl Rove play a role in those cases? That remains unclear. But this much is crystal clear: The judges and the prosecutors in both cases acted corruptly. And that, aside from any role Rove might have played, needs to be investigated.

In the Siegelman case, the alleged criminal activity clearly took place outside the five-year statute of limitations. The judge and prosecutors had to know that, but they barged ahead anyway. The alleged actions of Siegelman and Scrushy do not constitute a crime. But based simply on the statute of limitations, the case should have never gotten off the ground.

In the Minor case, the underlying rulings by two state judges were decided correctly under the law, so there could not possibly be a bribe or fraud. But the judge gave unlawful jury instructions--the same thing happened in the Siegelman case--resulting in convictions.

I've had two brief phone conversations with Don Siegelman. And I've never communicated with Paul Minor at all. I don't think that qualifies me as a "supporter" of either gentleman.

So why have I written several hundred posts about their two cases? I know what it's like to be cheated in court. And after studying the facts and relevant law in their cases, I know that Don Siegelman, Paul Minor, and their codefendants were cheated in court.

When people are cheated in court, that means our constitution has been trampled. Judges and prosecutors have a sworn duty to uphold and apply the law correctly--to ensure that "equal protection" and "due process" apply in reality, not just in theory.

That's why the actions of the Bush Justice Department must be investigated--and any wrongdoers must be punished.

That's what this story is really about. And it's way bigger than Don Siegelman--or Karl Rove.

Tuesday, August 25, 2009

Attack of Killer Dogs Comes Down to Human Negligence

As the title of our blog suggests, we are big dog lovers. We also are great admirers of people who care for dogs--and other pets--in loving and responsible ways.

That's what makes a recent story here in the Deep South doubly heartbreaking.

Sherry and Lothar Schweder, an older couple who lived near Athens, Georgia, were killed by a pack of wild dogs. The story is tragic on multiple fronts. In addition to what must have been a horrific death for the Schweders, all 16 dogs in the pack were euthanized.

The story also is filled with irony. The Schweders clearly were animal lovers; They had 27 pets--seven dogs and 20 cats.

In fact, they apparently chose to live in a rural area so they could have plenty of room for their animals. Authorities in Oglethorpe County, Georgia, are evaluating the Schweders' pets for adoption.

Authorities believe Sherry Schweder, 65, was walking along a country road near her home, in search of one of the couple's missing dogs, when she was attacked by the pack. Lothar Schweder, 77, got in his car and went looking for his wife when she did not return home. He saw her body near the side of the road, and when he got out of the car to investigate, the dog pack attacked him, too.

Here is an Associated Press video report.

The Schweders sound like they were a delightful couple, the kind of folks I wish I had for neighbors--although 27 pets would be a bit over the limit allowed in our subdivision. She had worked at the University of Georgia library for more than 30 years. He was born in Germany, worked in corrections in Kansas, and taught German at the University of Georgia before retiring.

Who is to blame for this tragedy? Well, that's not easy to figure out. The dog pack apparently regularly convened at the home of an elderly man who lived not far from the Schweders. But it looks like the dogs did not actually belong to him.

It appears the man noticed the dogs near his property at some point and started feeding them. He moved recently because of an illness but would return every other day to feed the dogs. Authorities have determined that no criminal charges will be brought against the man.

What can explain the brutal attack? An Associated Press report provides some insight:

Dogs are so much a part of American life—valued members of or even substitutes for human families—that it can be easy to forget they are still animals with teeth and the ability to use them if instinct demands it.

Add the lack of an owner and steady meals, and dogs can quickly begin to resemble their wolf ancestors, teaming up in packs for hunting and protection. They may look like pets, but behave like predators.

Our view is that, somewhere along the line, a human's negligence led to these deaths. Someone failed to have their dog or dogs fixed. Someone allowed their dog or dogs to roam. Before long, you had a pack, filled with domesticated dogs that had become dangerously feral.

Here in Alabama, I've heard stories about hunters who, when they have a dog that is ineffective in the field, will let it go to fend for itself. The dogs in the Georgia case did not look like hunting dogs, so I don't think that was a factor there. But it shows how irresponsible some people can be with "man's best friend."

I've heard it said that humans chose to domesticate dogs and cats, so we owe it to them to provide responsible care. Someone failed to live up to that responsibility in Georgia--with tragic consequences.

Bob Barker, of The Price is Right Fame (and a proud product of Springfield, Missouri), is an eloquent spokesman for animal rights and responsible pet ownership. I believe he has been quoted as saying that one of his goals is to be able, at his own funeral, to rise up from the casket and say, one last time, "Spay and neuter your pets!"

If Barker pulls that off, I hope I'm there to see it. Hopefully such a dramatic event would help spread the word--to rural Georgia and beyond.

The Schweders almost certainly would approve. Their funeral was yesterday in Athens, Georgia, and here is a line from their obituaries:

In lieu of flowers, the family requests that donations be made to Madison/Oglethorpe Animal Shelter or Athens Area Humane Society.

How Much Money Is Being Wasted on the Siegelman Case?

Former Alabama Governor Don Siegelman and codefendant Richard Scrushy recently filed appeals of their criminal convictions with the U.S. Supreme Court.

Our initial reaction? How much money is going to be wasted on a case that should have been kicked out of court before the first witness ever took the stand?

We showed in a recent series of posts that the district court in Montgomery, Alabama, and the U.S. 11th Circuit Court of Appeals in Atlanta, cheated Siegelman and Scrushy on at least five major grounds.

Here is a shocking point to consider: It is undisputed that the alleged criminal transaction between Siegelman and Scrushy took place outside the five-year statute of limitations. Had the prosecution been forced to present an indictment with specifics regarding the time frame, the case would have been over before it started. But trial judge Mark Fuller allowed prosecutors to get by with a vague indictment. And the 11th Circuit refused to correct the error, even though the defense raised the issue in a proper manner for a case involving an unclear indictment.

