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Tuesday, July 21, 2015

Letter from Alabama attorney David Gespass reveals I was arrested because of a lawsuit that did not exist, by a court that had no authority to even hear the case


An Alabama judge granted a preliminary injunction, leading to my five-month incarceration, before a summons was issued in the case and before I was served, according to a letter from a civil-rights lawyer who reviewed the file when it was sealed.

Birmingham attorney David Gespass made the stunning revelations in a letter, dated October 31, 2013, to my wife, Carol, and me. (See letter at the end of this post.) Gespass wrote the letter between his two visits with me at the Shelby County Jail, where I had resided since my arrest on October 23 due to alleged contempt of court in a defamation lawsuit brought by Republican operative Rob Riley and lobbyist Liberty Duke.

A document that Riley and Duke filed on October 4, seeking to have Carol and me held in contempt and arrested, supports Gespass' statements.

While records show a summons was issued on October 16, according to Gespass, we never were served with it. The record also shows that we were not served during an unconstitutional traffic stop that Officer Mike DeHart conducted on September 29--and that's probably because the documents he handed us did not include a summons, meaning they were of no legal consequence. Since no other efforts (real or fake) were made to complete service, the record indicates we never were served.

What does all of this mean? It means the Riley/Duke lawsuit never existed because the defendants (Carol and me) were not summoned to court. It means Judge Claud D. Neilson had no authority to hear the case or order my arrest. It means the court had no jurisdiction over us, as we've claimed all along. It means Deputy Chris Blevins was a trespasser when, with no legal authority, he entered our garage, beat me up, and doused me with pepper spray. It means that all of the deputies who repeatedly traipsed over our property to supposedly serve us with court papers, which did not include a summons, had no authority to be there and also were trespassers.

In short, it means the whole process was more blindingly corrupt than even Carol and I could have imagined. Here is the scariest part of all: This was an "extra judicial process"--orchestrated by Rob Riley and Liberty Duke, the Shelby County Sheriff's Department, and whoever was pulling their strings--with no lawful authority from any court.

I have reported several times that my arrest, in essence, was a kidnapping because DeHart served us via a traffic stop that violated the Fourth Amendment right to be free from unreasonable searches and seizures. Thanks to the information in Gespass' letter, we now can remove the words "in essence" from that sentence.

I was kidnapped, pure and simple, by individuals who clearly knew they were acting outside court boundaries.

Whenever anyone is served with a lawsuit, the first document they likely see is the summons--it always should be right on top. The summons, signed by the court clerk, should identify the parties and the case number and instruct defendants that they have a certain period of time (usually 30 days) to respond. Many summonses include language like "This document is important; do not ignore it" in bold letters.

The deputies who gave the appearance of trying to "perfect" service had every reason to know there was no summons--and that means there was nothing from any court to authorize their actions. That reduces Blevins' actions in our garage to an assault and battery.

What is a summons and why is it important? A definition can be found here, at legal-dictionary.com. Here is the key information:

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.

Were the prescribed formalities followed? Not according to Gespass. Here is the third paragraph from his letter:

First of all, both the temporary restraining order [TRO] and preliminary injunction (the latter is now in effect, but both say the same things) appear to have been issued before service was effected. 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. However, I would assume the preliminary injunction order was included in the service materials you threw away. 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 seek reconsideration. Incidentally, the motion to quash was also denied, and, I believe, correctly so.

As we explained in a post yesterday, the last three sentences of that paragraph are utter bunk--because Gespass shows in the first two sentences that the court had no authority to hear the case.

David Gespass
Speaking of our Motion to Quash, we filed it on October 16, the same day the court finally issued a summons. It appears someone in the clerk's office saw our notice, was about to enter it into the file, and said, "Holy crap, there's no summons in this case! I guess I had better create one out of thin air, stat!" It's also possible the clerk discovered there was no file at all and decided to create a summons to give the illusion of some court involvement in the matter.

Do we have only Gespass' words to show there was no summons? Nope. One of Riley's own documents--Petition to Hold Respondents in Contempt, dated October 4, 2013--indicates the same thing. Item No. 4 in the petition, which begins at the bottom of the second page, states:

On September 30, 2013, the court held a hearing on the Petitions for Preliminary Injunction. Respondents did not attend the hearing even though they were provided notice of said hearing. That notice, contained in the TRO, was flagged when Respondents were served with it, which should have drawn Respondents' attention to the TRO and the date of the hearing on the Petitions for Preliminary Injunction.

