Federal judge in Siegelman FOIA case seems to favor privacy of government employees over the public's right to know if its business was conducted lawfully

Joseph and Don Siegelman

Which is more important: (A) That the public be assured its justice-related work is conducted ethically; or (B) The personal privacy of justice-related government workers is protected?

In a semi-functional democracy, the answer clearly should be "A." But the recent dismissal of a Freedom of Information Act (FOIA) lawsuit in the prosecution of former Alabama Gov. Don Siegelman suggests the answer is "B" -- at least in the minds of federal judges and Department of Justice (DOJ) employees.

As we recently reported, a FOIA lawsuit from Birmingham attorney Joseph Siegelman (Don's son and a candidate for attorney general of Alabama) produced documents from the DOJ's Office of Professional Responsibility (OPR) that were, according to a source close to the case, "so heavily redacted they were worthless." That means a 12-year government cover-up of documents about the "recusal" of Leura Canary (then U.S. attorney for the Middle District of Alabama) -- and other key issues in the Siegelman prosecution -- will continue to keep the public in the dark.

OPR turned over the documents last April for in camera review, and U.S. District Judge Madeline Haikala -- surprise, surprise -- sided with the government. Haikala let the case stay dormant for roughly 10 months before dashing off three rulings in February 2018, the last being a final order, dismissing the case on Feb. 28.

This is the same Haikala,-- an Obama appointee and former attorney with Birmingham's Lightfoot Franklin firm, -- who twisted the facts and law into a pretzel in order to let Madison police officer Eric Parker off on criminal charges after he had body slammed Sureshbhai Patel (a grandfather from India), causing spinal injuries. We reported a four-part series about the myriad ways Haikala butchered the law in the Patel case. Our view is that she butchered the Siegelman FOIA case, too.

An online summary of the case docket indicates Haikala sided with the government because it claimed certain information requested was exempt under FOIA.  The final docket entry reads as follows:

2018-02-28 -- 28 -- FINAL ORDER - On February 23, 2018, OPR gave notice that it produced the identified non-exempt portions of its report to Mr. Siegelman. (Doc. 27). Because OPR produced the portions that are not protected from disclosure under FOIA exemptions 3, 5, 6, and 7(C), Mr. Siegelman's request for injunctive relief is now moot. Accordingly, this action is DISMISSED AS MOOT. Signed by Judge Madeline Hughes Haikala on 2/28/2018. (KEK) (Entered: 02/28/2018)

FOIA includes nine exemptions, where the government does not have to produce information. In the Siegelman matter, OPR claimed exemptions 3, 5, 6, and 7(c). Let's examine the language in each of those four exemptions:

Exemption 3: Information that is prohibited from disclosure by another federal law.

Exemption 5: Privileged communications within or between agencies, including those protected by the:

1. Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
2. Attorney-Work Product Privilege
3. Attorney-Client Privilege

Exemption 6: Information that, if disclosed, would invade another individual's personal privacy

Exemption 7: Information compiled for law enforcement purposes that

7(A). Could reasonably be expected to interfere with enforcement proceedings
7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy

Detailed information is available at the following links: Exemption 3,  Exemption 5, Exemption 6, and Exemption 7. Without diving too deeply into the minutiae of FOIA law, let's try to look at this from the "reasonable man" perspective.

The government spent more than five years investigating Don Siegelman and co-defendant Richard Scrushy. In fact, the investigation dragged on so long that it passed the five-year statute of limitations, meaning the case, by law, could not go to trial. The prosecutors, judges, their offices, and courthouses -- all resources on the government's side of the case -- were taxpayer funded. After a jury reached a guilty verdict that ran contrary to facts and law, Siegelman and Scrushy were sent to federal prison for roughly six years each -- all at taxpayer expense.

Madeline Haikala

Does the public have a right to know if the prosecution was conducted lawfully? Well, the case cost taxpayers millions of dollars, so the answer clearly is yes. Why does the Office of Professional Responsibility, then,  seemingly feel it has no responsibility to the public? Why do OPR lawyers -- with assistance from a federal judge -- use FOIA as a tool to cloak information in darkness, rather than to shine light on government processes?

Exemptions 3 and 5 involve mostly inter-agency communications and legal privileges that can be arcane and mind-numbing. Without access to the full court file, it's hard to take an informed view of those, so we won't spent time on them.

Exemptions 6 and 7(c), both dealing with "personal privacy" (apparently of government employees, in the Siegelman case), are deeply alarming. Certainly Leura Canary and others who worked on the Siegelman prosecution have "personal privacy," to a certain extent. Let's imagine Canary used her work computer to jot out a grocery list, make a guest list for a party, or write a letter to a relative. If those showed up in a FOIA search, they understandably would be redacted as private.

But when Canary and her staff put on their prosecutors' hats and conduct public business, why should they be entitled to "personal privacy"? Why should their actions on the Siegelman case -- generally considered the most flagrant political prosecution in U.S. history -- be considered "private"?

Exemption 7, for example, applies to records that were "compiled for law enforcement purposes." But multiple courts have held it must a a "proper law enforcement purpose." What if the Siegelman case was brought for political purposes, which had nothing to do with legitimate law enforcement? That probably is the central question that Joseph Siegelman's FOIA lawsuit sought to answer. But the government apparently is allowed to unilaterally declare -- in a "trust me" sort of way -- that it acted in good faith, without providing any evidence to support that assertion.

As for Exemption 6, withheld information must fall in the category of " "personnel and medical files and similar files." Why would Joseph Siegelman be interested in personnel and medical files of DOJ employees? He wouldn't. Why would such files have an impact on his father's prosecution? They wouldn't. It's hard to imagine how Exemptions 6 and 7 could apply to the Siegelman FOIA request.

From  a practical standpoint, why would Leura Canary, her staff, and OPR be concerned about a FOIA request if the Siegelman case was conducted lawfully, for "proper law enforcement purposes?

That the government has been stonewalling now for 12 years suggests someone has something to hide. And the public should be outraged that it's still in hiding.

U.S. Judge Madeline Haikala dismisses FOIA case on Siegelman prosecution, as DOJ is allowed to produce documents so heavily redacted as to be worthless

Joseph and Don Siegelman

A lawsuit seeking information from the U.S. Department of Justice (DOJ) about the prosecution of former Alabama Gov. Don Siegelman has been dismissed. As often is the case with federal-court matters in Alabama, the final ruling is dubious -- in large part, because Judge Madeline Haikala received documents from the DOJ's Office of Professional Responsibility (OPR) last spring and sat on the case for roughly 10 months before making a final ruling.

Does Haikala's ruling make sense under the law.? We don't have access to the entire court file, so it's hard to make a determination on that question. But an online summary of the case docket raises troubling questions and suggests powerful conservative forces -- both in Alabama and Washington, D.C. -- are trying to keep the lid on what really happened in a case that has become known as the most notorious political prosecution in American history.

Here is the most disturbing part: OPR turned over documents that "were so heavily redacted they were worthless," a source close to the case says -- and Haikala let the government get away with that. Haikala,an Obama appointee and former attorney with Birmingham's Lightfoot Franklin firm, is the same judge who twisted the facts and law into a pretzel in order to let Madison police officer Eric Parker off on criminal charges after he had body slammed Sureshbhai Patel (a grandfather from India), causing spinal injuries. We reported a four-part series about the myriad ways Haikala butchered the law in the Patel case.

