How does Mike Hubbard face $1.6 million in restitution and fines after convictions for crimes, while I face a $3.5-million default judgment for blogging?

Jessica Medeiros Garrison and Luther Strange

The State of Alabama is asking a circuit judge to impose more than $1.6 million in restitution, fines, and fees on former House Speaker Mike Hubbard, who was convicted on 12 counts of ethics-law violations. A sentencing motion indicates Attorney General Luther Strange considers this part of a "strong, meaningful" sentence for Hubbard, while defense attorney Bill Baxley said the sentencing motion -- which includes a recommended five years behind bars -- is "too absurd to respond to."

Lee County Judge Jacob Walker III is scheduled to sentence Hubbard tomorrow, with a hearing to begin at 10 a.m. This much we already know: Essentially, Strange and Baxley agree that the proposed sentence is tough, with Baxley claiming it is overly harsh. But I've had a first-hand experience with Strange and Baxley that leads me to a very different conclusion, one filled with irony and a strong hint that both of these "august attorneys" are dishonest and corrupt -- part of Alabama's problems, not the solutions.

More importantly, their words and actions suggest Alabama's court system remains a disgusting, dysfunctional sham -- one that cuts corners for white conservative elites (even a criminal like Mike Hubbard), while gouging everyday folks.

What colors my view of the $1.6 million the state seeks from Mike Hubbard, who was found by a jury of his peers to have committed criminal acts that repeatedly betrayed the public trust? You might recall that Jefferson County Circuit Judge Don Blankenship imposed a $3.5-million default judgment on me in April 2015, in a defamation case brought by former Strange campaign manager Jessica Medeiros Garrison. So Mike Hubbard might have to cough up $1.6 million related to 12 counts of criminality, while I have a $3.5-million default judgment hanging over my head in a civil matter where the public record shows I committed no wrongful act.

Let me explain: Garrison filed suit in fall 2013, claiming posts at Legal Schnauzer about her extramarital affair with Strange were false and defamatory. Garrison even went to the women's fashion magazine Marie Claire to brag about her $3.5 million default judgment and made the laughable claim that she was standing up for other women who've had something mean written about them in the press. The article was filled with inaccuracies and defamed me in more ways than I can count.

Here are just a few of the problems with Garrison's $3.5-million "windfall":

* A lawyer who reviewed the file said the record showed no one even attempted to serve me with notice of the default-judgment hearing, so it's little wonder I didn't appear. That means Blankenship's ruling, as a matter of law, is void. A scrap of toilet paper has more legal clout than his opinion.

* As a matter of law, my reporting never was found to be false or defamatory. First Amendment law requires that a jury trial be conducted in a defamation case -- that a judge, acting solo, cannot lawfully make a determination that published matter is defamatory. In Garrison's case, there was no trial and no jury, so there could be no finding that my work was false and defamatory. This has been stated many times in case law, including Bernard v. Gulf Oil, 619 F. 2d 459 (5th Cir., 1980), which held: "The essence of prior restraint is that it places specific communications under the personal censorship of the judge."

* Blankenship, who acted as a personal censor in the Garrison case, issued an order indicating almost all of the $3.5 million was granted because Garrison (and maybe Strange) claimed I had reported that her son is the AG's biological child. Unfortunately for Garrison, I reported no such thing. That means there is no legal basis for the judgment, and it largely was the product of perjury on Garrison's part.

Judge Don Blanenship
(From alacourt.gov)

What about the irony in all of this? While Strange recused himself from the Hubbard case, his office was in it all the way. In the Garrison lawsuit, the AG even testified in a hearing regarding Garrison's lawsuit -- apparently because he knew I would not be present, and he wouldn't face any unpleasant cross examination. As for Baxley, he was Garrison's attorney in the lawsuit, and he has to know the $3.5-million has no basis in fact or law. Baxley has a duty, under Rules of Professional Conduct for lawyers, to act with honesty and a sense of fairness toward the opposing party and the tribunal. And yet, he allows a bogus $3.5-million default judgment to sit there because it serves someone's corrupt agenda. Strange is doing the same thing.

Don't be surprised if something fundamentally dishonest is going on behind the scenes in the Hubbard sentencing. We already know Strange sought 50 years behind bars for defendants in an ethics-law case less than two years ago. But his office has recommended that Hubbard be incarcerated for no more than five years. That is a stunningly lenient recommendation -- and Strange's own previous requests prove it -- so the public already has reason to believe that Hubbard is receiving favorable treatment. Judge Walker does not have to follow the prosecution's recommendation--he can go above it or below it -- so he needs to hit Hubbard with at least 10 years, which would be meaningful punishment for the crimes committed.

Strange and Baxley, in roundabout ways, are telling the public that $1.6 million is a severe punishment for Mike Hubbard following his conviction on 12 criminal counts. Meanwhile, they both played major roles in Jessica Garrison's default judgment, and they seem to be saying $3.5-million is a proper amount for a journalist whose reporting never has been found to be false or defamatory at trial -- and whose constitutional rights to due process and equal protection were raped by a judge from the Democratic Party (Don Blankenship), who should be above such corrupt actions.

What does the rule of law mean to Strange and Baxley? The answer appears to be "absolutely nothing" -- and it will be interesting to see how that plays out in the Hubbard sentencing.

Court's finding for Rob Riley and Liberty Duke, like Jessica M. Garrison's $3.5-million default judgment, is worth nothing -- and here is the law that makes it so

Rob Riley

We have shown that Jessica Medeiros Garrison's $3.5-million default judgment against me is void, as a matter of law, meaning it is a "nullity" that has "no effect." In everyday terms, it is worth zero. Now, we have learned that Rob Riley's "judgment" against me also is worth zero, although for different reasons from those in the Garrison case.

The bottom line? Alabama Republican operatives have filed two defamation lawsuits against me, and they have nothing to show for it. By law, my reporting was found to be neither false nor defamatory in both cases. And the value of the judgments, combined, is worth . . . not a thing.

We hope you will follow us on a brief discussion because this is important information for anyone who might wind up representing himself in court someday.

We've shown that Garrison's judgment is void, and has no value, because I was not given three days' notice of her default application and hearing, as required by Alabama law. In fact, I received no notice at all, and it was Garrison's burden to provide notice. Lack of notice is such a fundamental violation of due process that I have an unlimited amount of time to attack her judgment  as void.

How does Judge Claud Neilson's order favoring Rob Riley and lobbyist Liberty Duke run afoul of the law? Well, there are a lot of answers to that question; an easier question would be, "Was anything lawful about Neilson's order?" The answer there is "probably not."

For example, Neilson didn't issue a final judgment, one that could be appealed at all. After all, there was no trial, no jury, no discovery -- nothing that generally is associated with a trial on the merits. After a hearing on November 14, 2013 -- and the document setting the event called it a "hearing," not a "trial" -- Neilson issued a piece of paper titled "Final Order." But here is what Alabama case law says about such matters: (See Civil Appeals 101, Christian and Small.)