First, the court record shows we were not served with the TRO. Second, a defendant is not called to court because a document is "flagged" with "the date of the hearing" (whatever that means). A defendant is called to court when he receives a summons--and the record shows a summons was not issued until October 16, and we never were served with one.

Countless news accounts of my incarceration--even some that were well reported and generally accurate--claimed I "ignored a court order" and hinted that my arrest was somehow justified (at least a little) because we did not appear in court. Now we know that Carol and I never were summoned to court, that we had no lawful reason to be there.

Many questions remain about the flagrant corruption surrounding the Riley case, and here is one of the biggest: If the court did not issue a copy of a summons and the complaint for deputies to serve, who did give it to them? The evidence suggests that someone connected to Riley and Duke gave copies of the complaint directly to the sheriff's office--and deputies went through the charade of "serving" them, knowing there was no summons and no authorization from the court. In other words, the plaintiffs and law enforcement conducted a nifty end run around the judicial process.

What can we take from all of this? Well, the latest information removes all pretense of lawfulness surrounding my arrest and incarceration. When the court appeared to have some authority over the matter, that gave at least a hint of legitimacy to the deputies' actions. Without court authority, however, cops become common thugs--especially in a civil matter, such as this.

That means I was the victim of a felony assault, trespassing, kidnapping, obstruction of justice, deprivation of constitutional rights, conspiracy . . . there is no telling how long the list might get. And these are criminal matters.

It's long been clear that Carol and I have strong civil claims connected to all of this. But now, it appears to have jumped into heavy-duty criminal territory--with Rob Riley and Liberty Duke at the center of it.




26 comments:

Anonymous said...

Gespass can't read a court file. The court file shows that the summons was issued on 9/23/13

Anonymous said...

Having trouble wrapping my head around this.

legalschnauzer said...

Join the club, @11:52. The Reader's Digest version is this: Rob Riley went around the judicial system, directly to law enforcement, and got them to kidnap me--and attempt to kidnap my wife.

legalschnauzer said...

Can you please provide proof of this, @11:38? Better yet, can you contact me via e-mail (rshuler3156@gmail.com) so that we can arrange a time to talk via phone? Obviously, I have a personal interest in your findings.

Anonymous said...

You state that a summons usually gives you 30 days to respond, but my memory is that the deputy gave you court papers on a Sunday, and you and your wife were supposed to attend a hearing the next day, on a Monday. How could that be? Would a summons actually order someone to appear the next day?

legalschnauzer said...

You ask a great question, @12:11, and I'm going to ponder that one. Here is the deal with service, as I understand it: The court has no idea when defendants actually will be served. It could be one day after the summons is issued, it could be two months (or more) after the summons is issued. That's why the summons usually says something like, "You are required to respond within 30 days from the date of service." That's why it would be peculiar for a summons to say, "You must appear for a hearing on this date"; the court has no idea if you will be served by that date. Plus, the point of a summons is not to order you to appear for a hearing; it's to inform you that you have been named in a lawsuit, and you have a certain amount of time to respond (usually 30 days).

Is the time frame different in a case seeking a preliminary injunction? I don't know, but I know for sure that less than 24 hours notice is not lawful. I've reported on that several times, including here:

http://legalschnauzer.blogspot.com/2013/10/riley-tries-to-hold-legal-schnauzer-in.html

Anonymous said...

The bio on Gespass' website says he has been practicing law since 1971. That's 44 years, but he can't read a court file? That seems far-fetched to me, @11:38.

http://www.gespassandjohnson.com/bios.html

Shaheed AbdulAzeez said...

@11:38 seems to have a dog in this fight. Maybe he can read better than Gespass but even if, as 11:38 infers that the summons was filed on 9/23/2013, it seems your motion to quash dated 10/16/2013, was within the time frame to quash the order. Thus,it appears on the surface, 11:38 point is moot.

Anonymous said...

A sheriff's office that would knowingly participate in the kidnapping of a citizen? That is truly sick stuff. When you combine that with all of the other videotaped police misconduct that is out there, we need a massive federal investigation and house cleaning in law enforcement.

legalschnauzer said...

Thanks for your comment, Shaheed, and I think your argument is legally sound--in fact, I know it is. I've invited @11:38 to provide proof of his claim regarding the summons. I've heard nothing so far, but will keep folks posted.

Anonymous said...