Is there any reason to think Haikala got it right in the Siegelman matter? I don't see any.

The case started when Birmingham attorney Joseph Siegelman (Don's son and currently a candidate for Alabama attorney general) filed a lawsuit under the Freedom of Information Act (FOIA), seeking documents about the prosecution that caused his father to spend more than six years in federal prison. Of particular interest were documents related to the supposed recusal of Leura Canary, who was U.S. attorney for the Middle District of Alabama on the Siegelman case -- even though her husband, Bill Canary, had worked for the campaign of Siegelman's chief opponent, Bob Riley.

Madeline Haikala

Joseph Siegelman's lawsuit is the latest in an effort that has gone on for more than a decade, struggling to unlock the truth behind his father's case and meeting OPR stonewall tactics at every turn. This is from a Legal Schnauzer post of April 17, 2017:

The road to seeking government documents has been long and winding in the Siegelman case. It started with a FOIA request in 2006, a FOIA lawsuit in 2009, and years of stonewalling by both the George W. Bush and Barack Obama administrations.

Are these documents sensitive? Well, the government has covered them up for 11 years, when both Republicans and Democrats controlled the White House. That has led to the current Joseph Siegelman lawsuit, with OPR supposedly turning over the documents and Haikala supposedly set to act with integrity while reviewing them outside of public view.

At the time those words were written, OPR had just turned over the requested documents for Haikala's in camera review. We now know those documents were so redacted, with information blacked out at every turn, that they provided almost no information about Canary's "recusal" or anything else related to the Don Siegelman prosecution. To justify the redactions, OPR apparently claimed the material was exempt from disclosure under FOIA. Haikala -- surprise, surprise -- sided with OPR, in a ruling that suggests we might as well not have a FOIA law if the government can get away with producing blacked-out documents that reveal nothing.

Here are the final four entries from Joseph Siegelman's FOIA case:

2017-04-10 -- 25 -- NOTICE by Office of Professional Responsibility, United States Department of Justice (Notice of Submission of Ex Parte, In Camera Material) (Bennett, Michelle) (Entered: 04/10/2017)

2018-02-09 -- 26 -- ORDER TO SHOW CAUSE - The Court ORDERS OPR to SHOW CAUSE by February 23, 2018 why the portions of the report identified above are subject to the FOIA exemptions claimed and cannot be segregated and produced, or to produce those portions of the report to the plaintiff. Signed by Judge Madeline Hughes Haikala on 2/9/2018. (KEK) (Entered: 02/09/2018)

2018-02-23 -- 27 -- RESPONSE to re 26 Show Cause Order filed by Office of Professional Responsibility, United States Department of Justice. (Bennett, Michelle) (Entered: 02/23/2018)

2018-02-28 -- 28 -- FINAL ORDER - On February 23, 2018, OPR gave notice that it produced the identified non-exempt portions of its report to Mr. Siegelman. (Doc. 27). Because OPR produced the portions that are not protected from disclosure under FOIA exemptions 3, 5, 6, and 7(C), Mr. Siegelman's request for injunctive relief is now moot. Accordingly, this action is DISMISSED AS MOOT. Signed by Judge Madeline Hughes Haikala on 2/28/2018. (KEK) (Entered: 02/28/2018)

Notice that OPR turned over the requested (and heavily redacted) documents for Haikala's review on April 10, 2017, and the case went dormant until February 2018. Then, in a span of 19 days, Haikala issued three orders that disposed of the case -- with no sign she even considered any Siegelman arguments to OPR's claims of exemption -- with a final order dated February 28, 2018.

Does that smell funny to you -- especially when you consider Trump Attorney General Jeff Sessions played a major role in launching the Siegelman investigation while serving as U.S. senator from Alabama? It sure smells funny to me, given that Sessions and his allies -- including some "Democrats" -- likely had major influence on Haikala, and her outlook for career advancement.

Killing of Terence Crutcher in Tulsa, OK, shows the ability of law enforcement to escalate problems, not solve them -- and to lie flagrantly in the process

The shooting of Terence Crutcher by Tulsa cops
(From bearingarms.com)

(Update @4:30 p.m. CDT on 9/22/16 -- Tulsa police officer Betty Shelby has been charged with first-degree manslaughter in the shooting death of Terence Crutcher. In a New York Times article published roughly 20 minutes ago, Tulsa County DA Steve Kunzweiler said: "Although she is charged, she is presumed innocent until a judge or jury determines otherwise. I don’t know why things happen in this world the way they do.” Will federal civil-rights charges be next? We recently had such a case in Alabama. Here is a link to our six-part series about the issues that arose in the case of Officer Eric Parker and Sureshbhai Patel. A link in the first paragraph goes to the full series. A similar case is likely to unfold in Oklahoma.)

In the two-plus years since police in Ferguson, Missouri, shot and killed Michael Brown, America's news pages have been filled with stories of cops gunning down or otherwise abusing citizens, leaving a trail of death and serious injury in their wake. But no case might be more sickening than the shooting last Friday of Terence Crutcher in Tulsa, Oklahoma. Some have called it an "execution"; others have called it "cold-blooded murder." Police admit that Crutcher had no weapon in his possession,  and he is seen on video walking toward his vehicle with his hands in the air. A few moments later, he is lying in the street with blood pouring from a chest wound, courtesy of officer Betty Shelby.

What is most disturbing about this case? Given the horror of it all, that's hard to say, but this jumps out to us: Terence Crutcher was not part of any crime, no call of a crime involving him had even been called in. Tulsa police reportedly had received an unrelated domestic-violence call and were on the way to check on that when they came across Terence Crutcher's vehicle stalled in the road. Next thing you know, Mr. Crutcher was lying on the pavement next to his vehicle, dying from a chest wound.

Democratic presidential candidate Hillary Clinton, calling the Crutcher killing "unbearable" and saying it needs to be "intolerable," plans to develop national standards to prevent police shootings. Clinton pointed to systemic racism as part of the issue, and we certainly agree with that. But my wife, Carol, and I know from first-hand experience that cops can abuse white people, too.

I was beaten up in my own garage, doused with pepper spray, and dragged off for a five-month stay in an Alabama jail -- all by an officer who never said he had a warrant, never showed a warrant, and never even stated his reason for being on our property. During an unlawful eviction in Springfield, Missouri, officers told Carol she could enter our apartment to gather belongings, But Carol had been able to gather only one handful of items when an officer slammed her to the ground and yanked on her limbs so viciously that her left arm was snapped in two -- all during an eviction that, by law, was stayed because we had timely filed a notice of appeal. Terence Crutcher wound up dead because his car conked out.

We see two deeply troubling issues running through all three of these cases:

(1) Police officers start issuing inappropriate commands in situations where no commands, of any kind, are called for;

In my case, Shelby County deputy Chris Blevins tried to cut me off with his vehicle from driving into my own garage. When that failed, Blevins walked inside the garage as I was exiting our vehicle and preparing to lower the garage door. "Why don't you step outside?" he said. Knowing Blevins had stated no reason for his presence on our property, I said, "Why don't you get out of my garage?" I soon was violently being pushed three times to a concrete floor and doused with pepper spray.