With limited exceptions, an appeal can be taken only from the entry of a final judgment. Ala. Code § 12-22-2. What constitutes a final judgment may seem simple, but in fact it can be difficult to determine. As you might expect, an order adjudicating fewer than all of the claims is not a final judgment. Lloyd v. Cook, --- So. 3d ----, 2010 WL 3075280 (Ala. Civ. App. Aug. 6, 2010). The title of the order is not important. If a trial court enters an order labeled as a final judgment, but the order does not fully dispose of all claims or fully declare the rights of the parties, the judgment is not a final judgment from which an appeal may be taken. Alfa Mutual Ins. Co. v. Bone, 13 So. 3d 369 (Ala. 2009); Hall v. Reynolds, --- So. 3d ----, 2009 WL 1716912 (Ala. June 19, 2009). By the same token, a judgment that conclusively determines the issues before the trial court, even if not labeled “Final Judgment,” will support an appeal.

In the Riley matter, Neilson gave my wife, Carol, and me no opportunity to bring claims, much less have them heard and fully disposed. And he certainly did not declare the rights of the parties because we were treated as if we had no rights. (See Neilson's "final order" at the end of this post.) I was in the midst of a five-month stay at the "Shelby County Sheraton" (the jail), thanks to Riley and Duke's unlawful efforts to seek a preliminary injunction that has been prohibited by more than 200 years of First Amendment law, and the time for appeal lapsed during my incarceration. I had no access to a piece of paper or a functioning writing implement, but even if I'd had the basics for preparing an appeal, there was nothing to appeal -- because Neilsen issued no final judgment.

Liberty Duke

That takes the oomph out of any order favoring Riley and Duke. But here is the bigger issue: Neilson did not grant them money damages; he granted $33,875 in attorney fees ($24,425 for Riley, $9,450 for Duke).

That presents a slight problem: I was representing myself, and Alabama law prohibits the awarding of attorney fees against pro se litigants. Here is how Code of Alabama 12-19-272 (Alabama Litigation Accountability Act) addresses the subject:

No party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorneys' fees unless the court finds that the party clearly knew or reasonably should have known that his action, claim or defense or any part thereof was without substantial justification.

Did the court find that I had brought a claim or defense without substantial justification? Nope. In fact, I brought no claim at all -- Riley and Duke sued me (and Carol), not the other way around. And we were given no opportunity to even bring a defense.

Here is what Neilsen's "final order" says about the only form of "damages" awarded to Riley and Duke.

Petitioners have requested attorneys' fees. The Court heard testimony and evidence that Petitioner Riley and Petitioner Duke have incurred attorneys' fees as result of this matter. Specifically, the Court heard testimony and evidence that Petitioner Riley has incurred $24,425.00 in attorneys' fees, that Petitioner Duke has incurred $9,450.00 in attorney's fees, and that those fees are usual and customary. Based on the testimony and evidence presented in support of their request for attorneys' fees, and based on the Court's equitable powers, the Court finds that Petitioners are entitled to an award of attorneys' fees in the following amounts: $24,425.00 for Petitioner Riley and $9,450.00 for Petitioner Duke.

Attorney fees are "usual and customary" against a pro se litigant? That's not what Alabama law says. The court issued these fees based on its "equitable powers"? That's funny. because Alabama law plainly states that attorney fees cannot be assessed against a self-represented party.

Just another sign that the Riley-Duke case was a joke from the outset -- and the rule of law played no role in Neilsen's handling of the case.

Riley Lawsuit Final Order, 11 14 by Roger Shuler on Scribd

"Severed Penis Case" shows bogus lawsuits don't come just from scum like Bill Swatek; "reputable" lawyers, like Rob Riley and Jessica Garrison, bring them, too

Jessica Garrison and Luther Strange

The Case of the Severed Penis has taught us a legal principle that, on paper, should be of bedrock importance. In reality, lawyers of all stripes ignore the principle, and we've seen little sign that the Alabama State Bar makes it a priority to discipline those who violate it.

The principle is this: A lawyer should investigate a client's claims, making sure there is "good cause" to support them, before filing a complaint. A lawyer never should bring a lawsuit he knows is baseless.

What is the official wording of this principle. It can be found at Rule 3.1 Alabama Rules of Professional Conduct, which reads, in part:

In his representation of a client, a lawyer shall not file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the lawyer's client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

That sounds like a relatively simple rule to follow. But my wife, Carol, and I have been the targets of multiple lawsuits that were not based in truth and had no purpose but to maliciously injure us. In fact, they have maliciously injured us, costing us our home of 25 years in Birmingham, causing me to be unlawfully incarcerated for five months in Shelby County, causing us to be unlawfully evicted in Missouri (leading Carol to have her arm shattered by rogue cops and to be falsely arrested and imprisoned twice). I've reported on multiple other Alabama residents who have been the targets of bogus claims.

Pelham, Alabama, lawyer Bill Swatek was the first lawyer to target Carol and me, bringing a malicious-prosecution claim on behalf of Mike McGarity, our criminally inclined neighbor who had admitted to trespass, as charged, in a criminal proceeding. Perhaps that should not be a surprise, given that Swatek has been disciplined at least three times by the Alabama State Bar, including a suspension of his license for lying about hiding a tape recorder to capture "private" discussions of opposing counsel during depositions. That led to a criminal charge of perjury, for which Swatek was acquitted, even though tape-recorded evidence presented at trial showed he was guilty as charged.

Swatek is a proven dirt bag and a solo practitioner, so the public pretty much should expect sleazy acts from him. But Carol and I have been targeted for baseless lawsuits by attorneys who have been connected to sizable law firms, the type of practitioner one would expect to know better. We are talking about lawyers who are well known, attached to politicians who have held statewide office. Specifically, we are talking about Rob Riley (son of former Gov. Bob Riley), who now has his own Riley Jackson firm and used to work for Hare Wynn Newell and Newton. We're also talking about
Jessica Medeiros Garrison (one-time campaign manager and mistress for U.S. Sen. Luther Strange), who until May 2017, worked for Balch and Bingham.

I reported here at Legal Schnauzer that Rob Riley had an extramarital affair with lobbyist Liberty Duke, and Garrison had an extramarital affair with Strange. Both Rob Riley and Garrison sued me for defamation, but neither even attempted to prove my reporting was false. That's because my reporting was not false, and we have filed pending federal lawsuits -- Shuler v. Duke, et al and Shuler v. Garrison, et al -- that are designed to show that.

Did Riley or Garrison believe they had a legitimate defamation case against me? Their own actions suggest the answer is no. Let's look first at the Riley case; it's clear his goal was to have me falsely arrested and incarcerated, and his complaint had nothing to do with defamation:

* The normal remedy in a defamation case, by law, is to seek money damages. But Riley did not seek money damages, and none were issued in the case. Instead, Riley sought an improper equitable remedy -- a preliminary injunction that has been prohibited under more than 200 years of First Amendment law. The injunction was a set-up to cause my unlawful arrest -- a kidnapping, really, given that no warrant ever has appeared.

Rob and Bob Riley

* Under long-standing First Amendment law, a defamation claim must be determined at a jury trial. That's because the First Amendment holds an exalted place in American law, and the notion that a judge could act as a one-man censor at a bench trial is considered abhorrent.

* Central to a jury trial, of course, is discovery, which establishes the facts upon which the case is to be argued. Riley did not seek a trial, a jury trial, or discovery. Why is that? I can think of only one reason: He wasn't interested in proving defamation because he knew my reporting about his affair with Liberty Duke was not false. Discovery -- producing e-mails, text messages, phone records, etc. -- would have proven my reporting was on target. Rob Riley wanted no part of that process.