A case that never should have gotten off the ground is going all the way to the U.S. Supreme Court? That speaks volumes about the waste and corruption in our broken justice system.

Siegelman and Scrushy undoubtedly have taken huge financial hits from having to defend the case. And one can only guess at how much money the government has spent, when its prosecutors had to know that they never had a case to begin with.

Defense attorneys contend in court documents that the Supreme Court should hear the case in order to clarify what evidence is needed to prove a federal bribery case.

Actually, the evidence needed already is clear. The law requires an "explicit quid pro quo," a something-for-something deal. But the trial court in the Siegelman/Scrushy case did not require that in the jury instructions, and the 11th Circuit refused to correct the mistake.

The Siegelman/Scrushy case has no business going before the nation's highest court. The U.S. Department of Justice should request that the case against Siegelman/Scrushy be dismissed, as it did in the case of former U.S. Senator Ted Stevens (R-AK). The DOJ then should conduct a criminal investigation of Judge Mark Fuller, the 11th Circuit's three-judge panel, the federal prosecutors who brought the case--and any political figures who might have instigated it.

They are the ones responsible for a massive waste of private and public resources.

Monday, August 24, 2009

A Curious Federal Case Is Brewing in Mobile

We recently reported that threats against judges and prosecutors are on the rise. And now we have a report that a prisoner in Mobile, Alabama, has been charged with attempting to arrange a hit on a federal judge and prosecutor.

The prisoner is Edmond H. "Eddie" Smith IV, a well-known outdoorsman in south Alabama. Smith is a colorful, larger-than-life character who has received extensive coverage in the Mobile Press-Register over the past two years.

But the Mobile newspaper has largely neglected to report on key aspects of the Smith case, ones that indicate he almost certainly did not try to arrange a hit on anyone--and he should not be in prison at all.

We've been following the Smith case here at Legal Schnauzer since early June. And the more we learn about it, the more it smells like a non-political version of the Don Siegelman story.

What really is going on with the Eddie Smith case? Why has he been held in the Mobile County Jail for more than seven months, awaiting sentencing on a federal ammunition crime that court records indicate he did not commit?

We will be examining those questions in a series of upcoming posts.

For now, we know that Smith is accused of trying to arrange hits on U.S. District Judge William Steele and Assistant U.S. Attorney Greg Bordenkircher. If convicted of solicitation of murder, Smith could be sentenced to as many as 20 years in prison. Smith pled not guilty to the charges on August 7.

The federal indictment alleges that Smith tried to hire a fellow inmate named Paul J. Albert and a person identified only as "E" to murder Steele and Bordenkircher. Albert has been convicted on counterfeiting charges, and his attorney indicates in a published report that he could receive a lighter sentence in exchange for his testimony against Smith.

The government's case appears to be built on the word of Paul J. Albert, who is virtually blind and deaf according to one source, and another person who does not even have a name at this point. Sounds like pretty shaky footing for a federal prosecution.

Sentencing on Smith's federal ammunition conviction--the reason he is in the Mobile County Jail in the first place--has been set for Thursday (August 27). Steele presided over that trial, and Bordenkircher was the prosecutor.

Eddie Smith might seem like an odd individual to compare to Don Siegelman. To our knowledge, Smith has no strong political affiliation. He is a hunter, gun enthusiast, and fisherman, which indicates he might lean toward the conservative side. Smith has had a number of civil and criminal legal entanglements in recent years, and to a progressive audience, he might not seem like a sympathetic figure.

But public documents indicate Smith was wrongly convicted in a federal prosecution brought by the Bush Justice Department, in a case overseen by a judge who was a George W. Bush appointee. For good measure, the judge has ties to federal appellate judge and former Alabama attorney general William Pryor.

Even the journalist who is credited with launching the Siegelman investigation has played a central role in the Eddie Smith story.

Does this all sound familiar? If you follow Legal Schnauzer, it should?

My own experience shows that you don't have to be a governor, a high-profile attorney, a famed forensic pathologist, or a "pro-consumer" judge to be targeted in the Age of Rove. And you don't have to be a Democrat. Just ask the nine Republican U.S. attorneys who were fired by the Bushies.

But why would the Bush crowd go after Eddie Smith?

That's a question we will examine closely in the days and weeks ahead.

(To be continued)

How Ill Informed Are the Rowdy Town Hallers?

Do the folks who've created much sound and fury at town-hall meetings in recent weeks have a clue what they are talking about on health-care reform?Apparently not.

Consider the fellow who popped off at a town-hall meeting hosted by U.S. Sen. Ben Cardin (D-MD). The questioner was opposed to health-care reform because of a possible public option. With all of the fraud we have now in Medicare, he said, how much fraud would we have with a larger public program?

The questioner seemed to be a supporter of private insurance. But it apparently never occurred to him that a large portion of Medicare fraud is committed by private businesses, including insurance companies.

First of all, the Obama administration has started a major crackdown on Medicare fraud as part of its plans to reform health care. And much of that fraud is driven by the private sector. Consider this report from the Miami Herald:

On Friday, FBI agents arrested eight Miami-Dade residents on charges of bilking Medicare for $22 million by charging for nurses to treat mostly homebound diabetic patients--many of whom didn't have the disease or didn't receive the services.

FBI and HHS agents raided the suspects' two Miami-Dade businesses, ABC Home Health Care and Florida Home Health Care Providers, while prosecutors froze their bank accounts.

The prosecutions follow Medicare's suspension of billing privileges for 10 Miami-Dade home healthcare agencies that charged more than $100 million for suspicious services to treat homebound diabetic patients -- including false claims for nurses injecting their insulin shots twice a day.