(For the record, I have not studied the possible effects of pepper spray on human eyeballs, but mine were filled with the stuff that night. With the Shelby County Jail about 25-30 miles away in Columbiana -- and with Officer Blevins writing his report while I sat in the back seat of a squad car -- I had a heavy dose of pepper spray in my eyes probably for more than two hours. It stayed there until I was stripped and told to enter a decontamination shower at the jail. My eyes and my vision have not been the same since that incident. Even with my glasses on now, my vision is blurry, and I'm struggling to see the computer screen, and my eyes frequently get dry and sore.)

Did I have reason to follow any of Blevins' commands? Well, he violated Alabama law the moment he stepped into our home without stating his purpose for being there. (See Livingston v. Browder, 285 So. 2d 923, Ala. Civ. App., 1973.) Without stating his purpose for being there, and without showing a warrant or making any reference to a warrant, Blevins gave me no reason to believe he had grounds for issuing commands.

In Carol's case, I was sitting right next to her when an officer said she could enter the apartment to retrieve belongings, and when she was done, I could do the same. Carol had brought out a handful of items in one trip and was about to return when three cops surrounded her, and one brutalized her. I still don't know why he did it, and whether he was high on some substance at the time. He certainly acted like he was juiced on something. But I do know that cops on the scene seemed to be making up rules as they went along, even though they had no lawful grounds to be conducting an eviction that, by law, had been stayed.

As for Terence Crutcher, he can be seen on video holding his hands in the air so he appears to be obeying an officer's command. And yet, officers claimed he would not obey commands. Here is the bigger question: Why were officers issuing commands, treating Crutcher as a criminal, when they had no probable cause to believe he was involved in a crime. Heck, his vehicle had just broken down, and they could have determined that -- and perhaps offered assistance -- with one simple question.

(2) Officers immediately tend to lie upon realizing they have stepped in doo-doo;

In my case, Blevins says in his incident report that he had two warrants for my arrest on contempt of court charges, but he never showed them to me and never said anything about them to me. (That's probably because, even if he had the warrants, he knew I had filed a motion challenging service, and there had been no ruling on that. Since plaintiffs' Rob Riley and Liberty Duke had not met their burden of proving service was conducted lawfully, the court had no authority over me -- and any warrant Blevins had -- was meaningless. My guess is that Blevins had no warrant because he -- or someone in his chain of command -- knew it would be pointless to have one. They just wanted me locked up and did not care how it was done.)

Unbelievably, I was charged with resisting arrest, and a judge at that trial told Blevins and prosecutor Tonya Willingham to produce copies of any warrants. They said they didn't have any. My conclusion: Blevins lied about having a warrant. (Note: I didn't do any of the things that, by law, define resisting arrest in Alabama. In fact, Blevins did not even allege that I engaged in such actions. Also, you cannot resist an arrest that is unlawful to begin with.)

In Carol's case, Greene County Sheriff Jim Arnott was standing about five feet away as her arm was being broken and promptly declared that she had "assaulted a police officer." Based on Arnott's blatant lies, Carol was handcuffed, placed in the back of a squad car, and transported to the Greene County Jail. She probably would have been booked in, charged with a felony, and hit with a high bond had someone not noticed that she was in severe pain, and both of her arms were a deep purple. In other words, she was the victim of an assault, not the perpetrator of one.

In the Crutcher case, officers described him as appearing to be on drugs and claimed they had found PCP in his vehicle -- after he was already dead, of course. Does this stand the smell test? Not according to Carlos Miller, publisher of the Photography Is Not a Crime blog (PINAC). Writes Miller:

Shelby’s attorney is saying the shooting was justified because Crutcher was trying to reach into his car and into his pockets, but not only does the window appear closed, it is likely he was only trying to reach for his identification.

But we know that is never a guarantee you won’t be shot.

Shelby is also now claiming that she believed Crutcher was high on PCP because she had recently taken a training class that gave her expertise in drug recognition.

But she never once mentioned this to dispatch before she killed him, so we can assume she is lying.

Based on our experience, that would be a logical assumption. We also would guess that many of these deadly incidents start or escalate when cops start making commands they have no lawful grounds for making.

Here is a motto that has come to rule in our household: Cops don't resolve problems, they escalate them. If you want a problem solved, calling a cop likely will only make it worse.

Alabama cop Eric Parker, who badly injured man from India, is set to return to force -- and that should help fuel outrage behind Colin Kaepernick protest

Officer Eric Parker
(From whnt.com)

Less than two weeks ago, we completed a six-part series about the role judicial corruption played in the dismissal of criminal charges against an Alabama police officer whose brutal take-down left a grandfather from India partially paralyzed. Yesterday we learned the officer, Eric Parker, is returning from administrative leave and is set to rejoin the force in the Huntsville suburb of Madison.

Does a rogue judiciary have repercussions? It sure does. In this instance, it makes Alabama look like a slimy backwater -- the kind of place where a cop can use a leg sweep on a man with dark skin, whose "crime" apparently was walking down the sidewalk while not bothering a soul, and get away with it. Where two juries can deadlock along race and gender lines. leading U.S. District Judge Madeline Haikala to conclude that protecting Sureshbhai Patel's civil rights, and holding Officer Parker criminally accountable, was not worth the trouble.

Gee, and some people wonder why San Francisco 49ers quarterback Colin Kaepernick might feel the need to take a stand against the kind of police brutality that has become a front-page staple over the past two years or so? With Parker returning to the force, and Patel's roots in India making this an international embarrassment for the United States, far more people -- not just NFL football players -- should be joining Kaepernick in protest.

In a final insult to the public, acting Madison police chief Jim Cooke cited Haikala's 92-page opinion as grounds for finding that Parker did not violate departmental policy. If you actually read Haikala's ruling and educate yourself about the relevant law -- and Cooke obviously did neither -- here's part of what you find:

(1) A recent study found that 97 percent of police officers in violence cases never face criminal charges -- and it's little wonder given Haikala's butchery of the Parker case;

(2) For the few cops who do face charges, judges like Haikala are likely to cut them favors;

(3) Haikala threw out the charges against Parker based on a case that does not come close to supporting her finding. That's the kind of thing judges get away with when the public isn't paying attention;

(4) Documents show that Parker lied about three key issues in the Patel case -- and still Haikala threw out the charges;

(5) A third jury would have had ample grounds to find Parker guilty;

(6) Alabama surely is a more enlightened place than it was 50 years ago, but it's hard to tell that from the Parker case. It makes the state smell of judicial corruption, juror racism, and flaming injustice for which "Bull" Connor once stood.

Of course, those characteristics hardly are limited to Alabama. Perhaps that's why a second-string quarterback in San Francisco felt the need to do something, even if certain "patriots" took offense at his decision not to stand for the national anthem.

Colin Kaepernick
(From theguardian,com)

For those who are paying attention, Colin Kaepernick has taught an invaluable lesson. He has shown that concerns about law enforcement should go way beyond issues of brutality. My wife and I both have been the targets of rogue cops in the past 2-3 years, so we have some first-hand experience with these issues.