* Judge Claud Neilson, brought out of retirement to hear the case by special assignment, acted as a one-man censor -- declaring my reporting defamatory, even though he had no facts, via discovery, to support that finding. And it was a determination that only a jury, not a judge, could make. In fact, I had one hearing before Neilson, but there never was anything approaching a trial in the case.

* Neilson imposed monetary sanctions against me, acting pro se, in the amount of about $33,000. But Alabama law is clear that a self-represented party cannot be hit with sanctions or attorney fees. They have not, and will not be paid, because they are unlawful. Still, Liberty Duke used her portion of the bogus sanctions to place a lien on our Birmingham home. If Duke and her lawyer, Christina Crow, don't know that monetary sanctions cannot be imposed against a self-represented party . . . well, Liberty Duke should stay out of courtrooms and Ms. Crow should find another profession. In essence, Liberty Duke stole more than $7,000 of excess foreclosure funds that lawfully belonged to Carol and me. So far, Duke has gotten away with the theft, but we intend to make sure that changes. That is one of many issues raised in our pending federal lawsuit. Anyone thinking of doing business with Liberty Duke in her role as a lobbyist should know that we have indisputable facts that show she is a thief -- and that should cause a few second thoughts.

* Liberty Duke used her portion of the unlawful sanctions to have a bogus lien placed on our property. Duke and her lawyer, Christina Crow of Union Springs, had to know this was contrary to law. But did it serve to harass and maliciously injure Carol and me? It sure did -- cheating us out of more than $7,000 -- and inflicting such injury was the whole point of the Riley/Duke lawsuit.

What about the Garrison case? Well, it's every bit as bad:

* Garrison did not seek a jury trial -- at least not in her initial filing. In my response, I demanded a jury trial -- and Garrison lawyer Bill Baxley promptly responded with a motion that more or less said, "Oh yeah, we want a jury trial, too." The truth? Garrison, like Riley, never intended to have a trial (jury or otherwise), suggesting she knew my reporting was accurate.

* Evidence indicates Garrison was a key figure in our wrongful foreclosure, which forced us out of state (to Missouri), where I could not defend myself against her defamation claim, which wound up with a $3.5-million default judgment. That judgment is void, as a matter of law, because I never received notice of the default-judgment application or hearing. Garrison must like to catch fish in a barrel because she clearly likes to bring a bogus lawsuit and then help ensure the target can't defend himself. That kind of chicanery must give her a sense of "power." By the way, Riley's lawsuit that caused me to be unlawfully incarcerated for five months also played a key role in the loss of our home, suggesting that he and Garrison worked together on their little courtroom scams.

* Garrison likely never had any intention of having her case tried, but she did try it in the press. She arranged for an "as told to" article in Marie Claire, a women's fashion magazine published by Hearst Corp. The article only proved that Garrison can't keep her facts straight and defamed me in at least three ways: (1) Falsely claiming I had reported that Luther Strange was the biological father of Garrison's child; (2) Falsely claiming I had stalked Garrison; (3) Falsely claiming there was a trial in her underlying defamation case.

* Former State Rep. Lowell Barron has stated in a radio interview with Marcus Echols that Strange and Garrison had an extramarital affair and said it compromised Strange so badly that he could not do his job -- Alabama attorney general, at the time.

* Barron also shined light on why Garrison and Strange helped launch our wrongful foreclosure, forcing us out of state and making sure I would not receive notice of key events in the case. Strange tried to prosecute Barron for alleged violations of the state ethics law, but that changed when Barron filed a motion seeking to have Strange give testimony under oath. The judge had not ruled on the motion, but in the interim, Strange dropped the case. Said Barron, from an earlier post:

Luther Strange is so compromised that he cannot go after the governor. What happened in my case . . . my attorney asked the judge to allow us to get Luther Strange to testify in my case. The judge left that open and didn't rule on it. Once the judge didn't rule on whether we could put Luther Strange on the stand, my case went away.

Luther Strange cannot stand to be deposed or be put on the stand because his shenanigans with Ms. Garrison would come out in the open. This whole bunch is compromised. You can't have clean government when you are dirty.

* Has Jessica Garrison filed a defamation case against Lowell Barron? Nope. Why? Probably because she knows his statement is true, and truth is an absolute defense to a defamation case. Instead, Garrison made her social-media profile mostly go dark after a report that Strange was tied to the ongoing Birmingham Superfund bribery scandal. Why would Jessica Garrison go underground right now? Hmmm . . .

The Case of the Severed Penis teaches us that the Alabama State Bar is more likely to go after solo practitioners, or lawyers from small firms, while letting the big fish go free. But our experience shows that lawyers with histories of working at large firms -- like Rob Riley and Jessica Garrison -- can be every bit as dirty as the smaller guys.

Heavy.com publishes "five fast facts" on Luther Strange's wife, but it butchers facts about my reporting on Strange's extramarital affair with Jessica Garrison

Luther and Melissa Strange

A New York-based Web site known for its "fast facts" published an article on Tuesday about the wife of U.S. Sen. Luther Strange -- and it had a few problems with "facts." I know because it addressed our reporting here at Legal Schnauzer about Strange's extramarital affair with former campaign manager Jessica Medeiros Garrison. On that subject, heavy.com's reporting might have been "fast," but it certainly did not deal in "facts."

As part of its election-day coverage on the Strange vs. Roy Moore U.S. Senate runoff, heavy.com ran an article about Strange's wife, with the title "Melissa Strange, Luther's wife: Five Fast Facts You Need to Know." On the same day, the Web site also ran similar factoid-filled pieces on Luther Strange; Roy Moore; and Moore's wife, Kayla.

The item on Melissa Strange included "fast fact" No. 2, which carried this title: "A Blogger Claimed Strange Had an Extramarital Affair With a Campaign Aide, Who Won a $3.5 Million Settlement." That segment apparently was based totally on Garrison's "as told to" article with writer Liz Welch, published in October 2015 at the Hearst-owned fashion magazine and Web site Marie Claire. With that in mind, it's no surprise that the heavy.com segment is factually challenged.

Factual problems begin with the headline; there was no settlement in Garrison's defamation lawsuit against me. There also was no discovery, no trial, and no jury -- only a determination by Jefferson County Circuit Judge Don Blankenship, who essentially acted as a one-man censor in the case. U.S. law long has held that defamation cases must be determined at trial, before a jury. That's because of the First Amendment's exalted status in American law -- and no judge, by law, can unilaterally act as a one-man censor. But that is exactly what Blankenship did in the Garrison case

There also was no judgment on the merits in the case. It was a default judgment, the fallout from my unlawful five-month incarceration in Shelby County (Oct. 23, 2013 to March 26, 2014). That helped lead to a wrongful foreclosure on our house of 25 years in Birmingham, and with insufficient time to save our house after my release from jail, Carol and I were forced to move to Springfield, Missouri, where I grew up.

Living like a refugee in Missouri, I could not defend myself against Garrison's allegations. In fact, I never received notice of her default application or the default hearing -- and the docket shows such notice never was sent. You'd be surprised how hard it is to appear at court hearings when you receive no notice that they are being held. That's what led to the default judgment.

