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Tuesday, August 31, 2010

Obama Should Be Listening to Message from Alabama Democrats

Elisabeth French
Democrats in Alabama sent a resounding message last week with their surprising resolution to a dispute over the nominee for a judicial seat in Jefferson County. We would suggest that President Barack Obama pay attention.

By choosing Elisabeth French over Nicole Gordon Still for the judicial nomination in Birmingham, the Alabama Democratic Executive Committee (ADEC) revealed a distaste for anyone with connections to the state's political and corporate elite. Because the decision involved a judgeship, the ADEC also seemed to be expressing its concern about the justice system--in Alabama and beyond.

The message, in our view, boils down to this: "We've seen our federal justice system used as a political weapon. We've seen corporate interests buy up our state justice system. Too many Democrats have stood by silently while this happened--and we are sick of it. We support judges who are not beholden to the business or legal establishment. We support judges who apply the law equally to all."

If Obama and other national Democrats ignore this message, they will do so at their peril. And we suspect they will pay a heavy price at the ballot box in November.

Alabama's mainstream press has tended to portray ADEC's decision as based on race. French is black and Still is white--and the nomination came open when Kenya Lavender Marshall, who is black and won the Democratic primary, had her law license suspended over allegations from the Alabama State Bar that she had misappropriated some $30,000 from a client account.

But this is not the first time recently that Alabama Democrats have rejected a candidate who seemed too cozy with the state's elites. Just a few weeks back, Artur Davis was beaten soundly in the party's primary for governor. Davis, who is black, had sought support from the Business Council of Alabama and other corporate types. Still had been appointed to the judicial seat last June by GOP Governor Bob Riley, and we suspect that helped sink her chances with the Democratic committee.

Also, an extraordinary speech by Montgomery attorney Joe Morgan Reed seemed to set the stage for the ADEC's decision. (See video below.) In nominating French, Reed did something that lawyers almost never do--he admitted that our justice system is badly broken. After introducing himself as a member of the "brass knuckles wing of the Democratic Party"--and that fighting spirit seemed to resonate--Reed got down to the painful truth:

"For a lot of you who do not have a law license, I can tell you that one of the worst places you will go is a courtroom. You think you might be treated fairly, but you probably in all likelihood will not be. It is a different kind of justice--one that is Republican and one that is Democrat.

"We have Democrats who act like Republicans. We have Republicans who are definitely Republicans. We now have an opportunity to put a Democrat . . . a Democrat . . . a Democrat in office. . . .  We need a judge who will be a Democrat 24 hours a day, seven days a week, 365 days a year."

With his brief speech, Joe Morgan Reed seemed to seize the day. And his nominee, Elisabeth French, went on to win handily.

No Republican qualified for the race, so French is expected to take her place on the court in January 2011.  Many questions remain, including this one: Did the Alabama State Bar treat Kenya Lavender Marshall fairly--or did it have political motives in acting only after Marshall had beaten Still in the Democratic primary?

The Alabama State Bar tends to act in a secretive fashion, so it is hard to answer such questions. The public knows little about the evidence against Marshall, and knows even less about whether she had a valid explanation for the problems with her trust accounts.

We can, however, attempt to compare her case to similar cases that have been before the State Bar. We know of one case in particular from the 1990s that involved three Birmingham lawyers and allegations that they mishandled client funds.

We have been looking back at that earlier case and will write about it shortly. What are our conclusions? Well, we are still working on that. But we know this: The 1990s case involved three white males, and the State Bar's handling of that matter raises serious questions about whether Kenya Lavender Marshall was treated fairly.

For those who have concerns about equal protection and due process in postmodern America, a comparison of how the Alabama State Bar handled the two cases seems to add to the sense that our justice system is corrupt and tainted.

President Obama, so far, has chosen to do virtually nothing about justice issues, choosing to "look forward, not backwards." Progressives in Alabama seem to be saying that they are unhappy with that approach. We suspect the president will continue to ignore such concerns, and his party will pay a price.

Why did Joe Morgan Reed's words resonate in Montgomery, Alabama, last week? Thanks to the folks at Left in Alabama, we can see for ourselves. Here is a video from the event, with Reed's comments starting at about the 2:10 mark. Elisabeth French speaks at about 4:50, and a clearly agitated Nichole Gordon Still speaks at about 6:08.

Cats and Computers Are A Comical Combination

Perhaps we are easily amused here at Legal Schnauzer, but LOL Cats photos featuring computers almost never fail to tickle us.

We have two kitty kats of our own, the brother-sister Tonkinese combo of Baxter and Chloe, and maybe that has heightened our appreciation for the curious feline mind. Anyway, it's easy to imagine our Tonks being fascinated with computers, and that might be why we find the subject so amusing.

For example, Baxter is our household's mischief maker, and we certainly can imagine him pulling this stunt:


*Evil Laughs*


This gorgeous Tonk looks a lot like our big girl, Chloe:


funny pictures of cats with captions
see more Lolcats and funny pictures


I could imagine Baxter trying this--although he probably would sit on the glass and make a scan of his butt:


funny pictures of cats with captions
see more Lolcats and funny pictures


This black beauty reminds me of a few editors I've had over the years:


funny pictures of cats with captions
see more Lolcats and funny pictures


Finally, our kitty kats have shown no signs of being technically savvy. But maybe we should hold out hope:


funny pictures of cats with captions
see more Lolcats and funny pictures

Monday, August 30, 2010

Alabama Progressives Land a Solid Punch on "New Mules"

Bruce Gordon

Last week's Alabama tempest over a state-court seat in Jefferson County appeared to be about women of various colors. But evidence strongly suggests it was driven, behind the scenes, by men of one color--white.

These men and their followers, who come from both sides of the political fence, are driven largely by one desire--to strengthen their grip on political and judicial power. For years, they've been known in Alabama as "Big Mules." The Democratic Party committee that last Thursday chose Elisabeth French as its nominee for a Jefferson County judgeship in essence was telling today's "New Mules" to stick it. And in our view, that's a good thing.

We also think it's a good thing to "out" some of the New Mules who probably played a role in the effort to oust Kenya Lavender Marshall, who had won the Democratic primary, and force in Nicole Gordon Still, the runnerup.

One of these New Mules, we suspect, is prominent Birmingham attorney Bruce L. Gordon. His name has not been mentioned in mainstream-press coverage of last week's drama. But our research indicates he probably was a key character in the chain of events that led to Elisabeth French's selection.

News reports on the story have focused on race, largely because Marshall and French are black, and Still is white. Roughly three weeks after Marshall handily defeated Still in the Democratic run-off, the Alabama State Bar announced that it was temporarily suspending Marshall's license over allegations that she had misappropriated $30,000 in client funds.

That seemed to open the door for Still to become the nominee, and with no Republican challenger, it appeared she would hold onto the seat she had filled since being appointed by GOP Governor Bob Riley in June 2009. The Alabama Democratic Executive Committee (ADEC), as expected, removed Marshall as the nominee. But it threw a curveball by choosing to bypass Still and pick French instead. French had not run for the position, but state bylaws do not limit who can be considered when a nomination is vacated.

Our guess is that members of the ADEC smelled a rat from the curious timing of the State Bar's investigation of Marshall. And they probably thought the foul odor came from the Bob Riley camp, which undoubtedly wanted to see its nominee get the job. But the ADEC essentially flipped Riley a bird by bypassing Still and picking French instead.

Did that sit well with the "New Mules"? Not exactly. You can get a feel for their outrage by reading Sunday's column from John Archibald of The Birmingham News, their official mouthpiece. Consider this nugget from Archibald, accusing black Democratic Party official Joe Reed of engineering the rejection of Still:

Go ahead, Joe Reed. Just kick Martin Luther King's legacy right in the teeth.

Go on. Remind us why Alabama's Democratic Party has less to fear from Republicans than from, say, the Racketeer Influenced and Corrupt Organizations Act.

This isn't politics. This is criminal enterprise.