Once cops have committed violence against a citizen, they tend to immediately go into cover-up mode. This usually takes the form of piling one lie on top of another. We've seen cops do it in Birmingham, Alabama, and Springfield, Missouri. Court records show that Eric Parker did it in Huntsville, Alabama. And now, we have the police union in Santa Clara, California, sending a letter stating that cops are threatening to bail out on their security positions at 49ers football games unless the team takes action to silence Kaepernick.

How many of these cops have stood up to admit that a frightening number of citizens have been the victims of unjustified police violence? I don't recall any officers showing such courage. How many cops spoke out and admitted that Eric Parker's actions against Sureshbhai Patel, caught on video, violated general police policy and likely constituted criminal behavior? The silence has been overwhelming. (See video at the end of this post.)

Eric Parker's return to police duty should help create a groundswell of outrage against a tin-eared police community that . . . well, has just been asking for major blow back. With the kind of arrogance cops have shown, no one should be surprised that assassins in Dallas and Baton Rouge took matters into their own hands.

I would love to be president of the San Francisco 49ers right now. I would tell the police union to take their letter and jam it up their asses, and I would tell them they do not need to bother resigning from their paid, on-the-side security jobs. They are fired, and they should not let the door -- the one with the 49ers insignia on it -- hit them on the butt on their way out.

Why is the Eric Parker case so disturbing? It's not just about rogue cops or corrupt judges; it's about both -- and it shows that our "justice system" is rotten at every level. Its members do a fine job of protecting each other, but they sure do not protect the public.

Decision to throw out criminal charges against cop in Sureshbhai Patel case leaves the foul odor of judicial incompetence, juror racism, and flaming injustice

U.S. Judge Madeline Haikala

(Final post in a series)

Which is more damaging to our society, a corrupt/incompetent judge handling a case of constitutional importance or a jury tainted with racism deciding such a case?

U.S. v. Eric Parker raises this troubling question, plus many others. Parker is the Madison, Alabama, police officer who body slammed and partially paralyzed Sureshbhai Patel, an unarmed grandfather from India who simply was walking down a sidewalk at the time of his encounter with American law enforcement.

We don't have an answer to the question posed above, but evidence is overwhelming that judicial incompetence (or corruption) and juror racism (or blinding ignorance) were present. This much is certain: U.S. Judge Madeline Haikala stomped on any notion that justice can be achieved in Alabama's federal courts when she threw out criminal charges against Parker--after two juries had reached deadlocks.

Now, back to our two-part question:

(1) Are white jurors so blinded by racial bias that they cannot issue just decisions?

Americans have a tendency to get misty-eyed about our jury system, to feel that it's virtually sacrosanct and ranks as "the best system in the world." If that's the case, it's not because our system is noble and dependable; it's because all of the other systems are wretched.

How bad were the juries in the two Parker trials? Consider this from a Think Progress article on the proceedings:

The trials ended with a jury split along race and gender lines. Ten white males pushed to acquit and two black female jurors pushed for guilty.

Are white males in Alabama so blinded by bias against people of color that they cannot see what clearly is shown on video of the incident? (See video at the end of this post.) The images cannot be disputed: Parker used his left foot to perform a "leg sweep" that caused Patel to crash head-first to the ground. Multiple expert witnesses testified at trial that the leg sweep generally is not an authorized technique in American law enforcement, and relevant law clearly states that actions showing "reckless disregard" for a person's rights amount to the "wilfullness" required for a criminal conviction under 18 U.S.C. 242.

To repeat our question: Are white males so blinded by racial bias that they cannot reach a verdict of guilty against a white police officer -- when the facts and the law clearly show such a verdict is justified? The only answer we can come up with is yes.

(2) How blatant, and goofy, can judicial incompetence/corruption be, and what impact does it have on our justice system?

Was Judge Haikala drinking, or smoking crack, when she presided over the case and wrote her opinion?

I'm only slightly joking with that question. The reality is that Haikala probably gave the job of writing the opinion to a clerk, with instructions to make sure it was 90 pages or so long -- so people would think it was serious and be less likely to read it. What do you learn if you actually read the whole thing? Well, I can only wonder if Judge Haikala has a few loose shingles on her roof -- or maybe the clerk was desperate for material to reach the required length. Let's focus on two issues:

(A) Haikala suggests that it was partly Patel's fault that he got beat up by an Alabama cop. First, she suggests Patel committed a crime -- one so obscure that even the officers apparently were not aware of it. On page 14 of her opinion, Haikala (or her clerk) writes:

Mr. Patel, a resident alien, violated 8 U.S.C. § 1304(e) when he left his son’s house without identification. . . .  That is a misdemeanor crime for which Officer Parker could have arrested Mr. Patel. 8 U.S.C. § 1304(e) (“Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor . . . .”); United States v. Vasquez-Ortiz, 344 Fed. Appx. 551, 555 (11th Cir. 2009)

From the record, it does not appear this was an issue at trial, and it's not clear if the officers ever asked Patel to present such a card. It certainly is not clear that Patel understood any such request. Is Haikala suggesting that Patel's failure to have such a card on him justifies getting his neck broken?

Given the language barrier in the encounter, it's not clear Patel could have complied if he'd had a card. This much is certain: Nothing in the language surrounding 18 U.S.C. 242 ("Deprivation of rights under color of law") suggests the presence or absence of identification is a factor in determining an officer's guilt or innocence. So why on earth did Haikala make it an issue?

(B) Astonishingly, Haikala spends roughly nine pages (p. 53-61) of her ruling discussing whether the Fourth Amendment right to be free from unreasonable force applies to a legal resident alien, such as Patel. That a federal judge apparently thinks there is some doubt about that issue boggles the mind. From pages 53-54 of her ruling:

United States citizens’ constitutional right to be free from a law enforcement officer’s use of unreasonable force is specific and definite. See Graham, 490 U.S. at 394 (“Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.”) (emphasis added); Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1326 (11th Cir. 2015) (“A citizen’s Fourth Amendment right to be free from unreasonable searches and seizures includes ‘the right to be free from the use of excessive force in the course of an arrest.’”)(quoting Saunders v. Duke, 766 F.3d 1262, 1267 (11th Cir. 2014) (emphasis added)).

Haikala seems to suggest that the Fourth Amendment protects only an American citizen, not a resident alien, such as Patel. Where does she get such a notion? First, she and the cases she cites misquote the Fourth Amendment. Here is how the amendment actually reads:

Amendment IV 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As you can see, the actual language protects the right of "the people," not just "citizens," to be secure from excessive force. The people includes resident aliens, such as Mr. Patel. And it's hard to conceive that a federal judge is not aware of this. Legal scholars certainly know it. Consider the words of David Cole from the Georgetown University Law Center:

The Constitution does distinguish in some respects between the rights of citizens and noncitizens: the right not to be discriminatorily denied the vote and the right to run for federal elective office are expressly restricted to citizens. All other rights, however, are written without such a limitation. The Fifth and Fourteenth Amendment due process and equal protection guarantees extend to all "persons." The rights attaching to criminal trials, including the right to a public trial, a trial by jury, the assistance of a lawyer, and the right to confront adverse witnesses, all apply to "the accused." And both the First Amendment's protections of political and religious freedoms and the Fourth Amendment's protection of privacy and liberty apply to "the people."