None of this is mentioned in the heavy.com article, written by Daniel S. Levine. The author clearly has zero knowledge of relevant law in the Garrison case, and it appears he made no effort to research it. But aside from the law, Levine can't get his facts straight -- and that's because he relied on a lousy original source, the Marie Claire article.

In fact, the Marie Claire article is so bad that it is the subject of a defamation claim in a federal lawsuit that currently is on appeal in the U.S. Eleventh Circuit. That's right, I am suing Garrison, Marie Claire, and Hearst for defamation -- but Levine did not bother to learn about that.

Let's check out the beginning of the section about my reporting on the Strange-Garrison affair:

Strange and Melissa have been married for over 30 years, but in a 2013 blog post, Legal Schnauzer blogger Roger Shuler, claimed he had an affair with former campaign staffer Jessica Garrison. The post was titled “AG Luther Strange Has A Messy Extramarital Affair With Ex Campaign Aide Jessica Medeiros Garrison” and was published in July 2013.

Read literally, that says I claim to have had an affair with Jessica Garrison. My response? (A) You'll never hear that claim coming from my mouth; (B) The sentence is so poorly written that it becomes inaccurate to an absurd level. Then, we have this:

Garrison responded with an interview for Marie Claire and a lawsuit for $3.5 million. Garrison told Marie Claire that Melissa knew it wasn’t true and even called her.

The byline on the article says, "By Jessica Garrison, as told to Liz Welch." Garrison is listed as the author, with Welch essentially serving as her stenographer. We can find no indication that Welch asked Garrison a single question, so it was not an interview. And there is no evidence that either checked the court docket for the simplest facts. For example, Garrison claims there was a trial in the case -- but if there was, it was held without me, the defendant. A check of the docket, of course shows there was no trial.

What about this?

The rumor continued to follow her, even though it wasn’t true. She sued and the judge awarded her $3.5 million.

Levine makes a blanket statement that my reporting on the Strange/Garrison was not true. But there is zero evidence from an adversarial proceeding to prove that. As noted earlier, there was no discovery, which means Blankenship's default judgment was rendered on the basis of almost no evidence. Luther Strange and Garrison supposedly testified at a hearing, but I wasn't present, so there was no cross-examination. (And there is substantial evidence that Garrison committed perjury.) As we've shown in multiple posts, the ultimate finding of the court -- under relevant law -- was that my reporting was neither false, nor defamatory. But you don't read that at heavy.com.

You also don't read that, as a matter of law, Garrison's $3.5-million judgment is void because I was not noticed on her default application or hearing -- and I have an unlimited amount of time to attack it. In other words, Garrison's judgment isn't worth a nickel, much less $3.5 million.

Finally, we have this:

Shuler vowed to fight the judgement. He was previously jailed for five months after his reporting on former Governor Bob Riley’s son. Shuler continues to report on Alabama politics today.

First, I haven't just vowed to fight the judgment, I have fought the judgment, via the aforementioned federal lawsuit. But more importantly, consider that second sentence, in yellow. Shouldn't any journalist who writes that -- or any citizen who reads it -- say, "How does a journalist get thrown in jail for writing about Rob Riley, or anyone else"?  The answer: He can't, under the law. I was thrown in jail based on a preliminary injunction -- issued by a judge, no trial, no jury -- that has been prohibited by more than 200 years of First Amendment law. But Levine apparently did not bat an eyebrow when writing the sentence in yellow.

Strangely, Levine acknowledges that he checked my blog before writing his piece, but he must not have looked for the multiple posts (such as this one) that show the Marie Claire article is pretty much a fact-free piece of rubbish.

Heavy.com does serve up some heavy irony, which it apparently does not recognize. Let's consider this from the introduction to the piece about Melissa Strange:

[Luther] Strange has been serving as Alabama’s Senator since President Donald Trump chose Jeff Sessions to be his U.S. Attorney General. The 64-year-old Strange was appointed by Governor Robert J. Bentley shortly before he resigned due to a sex scandal.

How did the public come to learn about the Bentley sex scandal? Because I broke the story, here at Legal Schnauzer -- roughly seven months before the mainstream media picked up on it.

Without knowing it, heavy.com acknowledges my track record of accurately reporting on subjects that many other news outlets won't touch. The Strange/Garrison story is a classic example of such reporting.

But you wouldn't know that from reading heavy.com. It apparently is so busy being fast that it can't bother with being factual.

"Freaky Becky" Mason and "Dr. Love" Bentley look bad in Alabama's sex scandal, but another GOP insider--no stranger to sleaze-- looks almost as bad as they do

Jessica Garison, with Luther Strange
(From marieclaire.com)

Rebekah Caldwell Mason yesterday became the first major casualty of the sex scandal enveloping Alabama Governor Robert Bentley. To be sure, "Freaky Becky" Mason and "Dr. Love" Bentley don't look so good in the public eye these days. That especially seems to be the case now that we know Bentley pressured law enforcement to target me and attorney Donald Watkins in order to silence Web-based reporting on the gubernatorial liaison. And this morning, we have reports that Bentley is likely to face articles of impeachment as early as next week.

It looks grim for Bentley and Mason, but someone else looks almost as bad as they do--and she is a GOP insider who has been the subject of numerous posts here at Legal Schnauzer.

We're talking about Jessica Medeiros Garrison, former campaign manager and all-around "gal pal" to Alabama Attorney General Luther Strange.

Garrison filed a defamation lawsuit against me for reporting, accurately, that she had an affair with Strange. Last October, Garrison somehow caught the attention of Liz Welch, a writer for women's fashion magazine Marie Claire. The two combined on an "as told to" article that touted Garrison's $3.5-million default judgment in the case and defamed me in more ways than I can count.

Did the "dynamic duo" of Garrison and Welch mention that her default judgment was void, as a matter of law? Nope. Did they mention that Garrison's lawsuit was built almost entirely on a mountain of fraud and perjury? Nope. Did they mention that Garrison's lawsuit, as a matter of law, proved that my reporting was NOT false or defamatory--and Garrison has publicly stated that she plans to try to have my articles censored, even though they've never been proven false or defamatory at trial? Of course not. That would take a level of honesty and integrity that Garrison and Welch apparently are not capable of reaching.

Which brings us to Garrison and Mason--and how their two stories of sleaze intersect. In her haste to defame me, Garrison apparently thought it would be a good idea to jump on the Mason/Bentley "love train." After all, I was the journalist who had broken the gubernatorial-affair story last August 31, almost seven months before the national press went gaga over it last week.

Garrison was in the process of trying to con the public into believing my reporting about her affair with Luther Strange was inaccurate, so she must have thought it was a good time to try to convince the public my reporting on the Bentley/Mason affair also was false.

In the wake of Mason's resignation--not to mention audio recordings of Bentley stating he liked to caress Mason's breasts and explore her nether regions--that doesn't look like such a good idea now.

For one thing, the Bentley/Mason contretemps could go way beyond the groping and groaning of two "family values" Christians who let lust lead them astray. Just how ugly could it get? Consider these words from Birmingham attorney Donald Watkins, in a Facebook post titled "Bentley Unmasked." Some highlights:

Federal and state criminal investigators are hot on the trail of Alabama’s newest “Bonnie and Clyde” couple. Bentley’s case is dripping with evidence of wire and mail fraud, money laundering, conspiracy, and racketeering violations under federal law, among other charges. At the end of the day, Robert Bentley is nothing more than a lovesick “swinger” and hardcore “racketeer” who ran a criminal enterprise out of the governor’s office and who sponsored his illicit love affair with taxpayer dollars and donations/funneled money to various organizations. . . .