Archibald is so mad you can almost hear him slobbering. He's so mad his column is even more incoherent than usual. Archibald wouldn't know a legitimate RICO case if one bit him on his white, doughy ass. But he's referring to the ADEC's actions the other day in criminal terms?

Hey John, if you want to see some real RICO activity, why don't you check into Bob and Rob Riley's activities over the past eight years or so? Oh wait, that would involve real journalism, and you can't handle that.

Which brings us back to Bruce L. Gordon. Who is this man? Well, he is Nicole Gordon Still's father. And as we reported on Thursday, he has connections to Rob Riley, the governor's son. That probably explains  why Bob Riley appointed Still in the first place.

Here is an important lesson for progressives in Alabama--and elsewhere. Nicole Gordon Still has made much of her strong Democratic leanings, and we suspect her father leans the same way. So why would they jump in bed with Bob and Rob Riley? Anyone with three brain cells and an Internet connection can find voluminous information that indicates Bob Riley is a hopelessly corrupt governor, and his son has serious ethical issues, too. We've written about many of those issues on this blog and have public documents to back up our reporting.

The Gordons are not the only ones who seem comfortable bedding down with a GOP family that has highly questionable ethics. We've written extensively about self-styled civil rights "hero" Doug Jones and his alliance with Rob Riley. Jere Beasley and his prominent plaintiff's law firm in Montgomery make no secret of the fact they have bedded down with Rob Riley. You can read all about it on the Beasley Allen Web site.

It appears, in some cases, that progressive principles go out the window when power and money can be grabbed by cozying up to sleazy Republicans.

Bruce Gordon knows a thing or two about cozying up to Republicans. Did Gordon defend Alabama Pain Consultants, a company that is affiliated with Rob Riley and has been tied to Medicare fraud, in order to help get his daughter appointed to a judgeship? That certainly seems to be a reasonable question to ask.

Gordon used to be with a Birmingham law firm that loves to tout its Democratic values. In fact, he was the chief partner when it was called Gordon Silberman Wiggins and Childs. Gordon left to found a new firm in 2003, and his old outfit changed its name. Wiggins Childs Quinn and Pantazis remains perhaps the best-known employment firm in Alabama. According to its Web site, here is the WCQP vision:

From its formation, the firm has risen to prominence in pursuing “ground breaking” legal issues in individual and class action suits leading the way in shaping new laws protecting and benefiting people who have been victims.

Is WCQP really interested in protecting victims? Well, I have some personal insight on that question. I am a client in one matter, and I've discussed other matters with at least three members of the firm. From where I sit, this avowedly Democratic law firm has a decidedly mixed record.

To put it bluntly, Wiggins Childs Quinn & Pantazis hasn't done a damn thing for me yet. And I've seen evidence that the firm is willing to sell victims down the river if a certain New Mule wants them to. Is Bruce Gordon, because of his ties to the Rileys, the kind of New Mule who might influence decisions at his old firm? I would not be surprised.

Because of my interactions with WCQP, I've conducted a fair amount of research on the firm's work. And I wonder how much good they really do for victims. Certainly the firm has had its share of victories. But I've seen it bring a number of weak cases that probably never should have been filed--and resulted in dismissals.

Most alarming is WCQP's handling of perhaps the most famous employment case in Alabama history. A review of court documents indicates the law firm made some major strategic blunders in the case, costing a very deserving and well-known client much needed justice.

We will be writing more about this WCQP case. And I will be writing more about my personal experience with a firm that supposedly is concerned about victims of discrimination and civil-rights violations.

From where I sit at the moment, it appears WCQP doesn't want to wrinkle the undies of the New Mule crowd. And I wonder if that is partly because of Bruce Gordon's lingering influence.

As for Elisabeth French, I see plenty of reasons to think she will be an excellent judge. I've seen numerous comments on Web forums stating that French was chosen only because of her skin color and that she is not as qualified as Still. The facts, however, do not back that up. French and Still both started practicing law in 1997, so their experience levels are identical. Both have worked for major firms. Still has served as a judge for about one year, but that's probably only because her father's influence helped her land Bob Riley's appointment. French comes from a family that seems to care deeply about justice. Her husband, Courtney French, is a partner in the Birmingham firm of Fuston Petway & French.

Courtney French also is president of the Alabama Association for Justice (ALAJ), which says its mission "is to make sure any person who is injured by the misconduct and negligence of others can get justice in the courtroom, even when taking on the most powerful interests . . . "

If ALAJ is serious about that mission, we need more organizations like it.

Can Elisabeth French help restore a sense of justice in Alabama courtrooms? It might be a step in the right direction. And I think that's what the committee that selected her is looking for.

My sense is that Alabama progressives are tired of Democrats, especially of the white and privileged variety, who try to straddle both sides of the political fence. Bruce Gordon and his daughter have tried to do that. I suspect that's why they both got shot down last week.

Friday, August 27, 2010

Alabama Democrats Pull a Shocker--And We Love It!

Elisabeth French

The Alabama Democratic Executive Committee yesterday threw a curveball at the public, while essentially flipping a giant middle finger to Gov. Bob Riley and the Alabama State Bar. We give both actions two thumbs up.

Most observers, including this one, expected the committee to remove Kenya Lavender Marshall from the general-election ballot for a spot on the Jefferson County Circuit Court and replace her with Nicole Gordon Still. The process that led to Marshall's removal reeked of politics, but we figured the Democratic committee would cave and pick Still, who had placed second to Marshall in the party primary.

We, however, underestimated the committee. They indeed removed Marshall, following allegations from the State Bar that she had misappropriated $30,000 in a client fund. But instead of going with Still, who had been appointed to the judgeship last June by Riley, they chose Birmingham lawyer Elisabeth French. With no Republican in the running, French is likely to take office in January 2011.

Our first reaction to the news was shock. After all, French had not run in the primary. But state party bylaws do not limit who can be considered if a party nomination is vacated. The committee had every right to consider someone who had not run for the position, and we now think choosing French was a master stroke--the kind of gutsy, smart move for which Alabama Democrats are not always known.

On paper, French is at least as qualified as Still and more qualified than Marshall. Both French and Still have practiced law for 13 years, while Marshall has five years of experience.

We have not seen Still's full biography, but it appears that most of her experience has come while working in law firms operated by her father, Bruce Gordon. He worked for years at the state's largest employment law firm, Gordon Silberman Wiggins & Childs (now Wiggins Childs Quinn & Pantazis) and now leads the Birmingham firm of Gordon Dana Knight & Gilmore. As we reported yesterday, Bruce Gordon has ties to the Rileys. He represented Alabama Pain Consultants, a company affiliated with Homewood attorney Rob Riley, the governor's son. We suspect that connection to the Rileys is the reason Nicole Gordon Still was appointed in the first place.

French has been in solo practice since 2008. But before that, she worked for 10 years at the Birmingham firm Pittman Hooks Dutton Kirby & Hellums. She focused on complex civil litigation and environmental law. The firm focuses on products liability, personal injury, medical malpractice, premises liability, among other areas. French is married to Courtney French, president of the Alabama Association for Justice and a member of the Birmingham firm Fuston Petway & French.

Still, taking a page from Artur Davis, came across as an ungracious loser. In a written statement, she said:

What has happened today is deplorable. This decision circumvents the election process and the will of the Jefferson County Democratic Executive Committee. While there are many great candidates worthy of office in November, this is a bleak day for the Democratic Party in Alabama.

The Frenches supported me during my entire campaign and urged others to vote for me. Then, they used their relationships and the dynamics of this election in order to be handpicked for this judgeship without ever going through the election process.

In addition to spewing sour grapes, Still seems to be exhibiting a selective memory:

* The decision circumvents the election process?--That was circumvented when the Alabama State Bar went after Kenya Lavender Marshall, just three weeks after she had won the primary. And did Bob Riley, who appointed Still, have anything to do with that? Does Nicole Gordon Still know about actions others took on her behalf, in an effort to "circumvent the election process"?

