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Monday, June 29, 2015

Rob Riley and his sidekick provide classic examples of techniques that lying lawyers use to pervert justice

Jay Murrill
Based on the number of lawyer jokes that have been floating around for years, it seems safe to say that many Americans do not hold the legal profession in high regard. We suspect that is because lawyers are seen as individuals who lie more than the average person.

Alabama GOP operative Rob Riley and Jay Murrill, his sidekick from Homewood's Riley Jackson law firm, provide prime examples.

We've already caught Riley lying to The New York Times about the dubious defamation lawsuit he and lobbyist Liberty Duke brought against me, my wife, and the Legal Schnauzer blog. We also have caught Murrill lying about the case to the CBS television affiliate in Birmingham.

But Riley and Murrill are not limited to making false statements to the press. No, they are "talented" liars who are quite capable of fudging the facts (and the law) across multiple platforms, including court documents.

Let's consider Riley's words to Sara Rafsky, a reporter for the Committee to Protect Journalists (CPJ), in an article titled "Censorship in Alabama's Shelby County." Rafsky reports that Riley, in a telephone interview about his lawsuit against me, said "he has a right to seek injunctive relief in a defamation case and there is legal precedent for doing so."

Riley has a slight problem with that statement: It is false. The work of his own hack lawyer, Jay Murrill, proves it is false. The words of experts on First Amendment law, of which Riley clearly is not one, also show it is false.

As for Murrill's handiwork, evidence in the record suggests he or other members of the Riley firm wrote many (maybe all) of the orders that Judge Claud Neilson wound up signing in the case. That includes the Order on Petitions for Preliminary Injunction, which is dated October 4, 2013, and can be viewed at the end of this post.

On page 2 of the order, second paragraph, Murrill/Neilson cite a case styled South v. City of Mountain Brook, 688 So. 2d 292 (Ala. Crim. App., 1966) for the proposition that "injunctive relief can be an appropriate and effective remedy to repeated and ongoing defamatory speech."

The South case, however, says nothing of the sort. It's a criminal case, involving alleged harassing communications, and has nothing to do with defamation, injunctive relief, or any other civil matter. In fact, you don't even have to read the case to see that it represents a bogus citation--it's styling shows right up top that it's from the Alabama Court of Criminal Appeals, so it couldn't have anything to do with civil defamation. This is a stunning example of legal chicanery, which more or less amounts to a fraud on the court.

But Murrill/Neilson do not stop there. At the sentence regarding the South case, they refer to footnote No. 3. The reader can look to that footnote at the bottom of the page and find . . . 12 other cases that supposedly support the claim that injunctive relief is proper in a defamation case.

That raises another slight problem for Murrill/Neilson--and Riley: None of those cases supports the proposition that injunctive relief is proper in a defamation case; in fact, quite a few of them say just the opposite.

Claud Neilson
This did not escape the attention of various legal experts who noticed that a journalist/blogger (me) had been sent to jail under outrageous circumstances in Alabama. In an amicus brief asking Neilson to reconsider his actions, the ACLU noted that his orders made scant mention of U.S. Supreme Court cases prohibiting injunctive relief--and then went even further. (See brief at the end of this post.)

Indeed, not only were these substantial U.S. Supreme Court cases not presented to the Court, the cases cited in the Preliminary Injunction (see p. 2 and n.3) demonstrate that injunctive relief in a defamation case requires a final determination on the merits of the litigation.

In other words, those 13 cases cited by Jay Murrill do not remotely say what he claims they say. For the record, there was no final determination on the merits of the litigation because there was no trial--and that's because Riley and Duke did not seek a trial and did not ask to have their case presented to a jury.

Ken White, a Los Angeles-based First Amendment lawyer and author of the Popehat blog, picked up on the ACLU's theme in a post dated October 27, 2013, noting that Neilson had declared certain Legal Schnauzer posts to be defamatory without any such finding at trial. Wrote White:

So how did Judge Neilson excuse granting Riley's motion for a preliminary injunction before any trial of the matter? Very badly.

Judge Neilson — who may have executed a proposed order from Riley's attorneys — utterly failed to cite or distinguish any of the wall of authority discussing how preliminary injunctions are strongly disfavored in both equity and First Amendment law. Judge Neilson didn't cite the "only in the most extraordinary circumstances" rule, let alone apply it. He only cited two Alabama cases — one 1947 case about defamation of a business that had no First Amendment analysis, and one appeal of a criminal harassment conviction that doesn't even mention prior restraint or injunctions. In a footnote, Judge Neilson cited a melange of state and federal cases from California, Ohio, Michigan, and Illinois with no explanation or analysis. Those cases actually undermine his authority to issue the injunction, because they support the proposition that an injunction against defamation is almost always inappropriate before a finding on the merits at trial or if the plaintiff wins a summary judgment motion. It appears that the drafter of this order simply scoured the nation for the handful of outlier cases saying something positive about injunctions against defamation — plus the tiny number of cases approving them pretrial — while completely ignoring the authority (including from the United States Supreme Court) that such injunctions are inappropriate. . . .

How is that for an honest, accurate, and brutal analysis of Murrill and Neilson's work? White does not let Rob Riley off the hook, either:

It's difficult to see what justifies this order — unless it's the fact that Robert J. Riley, Jr. is the son of a former governor and well-connected in the Alabama Republican party. It's very rare for judges to approve pretrial injunctions against defamation in the face of the overwhelming law against it, but when it happens it tends to benefit the rich, connected, and powerful. It's called the rule of law: they rule, that's the law.

