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Monday, July 20, 2015

In my darkest hour of need, Alabama lawyer David Gespass brought a clown car to the Shelby County Jail

David Gespass
Several writers, especially attorney Ken White of the Popehat blog and reporter Campbell Robertson at The New York Times, have taken me to task for not hiring an attorney while I was unlawfully incarcerated because of a defamation lawsuit from Alabama GOP operative Rob Riley and lobbyist Liberty Duke.

What to make of this criticism? I'm going to file it under the "that's easy for you to say" category. I'm also going to show you what it's like to interact with an Alabama attorney while you are in jail.

Why are White and Robertson more or less full of it? First, I feel sure they have no idea what it's like to try to hire an attorney--an endeavor that is tough as a free person--when you are behind bars. You must meet with someone in a tiny room, for a limited time, while you are wearing an orange jump suit with attractive accessories--handcuffs and shackles. Second, White and Robertson neglect to mention that I met with two attorneys while in jail, so I clearly was open to hiring one. Despite that, Robertson erroneously reported that I refused to consider legal assistance. Third, my critics seem to assume that hiring a lawyer, any lawyer, always makes things better. My experience, and that of many people I've reported about at Legal Schnauzer, has been contrary to that assumption.

White and Robertson never seemed to consider how a bogus incarceration trampled my due-process rights. I was arrested because of a civil matter--alleged contempt of court for violation of a temporary restraining order and preliminary injunction--that involved zero allegations of criminal actions. As even White admits, my arrest runs contrary to First Amendment law that has been around in this country for more than 200 years. If we, in fact, have a right to hire an attorney of our choosing in a civil matter--and the due-process clause of the Fourteenth Amendment holds that we do--then we surely have a right to seek an attorney when we are not illegally behind bars. My choices were limited to lawyers who were willing and able to come to the Shelby County Jail, which probably ruled out 98 percent of the lawyers in Alabama--not to mention 100 percent of lawyers from other states.

Despite the obstacles, I met with two lawyers while in jail. One of them, Austin Burdick of Bessemer, I had communicated with previously via phone and e-mail. He seemed like a reasonable fellow with a solid approach to the case, but I was concerned about possibly being stuck with a major bill that I could not pay. The other, David Gespass of Birmingham, was like a character who fell off a train carrying the Ringling Bros. and Barnum & Bailey circus.

I had two meetings with Gespass, the first of which went OK and the second of which did not go well at all. That, in large part, is due to a letter Gespass sent me (with a copy to my wife, Carol, since Riley had made her a party to the case) between the meetings. I had a number of concerns with Gespass' letter, which you can read at the end of this post, mainly because I had researched much of the relevant law before I was arrested. (See here and here.) When Gespass failed to address my questions in an honest and straightforward fashion, I called an abrupt end to the meeting--essentially telling him to "get the hell out of here." I was left with the impression that David Gespass was not about representing my best interests; his mission seemed to involve protecting Rob Riley and the interests of the Alabama legal profession.

Let's take a look at a few key points from the Gespass letter. If you ever are involved in a legal matter--hopefully it won't involve an unlawful incarceration such as mine--you are likely to receive such a letter. When that day comes, I hope this analysis might help you determine whether you are dealing with a competent, caring lawyer--or one who is striking poses.

Before addressing the legal nuts and bolts, I must note Gespass' "professional demeanor." He spent much of his time, at least in our second meeting, twirling a pencil up in the air and catching it. I don't think I've seen anyone do that since third grade. Here I was, deprived of my freedom for the first time in my life--with a few serious issues on my mind--and Gespass looks like a grade-school kid killing time outside the principal's office. I thought, "This guy has ADD, Peter Pan Syndrome, or he just doesn't give a damn about my plight." I was tempted to grab the pencil out of the air and jam it down his throat--except I didn't have a free hand. Maybe that's why they make "prisoners" wear handcuffs during meetings with lawyers.

Now, on to the various issues raised in Gespass' letter:

* Were my wife and I lawfully summoned to court? -- In the third paragraph, Gespass provides critical legal information that was totally news to me. That, of course, is because Riley had asked for the case to be unlawfully sealed, which kept us in the dark about simple procedural matters. Gespass states that, according to his review of the court file, Carol and I faced rulings against us before we ever were served with the Riley/Duke complaint--and before a summons had even been issued. In fact, Gespass flat-out states that the temporary restraining order (TRO) and preliminary injunction, which caused me to be incarcerated, were "issued before service was effected." In other words, the court took extraordinarily unlawful actions against Carol and me before it ever had jurisdiction over us--just as I've argued all along.