* The Frenches used their relationships?--They probably did; that's standard political practice. But what about Ms. Still? Did her father's connections to Rob Riley help get her appointed in the first place?

* French was "handpicked" for this judgeship?--What do you call it, Ms. Still, when Bob Riley appoints you, probably with the influence of your father? That's not being handpicked?

The decision to pick French already is being colored in racial terms. She and Marshall are black, and Still is white. Some have speculated that the party felt it had to replace one black female with another. And it's certainly possible that both race and gender played a role in the final selection.

But I don't think that tells the whole story. Just a few weeks ago, Alabama Democrats soundly rejected Artur Davis, a black male who had openly courted the state's business establishment in an effort to become governor.

Now, Alabama Democrats have rejected Nicole Gordon Still, who courted the state's legal establishment. Her father is a prominent and influential attorney. Her father has clear ties to Rob Riley. She was appointed by Bob Riley. Her husband, S. Chris Still, works for Balch & Bingham, one of the most pro-business law firms in the state. According to his bio, Chris Still works heavily with electric and nuclear energy companies. It seems safe to say that he represents companies that are connected to Bill Canary's Business Council of Alabama.

Perhaps this wasn't so much about race. Perhaps true Alabama progressives stood up and took a stand yesterday. Perhaps they, in essence, said, "We've seen the business establishment in this country ruin our economy. We've seen the legal establishment in this country corrupt our justice system, especially here in Alabama.

"We rejected Artur Davis, and we now reject Nicole Gordon Still. And it is not because of their skin color. It's because they have cozied up to the establishment forces who have consistently acted against the best interests of regular, everyday Americans. It's time that we push for a true progressive agenda--in Alabama and beyond. And we are taking a stand for such an agenda today."

If that was the thinking behind the decision to select Elisabeth French, I am all for it.

Thursday, August 26, 2010

Are Rileys' Fingerprints All Over Jefferson County Judicial Controversy?

The interests of Gov. Bob Riley and his son, Rob, appear to be driving a process that is likely to end with the removal of Birmingham lawyer Kenya Lavender Marshall as a candidate for a seat on the Jefferson County Circuit Court.

The Alabama Democratic Executive Committee will meet in Montgomery today to vote on rescinding Marshall's candidacy and naming a replacement. Two Jefferson County Democratic groups have recommended Nicole Gordon Still as the party's pick, and Still is the favorite to receive the nod if Marshall is removed.

Legal Schnauzer has learned that Still, through her prominent lawyer father, has ties to the Rileys. That, plus the curious timing of the charges against Marshall, indicate political considerations are at least partially driving the process.

Race seemingly has played a strong factor in the case since the Alabama State Bar announced on August 3 that it was temporarily suspending Marshall's license over charges that she misappropriated $30,000 in a client's fund. Marshall and three other lawyers who have expressed an interest in the court position are black; Still is white.

Gov. Bob Riley appointed Still to the judgeship in June 2009, but she had to run for re-election this year. Still spent $105,000 on her campaign and outspent Marshall by almost 8:1. But in the July 13 primary, Marshall won handily with 55 percent of the vote; Still came in second.

No Republican has qualified for the race, so the Democratic nominee is likely to take office in January 2011. It increasingly looks like that nominee will be Still. And it appears that her family connections to Bob and Rob Riley are helping her cause.

Still's father is Bruce Gordon, who has practiced law in Alabama for 45 years and is a partner in the Birmingham firm Gordon Dana Knight &; Gilmore. Still was with the firm, and her name was on the masthead, until Bob Riley appointed her to a judgeship.

Still's campaign Web site notes that she was among three candidates chosen by a nonpartisan commission  to be submitted to the governor. But that might not tell the whole story.

For several years, Bruce Gordon and the Gordon Dana law firm represented a company called Alabama Pain Consultants in a lawsuit involving Aspen Medical Products. That case is ongoing, and the Gordon firm has withdrawn from representation of Alabama Pain Consultants. But the case establishes a tie between Bruce Gordon, Nicole Gordon Still's father, and Rob Riley.

Alabama Pain Consultants is owned by Thomas Spurlock and David Marshall. Spurlock, a chiropractor, works in the UAB Department of Surgery and is a business partner with Rob Riley. Spurlock is an owner and officer in Performance Group LLC, a company whose other owners include Rob Riley.

As we have reported here at Legal Schnauzer, Performance Group and Alabama Pain Consultants are among the defendants in a federal whistleblower lawsuit, alleging they have engaged in Medicare fraud.

Consider a few passages from the whistleblower lawsuit. Here's one:

Beginning during or before 2005, defendant Spurlock routinely forged the signatures of physicians on prescriptions for physical therapy services to be provided by Spinal Rehab and Performance Group. In addition, Spurlock forged the signatures of physicians on certificates of medical necessity for medical equipment to be provided by Alabama Pain.

Here's another:

Beginning during or before 2005, defendant Spurlock, a chiropractor, signed his name as "Thomas Spurlock, M.D." on prescriptions for physical therapy and certificates of medical necessity for medical equipment for the purpose of misleading others regarding his authority to order such items and ultimately have them paid by insurers, including Medicare. . . . (the whistleblower) has witnessed Spurlock forge the signatures of numerous doctors who practice in and around Birmingham.

How deep did the fraud go?

Beginning in 2005, defendants Spurlock and Marshall instructed employees of Spinal Rehab and Performance Group entities, including (the whistleblower), to provide every patient from those physical therapy clinics with medical equipment from defendant Alabama Pain, a medical equipment company owned by Spurlock and Marshall. Employees were instructed to ensure that each physical therapy patient received a back brace, a transcutaneous electrical nerve stimulator ("TENS unit"), and/or a cervical collar. Pursuant to the instructions of Spurlock and Marshall, these items were to be provided regardless of whether they were medically necessary.

And here is more:

As an inducement to carry out this fraudulent scheme, Spurlock and Marshall paid employees bonuses or commissions for each piece of Alabama Pain medical equipment provided to physical therapy patients. Employees received $50 for each back brace, $25 for each TENS unit, and $25 for each cervical collar. . . . As a result of this fraudulent scheme, hundreds of claims were submitted to Medicare for medical equipment that was not medically necessary.

This alleged fraud was being conducted by Rob Riley's business partners. And those partners eventually were defended in another lawsuit by Bruce Gordon. A source tells Legal Schnauzer that Gordon and his firm, which included Nicole Gordon Still at the time, represented Alabama Pain Consultants well into 2008 and only withdrew when the company failed to pay legal bills.

Did Bruce Gordon's efforts to help bail out Rob Riley's business partners have a payoff? Well, Gordon's daughter was appointed to a judgeship in 2009.

And when Nicole Gordon Still failed to win the Democratic primary in mid July, the Alabama State Bar waited about three weeks before suddenly coming up with charges against the woman who beat her--Kenya Lavender Marshall.

Much remains unclear about this story. But this much is clear:

* Rob Riley and his business associates have stepped in some major legal doo-doo and probably could use some friendly judicial faces to help them wipe the stink off their shoes.

* Rob Riley and Nicole Gordon Still have quite a bit in common. They both have lived charmed, prosperous lives, driven largely by the fact they have powerful, influential daddies.

Are these powerful white families--and the Alabama legal establishment--joining forces to ensure that a black candidate never is seated as a judge, even though she apparently won an election fair and square?

Alabama citizens who care about justice should be giving that question a lot of thought over the next few days?

Meanwhile, here is a video of Kenya Lavender Marshall's appearance before a Democratic Party group earlier this week:

Wednesday, August 25, 2010

Don Siegelman and the Evil of a Political Prosecution

Our little corner of the blogosphere probably has produced as much coverage about the Don Siegelman case as any other spot on the Web. So our Schnauzer eyes and ears stay tuned for comments--informed and otherwise--about the case.

A common refrain we hear from the anti-Siegelman crowd goes something like this: "Well, the prosecution might have been politically motivated, but a jury found him guilty, so it doesn't really matter."