In short, contrary to widely held assumptions, the Constitution extends fundamental protections of due process, political freedoms, and equal protection to all persons subject to our laws, without regard to citizenship. These rights inhere in the dignity of the human being, and are especially necessary for people, like non-nationals, who have no voice in the political process.

David Cole knows what he's talking about; Madeline Haikala apparently has no clue.

Perhaps she is jockeying for an appointment to the U.S. Supreme Court if Donald Trump is elected president. She would fit right in with his way of thinking.


Previously in the series:

(1) Here's the flip side of police-brutality cases -- July 13, 2016

(2) Federal judge in Alabama shows how cops tend to get favorable treatment in court -- July 18, 2016


(3) Judge threw out charges based on case that does not support her findings -- July 29, 2016

(4) Record indicates officer lied about three key issues in Patel brutality case -- August 5, 2016

(5) A jury could have found that officer violated Sureshbhai Patel's civil rights -- August 19, 2016

A jury could have found that Officer Eric Parker willfully violated Sureshbhai Patel's civil rights, but Judge Madeline Haikala took it out of jurors' hands

Sureshbhai Patel

(Fifth post in a series)

Why did U.S. District Judge Madeline Haikala throw out criminal charges against Alabama police officer Eric Parker in the vicious body slamming of Sureshbhai Patel, a grandfather from India? It certainly is not because Haikala's finding is well grounded in the law; we've shown in multiple posts that it isn't. (See previous posts at the end of this post.)

The law strongly suggests this case should have gone to a third jury after the first two deadlocked, that the key issue was a matter for jurors to decide. But Haikala did not allow that to happen.

Our research suggests Haikala's reasoning might best be summed up this way: Parker had to make a split-second decision about how to handle Patel, and his actions therefore could not meet the willful component required in a criminal civil-rights-case under 18 U.S.C. 242. The government had to show that Parker acted willfully -- that he had a specific intent to deprive Patel of his right to be free from excessive force --  and the split-second nature of the interaction between Parker and Patel makes it impossible for the government to meet that burden.

Here are Judge Haikala's own words on the subject, from page 90 of her 92-page opinion:

The evidence here reveals that Officer Parker made a split-second decision in a rapidly evolving situation rather than a premeditated decision to use violent force. . . . The Court does not mean to suggest that a single, split-second decision can never arise to the level of a constitutional violation so egregious that it supports a finding of intentional conduct. The record in this case simply is not strong enough to eliminate reasonable doubt. For that reason, the Court grants Officer Parker’s renewed motion for judgment of acquittal.

Haikala is being disingenuous here; she actually IS suggesting that an officer almost never can be held criminally accountable, at the federal level, if he acts in a stressful, harried situation. More importantly, Haikala ignores the full legal meaning of the word "willfully" in Section 242 cases.

That's strange because Haikala cites the full meaning of the term, upon which the Patel case largely hinges, on page 53 of her opinion:

“A person acts ‘willfully’ for purposes of section 242 when he acts with ‘a specific intent to deprive a person of a federal right made definite by decision or other rule of law,’ or ‘in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.’” United States v. House, 684 F.3d 1173, 1199-1200 (11th Cir. 2012) (quoting Screws v. United States, 325 U.S. 91, 103, 105 (1945)).

As you can see, it's not just a matter of whether Parker acted with "specific intent." It also is a matter of whether he acted with "reckless disregard" of a constitutional requirement.

We invite you to view the video below and ask yourself, "Did Parker act with reckless disregard for Patel's rights when he clearly used a leg swipe to knock the older man's feet out from under him, causing him to land head-first on the ground, becoming partially paralyzed and sustaining injuries that required spinal fusion surgery?"

As Haikala acknowledges on page page 89 of her ruling, "willfulness generally is a question that a jury must resolve, and jurors generally are tasked with the responsibility for assessing the credibility of witnesses." United States v. Feliciano, 761 F.3d 1202, 1206 (11th Cir. 2014).

Multiple expert witnesses testified at trial that Parker's leg swipe is not among the techniques usually taught, or approved for use, in law enforcement. A jury clearly could have found that Parker's use of an improper technique constituted "reckless disregard," even though he acted in a split-second fashion.

So why did Haikala ensure that a third jury would not hear the case, after the first two had deadlocked? The answer to that question remains unclear, but the judge's actions certainly are not supported by law.


(To be continued)


Previously in the series:

(1) Here's the flip side of police-brutality cases -- July 13, 2016

(2) Federal judge in Alabama shows how cops tend to get favorable treatment in court -- July 18, 2016


(3) Judge threw out charges based on case that does not support her findings -- July 29, 2016

(4) Record indicates officer lied about three key issues in Patel brutality case -- August 5, 2016

Records indicate Alabama police officer Eric Parker lied about three critical issues in Sureshbhai Patel case, but federal judge still threw out criminal charges

Officer Eric Parker
(From npr.org)

(Fourth post in a series)

The Alabama police officer who body slammed a grandfather from India and left him partially paralyzed lied about three key issues in the case, court documents indicate. Still, a federal judge threw out criminal charges against Officer Eric Parker after two juries had deadlocked.

How could that be? How could Parker get away with such apparent lies, under oath, when his brutal actions against Sureshbhai Patel were caught on tape and seen around the world?

We will address those questions in a moment, but first, let's look at Parker's apparent falsehoods:

* Parker said he did not believe Patel when the latter stated he could not understand English. Later in the same document, Parker makes a statement that indicates he did believe Patel could not speak or understand English.

* Parker denied that he used a "leg sweep" to take Patel to the ground, causing him to land on his head. Later in the same document, Parker apparently admits to using a "leg sweep," a technique that an expert witness said is not consistent with prevailing police policy.

* Parker claimed that he lost his balance and fell, causing Patel to hit the ground. Later in the same document, Parker's apparent admission that he used a leg sweep means he did not lose his balance and fall.

A video of the body slam clearly shows Parker taking his left leg and swiping Patel's feet out from under him. How could anyone see that video (which can be viewed below) and buy Parker's story that he lost his balance and fell? It's hard to imagine anyone believing it.

What about the specifics of Parker's apparent false statements under oath? Here is a brief summary of each one:

(1) Parker claims he did not believe it when Patel said he could not understand English

On page 20 of her opinion, Judge Haikala writes:

Officer Parker testified that although the subject—Mr. Patel—stated that he did not understand English, Officer Parker did not believe him. . . . Officer Parker reasoned that when the subject did not answer questions, the subject was refusing to cooperate with the investigation and was being evasive.

On page 38, near the beginning of her analysis of the evidence, Haikala writes:

The evidence supported the Government’s argument that when Officer Slaughter called out to Mr. Patel so that Officer Slaughter could ask some questions, Mr. Patel did not run from the police or ignore them. Instead, Mr. Patel’s behavior was friendly; he turned, waved, and walked toward the officers. . . . Mr. Patel did not understand the questions that Officer Slaughter asked, but he did his best to communicate to the police that he was from India and that he lived at 148 Hardiman Place Lane. Officer Slaughter ignored the fact that Mr. Patel repeatedly said, “No English” and continued to press Mr. Patel for answers to his questions. . . . Officer Parker understood that Mr. Patel did not speak English because he said to Officer Slaughter, “He’s saying ‘No English.’ He doesn’t understand what you’re saying”; but Officer Parker made no attempt to address the language barrier.

The judge clearly states that evidence supported the government's argument that Patel did not understand English and did his best to communicate with the officers. Perhaps more importantly, the judge quotes Parker, speaking to his partner, Slaughter: "He's saying 'No English.' He doesn't understand what you're saying."

That contradicts Parker's earlier statement that he did not believe Patel could not understand English--and it strongly suggests that Parker lied under oath. As noted in an earlier post, Haikala was required by law to review the evidence in a light most favorable to the non-moving party, which was the prosecution. She did not do it.


(2) Parker denies using a leg sweep to take Patel to the ground

On page 35 of her opinion, Haikala writes:

At trial, Officer Parker denied that he performed a leg sweep when he took Mr. Patel to the ground or that he intentionally kicked Mr. Patel. . . . Officer Parker has no training in or experience with martial arts.

On page 39, while summarizing the prosecution's case, Haikala writes:

The Government argued that perhaps out of frustration or perhaps to act tough for Officer Slaughter, Officer Parker took Mr. Patel to the ground. . . . Without further warning and without enlisting Officer Slaughter’s assistance, Officer Parker kicked Mr. Patel’s legs out from under him, causing Mr. Patel to fall to the frozen ground. The Government added that because Officer Parker held Mr. Patel’s hands during the takedown maneuver—a maneuver which Officer Parker eventually acknowledged constituted a leg sweep—Mr. Patel was unable to use his hands and arms to break his fall, and his face and neck absorbed the impact of the collision with the hard ground. . . . Mr. Patel suffered a bloody nose, and the neck trauma caused Mr. Patel to experience paralysis. (Doc. 107, p. 147). The Government argued that Officer Parker had to have known that Mr. Patel would suffer an injury if he restrained Mr. Patel’s hands while throwing him violently to the ground.

The law on review of a Motion to Acquit requires a judge to view the evidence in a light most favorable to the government. By that standard, Parker admitted to using a leg sweep, contradicting his earlier sworn statement -- and this alone should have forced Haikala to deny the Motion to Acquit.


(3) Parker claims that he lost his balance and fell when taking Patel to the ground

On page 33 of her ruling, Haikala writes:

Officer Parker stated that as he pulled Mr. Patel toward the grass, he (Officer Parker) placed his weight on his right leg, and he lost his balance and fell with Mr. Patel.

Does that story hold up under closer scrutiny? Not very well, not even in the same document, as noted on page 78 of the ruling:

When he returned to the precinct, while Officer Parker was working on his report, Lieutenant Harrell watched the dashcam video of the takedown. After he reviewed the video, Lieutenant Harrell questioned Officer Parker about the technique that he used in the takedown. Lieutenant Harrell asked Officer Parker if he used a leg sweep. Officer Parker replied that he did not recall using a leg sweep. . . . Lieutenant Harrell testified that later, he and Officer Parker watched the dashcam video together, and at some point, Officer Parker acknowledged that he used a leg sweep. . . . Officer Parker denies that he told Lieutenant Harrell that he used a leg sweep to take Mr. Patel to the ground. . . . In his written report about the incident, Officer Parker did not provide a description of his takedown technique, and he did not write that he lost his balance and fell with Mr. Patel.

Parker's own supervisor, Lieutenant Harrell, stated under oath that Parker admitted using a leg sweep to him. In Parker's written description of the incident, he made no mention of losing his balance and falling.

That all raises serious questions about Parker's credibility. The video, which clearly shows Parker sweeping Patel's legs out from under him, also raises questions about the officer's truthfulness.

We invite you to watch the video below. We encourage viewers to watch Parker's left leg closely. He clearly moves it to swipe Patel's legs out from under him. This is a leg sweep, and there is no question that Parker used it, it caused Patel's severe injuries, and expert witnesses testified that the technique is not endorsed under general law-enforcement policy.

Parker told the court that he lost his balance and fell with Patel? Yeah . . . right.


(To be continued)


Previously in the series:

(1) Here's the flip side of police-brutality cases -- July 13, 2016

(2) Federal judge in Alabama shows how cops tend to get favorable treatment in court -- July 18, 2016


(3) Judge threw out charges based on case that does not support her findings -- July 29, 2016

U.S. Judge Madeline Haikala threw out charges against officer in Sureshbhai Patel matter, based on a case that does not come close to supporting her finding

U.S. Judge Madeline Haikala
(From al.com)

(Third in a series)

For more than two years, the news has been littered with cases of police brutality. When gunmen in Dallas and Baton Rouge recently opened fire on cops, it added a new element to the equation -- citizens fighting back against a law-enforcement apparatus they see as out of control.

Still, when it comes to cops vs. citizens, the playing field hardly is even. A recent study showed that 97 percent of officers in violence cases never face criminal charges. An Alabama case from earlier this year shows that, in the rare case where a cop winds up in criminal court, he is likely to benefit from judges' dubious rulings.

Consider U.S. Judge Madeline Haikala, in the Northern District of Alabama. She cited a case that is more than 30 years old to throw out criminal charges against Alabama officer Eric Parker in the body slamming of Sureshbhai Patel, a grandfather from India. Unfortunately for Haikala--and citizens who trust her to apply the law appropriately--the case does not remotely support her decision to grant the defense's Motion for a Judgment of Acquittal.

In fact, the case law in question--United States v. Bell, 678 F. 2d 547 (5th Cir., 1982)--does not even address the issues raised in Patel. We've shown that Haikala repeatedly failed to view the facts in favor of the non-moving party (the prosecution) -- and the government's hands are tied because the Double Jeopardy Clause prevents an appeal. Now, we have a second glaring reason Haikala should be overturned on appeal -- if one were allowed.

How severely did Haikala butcher the law in the Patel case? Her 92-page opinion is a hatchet job from start to finish, and let's consider the implications. It allows a thuggish police officer to go free on a criminal charge for which the evidence strongly suggests he is guilty. Worse than that, Haikala unilaterally tried to ensure that Parker will not even have to face a third jury--one that might be capable of reaching a verdict after two previous juries deadlocked.

That seemingly leaves Patel, and the public, with zero chance for justice at the federal criminal level -- even though Parker still faces a civil complaint. (A state misdemeanor criminal charge has been dropped.)

How does Haikala attempt to justify unlawfully throwing out the criminal charges against Officer Parker? The answer is found, for the most part, on pages 51-52 of her ruling. (See full opinion at the end of this post.)

The standard for considering a motion for entry of a judgment of acquittal requires the Court to draw all reasonable inferences in favor of the Government. When evidence is subject to multiple interpretations, some of which favor the Government and some of which favor the defense, the Court has construed the evidence in the light most favorable to the Government. However, when evidence is unfavorable to the Government, but is not ambiguous, the Court is not required to ignore it. When critical gaps appear in the Government’s case, the Court is not required to turn a blind eye to them. On the contrary, the law requires the Court to consider the objective reasonableness of Officer Parker’s use of force within the totality of the circumstances. The Court has viewed the full expanse of evidence concerning the use of force and is left with the firm conviction that the evidence concerning use of force in this case is not adequate to support a unanimous verdict of guilt beyond a reasonable doubt. When, as here, “a hypothesis of innocence is sufficiently reasonable and sufficiently strong, then a reasonable trier of fact must necessarily entertain a reasonable doubt about guilt.” United States v. Bell, 678 F.2d 547, 550 (5th Cir. 1982) (Anderson, J., concurring) aff'd, 462 U.S. 356 (1983). Viewing the relevant evidence in the light most favorable to the Government, the Court has determined that that evidence could not be accepted by twelve jurors as adequate and sufficient to support the conclusion of Officer Parker’s guilt beyond a reasonable doubt.

The Bell case had nothing to do with a Motion to Acquit. It was about sufficiency of the evidence upon which a jury found Bell guilty of violating the federal bank-robbery statute. It also was about the findings of a jury, not the unilateral ruling of a judge. Here is the key section from Bell:

Bell also argues that the evidence is insufficient to support his conviction unless it excludes every reasonable hypothesis of innocence, on the theory that if there is such a reasonable hypothesis the jury must necessarily have had reasonable doubt of his guilt. . . .

We hold that the appellant has incorrectly stated the standard of review for sufficiency of the evidence. It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence. Viewing the evidence presented in this case and the inferences that may be drawn from it in the light most favorable to the government . . . we conclude that it was sufficient to allow a reasonable jury to find that Bell altered the endorsement on the check, deposited it to his account, and thereby was enabled to take and did take $10,000 with intent to steal from the care, custody, control, management or possession of Dade Federal.

What did the court decide in Bell?

(1) A JURY is free to choose among reasonable constructions of the evidence;

(2) The JURY's decision to convict Bell was reasonable and supported by sufficient evidence.

What did the Bell court say about a judge's ruling on a Motion to Acquit? Not one thing. So how does that case support Haikala's ruling, as she claims? It doesn't.

Are you scratching your head? You should be. And by the way, welcome to the legal world of Alabama.


(To be continued)

Previously in the series:

(1) Here's the flip side of police-brutality cases -- July 13, 2016

(2) Federal judge in Alabama shows how cops tend to get favorable treatment in court -- July 18, 2016

Sureshbhai Patel Ruling by Roger Shuler

Judge Madeline Haikala's botched decision to throw out criminal charges against Alabama police officer shows cops often receive favorable treatment in court

Sureshbhai Patel
(From washingtonpost.com)

(Second post in a series)

The ambush killings yesterday of three police officers in Baton Rough, Louisiana, has placed such hot-button status on issues related to police brutality that they threaten to relegate this week's Republican National Convention to back pages of the nation's newspapers.

Top officials seem to be in a state of shock and confusion, with even normally articulate President Barack Obama seemingly at a loss for meaningful words.

This much seems certain: Gunman Gavin Long did a disservice to Americans who would like to see a serious and extensive examination of dozens of high-profile police brutality cases that have erupted around the country since a white police officer shot a young black man named Michael Brown at Ferguson, Missouri, in summer 2014.

Since Long opened fire yesterday morning, numerous public officials have stepped forward to make statements along the lines of, "This must stop. Violence against police officers cuts at the fabric of our society."

That is an understandable response. But it's as if the other side of the equation -- the documented (often on videotape) mayhem law-enforcement officers have heaped on citizens -- has been largely, and hopefully temporarily forgotten.

In our first post in this series, we showed that officers enjoy a distinct advantage in any physical encounter with a citizen. In a new study at Think Progress, statistics for 2015 show that 97 percent of officers in police-violence cases never face criminal charges. In the rare instance where an officer does face criminal charges, juries and judges are likely to cut him an extraordinary amount of slack.

We had such a case earlier this year in Alabamian, which left Sureshbhai Patel (a grandfather from India, who was visiting his son, daugther-in-law, and new grandchild in the Huntsville suburb of Madison) partially paralyzed.

A Legal Schnauzer analysis shows that Haikala abused the law--and the public trust--when she threw out criminal charges against Alabama police officer Eric Parker in the Patel case?

That abuse becomes worse when you understand that Haikala's ruling cannot be appealed, due to fairly complex case law related to the United State's Double Jeopardy Clause.

That means Eric Parker, who has been fired as a police officer, is home free on federal criminal charges, and Attorney General Luther Strange dropped state misdemeanor assault charges against him in May; Parker still faces a lawsuit and perhaps substantial civil liability.

The government would have had multiple grounds for seeking to have Haikala's ruling, granting the defense's Motion for Judgment of Acquittal, overturned. The strongest ground might have been this: The trial judge repeatedly misapplied the standard for reviewing the defense's motion to acquit Parker.

Haikala, however, never will be held accountable for her abuse of the law because to allow an appeal from the prosecution would violate case law that protects Parker (and other defendants) from double jeopardy--multiple trials for the same offense.

Before we turn to the double-jeopardy issue, let's consider the quality (or lack thereof) of Haikala's ruling. At the beginning of her 92-page ruling, Haikala appears to know what she is doing. (See full ruling at the end of this post.) She cites the correct standard for review of a Motion to Acquit, as follows:

When considering a motion for the entry of a judgment of acquittal, “a district court must view the evidence in the light most favorable to the government, and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. The prosecution need not rebut all reasonable hypotheses other than guilt. United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005)

In layman's terms, that means all close calls should be decided in favor of the non-moving party, which would be the prosecution in the Patel case. We should note that, in Miranda, the Eleventh Circuit vacated the trial court's judgment of acquittal, partly because the trial court misapplied the standard cited above. From the Miranda ruling:

The Government seeks reversal of the judgment of acquittal on the ground that the District Court failed to draw all permissible inferences in favor of the jury's guilty verdict, and did not view the evidence in the light most favorable to the Government. We reverse the judgment of acquittal because we conclude that the evidence was sufficient to demonstrate that Mr. Miranda was a member of the conspiracy, and that he is guilty of the possession crimes that were committed in furtherance of the conspiracy.

The Miranda case and Patel were fairly similar, but there is at least one very important difference--the Miranda case led to a jury verdict of guilty, while two trials in Patel led to deadlocked juries. That difference explains the government's ability to appeal in Miranda--and its inability to appeal in Patel. That might seem unfair, even nonsensical, to a reasonable citizen. But we will explain in a moment how an appeal in Patel would run afoul of the Double Jeopardy Clause.

For now, it's back to Haikala. The Patel case boils down to two questions, she writes;

(1) Did Parker engage in an unreasonable use of force?

(2) Did Parker willfully deprive Patel of his civil rights?

At this point, Haikala seems to understand the proper standard for review and the key issues in the case. That's a good thing. But Haikala then veers wildly off course.

Over and over, she fails to view the evidence "in the light most favorable to the government." One of many examples can be found on pages 33-34 of the judge's ruling:

Officer Parker stated that as he pulled Mr. Patel toward the grass, he (Officer Parker) placed his weight on his right leg, and he lost his balance and fell with Mr. Patel. . . .

Some of the MPD officers who watched the dashcam video testified that Officer Parker used a leg sweep to take Mr. Patel to the ground. . . . Captain Stringer testified that what he saw in the dashcam video was not consistent with MPD policy because he “didn’t see what appeared to be resistance” from Mr. Patel, such that “[t]he amount of force that was used at the time didn’t meet the level of any resistance that might have been offered.” (Doc. 106, p. 18). Captain Sanders, the Government’s use-of-force expert, testified that the technique that Officer Parker used was not consistent with prevailing police standards. (Doc. 106, p. 47). Based on the motion of Mr. Patel’s body, Captain Sanders opined that Officer Parker must have kicked Mr. Patel’s feet out from under him. (Doc. 106, p. 52). Captain Sanders stated that the technique that Officer Parker used was violent, and there were less violent techniques that Officer Parker could have used to control Mr. Patel. (Doc. 106, p. 49).

You have two expert witnesses stating . . .

(1) Patel did not appear to resist;

(2) The amount of force Parker used was not appropriate for the situation;

(3) The technique Parker used is contrary to prevailing police standards;

(4) Parker apparently kicked Patel's feet out from under him, a more violent technique than was necessary to control Patel.


All of those statements go to one of the two key questions in the trial: Did Parker engage in unreasonable use of force? Multiple government witnesses said the answer was yes--and, by law, Haikala was required to view the evidence in a light most favorable to the prosecution.

Madeline Haikala

But the judge did not do that; she sided with defense claims that Parker used a reasonable level of force. In other words, Haikala ruled unlawfully--and there are probably another dozen or more examples where she does the same thing.

Judge Haikala's ruling is a gross miscarriage of justice, on numerous grounds, but the prosecution's hands are tied because of the Double Jeopardy Clause.

The best explanation of double jeopardy we've found comes from a case styled U.S. vs. Jenkins, 420 U.S. 358 (1975). From that case:

In those cases, where the defendants had not been adjudged guilty, the Government's appeal was not permitted since further proceedings, usually in the form of a full retrial, would have followed. Here there was a judgment discharging the defendant, although we cannot say with assurance whether it was, or was not, a resolution of the factual issues against the Government. But it is enough for purposes of the Double Jeopardy Clause, and therefore for the determination of appealability under 18 U. S. C. § 3731, that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent's favor. To subject him to any further such proceedings at this stage would violate the Double Jeopardy Clause.

In ever-day language, Haikala's ruling cannot be appealed because, if it were overturned, that would subject Parker to further proceedings. And our legal system takes seriously a defendant's right not to be tried multiple times for the same offense.

I can find nothing in the law that would have kept Haikala from denying the Motion to
Acquit and ordering a third jury trial. In the interests of justice, that is what should have happened. Instead, she unilaterally took Parker's fate out of a jury's hand and made the decision herself--and she did it in a way that the prosecution, representing the people of Alabama and the other 49 states, could not appeal.

Here is one harsh way to look at it: Judge Haikala screwed the public, and the victim (Patel), and she did it in a way where neither one can seek redress.

Does that kind of decision contribute to the resentment many citizens seem to feel toward police? We suspect the answer is yes..


(To be continued)

Sureshbhai Patel Ruling by Roger Shuler

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Here's flip side of police brutality cases like the recent ones in Louisiana and Minnesota: A judge is likely to protect cops by butchering the law, as Madeline Haikala did in Alabama case of Sureshbhai Patel

Protests continue over the police shootings of Alton Sterling

and Philando Castille

The police shooting deaths of Alton Sterling in Baton Rouge, Louisiana, and Philando Castille in Falcon Heights, Minnesota, have sparked a storm of protests around the country -- including one in Dallas that led to the payback assassinations of five officers.

For the moment, many citizens are outraged about the kind of violence that can happen on the front end of an encounter with police. But what about the back end, when (in some cases) the "justice system" seeks to "punish" the offending officer?

A new report from Think Progress shows that, in 2015, 97 percent of officers in violence cases faced no criminal charges. That might be just as well because we've seen evidence in Alabama that, even when a cop does face criminal charges, a judge is likely to twist the facts and law into a pretzel in order to get him off.

A Legal Schnauzer analysis shows a federal judge repeatedly butchered the law earlier this year when she threw out criminal charges against an Alabama police officer who body slammed and partially paralyzed a 57-year-old grandfather from India.

The case of Sureshbhai Patel--who underwent cervical spinal-fusion surgery and is unable to walk or grip his hands, is disturbing on numerous levels. Two federal juries in Alabama could not reach a verdict, even though video showed no sign that Patel had engaged in criminal activity and was merely walking down the sidewalk in his son's Madison neighborhood, when Officer Eric Parker stopped him and slammed him headfirst to the ground. Reports about the two hung juries indicate racism and sexism are alive and well in federal courthouses--certainly in Alabama and probably elsewhere.

Perhaps most disturbing, from a legal standpoint, U.S. District Judge Madeline Haikala, made one error after another in her 92-page ruling (released on January 13, 2016) that granted the defense's Motion for Acquittal and ensured that the criminal case against Parker would not go to a jury for a third time. (See Haikala's ruling at the end of this post.)

Haikala, a former lawyer with the Birmingham firm Lightfoot Franklin and White, was nominated to the federal bench by President Barack Obama in May 2013. That a Democratic appointee could perform such a hatchet job on a criminal civil-rights case that drew international attention is enough to make one wonder if there really is any difference between the two major political parties.

Our review of the Patel case indicates the following:

* Haikala misapplied the standard for reviewing a Motion for Judgment of Acquittal;

* The federal case that Haikala cites to justify throwing out the charges against Parker does not support her ruling;

* The federal case that Haikala cites is not even about a Motion for Judgment of Acquittal; it involves appellate issues after a jury verdict;

* Haikala ignored evidence in the record that Parker lied about at least three key issues in the case;

* Haikala short-circuited a process where a jury, if properly instructed on the law, clearly could have found that Parker willfully violated Patel's civil rights--the central issue in the case;

* Haikala ultimately ruled that because two juries had deadlocked in the case, a third jury likely would produce the same result--and therefore the criminal charges should be thrown out. “The government has had two full and fair chances to obtain a conviction,” the judge wrote. “It will not have another.” Haikala cites not a single piece of case law to support that finding.

Madeline Haikala takes oath of office
(From tulane.edu)

With the forced resignation of U.S. Judge Mark Fuller (of Don-Siegelman case fame) in the wake of a wife-beating incident--and with well-documented cases here of unlawful rulings by Birmingham-based federal judges William M. Acker Jr. and Abdul Kallon--one might have thought U.S. judges in the "Heart of Dixie" could not look much worse.

Madeline Haikala, with her butchery on the Sureshbhai Patel case, proves that the federal judiciary always can sink a little lower in Alabama.

Here is the primary question of the moment: Will the officers who gunned down Alton Sterling and Philando Castille ever be held accountable in a criminal court of law? Madeline Haikala's botch job on the Sureshbhai Patel case suggests the answer is no.


(To be continued)

Sureshbhai Patel Ruling by Roger Shuler

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