Reports are flooding into our Facebook news team about certain “pay-to-play” contracts that implicate Bentley and Rebekah directly. It seems that the loving couple found an effective way to circumvent public oversight, transparency and competitive bid laws by channeling millions of public dollars into entities like the Workforce Councils of Alabama and others legitimate agencies and then directing the recipient agency to execute vendor contracts with certain special friends and supporters.

Now that federal investigators are following the money, Bentley has stopped talking.

Doesn't sound like anyone would want to hitch a ride on that train wreck. But Jessica Garrison did just that a few months ago. Here is what Garrison told Liz Welch, who apparently is incapable of asking a single question that might help determine if her source is trustworthy or full of horse feces:

I wish that's where my story ended. In a way, it is—but another chapter just opened.

The week before last, I got a call from a man who works in Alabama politics. He was upset about rumors swirling around the recent announcement of Governor Robert Bentley's impending divorce. Bentley's wife filed papers in late August, which prompted the same blogger who lied about me to write that the cause was primarily the result of an affair with one of his aides, Rebekah Caldwell Mason.

I had no idea if any of this was true—all I knew was that it brought back all the anxiety, stress, and sadness that had consumed me for months when I was the target of the same man.

I have since learned that Rebekah has retained a lawyer, and while I don't know the details of her case, I do know this: I am proud of her for fighting for her name and reputation. If more women fight back, then maybe, just maybe, people like Shuler will stop seeing us as easy targets—and more as forces better not reckoned with.

What was Garrison trying to accomplish here? Three or four things seem apparent:

(1) She was trying to "climb in bed with" Rebekah Mason and Gov. Bentley (pardon the terrible pun). She wanted to be seen as their ally, as someone who had been through an experience similar to theirs.

(2) She wanted the public to know that the mean old journalist who had "lied about [her]" was now targeting Ms. Mason in the same reckless manner.

(3) She is proud of Ms. Mason for retaining a lawyer to fight for "her name and reputation," issuing a thinly veiled threat to other journalists that they best not report on white, female GOP operatives.

Garrison's narrative was weak to begin with, but now it has sprung massive leaks:

Rebekah Caldwell Mason

* If Garrison is saying her experience was similar to that of Mason and Bentley . . . well, that means she, in fact, had an affair with Strange. After all, we now know my reporting on Mason and Bentley was right on target. The public record shows that, as a matter of law, my reporting on Strange and Garrison also was on target.

* If Garrison wants the public to believe I "lied" about Mason the way I "lied" about her . . . well, the public now knows I didn't "lie" about Mason. That seems to blow a major hole in the Marie Claire claim that I lied about Garrison. It certainly shows that I am a professional journalist, I take my reporting here seriously, and I have darned good sources.

* If Garrison is fired up about Mason's fight for "her name and reputation" . . . well, that fight isn't going so well at the moment. Our guess is that quite a few Alabamians now think of Mason as a "political slut" and a "power-hungry whore." Mason will be lucky if she avoids the term "federal inmate." Based on Donald Watkins' insights, Mason might want to start considering how she will look in an environment where "orange is the new black."

The bottom line? Jessica Garrison went out of her way to side with Rebekah Mason, in an apparent effort to bolster her claim that I have a habit of reporting inaccurately on matters of political intrigue. Well, the Mason case now shows that I have a habit of getting it right--and Mason's career as a political advisor is toast.

Perhaps the public needs to take another look at my reporting on the Garrison/Strange affair. That's because--as a matter of law, and otherwise--it's on target.

In an effort to add levity to the proceedings, let's check out the 1976 KISS classic, "Calling Dr. Love." Sounds like Ms. Mason put out several calls to "Doctor Love"--and he was more than willing to respond. (BTW, is it just me, or does this song need a little more cowbell in the intro?)

Docket in Jessica Garrison case shows she filed for a default judgment three times, twice while I was in jail -- suggesting she had no intention of going to trial

Jessica Garrison and Luther Strange
(From marieclaire.com)

Alabama GOP operative Jessica Medeiros Garrison filed at least three default-judgment applications in her defamation lawsuit against the Legal Schnauzer blog and me. Two were filed while I was wrongfully incarcerated in Shelby County because of the Rob Riley/Liberty Duke case. At least one more was filed within roughly six months after my wife, Carol, and I had been forced to leave our home of 25 years in Birmingham because of a likely wrongful foreclosure that left us in Missouri, where we currently reside.

This information comes from the docket in the Garrison case (Number CV-2013-903427.00), which was produced among responsive pleadings in our pending federal lawsuit against Garrison, Alabama Attorney General Luther Strange, and others in a wrongful foreclosure/defamation action. We call it "The House Case," as opposed to "The Jail Case," which is on appeal in the Eleventh Circuit because of trial judge R. David Proctor and his refusal to follow black-letter law that requires court clerks to execute service for in forma pauperis (indigent) litigants such as us. (Docket from the Garrison v. Shuler state case is embedded at the end of this post.)

The docket, which I don't think I've ever seen because I either was in jail, in the midst of a fighting a foreclosure, or forced to live like a refugee in Missouri, is filled with interesting information -- even though some of it is not perfectly clear. I'm still trying to digest the information, so I'm not certain about all it reveals. But here is some of what we learn:

* There is no sign that I ever received three days' notice from Garrison of her default application and hearing, as required by Alabama law -- spelled out in a case styled Abernathy v. Green Tree Servicing (Ala. Civ. App., 2010). As we've been reporting for months, the docket shows Garrison's $3.5-million default judgment is void, as a matter of law, and can be attacked as such at any time.

* While the docket hardly is a model of clarity, it appears to show that Garrison and her lawyer, Bill Baxley, never even sent notification of the default application/hearing, and it certainly was not received. What does this suggest? It suggests, to me, that Garrison and Baxley intentionally avoided notification because they did not want me at the default hearing. Obviously, it's easier to prevail on such a matter when you have no opposition.

* The court record suggests Garrison's lawsuit was about obtaining a default judgment all along -- and nothing else. Why? The docket shows she first applied for a default judgment on October 21, 2013, less than one month from my arrest (on September 23, 2013) related to the Riley/Duke case. I had not been lawfully served -- and Judge Don Blankenship eventually would agree, granting my motion to quash service -- and I had not even had the 30 days provided by law to answer the complaint, but Garrison filed for a default judgment anyway. Does that mean she was trying to use my incarceration to her advantage? It sure looks that way to me.

Garrison next filed for a default judgment on February 20, 2014, again while I was in jail. I never received notice of a default application or hearing while in jail, and the docket reflects that.

* All this time, there is no sign in the docket that Garrison was trying to prove her defamation claim in the usual way -- via a scheduling meeting, a discovery schedule, or any actual discovery. There was no sign of any effort to prove my reporting about her extramarital affair with Luther Strange was false or defamatory. Does that mean they knew my reporting was not false or defamatory, and Garrison had no grounds for her lawsuit? That's what the docket strongly suggests -- and the filing of such an abusive lawsuit is the kind of thing that can cost a lawyer her bar card.

* Garrison filed for default No. 3 on September 17, 2014, roughly two months after we had been forced to vacate our home because of a foreclosure that almost certainly was contrary to law? Does this indicate the foreclosure and the default (and possibly my incarceration) were all a coordinated effort among Garrison, Baxley, Riley, Duke, and likely others -- designed to get Carol and me out of town so Garrison could get her $3.5-million judgment with no opposition? The answer appears to be yes, suggesting Garrison (like any good Republican) likes to cheat. The docket suggests her lawsuit was the legal equivalent of catching fish in a barrel.

* A hearing on default application No. 3 -- again, with no sign of notice to me -- was set for October 15, 2014, but the docket shows that was continued. It does not show a new date, and in fact, the docket does not show that a hearing ever was scheduled or conducted. An entry on December 16, 2014 reads "disposed by separate order." That suggests default was granted, but news apparently did not get to Garrison because, on January 7, 2015, she filed a motion for an order rendering judgment by default. The record shows such an order was rendered and entered six days later, on January 13, 2015.

How big a mess is all of this? The docket shows that three default applications were filed, and the opposing party never received notice on any of them. While Baxley and Garrison have whined in court documents that they couldn't find me to provide notice, they sought default twice while I was in jail -- so they certainly knew where I was then. (Gee, Baxley and Garrison wouldn't lie, would they?) The docket suggests default was granted, even though there is no sign that a hearing was conducted.

So how did Blankenship come up with the $3.5-million figure for damages? Well, the docket and other documents produced in "The House Case" shine interesting light on that, as we will explain in an upcoming post.


(To be continued)

Garrison-strange, docket by Roger Shuler on Scribd

Lawyers for Hearst Corp., publisher of Marie Claire, omit key part of quote about stalking that points to defamation by GOP operative Jessica Garrison

Stalking is a peculiar issue in our "House Case"
(From lithub.com)

What do students learn in law school? Based on personal experience, I would say many of them learn how to cheat people, including their own clients. Members of the bar have almost endless techniques for cheating people -- maybe more than any other profession in the world -- and documents in our pending "House Case" reveal a particularly sneaky form of underhandedness. We are filing it under the heading "When in doubt, leave it out."

It comes from Hearst Corporation, publishers of the Marie Claire women's fashion magazine that published an article in October 2015 that included several false and defamatory statements about me. Hearst is represented in the proceeding by a couple of in-house lawyers from New York City, plus two or three from Birmingham's Lightfoot Franklin and White firm. Get a load of a scheme they presented in their Motion to Dismiss for the "House Case."

The article in question was an "as told to" piece that Alabama GOP operative Jessica Medeiros Garrison dreamed up, apparently with no questioning from writer Liz Welch, about experiences surrounding the $3.5-million default judgment she received against me. The article contains at least three statements that are false and defamatory: (1) That I reported Alabama Attorney General Luther Strange was the biological father of Garrison's child; (2) That Garrison claimed I was stalking her, and stalking is a crime; (3) That the court proceedings involved a trial.

For now, let's focus on item No. 2. Hearst lawyers claimed that the statement they published regarding stalking could not be defamatory because it was in the form of a question. (Kind of like on Jeopardy!, I guess.) Here's how the Hearst lawyers explained the law: (Their brief, and our response to it, are embedded at the end of this post.)

A prerequisite to establishing a prima facie defamation claim is the publication of a false statement of fact. See, e.g., Corporate Am. Car Wash Sys. v. City of Birmingham, 165 F. Supp. 3d 1117, 1127 (N.D. Ala. 2016). “A statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” Marshall v. Planz, 13 F. Supp. 2d 1246, 1257 (M.D. Ala. 1998) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).

Is that an accurate statement of the law? Knowing the Hearst grew, I'd say that's debatable. But this much is certain: The citation relies on two cases from Alabama district courts, which generally do not produce binding law. Law that sets precedent comes from circuit courts, such as the U.S. Eleventh Circuit (covering Alabama, Georgia, and Florida), or the U.S. Supreme Court.

For now, we are going to overlook such technicalities and assume the statement is at least somewhat close to the actual law. Let's look at how Hearst spins things:

Here, in the Article Ms. Garrison does not state as a matter of fact that Mr. Shuler was stalking her. To the contrary, she informs the readers about her concern when Mr. Shuler posted a photograph of her home on his blog, and wondered: “Had he been at my house? Was he stalking me?” She is clearly expressing “conjecture or surmise, rather than claiming to be in possession of objectively verifiable facts, [and thus] the statement is not actionable.” Id.

That's swell and peachy, but here's the catch: Hearst did not provide the full Garrison quote from the Marie Claire article. The full quote apparently caused them doubt, so they left it out -- probably figuring the court would be no wiser. Here is the full Garrison quote on the subject of stalking from the article:

“Shuler posted photos of my home on his website, which felt like a threat, not to mention a huge violation of privacy. Had he been at my house? Was he stalking me? I installed a home security system and put the police on notice. . . .

Does Garrison live in a world of hysteria? Apparently so, because the photos in question came from a real-estate Web site and almost certainly were taken well before Garrison ever lived there. I didn't take them, and any reasonably grounded person could have determined that in a matter of seconds on the Web. The sentence "Was he stalking me?" is, in fact, in the form of a question. But look at the highlighted part above, the part Hearst's lawyers conveniently left out of their motion.

Taken in context with the full quote, it's clear Garrison is not concerned about a general stalker or prowler. She's concerned about me, the guy who never had any significant interaction with law enforcement (other than maybe one or two traffic tickets) until I started reporting accurately on this blog about legal and political corruption in Alabama. Garrison says she installed a home security system because of me, and she put the police on notice because of me. It's not just a question. Here's how we responded to the Hearst argument:

Re: Hearst’s claim that Garrison’s statement about Roger Shuler stalking her was a question posed in the article and not a statement of fact: On pp. 12-13, Hearst claims Garrison’s statement is a question, a matter of conjecture. But Hearst fails to cite the full statement. Here it is: “Shuler posted photos of my home on his website, which felt like a threat, not to mention a huge violation of privacy. Had he been at my house? Was he stalking me? I installed a home security system and put the police on notice. . . . “ The highlighted section clearly is not a question or a matter of conjecture. Garrison and Liz Welch tell Marie Claire’s readers that Garrison installed a home security system and put police on notice out of concerns about stalking. And it was not just a general concern; it specifically was about Roger Shuler. Stalking, of course, is a crime, which makes this a case of defamation per se, where false statements are considered harmful on their face.

That last sentence is important. If defamation per se is proven, damages are assumed. And to publicly accuse a man of stalking, in today's environment of heightened sensitivities on gender issues, is serious business.

I have no way of knowing what a court might do on this, or any other, issue. Defamation presents a particularly complex and tricky form of law. For example, someone once said that trying to determine a public figure in a defamation case is like "trying to nail a jellyfish to a wall."

So, I will refrain from reaching too far on conclusions. But this much seems clear: The Hearst Motion to Dismiss almost certainly is due to be denied (on a number of grounds), and I am entitled to discovery that should reveal more information about what Jessica Garrison said to others (friends and neighbors, plus law enforcement) about the notion of me stalking her.