Quoting Gespass: "The hearing on the preliminary injunction was on September 30, it [the injunction] was issued on October 4, and the summons was not issued until October 16." A summons is pretty important in a lawsuit; as the name implies, it's the document that "summons" a defendant to appear in court. You can get a more full picture about the importance of a summons by checking out Rule 4 of the Alabama Rules of Procedure. A summons is the document that generally begins the issuance of "process" on the defendants in a lawsuit. It's what really gets a case rolling; without it, a civil complaint is just a document sitting in a court file, with nothing happening--and the defendants have no reason to appear in court.

We supposedly were "served" via an unconstitutional traffic stop on September 29, less than 24 hours before the injunction hearing. But Gespass states in his letter that the file showed no service on that date--or any other date. Gespass indicates the material we received that day did not include a summons--and that's because no summons was issued until October 16. If that's the case--and Gespass said in our first meeting that he was going to contact Riley's law firm in order to review the sealed file--we had no reason to appear because the court had not ordered us to appear.

* A lawyer contradicts himself -- In the same paragraph, Gespass proceeds to admonish us, stating: "One could argue that you are entitled to a new hearing, since you were not able to defend at the first one, but that still does not excuse failure to comply with a court order or to seek reconsideration." This is pure nonsense. How are we supposed to comply with a court order when we--in Gespass' own words--had never been served in the case, when we'd never received a summons to go to court? Gespass admits there was no lawful reason for us to appear in court, but then he slaps our hands for not going.

* A lawyer protects a corrupt judge and deputy -- At the end of the third paragraph, Gespass addresses a Motion to Quash I had filed because Deputy Mike DeHart conducted an unconstitutional traffic stop in a bogus attempt to "serve" us court papers. Saith Gespass: "Incidentally, the motion to quash was also denied, and, I believe, correctly so." When I asked Gespass to explain this sentence, he fumbled for an answer, and that's when I told him to get the hell out of my sight.

This sentence from Gespass' letter is utter BS, on multiple levels. First, a Motion to Quash cannot be summarily dismissed. Under Alabama law, a motion challenging service puts the burden on the plaintiffs to prove service was properly completed, and that requires a hearing. (Again, I had researched this before I ever was arrested; in fact, I posted about this very issue on the morning of my arrest.) No such hearing was held--and I know because we never received notice of one--so the motion could not have been denied, "correctly so." In Gespass' own words, we had not been served and had not received a summons, so the court had no authority to even address our motion to quash--in fact, under the facts and the law, we had no reason to file anything with the court, no reason to even acknowledge the court's existence. The record shows, according to Gespass, that legitimate service had not even been attempted, much less "effected."

* A lawyer turns into a schoolmarm -- In the fourth paragraph, Gespass addresses a hearing on a Motion for Contempt and notes that court records show we were sent notice by both certified mail and first-class mail. Gespass then proceeds to lecture us thusly: "You should understand that you are not free to ignore court orders, even if they violate constitutional rights. Your remedy is to seek to have them set aside through the court process. If you do not do so, you have to accept the consequences of your failure, as well as the consequences of being found wrong on the constitutional questions." Now, let's examine Gespass' words in the context of what he's already stated in his letter:

(1) He says that court records show the TRO and preliminary injunction were issued before service was completed. That meant the court had no jurisdiction over us--that is from Gespass' words, not mine--so how could the TRO and preliminary injunction be lawful? They can't be--they are void, probably a nullity.

(2) Gespass says a summons was not issued until October 16. He doesn't say that it was served on us, just that it was issued on October 16. Judge Claud Neilson's Order on Petitions for Contempt says the hearing in question was heard on October 17. That's one day after a summons was issued, but not served. How we can be forced to appear at a hearing when we have not been served with a summons for the case? We can't.

(3) By Gespass' own words, service could not possibly have been completed until October 16--and given that the summons was not issued until that date, it's extremely unlikely that service could be completed that quickly. The chances of us being served prior to the October 17 hearing were virtually zero.