This, of course, ignores the fact that improper jury instructions were given--plus ample evidence that the judge was corrupt and the jury was tainted. But it misses the larger point. Under the law, it definitely does matter if a prosecution was politically motivated. In fact, such a prosecution desecrates one of our democracy's building blocks--the Fifth Amendment right to equal protection.

The U.S. Supreme Court has held "selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints." U.S. v. Batchelder, 442 U.S. 144 (1979).

The nation's highest court also has found that the Equal Protection Clause prohibits selective enforcement "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448 (1962).

Clearly, enforcement based on political affiliation falls under the kind of arbitrary classification that is prohibited by the Fifth Amendment. (Siegelman's Motion for a New Trial can be viewed at the end of this post.)

Federal courts generally have accepted the two-pronged test for selective prosecution set out in U.S. v. Berrios, 501 F. 2d 1207 (1974):

To support a defense of selective or discriminatory prosecution, a defendant bears a heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’

Appellate courts historically have been reluctant to override prosecutorial discretion and have established an assumption that a prosecutor has not violated equal protection. To overcome that, a criminal defendant must present "clear evidence to the contrary." United States v. Armstrong, 517 U.S. 456 (1996).

Can Siegelman meet this burden? Consider this passage from his Motion for a New Trial:

There is additional evidence of similarly situated individuals who were not prosecuted by the Republican-controlled Department of Justice:

a. Dr. Swaid N. Swaid donated $3,000 on July 16, 2002 to the gubernatorial campaign of Governor Riley. . . .  In November 2002, Governor Riley was elected to the Office of Governor for the State of Alabama. . . .  On December 19, 2002, after the election, Dr. Swaid contributed $10,000 to the gubernatorial campaign of Governor Riley. . . .  On January 20, 2003, Governor Riley was sworn into Office. . . .  In February of 2003, Governor Riley appointed Dr. Swaid as the Chairman of the Certificate of Need Board;

b. On August 17, 2001, Guice Slawson donated $50,000 to Governor Riley’s campaign. . . .  In April, 2003, Governor Riley appointed Guice Slawson as the Administrator of the Alabama Alcoholic Beverage Control Board; 
c. In 2008, Raymond Harbert of Harbert Management Company donated $10,000 to Governor Riley’s campaign. In March 2009, Harbert was appointed to the Auburn University Board of Trustees;

d. Michael Scanlon, a lobbyist convicted in the Abramoff lobbying scandal worked with Jack Abramoff to funnel millions of dollars from the Choctaw Indians into Alabama during the 2002 governor’s race according to the McCain Report. . . . An e-mail exchange between Abramoff and Scanlon on December 3, 2002 indicated that Abramoff had spoken with “Nell” (Rogers) of the Choctaws and that “she definitely wants Riley to shut down the Poarch Creek operation, including his announcing that anyone caught gambling there can’t qualify for a state contract or something like that. . . . ” According to a Birmingham News story dated December 9, 2004, the Poarch Creek Indians are complying with federal regulators who objected to two-thirds of their gaming machines. . . . The article quotes U.S. Attorney Leura Canary as stating, “the Poarch Creek tribe has been extremely cooperative.”

e. On December 19, 2005, Jim Hudson, the President of Hudson-Alpha Institute Biotechnology, along with Board Members Lonnie McMillan and Dr. Milton Harris, each gave $100,000 to the Alabamians for Biotechnology PAC. . . . On this same date, the Alabamians for Biotechnology PAC gave a contribution in the amount of $300,000 to the “Riley for Governor” campaign. . . .  In August 2005, Hudson-Alpha Institute announced that the State of Alabama had pledged $50 million to their project. . . .  Governor Riley was quoted in August of 2005 as saying “With a $50 million commitment from the state…”. On October 18, 2006, Jim Hudson gave $100,000 to the Alabamians for Biotechnology PAC. . . .  On October 18, 2006, the Alabamians for Biotechnology PAC gave $25,000 to the “Riley for Governor” campaign. . . .  On October 30, 2006, the Alabamians for Biotechnology PAC gave $20,000 to the Riley for Governor campaign;

f. According to an article published in the Mobile Press Register on April 21, 2008, “At least 86 individuals will enjoy access to Alabama Governor Bob Riley, thanks to their pledges of $40,000 each to a Republican fundraising committee designed to gain control of the Legislature. . . . ” The article goes on to say that “members of the Circle have pledged $10,000 a year over the next four years as part of the fundraising program called Campaign 2010. In return, the donors have been promised access to exclusive events and conference calls with Riley”.

That's at least six examples of similarly situated individuals who were not prosecuted for acts similar to those alleged in the Siegelman case. If Siegelman and codefendant Richard Scrushy were granted an evidentiary hearing, one can only imagine how much evidence they could gather to support their claims of selective prosecution based on political affiliation.

The Siegelman/Scrushy case might eventually come down to this: Is it more important that we protect the  of concept of prosecutorial discretion or that we protect individuals from abusive prosecutions? One is a legal doctrine created by the legal profession; the other is a constitutional guarantee. Which is more important?

More than 100 years ago, the U.S. Supreme Court warned about the dangers of rogue prosecutors who use their powers for improper reasons. In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the court wrote:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.

Do we still take that warning seriously? Do we still take the Due Process Clause seriously?

The outcome of the Siegelman case will tell us.

Siegelman--Motion for New Trial

Alabama and the U.S. Have Lost a Champion of Historical Preservation

A model Alabama citizen has died, but it does not seem like a time to mourn. Cecil Whitmire lived in a celebratory mood, so we celebrate his life and the lessons he taught about historical preservation.

Whitmire, who resurrected the landmark Alabama Theatre, died Sunday at age 74. His funeral is today in Pelham, and a public memorial service will be at 2 p.m. on September 12 at the classic theatre he loved so much in downtown Birmingham.

In our view, the Alabama Theatre is one of the coolest places on earth. But it was not always in such grand shape. When I moved to Birmingham in 1978, the Alabama was a first-run movie house. In fact, I can remember seeing Animal House there. By the mid 1980s, it had fallen into disrepair; bankruptcy, and perhaps the wrecking ball, were on the horizon.

But Whitmire led a grassroots effort to save the theatre, becoming president of Birmingham Landmarks Inc. The organization bought the theatre, renovated it, and turned it into a major performing arts venue.

What is the Alabama like now? You can get a sense of its grandeur here:

Tour the Alabama Theatre

Our state has abundant natural beauty and numerous man-made sites of interest. But if an outsider asked me, "If I could only do one thing when I come to your state, what should it be?" I would say, "Visit the Alabama Theatre." (My No. 2 suggestion would be to visit Rickwood Field in Birmingham, the oldest baseball park in America and another glowing example of intelligent and loving preservation.)

Mrs. Schnauzer and I have many fond memories of the Alabama Theatre, and we are planning another visit in the not-too-distant future. We have seen a number of classic movies there--King of Kings (1927),  Phantom of the Opera, Dracula (1931), Citizen Kane, and Titanic. We've enjoyed wonderful theatre productions (Godspell) and classic rock (Hall & Oates). We were among the several thousand who jammed the Alabama for two shows after local boy Taylor Hicks had won American Idol in 2006.

You don't have to attend an event to enjoy the Alabama Theatre. We have two ancient Nissan Sentras (1985 and 1994), and I long have taken them to Jim Burke Nissan downtown for maintenance. In the days before I got cheated out of my job at UAB, when one of the cars was due for a checkup, I would drop it off at the dealer early in the morning and ride a shuttle van to work. There was no van service when the car was ready in the afternoon, so I would put on my tennis shoes and walk the three or so miles from my UAB location to the dealership.

A little over halfway through my trek, I would come upon the Alabama Theatre at 1817 3rd Avenue North. I would tug on one of the front doors, and sometimes they were locked. But many times, they were open, and I would wander inside to look around for a few minutes, taking in the beauty and history in almost total silence.

It felt like a religious experience, and for a few moments, the Alabama Theatre was my personal cathedral. I can recall several times offering a silent prayer of thanks to Cecil Whitmire for having the vision and energy to restore an invaluable part of our city's history.