The whole point of Hearst's deceitful motion is to avoid discovery. Well, by law, that effort should fail.

Garrison-strange, Hearst MTD by Roger Shuler on Scribd

Garrison-strange, Responses to Hearst, Yellowhammer, Gore MTDs by Roger Shuler on Scribd

Three more indictments come in Superfund scandal, putting Balch and Drummond "mules" on the run and producing absurdist comments from defense counsel

U.S. Attorney Jay Town announces indictments
(From birminghamwatch.org)

Yesterday's announcement of federal indictments against two Balch Bingham lawyers and one Drummond Co. executive is a rare sign that members of Alabama's white ruling elites (also known as "Big Mules") might be held accountable for their underhanded acts. It also brought a quote that might represent one of the most damning statements ever about the legal profession. The quote came from a member of a Birmingham law firm that has a recent history of making ludicrous arguments in court. We've seen that firsthand -- and our experience suggests defense attorneys will be making quite a few nonsensical arguments as they try to keep Big Mules out of federal prison.

A six-count indictment filed in U.S. District Court charges Joel Iverson Gilbert and Steven George McKinney, both partners in the Birmingham law firm Balch Bingham, and David Lynn Roberson, vice president of government and regulatory affairs for Drummond Co., with conspiracy, bribery, wire fraud, and money laundering. The indictment alleges they conspired to provide former state Rep. Oliver L. Robinson Jr. with a valuable and confidential consulting contract in exchange for his taking official action favorable to Balch and its client, Drummond, regarding a Superfund cleanup site in north Birmingham.

A press release from the U.S. attorney for the Northern District of Alabama provides no clues if additional indictments are coming. But according to one recent press report, U.S. Sen. Luther Strange (R-AL) was present when a Drummond representative offered State Rep. John Rogers a bribe. Jessica Medeiros Garrison, Strange's one-time campaign manager and mistress, served in an "of counsel" role at Balch until exiting the firm in May -- and her social-media presence mostly vanished in the weeks after Strange's name was raised in connection to the Superfund case. For good measure, Trump attorney general Jeff Sessions, who already is at the center of the RussiaGate scandal, is closely aligned with Balch.

We highly recommend a relatively new local Web site, banbalch.com. Its report on yesterday's indictments is titled "Will Balch Bingham Partner Turn Federal Witness?" From that post:

Looks likes Balch has seen the writing on the wall and appears to have thrown the indicted partners under the bus. (Putting them on administrative leave and deleting their Web pages.)

We note the silence from Steve McKinney. Will McKinney turn federal witness? Will he, too, start singing like a canary?

On his web page at Balch (since taken down), McKinney wrote, “I 'get the call’ when an environmental problem has developed and legal or strategic help is needed fast.”

So who called McKinney when Drummond needed help in suppressing the African-Americans in North Birmingham? Who did he report to about the Robinson Bribery scheme? Did any other partners or Balch lobbyists know about this scheme?

The banbalch.com post ends with this, which offers sound advice and sobering thoughts:

On that same now defunct web page, McKinney noted, “I come from a blue-collar home where education and a serious work ethic came in daily doses.”

Maybe its time to use blue-collar smarts to shorten one’s possible prison sentence, a potential death sentence.

At 62 years of age, even a 15 year federal prison term would mean McKinney could die in prison. Now that’s a bitter dose of reality.

As for the extraordinary comment we mentioned at the beginning of this post, it came from Gilbert's defense attorney -- Jack Sharman, a partner at Lightfoot Franklin and White. Before the indictments were announced, Sharman said, as stated at Alabama Political Reporter:

“Joel Gilbert is innocent of these charges,” Sharman said. “He did not bribe anyone. This is a case that never should have been brought. Joel represented a client in a legal dispute with the EPA, a powerful and, in this case, over-reaching federal agency. Everything he did while representing that client was lawful and ethical. He is a longtime partner at a leading law firm. A lawyer with a reputation for honesty and integrity, he did what is routine for good counselors to do for corporate and individual clients every day – he engaged a consultant through a written contract to perform real and lawful services.

The way I read that, Sharman is saying: "The line between bribing someone and providing routine legal work is so thin that reasonable minds hardly can tell them apart." Gee, the Alabama State Bar should be delighted to learn that.

It's not unusual for members of the Lightfoot firm to make off-the-charts legal arguments. We've seen it in what we call "The House Case," a federal lawsuit that is on appeal before the Eleventh Circuit in Atlanta. The Lightfoot firm represents multiple defendants -- Marie Claire, Hearst Corp., al.com, and Yellowhammer News -- in "The House Case."

One of Lightfoot's arguments is that demonstrably false and defamatory statements are "substantially true." No kidding. They also argue that the Marie Claire fashion magazine is a "well-respected news source." Again, no kidding. You can check out a Marie Claire cover (left) and decide for yourself if it appears to be a serious news source. Here is how we reported it in a January 2017 post:

Lawyers for Hearst Corporation take a demonstrably false claim from their Marie Claire fashion magazine -- that there was a trial in Jessica Medeiros Garrison's lawsuit against me -- and argue that it was "substantially true," and, thus, not defamatory. The same lawyers -- from Birmingham's Lightfoot Franklin and White firm -- represent the right-wing propaganda site Yellowhammer News (YH) and argue that its reporting on the Garrison case is not defamatory because it came from a "well-respected news source."

Anyone can check the public docket in Garrison's underlying defamation case -- the one where she was awarded $3.5 million in a default judgment that, by law, is void for failure to notice the opposing party -- and see there was no trial. From our January report:

As noted in an earlier post, Hearst can't keep its story straight. It claims the Marie Claire article was based in part on court records from Garrison's lawsuit. But the article repeatedly misstates facts that easily could be found from a check of the court records. For example, the article states there was a trial when there clearly was no trial. There wasn't even any discovery or summary-judgment proceedings that generally must precede a trial.

Still, Hearst wants the court, and the public, to believe that the article's false statement regarding a trial is "substantially true" -- that a hearing and a trial are more or less the same thing. I'm sure that would be news to anyone who has the slightest knowledge of our justice system. I guess it means that a rhinoceros and a rabbit are substantially the same thing, given that both words begin with "r"

Here is part of our argument in response to the Lightfoot nonsense:

Hearst’s false claim that there was a trial in the Garrison matter: 

. . . Hearst claims the statement is “substantially true” and “not capable of defamatory meaning.” Hearst claims “a trial is synonymous with an evidentiary hearing,” but it provides zero citations to law to support that statement. In fact, Hearst cites Alabama law holding, “A communication is considered defamatory ‘if it tends so to harm the reputation of another as to lower him in the estimation of the community . . . “ The statement in the Marie Claire article does exactly that to Roger Shuler. It claims that Mr. Shuler was hit with a $3.5-million judgment after a trial (supposedly a jury trial, as required by First Amendment law), after discovery and a trial on the merits. But none of that happened; there was no discovery, there was no trial, there was no jury, and there was no valid judgment. The report of a trial is false, and it clearly harms Roger Shuler’s reputation as a journalist and as a human being. It suggests Roger Shuler was found liable for a huge award by a jury of his peers; in fact, that did not happen at all. Finally, Hearst claims this ruling is a question for the court. If that is so, the court is required to make all findings while viewing matters in “a light most favorable to the nonmoving party (the Shulers).” On multiple grounds, the court is required to find for the Shulers on this issue.