Now consider the record of private insurers when it comes to Medicare fraud. Two employees at a Blue Cross/Blue Shield subsidiary in South Carolina recently received prison sentences for their roles in a fraud scheme.

The Blue Cross Blue Shield Association (BCBSA) has a long history of fighting health-care reform--and its affiliates have a long history of health-care fraud.

Consider this 1999 Government Accounting Office (GAO) report titled "Improprieties by Contractors Compromised Medicare Program Integrity." And who are those Medicare contractors? BCBSA affiliates, including Blue Cross and Blue Shield of Alabama, are among them.

What did the report find? Here is part of the summary:

Since 1993, criminal and/or civil actions have been taken against at least six Medicare contractors resulting from their performance under Medicare contracts. The alleged contractor activities addressed in those actions occurred during the calendar years 1984 through 1997. With respect to three of the six contractors--BCBS of Illinois, Blue Shield of California, and Pennsylvania Blue Shield--the contractors and/or some of their employees pled guilty to various criminal charges and agreed to pay criminal fines and/or civil penalties. Investigations of the three other contractors--BCBS of Massachusetts, BCBS of Michigan, and BCBS of Florida--resulted in civil settlements only. A total of over $261 million was assessed in criminal and civil penalties against these six contractors.

What kind of shenanigans were the "Blues" up to? The report gives examples:

1. improperly screened, processed, and paid claims, resulting in additional costs to the Medicare program;

2. improperly destroyed or deleted claims;

3. failed to recoup overpayments to Medicare providers within the prescribed time and to collect required interest payments;

4. falsified documentation and reports to HCFA (now Medicare and Medicaid Services) regarding their performance; and

5. altered or hid files that involved claims that had been incorrectly processed or paid.

What kind of culture has existed at the "Blues"? Again, from the summary:

The persons to whom we spoke also told us that these deceptions and improprieties became a way of doing business and continued for sustained periods without detection because HCFA, in its review of Medicare contractors, relied on information provided by contractors without independent verification. HCFA also gave contractors advance notice of the files that it intended to review, thereby allowing contractors ample time to "correct," delete, or hide claim-related documents or redo provider audits and related workpapers prior to HCFA's review. This system also resulted in contractors deviating from their normal operating procedures during HCFA evaluations in order to deceive HCFA about their accuracy and efficiency in claims processing and customer service. As a result, criminal and other improper activities were uncovered only after whistleblowers, or relators, filed qui tam complaints under the False Claims Act.

Blue Cross and Blue Shield of Alabama apparently has joined in the questionable activities. A former auditor named Frank E. Body alleged that the company had reimbursed Alabama hospitals for interest costs that were not authorized by Medicare regulations. The U.S. 11th Circuit Court of Appeals ruled that Body's whistleblower complaint must be dismissed on complex immunity grounds. But his complaint provides insight into the culture of Alabama's powerful "Blue."

Here is the gist of Body's allegations:

In August 1993, prior to the issuance of the OIG's final report, Body instituted this lawsuit for the United States as a qui tam relator under the False Claims Act. Body alleges that BCBSA has been reimbursing Alabama hospitals, in particular Baptist and Carrawatm for interest costs that are not chargeable to Medicare.

By the way, our research indicates that the 11th Circuit's interpretation of immunity issues in the Body case has not been adopted by any other circuit. And the opinion was authored by Gerald Bard Tjoflat, a Republican appointee who was on the three-judge panel that butchered the Don Siegelman appeal. In other words, it appears BSBSA drew favorable judges and got off easy in the Body case.

The GAO report and the Body complaint date back 10 to 20 years. But the recent case in South Carolina indicate that the "Blues" still have significant problems with fraud.

Here's something the town hallers don't care to recognize: History tells us that private insurers are not necessarily part of the solution; they are part of the problem. And if you really want to solve Medicare fraud, you had better not rely on private insurers to do it. In many cases, they are the ones committing the fraud.

Friday, August 21, 2009

Jill Simpson Fires Back at Rove and The Wall Street Journal

Former Bush White House adviser Karl Rove threw a number of low blows in his op-ed piece yesterday in the Wall Street Journal.

Several of them were aimed at Alabama attorney and Don Siegelman-case whistleblower Jill Simpson. Rove calls Simpson an "eccentric Alabama lawyer," says Congressional staff members consider her "an unreliable witness," and says Simpson refused to cooperate with a Department of Justice inquiry into the Siegelman allegations.

Simpson showed a long time ago that she is willing to go toe-to-toe with Rove. And she fires back, in serious fashion, at both "Bush's Brain" and the WSJ. In a letter to Publisher Rupert Murdoch and the editors of The Wall Street Journal, Simpson writes:

It is clearly evident that Karl Rove completely distorted the truth in his article, and you printed it. I just want to thank you for showing that he is so delusional that he cannot even control himself from printing lies in the press. Clearly today, your paper has shown that he is a nut job, and although he may have called me a lunatic and eccentric at times, we now have hard evidence that he is a bold-faced liar. His lies can clearly be confirmed as lies.

And that's just a nugget from Simpson. Here is her complete letter:

Dear Mr. Murdoch and all the editors at the Wall Street Journal

My Response to the article "Closing in on Rove"

I want to thank you from the very bottom of my heart for running Karl Rove's delusional article, "Closing in on Rove," on August 20, 2009. The reason I want to thank you is that Mr. Rove has clearly lied about me in this article. You have captured and printed it without even checking to see if it is so or not. The lie he has told is and I quote, "Judiciary Democrats didn't get testimony from either Mr. Siegelman or Dana Jill Simpson, the eccentric Alabama lawyer, who drew attention by publicly supporting the allegations." In case you are unaware, I testified on September 14, 2007, before the House Judiciary Committee lawyers that were selected to question me. I most definitely gave sworn testimony to the House Judiciary Democrats. In fact, I gave over one hundred and forty three pages of testimony before the Judiciary Democratic and Republican lawyers. It is unfortunate that your paper does not give a rip about the truth or you would have checked out the bold-faced lie that Karl Rove put in his article before you printed it.

Further, I find it extremely tacky that you allow him to call me an eccentric Alabama lawyer. I ask, did you check with anyone other than Karl Rove, who clearly hates me for telling on him? Karl also states in his article, "I also understand that Mr. Siegelman and Ms. Simpson refused to cooperate with the Justice Department’s review of his claim of political persecution, while I willingly gave sworn testimony." It was announced on May 15, 2009, that Mr. Rove was subpoenaed to testify by Nora Dannehy of the DOJ about the firing of the nine U.S. attorneys in a criminal matter. I would hardly call that willingly giving sworn testimony. Further, he pointedly refused to agree to give sworn testimony to the House Judiciary Committee this summer and did not take a sworn oath before chatting with the House Judiciary lawyers that questioned him. I might add that I gladly and freely gave sworn testimony. Mr. Rove, however, has willfully misled the public in this article into thinking that I have refused to give sworn testimony to the DOJ in the case in which he was subpoenaed to testify. I have never been subpoenaed or contacted by Nora Dannehy to testify in the investigation she is conducting on Karl Rove. I believe the reason for this is the fact that she is appointed the special prosecutor solely for the nine fired United States attorneys. Anyone who has read the transcript of my testimony before the House Judiciary lawyers, my affidavit, and watched the 60 Minutes piece would know I have never made a direct claim of having any personal knowledge about the fired United States attorneys. What I believe Mr. Rove is trying to do here is to confuse the public.

I would additionally like to state that I have had very limited contact with the Department of Justice since testifying before the House Judiciary lawyers. One contact is from Lisa Howard. She contacted my attorney in the fall of 2008 and contended that she was working at the DOJ for the Office of Professional Responsibility and asked about me possibly testifying and asked for my address. My attorney communicated to her that I had already told my story in an affidavit and given four hours of testimony under oath before the House Judiciary Committee and that both of these documents were readily available and represented all I knew about the prosecution of Don Siegelman. Ms. Howard did not ask for a copy of these documents nor has she every subpoenaed me or asked to interview me, and been refused, to the best of my knowledge.

In December of 2008, I was contacted by an individual I knew and her attorney about the OPR conducting an investigation on me and asking questions about my sex life and the adoption of my four-year-old daughter. I contacted the man they identified as working for the DOJ's OPR, Jim Sullivan, who happens to work for Alice Martin. I asked him if I was the target of an investigation since he had conversations with the woman who contacted me about whether I had bought a baby for $300,000 after his asking her about it. He would not confirm or deny if I was a target to investigation on the ridiculous claim that I had bought a baby for $300,000, which was untrue, but he admitted asking the questions the woman said he had asked her. Within a week or two, the woman contacted me again and said that a Mr. Causey, A Washington OPR attorney, had contacted her. I had my attorney write the DOJ's OPR office and Ms. Howard about this matter to ask if this was the way they conduct investigations at the OPR. Further, it seemed quite odd at the time considering I do not work for the DOJ, and I could not fathom the connection of my sex life and adoption of my four-year-old daughter having anything to do with the investigation of Leura Canary and Alice Martin. An OPR attorney, Judith Wish, contacted my attorney and asked her to provide the name of the individuals that their employees had contacted. They did ask me what their investigators learned and whom they had spoken with. We communicated back that they should ask them because Mr. Sullivan had already admitted to me that he had done it and could not tell me why. I had no desire to put into writing their ridiculous claims. Those are the only two contacts I have had with the DOJ. Neither involved me refusing to testify from being subpoenaed or interviewed on whether Mr. Siegelman had been persecuted or not, as Karl Rove so claimed in the news article. I did, however, refuse to give them the names of the people they had contacted but gave them their employee’s names as they knew very well who they had contacted.

It has long been my belief that Karl Rove put the OPR up to asking these questions, and I am still to this date waiting for an apology from the OPR and have never heard anything else from the DOJ since they got caught snooping around in my personal life. It is completely ridiculous for Rove to claim I refused to cooperate with them when I am still waiting for them to let me know why they were snooping in my personal life (for information) that had nothing to do with their investigations of Leura Canary and Alice Martin. Plus, the allegations were ridiculous, as I had not "bought" my daughter. I would have thought they could have gotten to the bottom of this very quickly. Never during any of that awful deal with DOJ did they ask me to testify and give a sworn statement. Further, how my sex life was involved in their investigation is beyond me, but they had questions about it. I suspect this was done in an attempt to embarrass me. I suspect Karl Rove was behind those attempts to discredit me and again the stuff was just so ridiculous. Apparently that matter is lost as well at the DOJ, as we never heard back from Ms. Judith Wish after she contacted Mr. Sullivan and Mr. Causey.

After reading Mr. Rove's article today, it is unclear, but I believe he may be claiming he made a sworn statement to OPR. I shall be writing to see if this is about my sex life and adoption. I would love to know if he is the one behind those ridiculous tales.

Mr. Rove also stated in the article that committee staff considered me an unreliable witness, but he fails to identify any of those unnamed individuals. What I find most interesting is he fails to mention the report that found my evidence was credible enough to call him as a witness. He is truly a sad, pathetic individual trying to cover his behind from criminal prosecution.

It is clearly evident that Karl Rove completely distorted the truth in his article, and you printed it. I just want to thank you for showing that he is so delusional that he cannot even control himself from printing lies in the press. Clearly today, your paper has shown that he is a nut job, and although he may have called me a lunatic and eccentric at times, we now have hard evidence that he is a bold-faced liar. His lies can clearly be confirmed as lies.

Thank you, Mr. Murdoch, for printing his lies. Hopefully the American public will wake up and realize that Karl Rove is a liar. For too long he has been allowed to politically bully people and lie in the press. Today I socked him in the nose with the truth. As for his lies, please let him know lies do not hurt anyone except the person who tells them.

I am happy today to call Mr. Rove a liar, and you have provided the cold hard proof. You, Mr. Murdoch, gave me that opportunity. I am thankful that you run a paper that apparently does not check for the truth.

Sincerely,

DANA JILL SIMPSON

Karl Rove Launches a Slimy Spin Campaign

Karl Rove never has been one to let the law stand in the way of his political ambitions. Now we discover that Rove won't let the facts stand in the way of his political spin.

The Wall Street Journal and The Birmingham News on Thursday both ran op-ed pieces that essentially said Rove had proven himself clean in the U.S. attorney firings and the political prosecution of former Alabama Governor Don Siegelman.

The WSJ piece was written by Rove, and The Birmingham News piece might as well have been. It raises pretty much the same points, and repeats the same lies, as the Rove-written piece.

Is it coincidence that two of the most right-wing editorial pages in the country ran pro-Rove op-ed pieces on the same day? I doubt it. It appears to be part of an orchestrated spin campaign--one that clearly is detached from reality.

Rove's WSJ piece borders on the delusional. Rove says his Congressional testimony showed he had little to do with the U.S. attorney firings; in fact, it showed he was right in the middle of them. Rove says he willingly gave sworn testimony; in fact, he had to be forced into giving testimony that was not under oath and was not in public; Rove says Alabama attorney and Siegelman-case whistleblower Jill Simpson did not testify before the House Judiciary Committee; in fact, she did just that in fall 2007.

Does anyone edit the slop that goes on the WSJ's editorial page?

David Fiderer provides an excellent summation of Rove's scribblings at Huffington Post:

Karl Rove can't help himself. The more he talks the more he suggests that he's guilty as sin. His throw-crap-against-the-wall-and-hope-it-sticks piece in The Wall Street Journal constitutes his latest non-denial about corrupt dealings with the Justice Department.

Fiderer then expertly exposes Rove's lies in the WSJ piece:


Rove's lies could not be more blatant. Simpson gave sworn testimony for the House Judiciary Committee, with questioning by Democratic staffers, on September 14, 2007. Gov. Siegelman was never called to testify by any agency or committee. Rove never testified for a Justice Department review of the Siegelman case. In fact, there's no indication that the Justice Department has considered the prima facie evidence of lying, concealment of evidence and witness intimidation by federal prosecutors.

Larisa Alexandrovna reports at Raw Story that Rove's piece indicates he might have improperly received inside information from the Department of Justice:


Rove’s remarkable admission that he “understand[s] that Mr. Siegelman and Ms. Simpson refused to cooperate with the Justice Department’s review of his claim of political persecution, while I willingly gave sworn testimony,” opens both Rove himself and and the OPR to questions of serious impropriety.

Pricilla Duncan, Simpson’s former attorney, said during a Thursday morning phone interview that she was concerned and wanted to know “how Rove could possibly know who the [Department of Justice] was interviewing and which witnesses were cooperating or not?”

U.S. Rep. John Conyers (D-MI), chair of the House Judiciary Committee, says the Rove op-ed raises serious questions about the ethics of The Wall Street Journal:


When Rupert Murdoch acquired the Journal, substantial concerns were raised about the number of media properties he owned and the right wing bias of his news ventures. Many questioned whether the Wall Street Journal would become just another New York Post or, worse, Fox News.

While the Journal’s editorial page had been conservative for some time, the news division had been largely balanced and thorough. (Indeed, the reporter’s online piece is balanced and thorough.) Many wondered whether Murdoch would put his right wing slant on the news pages as well.

The Journal’s handling of this chapter of the USA scandal seems to bring that question to a head—is it a sign that the editorial staff of the Journal’s news division—or at least its editing—has taken on Murdoch’s right-wing bias?

As for The Birmingham News, there never has been much doubt about its status as a right-wing mouthpiece. And that is only confirmed with its most recent editorial about Rove and the Siegelman prosecution.

The paper states, in essence, that Rove raised his right hand and testified under oath, so Siegelman should do the same thing. Never mind that Rove did not testify under oath, and Siegelman never has been called by Congress to testify at all. Just consider the News' statement that Siegelman should testify about something . . . anything:

We're not talking about requiring him to testify about the criminal charges against him; that would be unconstitutional, and wrong. We're talking about him giving sworn testimony about the political conspiracy he alleges is behind his conviction.
How nonsensical is this? Siegelman alleges that he was the VICTIM of a political conspiracy. The whole point of a conspiracy is to keep the victim in the dark about what is happening. So what is Siegelman supposed to know and say about actions that were hidden from him?

Thursday's writings reveal Rove and his Birmingham compatriots to be borderline unbalanced. Is this how people express themselves when they are feeling significant heat?

If so, perhaps these op-ed pieces are a good sign.

Bits and Pieces From the Alabama Legal Front

Feds Are Going After Sue Schmitz' Property
Federal prosecutors are trying to seize former Alabama Rep. Sue Schmitz' home in Toney, Alabama, and a house she owns in Florida to repay a court-ordered forfeiture following her conviction on fraud charges earlier this year.

This news comes after reports that William Athanas, lead prosecutor in the Schmitz case, has resigned from his position with the U.S. attorney's office in the Northern District of Alabama.

Are these stories connected? The motion to seize Schmitz' property was filed on August 4. Roughly two weeks later, Athanas was out the door. Curious.

Is new U.S. attorney Joyce White Vance, who inherited a mess from Alice Martin, trying to put the brakes on a Schmitz prosecution that she probably knows was bogus? Are Martin loyalists unhappy about it, using The Birmingham News to fire back at Vance?

If Vance tries to clean up the sleaze pit in Alice Martin's former domain, look for Martin's favorite news outlet, The Birmingham News, to come after Vance with critical coverage.

Bradley Arant Was Victim of Scam
We recently reported that a Birmingham law firm was the victim of an online scam. Now we know the identity of the firm. It was Bradley Arant Boult & Cummings, one of the city's more hallowed legal outfits.

The Nashville Tennessean reports that Bradley Arant got suckered for $400,000, but recovered the funds with the help of the FBI.

Interestingly, Bradley Arant fell for a debt-collection scheme, but the firm's Web site does not list debt collection as one of its practice areas. Did the firm just get greedy--and stupid?

If so, we shouldn't be surprised. And the sucker punch couldn't have happened to a nicer bunch. Bradley Arant emits a familiar Republican stench. The firm includes Robert J. Campbell, son-in-law of Governor Bob Riley and husband of Minda Riley Campbell. Matthew Lembke, another close ally of Bob and Rob Riley, is at Bradley Arant. You might recall that Lembke joined Rob Riley in filing flimsy affidavits in an effort to counter the revelations of Siegelman-case whistleblower Jill Simpson.

Bradley Arant has raked in serious bundles of cash under the Riley administration--much more on that coming in a future post--so to see them cough up some of it is rather amusing.

Scrushy's Assets Prove Elusive
Lawyers for HealthSouth shareholders are having trouble getting their hands on Richard Scrushy's assets in an effort to satisfy a $2.8 billion judgment against the former CEO.

Reports The Birmingham News:

Homes in Vestavia Hills and Lake Martin have been "stripped bare" of furniture, antiques, silverware and other valuables, according to a document filed today. The homes were seized earlier, along with 20 vehicles and various personal items.

Isn't that too bad? I've got to hand it to Scrushy. I have no idea what role, if any, he played in the accounting fraud at HealthSouth. But I think he knows the justice system in Alabama is crooked, and he is not happily playing along.

I do know two things for sure:

* Allwin Horn, the judge who handed down the $2.8 billion judgment, is demonstrably corrupt. I've seen it firsthand. I wouldn't trust Allwin Horn to run a corner lemonade stand, and he certainly shouldn't be entrusted with a legal matter of any substance.

* Attorney Rob Riley, son of Governor Bob Riley, is in the middle of the various HealthSouth lawsuits on the plaintiffs' side. And documents in federal court indicate that Riley, while fighting health-care fraud on one hand, is owner of a company that commits health-care fraud on the other.

If Scrushy can successfully thumb his nose at the Allwin Horns and Rob Rileys of the world, I say good for him.


Scrushy Is Determined to Clear His Name
Speaking of Richard Scrushy, he says in a letter to Fox Business that he is determined to clear his name in the Don Siegelman case.

The Birmingham News reports:

"First, I am innocent of the charges," Scrushy writes. "I did not commit the crimes. Based on the information we now have, the prosecutors knew there was no crime; so, they created what they called a crime. They coached and programmed a witness to say what they needed him to say to get the conviction."

You can read the full letter here.

Did the 11th Circuit Cheat Alex Latifi?
The U.S. 11th Circuit Court of Appeals, in a 2-1 three-judge panel ruling, has reversed a Birmingham federal judge's order granting Huntsville defense contractor Alex Latifi $360,956 in attorney fees after he beat criminal arms-export charges.

The appeals court said the award was outside the scope of the law that Congress designed to provide relief in civil asset-seizure cases. It said the law did not allow for fee-shifting from the costs of a criminal defense to a civil-forfeiture defense.

The three-judge panel obviously was split on the matter, and a lawyer for Latifi says the issue probably is not settled. Reports the Huntsville Times:

Jim Barger, one of Latifi's attorneys, said they will review the decision, but he expects they will ask the full 11th Circuit Court to hear argument.

"This is a case of first impression," Barger said. "No other court in the country has considered this. It will affect every parallel criminal and civil action from here on out."

Did the 11th Circuit cheat Latifi? That's a tough question to answer because the opinion is long and complex. You can read it here.

As we have shown in our coverage of the Don Siegelman case, the 11th Circuit is not above cheating certain parties. And two members of the Siegelman panel--James C. Hill and J.L. Edmondson--also were on the Latifi panel. That is suspicious.

But it should be noted, that Hill cast the dissenting vote in the Latifi matter. And this ruling was on a technical matter regarding attorney fees and civil-forfeiture cases. It does not mean that Latifi will not eventually receive a sizable chunk of attorney fees related to the criminal matter. From the opinion:

We note that Axion and Latifi’s motion for attorney fees and costs pursuant to the Hyde Amendment filed in the related criminal case on December 12, 2007, remains pending. The district court stayed all further proceedings in the criminal case until this court issued the instant decision. Upon remand of this case, the district court may want to consider Axion and Latifi’s motion for attorney fees and costs in the related criminal proceeding.

For now, it looks like Alex Latifi still could come out OK on this issue. We will be watching.

Thursday, August 20, 2009

Something Is Shaking in Birmingham U.S. Attorney's Office

Is a much-needed housecleaning under way in Alabama's soiled federal justice system? It looks like that might be the case.

News is breaking today that one prominent prosecutor in the Northern District of Alabama has resigned and another has been transferred out of the public-corruption unit.

Is Joyce White Vance, the new U.S. attorney for the Northern District, taking steps to clean up some of the prosecutorial sleaze she inherited from Alice Martin? Could a bigger story be brewing in Vance's office, with more changes to come?

We are hearing the answer to both questions is yes.

William Athanas, a key member of the prosecution team for the upcoming trial of Birmingham Mayor Larry Langford, has resigned. Matt Hart asked to be transferred out of the public-corruption unit.

Athanas perhaps is best known for his lead role in the prosecution of former Alabama representative Sue Schmitz. The government somehow got a conviction in the Schmitz case, but as we reported here at Legal Schnauzer, the charges against Schmitz were flimsy at best.

Was Athanas' resignation connected to possible misconduct in the Schmitz prosecution? Could it signal that Schmitz might receive a new trial--or have her conviction overturned? The answers to those questions remain unclear.

As for Matt Hart, he also was playing a lead role in the Langford case. And he was perhaps best known for his part in the investigation of Alabama Attorney General Troy King.

I had a brief encounter with Mr. Hart a few years ago, and I came away unimpressed. I called him in an effort to let him know about criminal conduct I had witnessed from Republican judges and lawyers in Shelby County, Alabama. Hart made it clear that investigating Republicans was not a high priority in the Alice Martin era. Here's how I described the experience with Hart, as part of my effort to alert the FBI and other law-enforcement officials of GOP sleaze in Shelby County:


Somehow, I came up with an e-mail address for Matt Hart, director of the white-collar crime unit. I sent him an e-mail and never received a reply. I decided to take a shot at calling his office, and by some miracle, managed to get him on the phone. First, Hart told me I didn't have a clue about the applicable law--honest services mail fraud. When I made it clear that I certainly did know about both the statutory and case law behind honest services mail fraud, Hart changed his tune. Whether I had been the victim of a crime or not, Hart was "kicking" my case. "I kick cases all the time," he said. I found it interesting that he could "kick" a case he hadn't even looked at yet.

Hart sounded real interested in GOP public corruption, didn't he?

We haven't heard what might become of another controversial prosecutor, the esteemed David Estes. He is best known for his role in the Alex Latifi case in Huntsville, where he allegedly told defense attorneys, "We don't care if Latifi is innocent. Our goal is to put him out of business."

We had a mixed reaction to Joyce White Vance's appointment as U.S. attorney, mainly because her husband is Alabama Circuit Judge Robert Vance Jr. I've had a matter before Judge Vance and seen him intentionally rule unlawfully in order to benefit his buddies in the Alabama legal community. With those kind of personal ties to Birmingham's establishment, I have doubts if Joyce Vance is the kind of aggressive and principled U.S. attorney we need.

I doubt that I will ever be a fan of Robert Vance Jr. In fact, I have more critical coverage of him coming soon. But maybe I was wrong about his wife. Today's news is a rare encouraging sign in the Alabama justice system. Let's hope Joyce White Vance has more encouraging news to come.

Wednesday, August 19, 2009

Is This Karl Rove's "Mystery McDonald"?

We posted recently about Karl Rove's mysterious reference to an Alabama lawyer named McDonald and wondered if it provided any clues regarding the prosecution of former Alabama Governor Don Siegelman.

A source said the reference probably was to Alabama businessman and University of Alabama Board of Trustees member Sidney L. McDonald. But a second source says the reference probably was to Mobile lawyer Matthew C. McDonald.

Several published sources have connected Matthew McDonald to Rove, so it appears Matthew is the "mystery McDonald," not Sid.

Source No. 2 says Matthew McDonald might be related to Sid McDonald, possibly a nephew. And like Sid, Matthew has solid ties to the University of Alabama. He earned his law degree there and served on the editorial board for the Alabama Law Review.

Matthew McDonald perhaps is best known for his role in the tort-reform movement. He is held in high regard by the Foundation for Fair Civil Justice, which deemed him a "legal reform champion" and stated:

(Matt) has been especially active in the southeastern United States, both as general counsel of the Alabama Civil Justice Reform Committee, and as the widely recognized principal proponent of lawsuit reform laws passed in 1987 and 1999 in a region notorious for massive damage awards.

Matt also worked closely on the successful Alabama Supreme Court races from 1994 through 2002 that saw the election of fair and balanced justices to that court.

That last paragraph says a lot about McDonald's connections to Rove. Those connections were made clear in a 2007 New York Times article:

An associate of Mr. Rove's in the state, Matthew C. McDonald, a Mobile lawyer, said Mr. Rove had maintained at least a passing interest in Alabama affairs. The interest dated back to his pivotal role as a political consultant here in the 1990s, when he helped shift the state's supreme court to the Republicans. Mr. Rove opened an office in Montgomery, and would fly in and out regularly.

Our earlier post was off base about Rove's testimony and its possible connections to the University of Alabama. This latest information perhaps says something important about Rove's mindset during his testimony.

Rove appears to have long-standing ties to Matthew McDonald, but "Bush's Brain" could not recall his Alabama colleague's first name, or whether he lived in Mobile or Birmingham? Does that say something about Rove's level of candor throughout his Congressional testimony?

And here is the important point: Rove himself has identified Bill Canary, Kelley McCullough Robertson, and Matthew McDonald as three key contacts in Alabama. If a real investigation ensues, will it include an examination of the phone and e-mail communications of those three folks--along with others in Alabama who probably stayed in touch with Rove?

Do Canary, Robertson, and McDonald have information that will unlock the truth behind the Don Siegelman case--and the abuse of our Department of Justice during the Bush administration?

Karl Rove and His Mysterious Alabama "Lawyer"

One of the most curious moments in Karl Rove's recent testimony about the Don Siegelman case came when the former Bush White House adviser was asked about his primary contacts in Alabama.

Rove mentioned two familiar names--William Canary, head of the Business Council of Alabama, and Kelley McCullough Robertson, former Southeast political director for the Republican National Committee and state director for Karl Rove & Co.

Almost as an afterthought, Rove threw out a third name--a "lawyer" named McDonald. Strangely, Rove could not seem to remember the person's first name or hometown.

Which raises this question: Who in the heck is this McDonald person?

A source with strong knowledge of Alabama politics tells Legal Schnauzer that Rove probably was referring to Sidney L. McDonald, a prominent businessman from Town Grove, Alabama, and founder of DeltaCom Long Distance Services, the largest Alabama-owned telecommunications company.

McDonald has served in both the Alabama House of Representatives and the Alabama Senate and was one of the first members of the Alabama Commission on Higher Education (ACHE).

Perhaps of most interest here at Legal Schnauzer is this: McDonald has served on the University of Alabama Board of Trustees since 1992. That's the outfit that oversees the University of Alabama at Birmingham (UAB). It's also the outfit that almost certainly either pushed for, or approved of, my unlawful termination in May 2008.

McDonald now is an emeritus member of the board. But he was president pro tempore when the board hired current UAB president Carol Garrison in 2002. Garrison, of course, was in charge at UAB when I was unlawfully terminated and also has seen a lengthy string of human-resources problems surface on her watch.

Interestingly, Garrison was hired in the aftermath of a major HR headache--the forced resignation of previous UAB president W. Ann Reynolds, who wound up suing the Board of Trustees for age and gender discrimination. McDonald said at the time that discrimination played no role in Reynolds' ouster. But Reynolds wound up receiving a nifty $475,000 settlement for her troubles.

One other note: McDonald also played a major role in the hiring of Malcolm Portera, the current chancellor of the University of Alabama System. Portera just happens to be a proud member of the Business Council of Alabama's board of directors, which is run by Karl Rove's close friend and ally, Bill Canary.

Our source notes that McDonald is not a lawyer, but he is close to the Alabama Republican Party and almost certainly is the person to whom Rove was referring.

If our source is correct, let's consider what that might mean for our Legal Schnauzer story:

* A trusted source for Karl Rove serves on the University of Alabama Board of Trustees;

* Said source hired a chancellor who now serves on Bill Canary's business-council board;

* Said source was president of the board when it hired Carol Garrison as UAB president;

* Your humble correspondent, a 19-year UAB employee at the time, happened to be writing a blog critical of the Bush Justice Department (on my own time), which we now know was hugely and corruptly influenced by Karl Rove;

* Carol Garrison, a virtual lapdog for Karl Rove's trusted Alabama source, OKed my unlawful termination.

So Karl Rove's Congressional testimony raises a number of questions that hit awfully close to home:

* Is the University of Alabama Board of Trustees essentially run by a bunch of Rove-influenced right wingers?

* Did Karl Rove's apparent ties to Sid McDonald have something to do with my unlawful termination?

* If Karl Rove is found to have corruptly influenced the Don Siegelman prosecution, did a member (or members) of the University of Alabama Board of Trustees play a role in it?

* Will Congressional investigators present followup questions to Rove in order to determine the exact identify of this "McDonald" individual?

* If it is Sid McDonald, will investigators check his phone and e-mail records to see what communication he might have had with Rove regarding the Siegelman case and other matters? Could Sid McDonald be called to testify before government investigators?

* Would such an investigation reveal a right-wing conspiracy that runs throughout the University of Alabama System?

* Exactly how much influence do Karl Rove and Bill Canary have on the University of Alabama Board of Trustees?

As you can see, these questions are serious--they are not amusing in the least. But reading the testimony where Rove let the McDonald name slip is downright comical. It's almost as if "Bush's Brain" got bored or lazy or both and inadvertently tossed out a name that wasn't supposed to be revealed. Then Rove immediately began to back track, suddenly unable to remember McDonald's name, hometown, gender . . . you name it.

Here is the "McDonald" segment of Rove's testimony:

Q Now you referred a few moments ago to contacts through friends and associates in Alabama, who would those be?

A Well, the person who ran my firm in 2000, Kelley McCullough, now Kelley McCullough Robertson, who came to Washington. She did not live in Alabama, but kept in touch in Alabama politics, and a lawyer in Birmingham -- or in Mobile, named McDonald, you know, friends. I might have talked to Bill Canary, who is the president of Alabama Business Association, but I can't recall.

Elliot Mincberg, counsel for the U.S. House Judiciary Committee, let the McDonald reference slide right on by. Maybe it's time somebody checks into it.

Tuesday, August 18, 2009

Holder's Former Law Firm Brags About Its GOP Ties

We recently learned that Attorney General Eric Holder's old law firm has alarmingly close ties to the Republican National Committee (RNC) and key figures from the George W. Bush administration.

Now we learn that the firm, Covington & Burling, actually brags on its Web site about its role in helping protect Karl Rove's e-mails that were stored on RNC servers.

Alabama attorney and Siegelman-case whistleblower Jill Simpson helped break the initial report about Holder's old firm. And Douglas Yates, an alert Legal Schnauzer reader from Fairbanks, Alaska, has added to it by revealing that Covington & Burling actually brags about its handiwork on behalf of the RNC--and Karl Rove.

Yates spotted this gem on the C&B Web site:


We represented the Republican National Committee in connection with investigations by the House Judiciary Committee and House Oversight and Government Reform Committees regarding US attorney firings and the hosting of e-mail accounts for White House officials.

And we're supposed to believe that Eric Holder, a former member of this firm, is going to aggressively go after Karl Rove for possible wrongdoing?

Simpson says Holder's conflicts of interest could not be more clear. And they cover both the U.S. attorney firings and political prosecutions, such as the Don Siegelman and Paul Minor cases:


It seems Covington denied the RNC e-mails to the House Judiciary Committee on the firing of the nine U.S. attorneys and the political prosecutions. What that means is that Holder's very firm denied the e-mails in the Don Siegelman case, and the Paul Minor case. In fact they have been the ones negotiating with Congress, and I don't believe they have ever turned over the RNC e-mails at Chattanooga. So there you have it--Holder's firm protected Karl Rove from turning over the e-mails on the nine U.S. attorneys and the Siegelman and Minor matters, all while Holder was at that firm.