We renew that prayer of thanks today.

Tuesday, August 24, 2010

Why Does Restitution Suddenly Seem Like a Good Idea to the Feds in Alabama Case?

Alice Martin
The U.S. government never has been known for quickly compensating those it has harmed. Various groups have sought reparations for African Americans and Native Americans, invariably drawing a sluggish response.

So it was odd to learn recently that the feds seemed anxious to pay restitution to an Alabama defense contractor who was the victim of a botched prosecution during the George W. Bush administration. Why was the government willing to compensate Alex Latifi for the harm that was heaped upon him, his family, and his business, Axion Corporation?

We might have gained some insight into that question the other day, and it came from an unlikely source. The bottom line? We suspect the government is trying to hide the gross misdeeds of Alice Martin, former U.S. attorney for the Northern District of Alabama and surely one of the worst prosecutors in our nation's history.

What about our unexpected source? Well, we generally try to avoid the inane scribblings of Birmingham News columnist John Archibald. But we made it through several paragraphs of Sunday's column, and darned if Archibald didn't enlighten us on something.

Specifically, he might have helped us understand why the federal government was anxious to pay restitution to Alex Latifi. The settlement came recently after Latifi's lawyers had issued subpoenas for the Bush-era prosecutors who handled his case, led by Alice Martin.

Archibald provides data that gives some idea of how much doo-doo the federal government might be in if the truth about Martin's corrupt tenure were to be uncovered.

As an aside, we can't help but chuckle almost every time Archibald writes about Alice Martin. The man seems physically incapable of removing his lips from Martin's fanny. You would think Archibald might be embarrassed to be such a blatant sycophant in print, but apparently shame has no hold on columnists for The Birmingham News.

Martin, thankfully, has been out of office for more than a year, but Archibald still misses no opportunity to suck up to her. In fact, we suspect the whole purpose of Sunday's column was to burnish Martin's image in the aftermath of the Latifi settlement.

Archibald seems desperate to remind us that Alice Martin was one active prosecutor. Consider this passage:

Prosecutorial momentum built by years of no-nonsense digging into white collar crime and public corruption is pretty much spent by now. Our scared-straight public officials seem to have little more to fear.

Look at the numbers.

Between 2002 and the end 2008 -- Alice Martin's volatile reign as U.S. Attorney -- 96 public corruption cases were prosecuted in the Northern District, federal records show. That comes out to about 14 corruption cases a year.

Archibald then informs us that Martin's successor, Obama appointee Joyce White Vance, has prosecuted only three public-corruption cases.

But here is what Archibald does not tell his readers: Alice Martin's butchery of the Alex Latifi case was so blatant that the federal government was willing to pay $290,000 to make sure that she and her underlings did not have to testify under oath about their handling of the case.

Archibald makes no mention of the Latifi case, which calls into question everything Alice Martin did during her eight years as north Alabama's chief prosecutor. Archibald only seems interested in the number of cases Martin brought. He seems totally disinterested in whether those cases were prosecuted lawfully.

Imagine this: Discovery in civil matters generally is broad, and Latifi's lawyers probably would have been able to question the Martin Gang about other public-corruption cases. The lawyers also probably would have been able to subpoena documents--e-mails, internal memos, etc.--about the Latifi matter and other cases. What might the public have learned about the Bush administration's apparently orchestrated efforts to prosecute Democrats and people of color in Alabama.

Archibald informs us that Alice Martin prosecuted 96 public-corruption cases from 2002 to 2008. How many of those involved prosecutorial misconduct? Are we to believe that the Martin Gang misbehaved only in the Latifi case?

Here is our guess: If full discovery had been completed in the Alex Latifi case, it probably would have shown that Alice Martin and her staff engaged in criminal behavior. It almost certainly would have shown that they committed serious ethical violations in numerous cases.

And that probably means that the federal government would be called to either let a whole lot of people out of prison or, at the very least, conduct a bunch of new trials.

The federal government probably wanted no part of that scenario. So it settled with Alex Latifi in an effort to keep the cellar door shut on the ugly mess Alice Martin created.

That means, of course, that quite a few people who might have been unlawfully prosecuted will remain in prison. But the feds probably prefer that to letting the public know the truth about Alice Martin.

Did Alabama State Bar Use Extortion Against Judicial Candidate?

Kenya Lavender Marshall
A Birmingham lawyer says an Alabama State Bar disciplinary committee essentially used extortion to force her to agree to a suspension of her license, probably ending her candidacy for a seat on the Jefferson County Circuit Court.

Kenya Lavender Marshall won the Democratic Party primary and faced no Republican challenger in the November general election. But the Alabama State Bar charged that she misappropriated some $30,000 of a client's funds that had been held in her lawyer trust account.

Marshall said she admitted to the charges and agreed to the four-year suspension of her license only because of threats from the State Bar disciplinary committee. In fact, Marshall denied that she had misused client funds.

The State Democratic Executive Committee will meet this afternoon to vote on a motion to rescind Marshall's candidacy and name her replacement if she is removed. A divided Jefferson County Democratic Party narrowly recommended Judge Nicole "Nikki" Still as the nominee if the state party removes Marshall.

Still, who is white, was appointed to the seat by Gov. Bob Riley but came in second to Marshall in the primary election. Marshall, who is black, drew strong support from State Rep. John Rogers (D-Birmingham), among others.

Rogers said the controversy could wind up hurting Jefferson County Democrats in the November general election. Perhaps most troubling, however, was Marshall's description of her interactions with the State Bar disciplinary committee. Reports The Birmingham News:

"I hate that we've even come to this point," Marshall said tonight. "I was told that if I did not submit, I would never practice law in the state of Alabama again."

The State Bar issued an interim suspension of Marshall's license on August 3, after she had won the primary, charging that she spent a client's money to shop, pay bills, and write checks to herself. Tony McLain, general counsel of the Alabama State Bar, said Marshall formally admitted to the charges on Monday. But Marshall later said that came only because of threats from the bar committee regarding her career:

Marshall said tonight that the situation was a mistake connected to her changing bank accounts at the start of her campaign.

"I didn't steal anything from anybody," she said. "Stealing is taking something with the intent to deprive the owner."

Monday, August 23, 2010

What Can Happen When A Professor Is a Tough Grader?


As another school year is kicking off on college campuses around the country, it might be a good time to look back at one of the strangest stories of the 2009-10 academic year.

It involves a thorny issue--grading--that always is front and center at colleges and universities.

A professor at Louisiana State University was removed last April from teaching an introductory biology class because of student complaints about her strict grading policy.

Dominique G. Homberger was removed from the course, and administrators raised student grades.

This kind of "inmates running the asylum" mentality appears to be increasingly common in higher education. I've heard about a case where a university instructor, who did not have tenure, was fired partly because of complaints that he was a tough grader.

But the LSU case shows that even tenured professors, such as Homberger, can run afoul of administrators when students squawk loud enough about grades.

Sources at the University of Alabama at Birmingham (UAB) tell Legal Schnauzer that President Carol Garrison sent word to faculty members that "student satisfaction" would be a key element in teacher evaluations.

That, of course, generates this question: Who is most likely to produce student satisfaction--(a) the teacher who gives high grades but maybe imparts little knowledge, or: (b) the teacher who is a tough grader but actually teaches students something?

At UAB, it apparently is better to be teacher "a." And the same now seems to hold true at LSU.

Homberger maintained her position and faculty status at LSU, but her removal from the course raised many eyebrows in higher education. Reports Scott Jaschik, at insidehighered.com:

To Homberger and her supporters, the university's action has violated principles of academic freedom and weakened the faculty.

"This is terrible. It undercuts all of what we do," said Brooks Ellwood, president of the LSU Chapter of the American Association of University Professors, and the Robey H. Clark Distinguished Professor of Geology. "If you are a non-tenured professor at this university, you have to think very seriously about whether you are going to fail too many students for the administration to tolerate."