(4) Here are the facts: October 16 was one week before my arrest, on October 23. Carol and I know that during that week, we picked up nothing via certified mail, we were served with noting via a sheriff's deputy, a process server, or anyone else. According to Gespass' letter--which is based largely on court records that he had seen, but we had not--we never were lawfully served. Deputy Mike DeHart's bogus traffic stop was on Sept. 29--and aside from the Fourth Amendment issues raised by the stop--Gespass says a summons was not issued in the case until October 16. That means the material DeHart gave us did not include a summons, the very document that calls a defendant to court. Even giving DeHart way more leeway than he deserves, we had no legal reason to go to court--because we were not lawfully summoned to court, either on September 30 or October 17

How to summarize what we've learned so far?  Numerous Web reports--from right-leaning sites to supposedly objective mainstream sites--have claimed I "ignored a court order" and deserved to be held in contempt. In fact, we never were lawfully summoned to court, and the record (combined with the facts as we know them) show we never were served at all. Again, those are from David Gespass' words, not mine.

And yet, I was brutalized inside my own home, doused with pepper spray, and hauled to jail for a five-month stay--based on the orders of a court that had no jurisdiction over me--and had not even lawfully summoned me to appear.

In an upcoming post, we will address the second page of David Gespass' letter, along with some curious public comments he made about our case.

(To be continued)


Anonymous said...

I'm sure Mr. Gespass will be delighted to see this.

Anonymous said...

I'm confused. You're saying the Riley and Duke lawsuit never included a summons for you? I don't get it.

Anonymous said...

I noticed that in your statement, "we picked up nothing via certified mail, we were served with noting via a sheriff's deputy, a process server, or anyone else.", you didn't mention actually checking your mailbox. Given how much you avoid service of legal papers, I am not surprised that you would not have picked up a piece of certified mail. The papers were sent through the mail, so a deputy or process server would not have been involved and you would have avoided them anyway. There would have been an easy way to know what was contained in those civil papers Dehart served on you; all you had to do was not throw them out the window and you could have read them. I'm sure a summons was contained in them. You act like this attorney was inept and, given that position, should we really trust that he read everything in the case file?

legalschnauzer said...

No, David Gespass is saying that; it's in the third paragraph of his letter. You're confused because it's unreal. I've had that letter for roughly 20 months, and it wasn't until about three days ago that I grasped what he was saying in the third paragraph. He's saying that a court ordered me arrested for contempt, even though it had never served me with a summons to appear. It had never even issued a summons until October 16, 2013, which was 12 days after a preliminary injunction had been issued against me (and my wife, Carol).

If you don't get it, join the crowd. I was directly involved, and it still boggles my mind.

Anonymous said...

God, no wonder you didn't hire this guy. I tried to read his letter, but it gave me a headache.

legalschnauzer said...

I'm not sure which is worse, @9:14, your reading-comprehension skills or your understanding of the law. A few points:

(1) A summons requires personal service--via sheriff, process server, certified mail, etc. (see Rule 4 ARCP). It can't be sent via U.S. mail, so checking our mailbox wasn't a factor. For the record, there was no certified-mail notice in our mailbox, either, and that's why I said we picked up nothing. (If a summons wasn't issue until Oct. 16, and the contempt hearing was on Oct. 17, there is almost no way certified mail could have been prepared in time to reach our mail box in that tiny window. I address that in point No. 3 of the post. But we received no certified-mail notice at any time after the summons was issued on Oct. 16.)

(2) You reference "those civil papers DeHart served on you." The court's own record shows we were not served on that date. (Try reading the post.)

(3) You say, "I'm sure a summons was contained in them." No, it wasn't. DeHart's "service" attempt was on Sept. 29, and the record shows no summons was issued until Oct. 16. No summons existed on Sept. 29, so it could not have been in the papers. (Try reading the post.)

(4) I didn't say Gespass is inept. I said he acted like a goofball during our personal visits, and I don't think he was being forthright in his communications with us. But the man's been practicing law for 25-30 years or more, he's a former president of the National Lawyers Guild, and I think he knows how to read a court file. I'm sure he's seen a few of them, although it's possible he's never seen one sealed like this one.

Any other ill-informed points you care to make?

Kimodo said...

Do I have this straight? You were held in contempt of court, even though the court had never summoned you to appear?

legalschnauzer said...