As you state in the post, Riley's own document indicates no summons was issued. Doesn't seem to be much room for debate on that. Not sure where @11:38 is coming from.

Anonymous said...

Given the corruption in the Alabama court system, especially in Shelby County, isn't it possible that both Gespass and @11:38 are right? That when Gespass saw the sealed file, no summons had been issued and no service had been completed. But by the time, @11:38 saw the file, it had been manipulated to show a summons issued on 9/23? Is there anything in place to keep someone from fooling around with the record to make it look more legitimate than it really is?

legalschnauzer said...

I hadn't thought about it, @6:48, but I have little doubt something like what you describe would be possible. In fact, I've written a time or two that, based on my experience, court clerk's offices are Ground Zero for a lot of corruption. For example, judges are supposed to receive cases through random selection, but I have zero doubt that a lot of judges cherry pick certain cases via clerks' offices. I feel certain attorneys have ways of getting favored judges on their cases.

Manipulation of the sort you mention probably could be done either through Shelby County or in Montgomery, through the Administrative Office of Courts (AOC). It's hard to trust any system where a member of the Riley family is involved, especially when Rob Riley asked for the case to be sealed, without any law to support that request.

This is another example of my due process rights being trampled. I didn't hire Gespass, but I consulted with him, and there is no way he should have had to contact Riley's lawyer to see the court file. He should have been able to tell me during our meetings what he had found in the file. It was extremely prejudicial for me, and any attorney I consulted, to have to fumble around in the dark like that.

legalschnauzer said...

Here is URL to a Popehat post with a scathing analysis of "Judge" Neilson's actions in the Riley case. It also includes a link to the permanent injunction, which shows the seal was not removed until November 14, 2013. In other words, the seal stayed in place until Riley got everything he wanted from Neilson, and even Popehat expresses concern that Riley's lawyers obviously were writing Neilson's orders for him.

The Riley case supposedly was filed in July (which I've never believed), so that means the case was sealed for roughly four months. That's a lot of time for manipulation of the file, so I'm not sure anything that appears in the file at this point can be trusted.

BTW, I still haven't heard back from @11:38, so I see no reason to trust a statement from someone who won't provide any proof or put his name to his claim. I believe the Gespass information is accurate.


http://popehat.com/2013/11/19/alabama-court-releases-highly-problematical-written-permanent-injunction-against-roger-shuler/

Anonymous said...

@Shaheed I don't believe anyone said the motion to quash service was outside a 30 window. In fact, Gespass said the motion was denied, which leads a reasonable person to believe it was considered by the court. There is no indication as to why it was denied. A copy of the case file and transcript from all the hearings would probably reveal how everything came to this point. Since some of you believe things keep getting put into the file, it would prove if things get added at a later date. I don't understand why Roger hasn't gotten a copy of everything and published it. That would have been the first thing I did. He's had over a year and still hasn't done it. Seems kind of weird for someone so keen on researching corruption to not do that.

legalschnauzer said...

I'll respond with a couple of points, @12:15--

(1) A motion challenging service, such as a motion to quash, puts the burden on the plaintiffs to prove service was lawfully completed. That's Alabama law, and I've written multiple posts about it. It's not just a matter of the court considering the motion. It must conduct a hearing and determine if the plaintiffs can, in fact, prove service was proper. That wasn't done in this case, so we never were lawfully served. According to Gespass, the court file (when he viewed it) showed that we weren't served.

(2) You might have seen on the blog where we were forced to leave our home due to a dubious foreclosure. I don't have the same access to Alabama court records that I once had. Even if I did, court records are not free. You have to pay for them, and an entire file would involve more money than I care to spend.

(3) I don't know of any way to prove if things are added at a later date to the file unless you had the ability to do a forensic examination on the relevant computer system. A regular citizen, checking the file, is only going to see what the file currently shows. It won't tell you anything about whether it's been doctored or not.

For the record, it was a reader and not me who raised the issue of possible doctoring of the file. But I agreed that I believe it's possible, particularly on a case that was sealed with no legal justification.

It would take way more than me copying and publishing items to determine if tampering has occurred with the file. Someone with forensic knowledge would need to look into the guts of the computer system to determine when things were added or subtracted--and if that matches what the public file shows. I obviously don't have the authority to do that. It would take law enforcement, probably the FBI.

Anonymous said...

My point wasn't that you can tell retroactively if the case file was tampered with. My point was if you had a copy of the case file from early on, then you could compare it to what is there now. If things got added after you got the original case file, you would know someone was tampering with it. As a "journalist" why would you not want to prove that shady practices have gone on.
As for the motion to quash service, you might find that the other attorneys realized you might try to quash service and actually provided testimony at the first hearing concerning how the service was performed. It would be easy to know how you felt because of your history and the youtube video right after you were served. Of course that video has been removed, and, probably correctly so, given the court order. I think you will agree that a copy of the transcript from the hearing would add some clarity for your readers.

legalschnauzer said...

Geez, you are dense, but I will try to explain a few things:

(1) Are you aware that I was in jail "from early on" in the case. Makes it kind of hard to get a copy of the original file. Plus, the case was sealed, even to me as a party. If you've been following the case, you should know these things.

(2) Your contention that opposing attorneys might anticipate a motion to quash, and thus provided testimony re: service at the first hearing is laughable. The process of determining whether service was lawful or not starts when a motion challenging service is filed. I've cited the law on this in multiple posts, so if you refuse to educate yourself, I'm afraid you are beyond my help.

(3) I don't know what video you are talking about, but I haven't removed any videos from my YouTube page. I did several videos after the bogus "service," and they are all still there.

(4) We know from David Gespass' letter that the record shows we were never served and no summons existed at the time of the alleged service via an unconstitutional traffic stop. Again, if you refuse to read Gespass' letter or my post about it, I can't help you.

Anonymous said...

There are at least four youtube videos that I don't see. Two were in reference to a neighbor striking you with a sign of some sort. You had recorded a phone conversation between you and deputies. The other two were after you were served. One was of you talking about papers Dehart had served you that you found in your vehicle after throwing most of them out the window. The other on was you driving out of your neighborhood that you claim prove you didn't run the stop sign. I don't know if their are others, but those are the ones I know aren't visible to me anymore.

legalschnauzer said...

The videos you mention are there. In fact, most of them are published on my blog and are easily accessible. I don't remember a video about the neighbor striking me with a sign, but if there was one, it hasn't been removed. Not sure why you are having problems.

Anonymous said...

A post you published on Oct 7, 2013, which is the correct time frame for two of the videos I mentioned earlier, has an embedded youtube video that is set to private. I'm sure you can see them, but nobody else can.

legalschnauzer said...

Well, you are changing your story now. Before, I believe you said certain videos had been removed, and I correctly stated that they haven't. Now you are saying one has been put on private, which is a different thing from removal. If anything has been put on private--and I don't if it has been or not--my wife probably did that as a condition of getting me out of jail, to comply with Judge Claud Neilson's unlawful permanent injunction.

That's the way the law works in Alabama. You can be forced to remove from a blog material that never has been proven to be false and defamatory at trial in a court of law. If you don't abide by that unlawful order, you stay in jail, where you've been placed after being kidnapped.

I'm sure none of that concerns you because you aren't concerned with either the law or the truth. You are concerned only with whatever pony you have to ride in this matter--and you are too much of a coward to identify yourself and tell us why you are riding said pony.

Not sure you deserve to take up any more of my time here--or the time of my readers. Until you prove that you aren't a con man or a fraud, I have no interest in your games. I would suggest you take your shuck and jive routine somewhere else.

Anonymous said...

Roger, have you gone to the courthouse and looked at the court file in the Riley Shelby County case?

legalschnauzer said...

I've said I don't live near the Shelby County Courthouse anymore, so no. Have you gone to look at it?

Anonymous said...

Alabama's MO is to have someone digitally alter documents in JustOneLook/Alacourt or whatever means they can and or have someone omit and or mislabel documents. Whoever does this ensures that the innocent party does not have access to the documents or that the documents are sealed. I know some of the operational details because they believe that they have gotten over on me. I have proof of what was done. Roger, I'm not a lawyer and not practicing law, but I believe that the Alabama Rules of Civil Procedure and Federal Rules of Civil Procedure dealing with service of process is 4. I have a religious and moral conviction to help others and tell the truth. My First Amendment right is supposed to protect me from the despots but I always have to mention the disclaimer and my information may be wrong because only an attorney who is licensed in your jurisdiction can give legal advice and practice law. I believe there was no constitutional authority, statutory authority, or binding law that permits what was done to you and your wife. Best wishes and I hope you find a truthful, competent attorney.

legalschnauzer said...

Thanks for sharing, @3:49, and feel free to keep me updated on your situation. I'm convinced clerk's offices are the site of mucho corruption in many courthouses.