While a high percentage of students were failing in the early portion of the course, Homberger said many were making progress, and she accounts for improvement in final grades:

At the point that she was removed, she said, some students in the course might not have been able to do much better than a D, but every student could have earned a passing grade. Further, she said that her tough policy was already having an impact, and that the grades on her second test were much higher (she was removed from teaching right after she gave that exam), and that quiz scores were up sharply. Students got the message from her first test, and were working harder, she said.

"I believe in these students. They are capable," she said. And given that LSU boasts of being the state flagship, she said, she should hold students to high standards. Many of these students are in their first year, and are taking their first college-level science course, so there is an adjustment for them to make, Homberger said. But that doesn't mean professors should lower standards.

Interestingly, Homberger got into trouble because she was trying to be helpful within her department:

Homberger said that she has not had any serious grading disputes before, although it's been about 15 years since she taught an introductory course. She has been teaching senior-level and graduate courses, and this year, she asked her department's leaders where they could use help, and accepted their suggestion that she take on the intro course.

In discussions with colleagues after she was removed from the course, Homberger said that no one has ever questioned whether any of the test questions were unfair or unfairly graded, but that she was told that she may include "too many facts" on her tests.

She included "too many facts" on her tests? Apparently, we mustn't have college-level instructors who deal in facts. What does this say about the importance of learning on U.S. campuses? Writes Jaschik:

Homberger said she was told that some students had complained about her grades on the first test. "We are listening to the students who make excuses, and this is unfair to the other students," she said. "I think it's unfair to the students" to send a message that the way to deal with a difficult learning situation is "to complain" rather than to study harder.

How long will it be before a grading controversy becomes a major story in the 2010-11 school year? I'm betting it doesn't take long.

Thursday, August 19, 2010

Are Southern Governors Going Soft on Oil Spill Litigation?


Alabama Attorney General Troy King has filed a lawsuit against the companies involved in the BP oil spill, but Governor Bob Riley says such action is premature. In Mississippi, Attorney General Jim Hood is considering a similar lawsuit, and Governor Haley Barbour is saying it would be premature.

What is going on? Who is right--the AGs or the governors? And is someone more interested in protecting the interests of big oil than the interests of the people who elected them?

These are complex legal questions that involve state, federal, and maritime law. We don't claim to be an expert, but our research indicates the AGs know what they are doing. And that makes us think Riley and Barbour, both Republicans, are probably sucking up to corporate interests. Now isn't that a shocker?

Why does it appear the AGs are on the right track? Transocean, one of the three primary companies involved with the Deepwater Horizon rig, filed a Limitation of Liability action on May 13 in Houston federal court. Under admiralty law, any claim against the company not filed within 90 days of this limitation action could be discharged by the court.

In their public statements, Riley and Barbour have tended to give the impression that BP is the only defendant in the Gulf oil claims. But that is not the case. And at least one other defendant, Transocean, is working mightily behind the scenes to limit its liability.

That's why AG King probably is wise to have already filed a lawsuit. That's why AG Hood, a Democrat, probably would have been wise to follow suit.

The Alabama Corruption blog, which like Legal Schnauzer is based in Shelby County, has a special interest in environmental issues. In a compelling piece about the oil-claims issue, AC reports:

According to The Oil Pollution Act of 1990, 33 U.S.C. § 2701, et seq., (OPA), which was enacted in an effort to streamline federal law and compensate victims of such spills there is a "90 day presentment clause," but it does not preempt state laws governing liability and compensation from oil spills:

Any claim against the company not filed within 90 days can be discharged by the court. Should Transocean later be deemed to be responsible for any part of the disaster, that part of all later filed claims could be lost.

The last day to file and remain within the 90 day window was August 11th, Barbour halted the lawsuit on July 29th. Will this cause part of the claims to be lost due to the OPA? That may rely on what the Mississippi and Alabama laws are in addition to this being the first "hard test" of the OPA.

Haley Barbour's hands-off approach to Big Oil is curious, to say the least. The AC blog provides some important background:

Governor Barbour's reasons aren't passing the leak test, but his past history might help explain his hands-off approach to BPs crimes:

Barbour has long been at the intersection of special interest lobbying, elections, and campaign cash. He represents cash and carry politics at its worst:

• The oil & gas and utility industries were major contributor to his Mississippi gubernatorial campaigns, providing over $1.8 million in campaign cash. [National Institute on Money in State Politics, Accessed 7/2/09]

• According to the Center for Responsive Politics, coal companies and electric utilities lavished over half a million dollars on Barbour’s firm during his last two years as CEO and chairman, in 1998 and 1999. After taking time off to work on advisory committees for the presidential campaign of George B. Bush, Barbour returned to the firm in 2001. With the addition of new clients, including from the oil & gas industry, the firm made over a million dollars a year in dirty energy profits by the time he left again for his 2003 gubernatorial run, with $2.24 million in total for 2001-2002. [Center for Responsive Politics, accessed 7/2/09]

What else might be going on with Barbour and Riley? AC blog has some thoughts:

Add that to the push by the Gulf Coast Governors to persuade the federal government to relinquish some of its lion's share of the oil and gas lease profits in the Gulf, the millions of dollars being paid to Mississippi, Alabama, Florida and Louisiana in "grants and tourism advertising" by BP, along with numerous state employees working under BP contractors and the waters become a little clearer in motives.

If these states file lawsuits, their current money gushers are cut off and they upset the oil giants. The potential hundreds of millions of dollars they stand to gain in increased royalties from oil and gas drilling off their coastlines, and their inherent greed makes them play a dangerous game with the oil big boys.

These Governors are betting that all the money they have made these companies over the years will buy them favor now, and they are willing to"call" BPs bluff to be "responsible" by putting up their citizens and coastal environments as their chips.

Troy King never has been one of our favorites here at Legal Schnauzer. But he earned our respect by standing up to Bob Riley on gambling issues. And he seems to have the best interests of Alabama in mind now.

Wednesday, August 18, 2010

Does Restitution Equal Justice in the Alex Latifi Case?


We have mixed feelings about last week's news that the U.S. government had agreed to pay $290,000 in restitution for its political prosecution against Alabama defense contractor Alex Latifi.

On one hand, the settlement seems to vindicate Latifi--and that's a good thing because he, his family, and his employees were put through a six-year nightmare.

On the other hand, the outcome raises serious questions about the Obama Department of Justice. Is Attorney General Eric Holder at all concerned about fundamental matters of right and wrong? Is he providing cover for Bush-era scoundrels such as Alice Martin, former U.S. attorney for the Northern District of Alabama? And in terms of dollars paid to Latifi, is the DOJ downright cheap?

We certainly do not fault Latifi or his attorneys, Henry Frohsin and Jim Barger, for agreeing to the settlement. They probably did the best they could in a tough situation. As Frohsin noted, the federal government is not known for voluntarily making restitution to anyone. With that as background, the settlement probably deserves to be called, as Frohsin put it, "revolutionary."

But was justice truly served? Did Holder, who is supposed to be "the people's lawyer," look out for the best interests of the American public--and of Alex Latifi, a man the DOJ essentially admitted it had victimized?

Our answers to those questions, upon further review of the Latifi case, are no. In fact, when you closely examine several key issues in the case, you can't help but ask, "What's wrong with this picture?"

* Did the government try to get off cheap?--To most folks, $290,000 seems like a lot of money. But does that figure even come close to compensating Alex Latifi for the pain and suffering he endured? What about his family, the prosperous company that was essentially shuttered, and the some 60 employees who lost their jobs?

We have written about a number of employment discrimination cases where plaintiffs have received jury verdicts that ranged from $500,000 to $5.79 million. Here are a few of those cases:






Perhaps it is unfair to compare the dollar figure in a settlement to those in jury verdicts. Perhaps those jury verdicts will be overturned, or greatly reduced, on appeal. But you would have to think that the damages suffered by Alex Latifi at least match those of the victims in these discrimination cases. And he got $290,000? The U.S. government considers that a fair outcome?