Yes, that's correct. And I had a preliminary injunction issued against me (and my wife!) even though the court file shows there was no service in the case. That means the court had no jurisdiction over us, as I've claimed all along.

But it's even worse than that: I thought there was no jurisdiction because Officer Mike DeHart had tried to serve us via an unconstitutional traffic stop. Turns out, there was no summons issued on that date, so DeHart had no process to serve us with. He had no authority from a court to being doing anything at all toward us.

This truly boggles the mind.

Anonymous said...

Is it possible that David Gespass read the file wrong?

legalschnauzer said...

I suppose anything is possible, @11:09. You can read Gespass' bio at the following URL and come to your own conclusions about his competence:


He's been practicing law since 1971, which is 44 years, by my calculations. He's a past president of the National Lawyers Guild. I was not impressed with him personally, and I believe he would have been a poor choice for us because I don't think he was being honest with us. But I'm sure he's reviewed a few court files in his day, and I don't think he's incompetent. In fact, he might be a damned fine lawyer in a case that did not involve a member of the Alabama legal tribe as an opposing party. My impression is that his No. 1 priority, in our case, was to protect the tribe. I'm sure Gespass is smart enough to know there was gross misconduct here--both by the court and Riley, Riley's lawyers, and perhaps other lawyers. He probably realizes that misconduct crosses into criminal territory, and he felt compelled to gloss that over.

Anonymous said...

I hate to sound stupid, but what exactly is a summons?

legalschnauzer said...

That's not a stupid question at all, @12:13. In fact, most people probably don't know what a summons is--I wouldn't know if we hadn't been involved in so much legal junk.

The best description I know of can be found at legal-dictionary.com, and here is the URL:


The gist of the definition is this:

"The summons is the document that officially starts a lawsuit. It must be in a form prescribed by the law governing procedure in the court involved, and it must be properly served on, or delivered to, the defendant. If the prescribed formalities are not observed, the court lacks authority to hear the dispute."

Without a summons, there is no lawsuit. And in our case, the file showed (according to David Gespass) that there was no service and there was no summons issued until Oct. 16 (and it was never served). The court had no authority to hear the case, but Judge Claud Neilson ordered a bogus preliminary injunction, a bogus contempt order, and caused me to be arrested under bogus circumstances (at the request of Rob Riley, Liberty Duke, and their lawyers).

A number of folks should go to prison for this.

Anonymous said...

A summons sounds like a simple thing to do. I don't understand why the other side wouldn't file one?

legalschnauzer said...

My guess, @12:41, is that no summons was issued because the Riley/Duke case never was intended as a legitimate lawsuit. It's intent was to serve as an excuse to arrest Carol and me. That's why cops were banging on our door, shining lights in our windows at night etc., even though they had no summons. Had we answered the door, they were going to arrest us and stuff us in jail and kill our cats--probably so someone could have free reign to go through our house in search of information I had prepared for this blog. When that plan failed, because they were unable to abduct Carol, they initiated a wrongful foreclosure on our house--again for the purpose of allowing access to our home and belongings. We were terrorized into leaving our home of 25 years, and we never should have left.

Without a summons, the cops who came on our property had no authority to be there--and that means they were trespassers. We probably would have had lawful justification to shoot them because their actions were no different from those of a common prowler or burglar. If I had it to do over again--and had I known then what I know now--we probably would have shot them. My understanding of the law is that you have a right to defend yourself against someone who appears to be unlawfully trying to enter your home--and that's what we were faced with.

By the way, if our foreclosure was unlawful (and it almost certainly was) individuals from Spartan Value Investors who came on our property also were trespassers. Kind of wish I had shot them, too.

Legal Insider said...

I'm familiar with David Gespass, and he has the reputation of being a pretty good lawyer. But here is my main criticism of him in this instance: All you really wanted to know, I'm guessing, is, "How can I get the heck out of here?" And Gespass, in his letter, does not make that clear. All of the business about discovery, and whether you did or did not respond correctly to a court order, is secondary to the overriding issue of getting your release. There is no question you were arrested based on an unconstitutional court order, so getting that overturned and getting you released as soon as possible should have been his only focus. All that other stuff could wait for later. As you note, to be forced to consider all of these legal issues while you are unlawfully incarcerated is grossly unfair and a violation of your due-process rights. It's alarming to me that, from the tone of Gespass' letter, he was content with you sitting in jail for a while. That's hard to comprehend.

legalschnauzer said...