As White reminds us, all of this lying was done on behalf of Rob Riley (and Liberty Duke). How bad was it, how flagrant? To arrive at an answer, you have to understand what those 13 cases cited by Murrill/Neilson actually say. We will address that in an upcoming post.


Anonymous said...

I notice your mentioning of The New York Times in this post.
I've been told that during or around about the time of 2009 after The New York Times having been contacted at their national desk in New York they sent a reporter to Alabama.
Did a NYT reporter speak to you, if so, do you reall his name?

Anonymous said...

Boy, you roasted these SOBs, Schnauzer. Good job.

legalschnauzer said...

Thanks, @8:29, but I didn't roast them alone. The ACLU roasted them, Ken White of the Popehat blog roasted them. That's what gives this post its power, in my view.

legalschnauzer said...

@8:25--I'm not sure about 2009, but my wife and I spoke with NYT reporter Campbell Robertson in late December 2013 (or early Jan. 2014) about my incarceration. Carol spoke with him at our home, and I spoke with him in four 15-minute increments from a jail phone. A link to his story is in the third paragraph of this post. It's a very poorly reported and written piece, but I guess we can say that my case got attention from The New York Times. Reporters from the paper make trips to Alabama, and other Southern states, fairly frequently, I think. Robertson is based in New Orleans.

Anonymous said...

This kind of makes it look like Neilson was a puppet in this case. A judge who can't do any better research than this must not have been paying attention.

legalschnauzer said...

Neilson was a rubber stamp, appointed probably because of his ties to Riley crony, Bill Baxley. This case, in my view, represents one of the most flagrant examples of judicial corruption in U.S. history. Law enforcement has brought charges in a few such cases over the years, but those usually involve some kind of investigation to look behind the scenes and see what's going on. A lot of this one is right out in the open. An investigation is needed to get to the bottom of it, but a good bit of the sleaze is right on the surface.

Zero said...

I read the South v. Mountain Brook case, and to claim that says anything positive about an injunction in a defamation case, is nuts. Without even going into the other cases, "South" is absolute proof something fishy was going on here.

Anonymous said...

LS, aren't lawyers supposed to report any misconduct they see in the legal profession? If so, I wonder how many lawyers read your blog, and how many of them can see that, without a doubt, Rob Riley and his lawyer submitted fraudulent documents to the court?

Why aren't they reporting it?

legalschnauzer said...

You make a correct statement, as its founds in the Alabama Rules of "Professional Conduct," @12:00. Lawyers are duty bound to report wrongdoing to the "proper tribunal," which I guess means the Alabama State Bar. My understanding is that every state bar association, along with the ABA, has a similar rule--so it's across the board in the "profession."

As for your question about lawyers reading this blog, a lot of them do--I know that from checking my blog stats. Quite a few read it 4-5 times a week.

Anyone with three days of law school should know that Rob Riley's demand to have me jailed because of a defamation lawsuit was a trampling of the First Amendment--they don't have to read today's post to know that what he and his law-firm buddies did was grossly unlawful, although today's post provides indisputable evidence of intentional malfeasance.

Why do the lawyers ignore it? Because hardly any of them takes seriously one of their "profession's" guiding rules. Hardly any of them have a genuine interest in policing themselves. And if they did, and took action against the likes of Rob Riley and Jay Murrill, the Alabama State Bar would do nothing about it. That's because the state bar is all about protecting legal elites, and "well-behaved" barristers who turn a blind eye to the corruption all around them. The bar has zero to do with justice and promoting ethical behavior among lawyers. It's all about protecting the finely feathered legal nest that quite a few lawyers enjoy. It doesn't serve the public interest at all.

That's why a federal investigation is needed in Alabama--and I'm hearing that at least one is going on. Lawyers have utterly failed to police themselves, and if some of them soon go down, it's their own fault.

Anonymous said...

Rob Riley's not too good at hiding his tracks. Probably not a very good lawyer either.

Anonymous said...

Campbell Robertson did come to Alabama via contacts to NYT national desk in New York, although unknown at that particular time who, if ever, if any reporter would be sent because being such politically sound and gravitating bedrock government corruption evidences, with their corruptors. Apparently timeline as I understood it is few years off from earlier said, but now maybe about 2010/11.
I'm told if you want to get Robertson stuttering about his part in media cover up, ask him what did he do with FBI files an individual placed confidence in him with he got while acting as a sheep, but actually a wolf in sheep's clothing when involving something as heinous and hideous himself chose to become a part of the problem rather than the solution.

legalschnauzer said...

Hmmm, that's interesting, @7:19, because Robertson acted like a sheep, but proved to be a wolf in our case, too. I would be interested in learning more about the information that was given to him. In fact, if it could be sent to me, I would like to look at it. You are welcome to contact me at my e-mail address: rshuler3156@gmail.com

The NYT is not even close to being the newspaper it once was.

e.a.f. said...

well the oldest lawyer joke I know is: How can you tell if a lawyer is lying?
their lips are moving!

Having said that there are some amazing lawyers in North America who do incredible work. they hold government's feet to the fire to ensure our rights and democracy is upheld. Love them or hate them, we do need them!

legalschnauzer said...

Good point, e.a.f. I've been accused of hating all lawyers, and that is not true. Many of the people I've portrayed positively on this blog are lawyers--Don Siegelman, Paul Minor, Wes Teel, Andrew Kreig, Jill Simpson, Scott Horton, and others. We need honest, courageous lawyers, and I'm all for them.