Our hope is that the agreement in the Latifi case calls for compensation over and above the straight restitution--because $290,000 alone sure doesn't seem to cut it.

* Can the DOJ handle the truth?--One of the most disturbing parts of the settlement story was this quote from Peggy Sanford, spokesperson for Joyce White Vance, Alice Martin's successor as U.S. attorney:

"This was so we could devote our resources to protecting the people in this district rather than expending them on extended litigation in which we believe we would have ultimately prevailed, but the outcome is never certain."

Sanford seems to be saying that the decision to settle was simply a strategic decision. It indicates that neither she nor Joyce Vance had any interest in getting at the truth about Alice Martin's reign of terror. Has it ever occurred to Sanford/Vance that people in their district needed to be protected for eight years from the likes of Alice Martin--that she was far more dangerous than most garden-variety criminals? Did it occur to Sanford/Vance that if Martin gets away with gross misconduct, some other corrupt prosecutor is likely to come along and victimized people of this district all over again? Apparently not.

* Alice and her band of idiots are off limits--News reports indicate that the government showed no interest in settling the Latifi matter until Frohsin and Barger issued subpoenas for Martin and others involved in the prosecution. Apparently the thought of Alice Martin and her prosecutorial associates being forced to answer questions under oath gave some folks in the DOJ considerable pause. So they decided a settlement--a cheap one--was in their best interests.

Here is perhaps the biggest question of all: Why was it left to Henry Frohsin and Jim Barger to try to get the truth out of Alice Martin and others who orchestrated the Latifi debacle? Why didn't Eric Holder want to do that himself?

After all, the DOJ has mechanisms for policing its own. And according to Scott Horton at Harper's, Martin & Co. remain under investigation for professional ethics violations. But does anyone really thing much is going to come of that?

What about possible crimes committed by the Latifi prosecutors? Who instructed them to pursue a bogus case against Latifi in the first place?

The Obama DOJ, with last week's settlement, seems anxious to make sure such questions never receive answers.

Monday, August 16, 2010

Tom DeLay Whitewash Is Another Black Mark for Obama DOJ


The Obama administration appeared to take a small step forward on justice issues last week when it announced a settlement with an Alabama victim of a Bush-era political prosecution.

But the administration has taken two giant steps backward with reports yesterday that former House Majority Leader Tom DeLay (R-TX) will not face federal charges in the Jack Abramoff scandal.

In the Alabama case, Huntsville defense contractor Alex Latifi will receive $290,000 in restitution for a botched prosecution brought by Alice Martin, former U.S. attorney for the Northern District of Alabama. The Obama DOJ seems to have mixed motives in the Latifi case. On one hand, the victim is receiving some measure of justice. But the settlement has the effect of covering up wrongdoing by Bush officials.

In the DeLay case, the administration's motives don't appear to be mixed. It simply wants to provide cover for Bush-era misconduct--even in the Abramoff case, which has been called the worst political scandal in modern American history. Reports The Wall Street Journal:

Mr. DeLay was targeted in the Democrats' 2006 "culture of corruption" campaign that helped sweep Republicans from power. Federal investigators looked at Mr. DeLay's ties to former lobbyist Jack Abramoff, who served four years in prison on charges of defrauding Indian tribes and using trips and other gifts to reward political favors. Two of Mr. DeLay's aides pleaded guilty to charges related to the Abramoff probe, and authorities investigated allegations that Mr. DeLay took trips, gifts and other donations in exchange for helping Abramoff clients.

If DeLay will not be prosecuted in the Abramoff case, it seems safe to say that all Bush-era scoundrels are safe under the Obama DOJ. The Center for Responsibility and Ethics in Washington (CREW) finds that prospect appalling. Reports TPM Muckraker:

"It's a sad day for America when one of the most corrupt members to ever walk the halls of Congress gets a free pass," Citizens for Responsibility and Ethics in Washington (CREW) Executive Director Melanie Sloan said in a statement.

"As we continue the work of building a Washington that is worthy of the American people, the Justice Department's decision not to prosecute Mr. DeLay for his actions sends exactly the wrong message to current and future members," Sloan said.

"The fact that Jack Abramoff and Bob Ney (R-OH) are the only two people who went to prison for one of the worst corruption scandals in congressional history is shocking," Sloan said.

"The Hammer belongs in the slammer. Mr. DeLay still has crimes to answer for in Texas --generally not considered the best place to be a criminal defendant."

Indeed, DeLay is not out of the criminal woods. Reports The Wall Street Journal:

Mr. DeLay remains in trouble over a separate matter in Texas state court, where he has been charged with failing to report certain political donations. Mr. DeLay says he committed no wrongdoing in the state case, for which a trial is set to begin as soon as next week, and in a conference call with reporters criticized what he called the "criminalization of politics."

But in the "look forward, not backward" world of the Obama DOJ, Tom DeLay has nothing to worry about. And that probably goes for other Bush-era scoundrels, as well.

More "change we can believe in."

Alabama Murder Case Provides More Evidence of Sociopathy Among Republicans


A disturbing mystery, with political overtones, is evolving in Alabama. And a post we wrote about it recently elicited a response that might provide our most glaring evidence yet that some Republicans are sociopaths.

Zoa White, a 69-year-old former aide to Governor Bob Riley, was found dead in her home June 28 in Mobile. Police indicated there were signs of a burglary and immediately began treating it as a murder investigation. Officials disclosed that White died from blunt-force trauma to the head. But other than that, they have been tight lipped, with no word about forced entry or items missing from the home.

Mobile police are comparing the White case to that of Kyser Miree, a young engineer who was shot to death about one mile from White's home. Four suspects have been arrested in the Miree case, but for now, officers are saying the two cases appear to be quite different.

What about the larger issue, of truly disturbed people being affiliated with one of our major political parties? We have spotlighted the possible connections between antisocial personality disorder (sociopathy) and the modern Republican Party. And we've noted that a particularly virulent strain of sociopathy seems to run in the Alabama GOP. The latest evidence of that came in an anonymous comment we received recently.

In our post reporting that Zoa White had died from a blow to the head, we noted that sources had said White was especially close to Bill Johnson, another former Riley aide who has become one of the governor's most harsh critics. Johnson has called for investigations into Riley's connections to Jack Abramoff and Mississippi gaming interests, plus the governor's possible conflicts of interests involving family members.

Our post caused someone to write the following comment:

Sources have told Legal Schnauzer that Johnson was close not only to White but to her family, and he is deeply saddened by her death. You and your sources. Ha Ha.

I responded with a comment of my own:

So, you find humor in a story about a woman being bludgeoned to death?

That's interesting.

Actually, I didn't find it interesting; I found it chilling. But given the interactions I've had with certain Alabama conservatives, I wasn't surprised.

The fundamental definition of a sociopath is someone who lacks empathy, who has no concern for the rights or feelings of others.

Do you see any signs of empathy in our anonymous comment? I sure don't. A woman has been found beaten to death in her own home, and this individual leaves a comment that ends with, "Ha, ha"?

Here is something even more disturbing: I strongly suspect the anonymous commenter is close to the Bob Riley camp and probably knew Zoa White. I captured the commenter's IP address, and it's the same one from which I've received numerous threatening or smart-alecky missives.

If the person indeed knew Zoa White, wouldn't you expect him to exhibit some sign of sadness at the death of a fellow Riley supporter? Do you see any hint of sadness in the comment? I can't find it.

Could that be because our commenter, for some reason, isn't sad about it? Could that be because our commenter knows something about the circumstances surrounding Zoa White's death?

Friday, August 13, 2010

Government Pays Restitution to Alabama Victim of Bush Justice Department


At least one victim of the George W. Bush Justice Department has received some measure of justice. An attorney in the case says he expects to see more such settlements in the future.

The U.S. Department of Justice has agreed to pay $290,000 in restitution to Alex Latifi, a Huntsville, Alabama, defense contractor who was targeted for a botched prosecution that appeared to be politically motivated.