Thanks for your insights, LI. You are right: I had one question and one question only: "How do I get out of here?" Instead, I get this rambling letter from Gespass that doesn't provide a real solid answer to that question. His main suggestion seemed to be that I remove the allegedly defamatory posts--even though they had not been found to be defamatory at trial (because there was no trial), and I had no way to remove them from jail anyway. What kind of legal advice is that?

Dazzle said...

Why was Gespass lecturing you about responding to a court order when he admits the court had issued no summons for you to appear? Makes no sense.

legalschnauzer said...

Excellent question, Dazzle. In my mind, that's a strong indicator that Gespass had an agenda other than helping me get out of jail. Lots of things about this case make no sense, as I will show in an upcoming post about Gespass. In his own words, he called the situation "insane," "bizarre," and "strange"--and yet, he did nothing about it. He also said there was no legal justification for it, but he did nothing to correct it. And lawyers wonder why society, in general, despises them.

Legal Insider said...

It wouldn't be appropriate for me to say too much more about Gespass' actions and inactions. But this much is clear: You never should have been in jail, but that you were there for five months is an outrage. The letter you published today makes me think your five-month jail stay was not due to intransigence on your part, but failure to act on the legal community's part. Mr. Gespass had the power to get you out pretty quickly, and that he failed to do so, is alarming. It makes the profession look bad--and we already look bad in the eyes of many Americans.

Anonymous said...

The part about Gespass twirling his pencil in the air and catching it made me LOL. That must make a mighty fine impression on a potential client.

legalschnauzer said...

Oh, it does, especially when the would-be client is sitting in jail for the first time in his life--the victim of what amounts to a kidnapping.

Anonymous said...

How does David Gespass look the other way when he knows there was no summons, no service, and no lawsuit?

legalschnauzer said...

Maybe he doesn't have a conscience, @3:53? That's the only answer I can come up with.

Anonymous said...

I guess the Popehat guy and the New York Times reporter will be sending apologies your way at any moment?

legalschnauzer said...

Yes, I'm holding my breath for those apologies.

e.a.f. said...

The last time I checked lawyers charged money for their time. If you are in jail without an income, you don't have the money to hire a lawyer. For that matter finding a lawyer is difficult if you're stuck in a cell without easy access to a phone.

now is it better to have no lawyer or a bad lawyer or a lawyer who might sell you out? My opinion, its better to have no lawyer. We've all seen cases where bad lawyers got their clients into more trouble than if they'd have no lawyer.

Lawyers are in it to make money. Just like the majority of doctors, taxi cab drivers, dentists, servers don't work for free, neither do lawyers. Some lawyer do pro bono work, but usually its close to home and its very dire circumstances, That is not to say your case wasn't a dire circumstance because it was, however, there are more people who are unable to defend themselves at all.

Those who criticise you obviously have bigger bank accounts than any number of other americans who can not afford to hire lawyers or pay bail. its one of those problems Mom explained to me as a child. The rich always have justice, they have better lawyers.

the U.S.A. has more incarcerated people than any nation on earth. that ought to tell you some thing about the "JUSTICE SYTEM". There isn't any left in the U.S.A.

Matt Osborne said...

Sources indicate that Gesspass is not a legal genius, after all.

legalschnauzer said...

He certainly did not leave a favorable impression on me. My biggest concern, though, is this: If Gespass knows this case was initiated without a summons and without service, and it seems clear lawyers were behind that, he has an obligation under bar rules to report it. He also should have made sure I understood the seriousness of his findings, instead of burying them in a rambling letter that I did not fully grasp until a few days ago.

Instead of speaking out or raising these issues in the appropriate forum, as he is required to do, Gespass' silence has been deafening.

Anonymous said...

You should focus on Rule 65, not Rule 4

legalschnauzer said...

I see nothing in either rule that says a summons is not required in a matter seeking a preliminary injunction. Are you aware of anything in either rule, or in case law, that says a summons is not required in such an action.

Aside from that, we know it's unlawful to even seek a preliminary injunction in a defamation case, but for now, our focus is on the procedural matter of a summons. And everything I've read says a summons is essential to giving the court authority to rule on any matter.