As you can see, Lightfoot lawyers can't keep their stories straight, often can't support their arguments with citations to law, and they even tend to wind up admitting that their own statements are horse manure.

Look for more of that kind of thing as the Superfund scandal unfolds. We've seen it up close.

Lawyers for Hearst Corp. and Yellowhammer News argue that demonstrably false statements are "substantially true" and not defamatory -- no kidding!

Lawyers for Hearst Corporation take a demonstrably false claim from their Marie Claire fashion magazine -- that there was a trial in Jessica Medeiros Garrison's lawsuit against me -- and argue that it was "substantially true," and, thus, not defamatory. The same lawyers -- from Birmingham's Lightfoot Franklin and White firm -- represent the right-wing propaganda site Yellowhammer News (YH) and argue that its reporting on the Garrison case is not defamatory because it came from a "well-respected news source." Check out the cover of a recent Marie Claire magazine above and tell me if that looks like a "well-respected news source." (Is that a spectacularly attractive young woman with no clothes on? Absolutely! Is she on the cover of a respected news source? I don't think so.)

Finally, we learn the likely reason Marie Claire, al.com, and Yellowhammer News reported the same story, almost verbatim. It probably was part of a plan to flood the market with unfavorable articles about me, thus turning me from a private person to a public figure. Never mind that it is unlawful to pull such a stunt; the evidence suggests these "bastions of journalism excellence" did it anyway -- and that strongly points to "actual malice," which probably means they defamed me, whether I'm considered a public figure or not.

I wish I was making this stuff up, but I'm not. It shows just how far "journalism" has fallen, leading all of us into a "post-truth world" that Donald Trump surely will cherish. Let's address these issues, and perhaps a few others, in order:

A false statement in an article is "substantially true"? 

As noted in an earlier post, Hearst can't keep its story straight. It claims the Marie Claire article was based in part on court records from Garrison's lawsuit. But the article repeatedly misstates facts that easily could be found from a check of the court records. For example, the article states there was a trial when there clearly was no trial. There wasn't even any discovery or summary-judgment proceedings that generally must precede a trial.

Still, Hearst wants the court, and the public, to believe that the article's false statement regarding a trial is "substantially true" -- that a hearing and a trial are more or less the same thing. I'm sure that would be news to anyone who has the slightest knowledge of our justice system. I guess it means that a rhinoceros and a rabbit are substantially the same thing, given that both words begin with "r". Here is how we responded to the Hearst nonsense. (Both the Hearst/Yellowhamer motions, and our response to them, are embedded at the end of this post.)

Hearst’s false claim that there was a trial in the Garrison matter: On p. 10, Hearst claims the statement is “substantially true” and “not capable of defamatory meaning.” Hearst claims “a trial is synonymous with an evidentiary hearing,” but it provides zero citations to law to support that statement. In fact, Hearst cites Alabama law holding, “A communication is considered defamatory ‘if it tends so to harm the reputation of another as to lower him in the estimation of the community . . . “ The statement in the Marie Claire article does exactly that to Roger Shuler. It claims that Mr. Shuler was hit with a $3.5-million judgment after a trial (supposedly a jury trial, as required by First Amendment law), after discovery and a trial on the merits. But none of that happened; there was no discovery, there was no trial, there was no jury, and there was no valid judgment. The report of a trial is false, and it clearly harms Roger Shuler’s reputation as a journalist and as a human being. It suggests Roger Shuler was found liable for a huge award by a jury of his peers; in fact, that did not happen at all. Finally, Hearst claims this ruling is a question for the court. If that is so, the court is required to make all findings while viewing matters in “a light most favorable to the nonmoving party (the Shulers).” On multiple grounds, the court is required to find for the Shulers on this issue.

Marie Claire fashion magazine for women is a "well-respected" news source?

A lawyer representing Yellowhammer News apparently wrote the following with a straight face:

Even assuming that Shuler is a private figure, he must still show that Defendants were at least negligent in publishing the article which reported on the Marie Claire story. However, this he cannot do because courts routinely find that republishing a story from a well-respected news organization is not negligent as a matter of law, even at the motion to dismiss stage.

We invite you again to take a gander at a recent Marie Claire cover above and decide for yourself if that represents a "well-respected" news source. If you are able to concentrate for a moment on the wording, and not the fetching (to put it mildly) naked woman, note the powerful news stories the magazine is covering:

* The Naked Truth: Jennifer Bares All For Charity (Her name is Jennifer! And she's naked for charity, not to sell magazines!)

* Right Hair, Right Now 

* Love Your Look: Hot Hair and Make-Up Ideas To Suit You 

* Gossip Girls: The Socialite Spat That Changed The Web Forever 

* How Would Your Partner Describe Your Sex Life? (Gee, this rag doesn't play on women's insecurities, does it?)

Now you know that Marie Claire is the place to turn when you want the latest news about Aleppo. Here's how we responded to the nutty Hearst/Yellowhammer argument:

YH claims its reporting cannot be negligent because it came from a “well-respected news source” (Marie Claire). Marie Claire is a women’s fashion magazine. There is no evidence that it is a news source at all, much less one that is well respected. YH cites non-binding law from outside the 11th Circuit or Alabama state courts to the effect that “a republisher, was qualifiedly privileged to rely on the research of the original publisher unless it ‘had or should have had, substantial reasons to question the accuracy of the articles or the bona fides of [the] reporter.’” YH had every reason to question the bona fides of a reporter who writes a law-related article published in a fashion magazine. YH, however, failed to do that, and thus, loses any privilege.

Why did Marie Claire, al.com, and Yellowhammer News publish pretty much the same story?

Answer: They probably were trying to turn me, an otherwise private figure, into a public figure -- and that makes it harder for me to prove defamation. Here is how we addressed that issue in our response:

YH cites Little v. Breland, 93 F. 3d 755 - Court of Appeals, 11th Circuit 1996 to support its claim that Shuler is a limited-purpose public figure. Little, however, concerned issues presented at a jury trial. There is nothing in Little to show that Shuler is a limited-purpose public figure at the Motion to Dismiss stage. YH also cites Silvester v. American Broadcasting Companies, Inc., 839 F. 2d 1491 - Court of Appeals, 11th Cir. 1988 to support its claim that Roger Shuler is a limited-purpose public figure. . . . Also, the Silvester court found, “These cases stand for the proposition that the press entity which publishes the defamatory material cannot make a previously private individual into a public figure merely by flooding the public with many articles about the plaintiff. The essence of these cases is that the plaintiff must have been a public figure prior to the publication of the particular defamatory speech which is the issue of the litigation.” That is precisely what defendants in this case have done. By creating a defamatory article at Hearst-Marie Claire, and having it republished at YH and al.com, they have tried to turn Roger Shuler into a public figure, after the fact.

Hearst, Yellowhammer and al.com hardly are alone in seeking dismissal by relying on wild misstatements of law and fact. Just about every defendant in "The House Case" has done the same thing.

Garrison-strange, Hearst MTD by Roger Shuler on Scribd

Garrison-strange, Yellowhammer News Motion to Dismiss by Roger Shuler on Scribd

Garrison-strange, Responses to Hearst, Yellowhammer, Gore MTDs by Roger Shuler on Scribd