In announcing the settlement, the government admitted no wrongdoing. Latifi, the owner of Axion Corp., agreed to not pursue claims of misconduct and bad faith against government prosecutors, who were led by Alice Martin, former U.S. attorney for the Northern District of Alabama. Latifi is an Iranian-born U.S. citizen, and the prosecution had racial overtones from the outset.

The settlement came after Latifi's attorneys sought to subpoena Martin and others involved in the prosecution. Henry Frohsin, one of Latifi's lawyers, said it was a highly unusual ending to a case involving the federal government.

“It's a revolutionary ruling and case,” said Mr. Frohsin. “I can't speak for the Department of Justice, but it's not likely that you will find any other case where the government has voluntarily agreed to make restitution. The fact is it was a misguided and unfair prosecution by the Bush administration and DOJ that never should have been waged in the first place and one the government ultimately lost. We believe this settlement begins to rectify some of the evils of the past administration.”

Jim Barger, another Latifi attorney, hinted at some of the obstacles his client faced in the case:

“We knew from the start that it would be a long and difficult battle,” says Mr. Barger. “After all, the U.S. Department of Justice is the largest and most powerful legal organization in the world. But we also knew that the government was wrong in this case, and we were not going to give up. We subpoenaed Alice Martin, David Estes, and other members of the government’s legal team and were prepared to question them under oath to expose the extreme misconduct in this case."

Axion, which once employed about 60 people, is slowly recovering. After being virtually shuttered, it now has about 12 employees and is aggressively pursuing contracts worth millions of dollars--and that could lead to rapid growth.

"Of course, we’re pleased that Mr. Latifi will receive this compensation, but his family-owned defense contracting company was basically decimated. Alex is now fighting to get his company and his reputation back, and he is succeeding. Over the past two years Axion Corporation has secured a number of contracts with the U.S. Government to produce parts and equipment for the Defense Department and war efforts in Iraq and Afghanistan. We are proud to say that he produces one of the most important safety devices in the war theaters, the Abrams Mine Roller, which protects our soldiers against IEDs.”

The government previously had paid $70,000 to Latifi for attorney fees. The restitution payment will go directly to Latifi. Reports The Huntsville Times:

Peggy Sanford, a spokesman for U.S. Attorney Joyce White Vance, said given the government's prior payment to Latifi for legal fees, Vance's office conferred with Justice Department officials in Washington and decided a settlement to resolve other claims was in the best interest of the United States.

"This was so we could devote our resources to protecting the people in this district rather than expending them on extended litigation in which we believe we would have ultimately prevailed, but the outcome is never certain," Sanford said.


The Latifi settlement definitely is historic in one sense. It is the first case involving misconduct under the Bush Department of Justice that the Obama DOJ has settled. Frohsin does not expect it to be the last.

“The Axion case should be a clear signal to the DOJ and to future defendants that a guilty plea is not always the answer to a government charge. The Axion case may also ultimately have the positive effect of encouraging the government to focus on developing meritorious cases, rather than pursuing weak or marginal cases of dubious merit.”

Thursday, August 12, 2010

The South Is NOT the Most Conservative Region in the Country

Presidential election nights can be traumatic for Southern progressives, even when our favored candidate wins.

You watch the networks fill in the electoral map, and a sea of red inevitably begins to form from Texas to South Carolina. The sea often spreads north to include Arkansas, Tennessee, Kentucky, and . . . well, you get the idea. At any moment, you expect an announcer to point to the region where you reside and say, "Here's where all the stupid people live."

So it was with utter joy that we recently learned that the South is not--I repeat, is NOT--the most conservative region in the country.

That happy news comes via a new report from Facing South, the blog of the Institute for Southern Studies (ISS). Writes Facing South editor Chris Kromm:

What's the most conservative region in the country? If asked that question, many would likely say the South -- and they'd have plenty of evidence to make their case.

But regular Facing South readers know better: As we've taken pains to document over the years, the South is far from a bastion of conservatism, and there are plenty of other places that are just as conservative, if not more.

A recent Gallup poll reveals that of the 11 most conservatives states in the country, only four are in the South. Here is the rundown:



What does Kromm make of this:

So what region makes up the other seven on the list? As anyone involved in the regional analysis business will tell you, carving up and labeling different parts of the country is tricky business, and likely to start as many arguments as it settles.

But if there's a common thread to the non-South conservative states, it's that their part of that geographic constellation known as the Great Plains.

Facing South even provides a helpful map to show where the majority of conservative whack jobs really live:



What is Kromm's take on this?

It's not a perfect match, and there are plenty of exceptions (hello, Colorado). But the Plains hold a disproportionate share of states that rank as strongly conservative, even more conservative than the South.

That's where things stand now, but what about the future? That is the key difference between the Plains and the South.

Yes, the South actually shows signs of promise. While states such as Wyoming, Utah, and South Dakota are likely to stay conservative, Kromm reports that many fast-growing Southern states are becoming more diverse--and thus, are showing signs of becoming more progressive. Yee Haw!

A recent story in the National Journal addressed our nation's generational divide along racial lines. Kromm provides insight:

Fast-growing Sunbelt states in the Southeast and Southwest are where the younger and more racially diverse populations are growing most quickly . . .

These changing demographics are pushing Southern states in a more politically progressive direction; a glimpse of this future was revealed in the 2008 elections.

By contrast, National Journal's maps reveal that the Great Plains states -- especially the Upper Plains, along with Kansas and Oklahoma -- have a disproportionate share of older and whiter residents, which is helping to solidify their conservatism.

Over the years, I've had a number of folks suggest that the solution to my various legal headaches is to get the hell out of Alabama--and the South in general. And trust me, I've thought of that on numerous occasions.

But thanks to Chris Kromm, we now know there is hope for the South after all. Maybe Mrs. Schnauzer and I will settle in for a spell.

Meet the Man Behind the Dale Peterson Parody

Here at Legal Schnauzer, we pride ourselves on addressing some of the biggest issues of our times.

In that spirit, we now tackle the following question: Who in the heck is the guy behind that hilarious spoof of the Dale Peterson ad?

Thanks to a recent Time magazine article about the Web site Funny or Die, we can now answer that question. His name is Jake Szymanski, and he's a member of FOD's full-time staff.

For our two cents, Szymanski produced one of the funniest bits of the Internet era. And it's our pleasure to offer some insight into how the Peterson spoof came to be.

Many folks, in Alabama and beyond, remember Dale Peterson. He's the guy who, in his bid to become our state's agriculture commissioner, produced an ad that was so over the top in its right-wing imagery that it became a national phenomenon.

The ad was not effective politically--Peterson got trounced in the Republican primary. But it helped provide a cultural moment for the ages. Here is the ad that turned Dale Peterson, at least for an instant, into a national figure:



Szymanski saw all kinds of comedic potential in the Peterson ad. So how did his parody come to be? Time reports that FOD videos have become increasingly elaborate and some even feature celebrities, such as Jewel, Jack Black, or Eva Mendes. But the site maintains a scrappy, spontaneous spirit:

When an aspiring Alabama agriculture commissioner named Dale Peterson caused an Internet sensation with an over-the-top campaign ad, writer-director Jake Szymanski found a horse, cast himself in the lead role and turned around a parody in a day.

"Sometimes it's better to do a video at 80% right now than 100% if it takes five days," says Szymanski, a Northwestern University grad who started uploading videos to Funny or Die when it launched, then got hired as the site's third full-time employee. "It's that vibe of picking up on the first funny joke you heard from your friend. You're grabbing on to the collective unconscious."

Szymanski is quick to say that producing a Web sensation is an iffy proposition:

"The Internet is the modern-day freak show," says Szymanski. "Your funny, smart, three-minute video can always get beaten by a cat with a printer."

We love kitty kats, but we doubt that any of them--even with printers--will be topping the Dale Peterson spoof. Mrs. Schnauzer and I love it so much that, if we ever are lucky enough to own a horse, his name will be Franklin.

Here, for posterity's sake, is a comedy classic--with an undeniable Alabama flavor: