Thursday, January 23, 2020

Statements at pretrial hearing suggest Missouri federal judge Doug Harpool already has made up his mind about guilt in child-pornography case of Scott J. Wells


Doug Harpool
A federal judge in Missouri has publicly stated how he expects a criminal trial to go, even though he's not set to hear it until March 2020.

U.S. District Judge Doug Harpool made the statements in a hearing for the child-pornography case of United States v. Scott J. Wells, which we have covered extensively -- mainly because the government's criminal complaint states Wells took two relevant actions at the exact same time, which of course is physically impossible and means Wells, as a matter of fact and law, is not guilty. Also, Wells has had four different court-appointed lawyers, and apparently not one of them has read the complaint closely enough to point out the exculpatory segments to the court -- and they have done little to nothing to prepare a defense for a defendant who clearly did not commit the alleged offense, as proven by the government's own documents.

Harpool's statements, which came in a hearing to withdraw Wells' guilty plea and appoint a fourth lawyer (Stuart a hearing tHuffman, who apparently has done virtually nothing to prepare a defense, just like his three predecessors), are improper at best and highly prejudicial at worst.

Harpool's comment are particularly disappointing because I have thought he might be one of the few good guys in the federal judiciary.  A lifelong Democrat, as best I can tell, Harpool served 10 years in the Missouri House of Representatives and was nominated to the federal bench by Barack Obama in 2013. I'm a two-time Obama voter, so Harpool and I are on the same side of the political fence.

On top of that, we grew up together, to an extent. We both went to South Kickapoo Junior High (now Cherokee Mddle School) and played on the basketball team there, while also playing on the same youth baseball team (Dave's Angels). I used to have all of our team pictures, until abuse from Republican political and legal thugs caused my wife, Carol, and me to lose our home of almost 25 years in Birmingham -- with my photos and other mementos lost to the wind in the process.

Bottom line, I've always liked Doug Harpool and considered him to be an honorable person, but his comments regarding the Wells case suggest arrogance has eaten at his brain, he sides 100 percent with the legal tribe and the interests of law enforcement. or he never was the good guy I thought him to be (or maybe a combination of all three).

The Doug Harpool I thought I knew as a child would try to have some appreciation for what it's like to be falsely accused of a crime and to have a series of lawyers make no serious efforts to prepare a defense. That Doug Harpool seems to no longer exist, and the guy who now wears a robe is a suck-up for prosecutors and compromised attorneys, while being downright rude to a defendant and his family.

Harpool even hinted he might seek to prosecute Wells' 77-year-old mother, Nancy, for filing a court document on her son's behalf while serving as his power of attorney. Harpool's response, which can be seen on the first page (p. 25) of the document embedded at the end of this post, marks him as a bullying asshole, in my view:

THE COURT: Is that in Greene County?

THE DEFENDANT: Yes.

THE COURT: Has she got a law license?

THE DEFENDANT: No.

THE COURT: Well, I'll refer that to the U.S. Attorney's Office to determine whether the filing of that document constitutes the unauthorized practice of law, under the laws of the State of Missouri.

Even worse than that, Harpool strongly hinted he already has made up his mind about how the trial will proceed -- and about Scott Wells' guilt. This begins on p. 30 of the embedded document below:

THE COURT: I think you have a complete misconception of what this trial's going to be like. They're going to call the law enforcement officer; he's going to say you admitted your guilt. They're going to have the officer who reviewed the computer who's going to go through and show the jury images and searches on the computer, and the government will have made their case against you.

Then it will be -- you don't have to testify; it may be over at that point. If you want to say I didn't do it, it got on some other way, I don't know how you're going to say that without taking the stand or having an expert. I don't know of any expert who could support that. You may have one. Mr. Shuler is not an expert in computer technology.

That's not the only time I was referenced in the proceedings -- at one point, Harpool referred to me as "the blogger" -- and I agree that I'm not an expert on computer technology. But I apparently am an expert on the criminal complaint, given that no one else seems to have read it closely enough to show that it exonerates Scott Wells. If I were designated an expert on that subject and allowed to testify, there would be no need for any other experts; the case would be closed.

More importantly, notice the highlighted sentence in yellow above. It shows that Harpool is inclined not to believe Wells' expert witness. Just above that, Harpool suggests he's willing  to believe most anything that comes out of the mouth of a government witness. That's odd because it's perfectly realistic to think an expert for Wells could show government experts botched their analysis and could not show that Wells "knowingly" placed the contraband on his computer or took "affirmative steps" to exert "dominion and control" over it. Those are the key elements in play for a child-porn case, and Harpool seems cavalierly unaware of that.

How is this for irony? Harpool praises Wells' first three lawyers -- David Mercer, Shane Cantin, and Brady Musgrave -- as three of the finest in Southwest Missouri. The judge also notes that an expert witness should be an essential part of Wells' defense. Did any of those three lawyers (including No. 4, Stuart Huffman) do anything to arrange an expert for Wells? Nope. In essence, Harpool is admitting Wells' lawyers have not been doing their jobs, but he thinks they are great lawyers, anyway.

The first five pages of the hearing transcript are devoted mainly to Wells' questions about why he is being detained, given that he is in a wheelchair and clearly is not capable of being a danger to society. Harpool's answer, in so many words, is "You are being detained because most other defendants on child-porn charges are detained." Consider these words from p. 26 of the transcript:

THE COURT: I will tell you that the overwhelming majority of people charged with child pornography -- not all of them, but the overwhelming majority of people charged with child pornography, are detained in our district.

Is that how our "justice system" is supposed to work -- you get detained because other people have been detained on similar charges? The answer, of course, is no. Perhaps there was at least probable cause in those other cases. In Wells, there is no probable cause because the defendant is charged with actions that are physically impossible to commit.

Perhaps the most alarming part of the hearing transcript is that both Harpool and prosecutor James Kelleher state Wells is being detained partly because he pleaded guilty to child endangerment in a 2004 state case where the original charge was child sexual abuse. Wells initially was convicted on the original charge, but that was overturned when at least one complaining witness was found to have lied under oath, and the court found Wells' lawyer (my brother, David Shuler) provided ineffective assistance of counsel. Here is Kelleher's statement on his issue, beginning on p. 26 of the transcript below:

MR. KELLEHER: . . . But Mr. Wells needs to know that Judge Rush was well aware of the fact that while Mr. Wells was charged with sexually abusing a number of children, he ultimately pleaded guilty to endangering the welfare of a child.

Here is Harpool's comment, from p. 29 of the transcript:

THE COURT: . . . You're being held for it because there was a presumption, and you did plead guilty to endangerment of a child, according --which would be another related issue.
Are these statements true, did Scott Wells plead guilty to child endangerment? Not even close. The record plainly shows Wells entered an Alford plea to dispense with the case, and as we've reported previously, "With an Alford plea, a criminal defendant does not admit to the unlawful act and asserts his innocence." In other words, Wells did not plead guilty to child endangerment, and the record shows he did not harm anyone -- child or otherwise.

So, how could Kelleher and Harpool get the law on this so wrong? Based on local news reports, the federal court in Springfield, MO, hears a high volume of child-porn cases. It's possible Harpool is weary of hearing them and come to believe everyone facing such charges is guilty. Harpool even hinted at such, on p. 32 of the transcript:

THE COURT: I will tell you that the images I see in child pornography cases are shocking and sickening to me when I look at them, and I look at them in multiple cases. I am concerned about what the reaction of 12 lay people off the street is going to be when they see these images as described in the plea agreement. But if you think they can look past that and hear your defense, I'm going to let you withdraw your guilty plea.

As for your humble blogger, Harpool had this to say on p. 33:

THE COURT: Remember, all these family who think they're helping you aren't lawyers, nor is Mr. Shuler. I have nothing against him. We got along fine in junior high, but that was about 45 years ago. But you're the one doing the time, do you understand that?

The judge seems to have favorable memories of me, and I had similar memories of him. But this hearing transcript makes me think more than three decades in the legal profession have carved out a chunk of his soul, made him forget what it means to be a fair and impartial judge.

Without question, Harpool should be disqualified from hearing the Wells case.



Wednesday, January 22, 2020

"The Nonsense Factory": Author Bruce Gibney provides an insightful (even entertaining) tour through America's broken, bloated, and jumbled justice system



The American justice system is so broken that it churns out mass quantities of "nonsense," according to a new book that shows how and why courts poorly serve the public. One reason for such dysfunction, and massive waste of taxpayer resources, is that courts are controlled by amateur judges who don't know what they are doing in many cases, writes lawyer-entrepreneur Bruce Cannon Gibney in The Nonsense Factory: The Making and Breaking of the American Legal System (Hachette Books, 2019).

Gibney started as an attorney, working mostly in securities litigation and financial regulation. He became an author and venture capitalist, serving as an early investor in PayPal and joining with colleagues to help fund Spotify, Lyft, AirBnB, and DeepMind, among other tech firms. His assessment of the justice system is not pretty:

In the common view, law is a system of intelligible rules, made sensibly and applied evenly. That's a reasonable definition of what law should be, but not an accurate description of what law has become. Over the past century, whole fields of law have grown so bloated and confused that not even a subset of their rules can be administered consistently. To cope, law modifies or ignores its own rules on the fly, and the entire legal system is backsliding toward a regime in which the arbitrary supplants the absolute. Eventually, what calls itself law will cease to deserve the name.

A healthy court system, Gibney writes, should revolve around order, justice, and legitimacy, but those quaint notions are in ever shorter supply:

A minority of Americans already suffer these legal deficits severely. But general legal decay consigns all of us to injustices large and small.  Whether our antagonists are police, building inspectors, litigious opportunists, or Social Security benefits and administrators, our legal difficulties are real and they will get worse. These are the inevitable consequences of a system of rules self-liquidating into a chaos of exceptions.

Even some of the system's best-known attributes are on the verge of extinction:

Consider the right to trial by jury, provided by the Constitution and American law's crown jewel. It is The Rule. Yet American trial courts conduct very few trials -- a withering that became quite pronounced in the 1980s. In criminal matters, virtually all charges are now resolved by plea bargains, each fashioned according to the unaccountable whims of a prosecutor selecting from a vast menu of crimes. These bargains are . . . made ad hoc, and they leach the jury trial rule of its value. Nevertheless, the Supreme Court condones plea bargains as useful expediencies . . . .Notice that the Court does not make a Constitutional argument; it offers a bullet point on the management consultant's slide deck, sandwiched between "outsourcing" and "downsizing." The Court works a betrayal, and claims that it's for our own good.

The thought of having to pay for a lawyer out of pocket should terrify most Americans, Gibney writes:

Most actions, whether civil or criminal, are resolved out of court determined by the variables of money, law, and evidence, in descending order of importance. Quite simply, law is beyond the financial reach of most Americans. Even at $200 per hour, the least any decent city lawyer can afford to charge ($300 to $1,000 is the usual range), the poorest 20 percent of Americans could afford zero days of legal representation and the next 20 percent about a week. Only the richest 20 percent -- really, just the top 5 to 10 percent -- can afford to litigate comfortably. Pure financial necessity forces almost all cases to settle, and quickly.

If you are lucky enough to afford a lawyer and get into court, you might wind up before a judge whose qualifications are thin, at best:

Although judging is a specialty like neurosurgery and plasma physics, America assumes judging can be picked up on the fly. . . . Even lawyers with outstanding legal educations and rated "qualified" may nevertheless find themselves woefully unprepared for their first years on the bench, because there's no job that quite prepares any private lawyer to be a judge and no rigorous training program to compensate for that reality. As former federal appeals judge Richard Posner observed, the transition to the bench is abrupt, and while judicial education has improved since Posner joined the bench in 1981, it remains weak.

When it comes to judicial preparation, America lags way behind many of its European counterparts:

Much of the world would view the American system of judicial (non-) education as bizarre to the point of negligence. Non-Anglophone countries groom future judges as they would candidates for any other profession. In France, the conventional route to judgeship is to obtain bachelor's and master's degrees (customarily in legally inclined fields), pass a rigorous screening test, and undertake a further thirty-one months at the Ecole Nationale de la Magistrature.

Meanwhile, U.S. courts, at almost all levels, are drenched in politics:
 
Of all the interest groups, none has been as influential as the Federalist Society ("Fed Soc," in the community). Fed Soc's defining mission is to tilt the judiciary rightward, and it has been enormously influential; arguably, Fed Soc is the right's greatest political success since Nixon's Southern strategy. . . . Fed Soc has been so successful that, since the 1980s, right-leaning administrations have adopted the group's judicial lists wholesale. . . . 
Bruce Cannon Gibney
Once on the bench, politics continues to play a role (sometimes masquerading as "judicial philosophy"), and this is particularly noticeable among judges auditioning for promotion to higher courts. Auditioners to the Supreme Court, regardless of party, produce more "tough on crime" outcomes relative to other judges with comparable outlooks and profiles. . . . Even judges who can be promoted no further sometimes allow politics to influence their reasoning. Antonin Scalia's vaunted originalism/textualism famously warbled in and out of tune, depending on the case.  

A big problem for the U.S. system: It has too many law schools -- Gibney calls them "The Diploma Mills of Last Resort" -- that spew forth way too many law graduates:

At the time of this writing, the American Bar Association listed 203 accredited schools and 30-odd unaccredited schools. The unaccredited institutions are law's equivalent of Long Island wineries: dubious. But so are  a lot of accredited schools. Over the past decade, students caught on, and previously robust legal enrollment has shrunk by a quarter. Nevertheless, law schools still welcomed 37,400 students in 2017, about 9 to 14 percent of whom will drop out, producing a graduating class of roughly 33,000 students in 2020. This is still too many. 

No analysis of the American justice system would be complete without a critical look at law enforcement. Gibney refers to many modern police forces as "miniature armies":

Militarized raids have become a regular part of American policing, with predictably tragic consequences. Special Weapons and Tactics teams were originally designed for extraordinary situations like hostage-taking, but they have become disturbingly ordinary. . . . The police have become omnipresent, miniature armies kitted out with bomb suits, battering rams, night-vision goggles, armored personnel carriers, helicopters, drones, assault rifles, flashbang grenades, .50 caliber machine guns and other military paraphernalia. Police receive much of their stockpile from the Defense Department's 1033, partially subsidized by the Department of Homeland Security.

Who is put in charge of this high-grade weaponry? The truth behind that question is unsettling, for sure:

After educational screening, departments test for aptitude and temperament. The aptitude tests don't seem particularly challenging. . . . The true hurdle is the background check, as many aspiring cops have criminal pasts. To satisfy hiring needs, 80 percent of larger police departments are willing to overlook minor misdemeanors; many departments will forgive DUIs, soft drug use, credit problems, and other indicators of poor judgment. The actual prevalence of waivers depends on the department, but it's odd that a society busily drug-testing Taco Bell employees overlooks criminality in its police.

What to do with America's tangled mess of a justice system? Gibney presents some intriguing ideas. Near the top of his list is a reduction in U.S. law schools:

The fifty least selective law schools are not schools at all and should be closed. The middling tier should consider alternative curricula, including something like a JD-lite. Many legal matters are routine and low-stakes and, just as medicine has authorized the nurse practitioner to handle many tasks, law can do the same --as happens in countries like France.

What about other possibilities for reform?

Public law should make itself more accessible and more accountable to those it serves. Law is obligated to explain itself to the people, not vice versa. Statutes should be written clearly, court opinions at the appellate level digested by public services, and agency regulations written and posted in formats accessible to those affected. . . . . When law seeks to hold people to account, citizens should be given a reasonable sense of what the law is, what purpose it serves, and why it's being enforced. . . . Law has an internal morality, and it's time for judges to take that morality seriously and earn the title of "Your Honor."

Gibney also advocates for giving regular folks, non lawyers, a place in the legal system:

Informal citizens' review boards across all levels of the law could help, a sort of advisory jury of legal peers that reads proposed laws and opines on their comprehensibility. (Note: I would prefer that such boards focus on the actions of judges, to make sure their rulings are sound within the facts and law, with the authority to punish judges who essentially act like berobed rogues.) . . . And finally, the culture of expedience, of sidestepping good rules . . . must go. In any other context, it would be dismissible tautology to insist that "rules are rules," but law's endless exceptions  make it clear that rules aren't rules; they have become mere stage-effects.

It's difficult for the public to take laws seriously when law doesn't take the public seriously. And when law fails to afford citizens respect, or treats them as cattle to be herded one way or another without consultation, justice becomes a mirage.   

Gibney is a talented wordsmith, and this makes him an engaging tour guide through our thorny thicket of a justice system -- a task that might produce glazed eyes in the hands of a less gifted writer. Gibney should be admired for his willingness to take on challenging, even touchy, subjects. The Nonsense Factory is his second book; the first is titled A Generation of Sociopaths: How the Baby Boomers Betrayed America (Hatchette Books, 2017)

As a Baby Boomer, who hates being part of the Baby Boom, I can't wait to get my hands on that one. 

Tuesday, January 21, 2020

Jessica Medeiros Garrison provides an Alabama angle to Clearview AI, a facial-recognition company with the potential to radically alter privacy rights in the U.S.


Jessica Medeiros Garrison and Luther Strange
 
Birmingham-based political operative Jessica Medeiros Garrison, one-time campaign manager and mistress to former Alabama attorney general Luther Strange, appears as the chief customer contact for a shadowy facial-recognition company that has the potential to radically alter any notion of privacy in the United States, according to a report at The New York Times.

The Times article, written by Kashmir Hill and published on Friday (1/18/20), is titled "The Secretive Company That Might End Privacy as We Know It: A little-known start-up helps law enforcement match photos of unknown people to their online images — and 'might lead to a dystopian future'."

That unsettling headline points to Clearview AI, a tiny company founded by an Australian technophile named Hoan Ton-That. Reports The Times:

Until recently, Hoan Ton-That’s greatest hits included an obscure iPhone game and an app that let people put Donald Trump’s distinctive yellow hair on their own photos.

Then Mr. Ton-That — an Australian techie and onetime model — did something momentous: He invented a tool that could end your ability to walk down the street anonymously, and provided it to hundreds of law enforcement agencies, ranging from local cops in Florida to the F.B.I. and the Department of Homeland Security.

His tiny company, Clearview AI, devised a groundbreaking facial recognition app. You take a picture of a person, upload it and get to see public photos of that person, along with links to where those photos appeared. The system — whose backbone is a database of more than three billion images that Clearview claims to have scraped from Facebook, YouTube, Venmo and millions of other websites — goes far beyond anything ever constructed by the United States government or Silicon Valley giants.

Federal and state law enforcement officers said that while they had only limited knowledge of how Clearview works and who is behind it, they had used its app to help solve shoplifting, identity theft, credit card fraud, murder and child sexual exploitation cases.

Helping to solve crimes seems like a noble use of technology, but what about the ramifications of Clearview? Why is the company so reluctant to provide information about who it is, what it does, and who it works with?

Until now, technology that readily identifies everyone based on his or her face has been taboo because of its radical erosion of privacy. Tech companies capable of releasing such a tool have refrained from doing so; in 2011, Google’s chairman at the time said it was the one technology the company had held back because it could be used “in a very bad way.” Some large cities, including San Francisco, have barred police from using facial recognition technology.

But without public scrutiny, more than 600 law enforcement agencies have started using Clearview in the past year, according to the company, which declined to provide a list. The computer code underlying its app, analyzed by The New York Times, includes programming language to pair it with augmented-reality glasses; users would potentially be able to identify every person they saw. The tool could identify activists at a protest or an attractive stranger on the subway, revealing not just their names but where they lived, what they did and whom they knew.

And it’s not just law enforcement: Clearview has also licensed the app to at least a handful of companies for security purposes.

“The weaponization possibilities of this are endless,” said Eric Goldman, co-director of the High Tech Law Institute at Santa Clara University. “Imagine a rogue law enforcement officer who wants to stalk potential romantic partners, or a foreign government using this to dig up secrets about people to blackmail them or throw them in jail.”

Clearview has shrouded itself in secrecy, avoiding debate about its boundary-pushing technology. When I began looking into the company in November, its website was a bare page showing a nonexistent Manhattan address as its place of business. The company’s one employee listed on LinkedIn, a sales manager named “John Good,” turned out to be Mr. Ton-That, using a fake name. For a month, people affiliated with the company would not return my emails or phone calls.

Where do Alabama and Jessica Medeiros Garrison enter the picture? Consider this paragraph from The Times' report:

The company’s main contact for customers was Jessica Medeiros Garrison, who managed Luther Strange’s Republican campaign for Alabama attorney general. Brandon Fricke, an N.F.L. agent engaged to the Fox Nation host Tomi Lahren, said in a financial disclosure report during a congressional campaign in California that he was a “growth consultant” for the company. (Clearview said that it was a brief, unpaid role, and that the company had enlisted Democrats to help market its product as well.)

How did Garrison become involved? The answer remains unclear, but the following information from The Times report might help explain it:

Clearview also hired Paul D. Clement, a United States solicitor general under President George W. Bush, to assuage concerns about the app’s legality.

In an August memo that Clearview provided to potential customers, including the Atlanta Police Department and the Pinellas County Sheriff’s Office in Florida, Mr. Clement said law enforcement agencies “do not violate the federal Constitution or relevant existing state biometric and privacy laws when using Clearview for its intended purpose.”

Mr. Clement, now a partner at Kirkland and Ellis, wrote that the authorities don’t have to tell defendants that they were identified via Clearview, as long as it isn’t the sole basis for getting a warrant to arrest them. Mr. Clement did not respond to multiple requests for comment.

Where does this winding path lead? Well, Kirkland Ellis is the D.C.-based law firm that produced Trump attorney general William Barr. It also produced Edmund LaCour, Alabama's current solicitor general and a former law clerk to Birmingham-based U.S. Circuit Judge Bill Pryor. Jessica Medeiros Garrison once worked for Bill Pryor. For good measure Kirkland Ellis is the former home to Jennifer Bandy-Dickey, who has appeared on our blog before, during our reporting on Bill Pryor's ties to 1990s gay pornography. From an April 2019 post:

Speaking of the Kirkland Ellis "legal mafia," one of its members played a role in our Legal Schnauzer story. That came when Judge Bill Pryor issued a press statement about our reports on his gay-porn activities in the 1990s at badpuppy.com. Pryor, of course, did not address the press himself, and he certainly did not take questions. He turned the press-agent role over to one of his former law clerks, Jennifer Bandy -- and she just happened to work for . . . Kirkland Ellis. From our report about Ms. Bandy's statement:

How has Pryor responded to all of this? In a dumbfoundingly ignorant way, by apparently aligning himself with three Alabama lawyers who have dubious records on mattes of ethics. Who forms this unholy alliance? We are talking about Birmingham-based lawyer Bill Baxley, Alabama Attorney General Luther Strange, and Strange's mistress/former campaign manager Jessica Medeiros Garrison.

What signs point to Pryor joining hands with Baxley, Strange, and Garrison? Well, let's consider Pryor's response late last week when D.C.-based lawyer/journalist Andrew Kreig contacted the judge for comment about the gay porn story. Our understanding is that Kreig plans to use Pryor's response in an upcoming article at the Justice-Integrity Project.

Did Pryor grant Kreig an interview? No, he brushed off that possibility, just as he did when I submitted multiple interview requests before writing the post that broke the gay porn story. Did Pryor respond directly to Kreig with a comment. No, the judge assigned that task to Jennifer Bandy, one of his former law clerks who now works for the Washington, D.C., law firm of Kirkland Ellis. . . .
According to press reports, Bandy went on to become a member of the "beachhead" transition team for the Trump administration. Her name now apparently is Jennifer Bandy-Dickey, and she took a "counsel" position with the Department of Justice on May 28, 2017.

All of this raises questions about Bill Pryor: If he is connected to a company that promotes the interests of law enforcement, how can Pryor serve as an impartial arbiter cases that involve cops before the U.S. 11th Circuit (Alabama, Georgia, Florida). For that matter, if Pryor is promoting the career of Jessica Medeiros Garrison, how can he or his colleagues serve as impartial arbiters on a case where she is a party? (Full disclosure: My wife and I have filed two civil actions -- "The House Case" and "The Jail Case" -- with both starting in the Northern District of Alabama and going to the 11th Circuit.)

Those hardly are the only questions related to Clearview AI. Consider this from The Times:

The company said, its tool finds matches up to 75 percent of the time. But it is unclear how often the tool delivers false matches, because it has not been tested by an independent party such as the National Institute of Standards and Technology, a federal agency that rates the performance of facial recognition algorithms.

“We have no data to suggest this tool is accurate,” said Clare Garvie, a researcher at Georgetown University’s Center on Privacy and Technology, who has studied the government’s use of facial recognition. “The larger the database, the larger the risk of misidentification because of the doppelgänger effect. They’re talking about a massive database of random people they’ve found on the internet.”

Thursday, January 16, 2020

Four partners exit Balch Bingham Law Firm as Superfund bribery scandal and related $75-million lawsuit from ex-Drummond exec keep waters swirling


Jesse S. Vogtle Jr.

Four partners have left the embattled Birmingham law firm of Balch Bingham, apparent fallout from the North Birmingham Superfund bribery scandal and a related $75-million lawsuit that is pending. One of the exiting partners, Jesse S. Vogtle Jr., has particularly deep ties to Balch's primary corporate partners -- Southern Company and Alabama Power -- according to a report at banbalch.com. Writes Publisher K.B. Forbes:

A crippling blow: Jesse S. Vogtle, Jr., the long-time Balch and Bingham partner, and three of his fellow partners have left the embattled firm, according to a report . . .  in the Birmingham Business Journal.

Vogtle symbolized the longtime relationship between Alabama Power and Balch Bingham.

Vogtle was at Balch for over 31 years and has now joined Nashville-based Waller Lansden Dortch and Davis LLP along with his colleagues Randolph H. Lanier, Eric T. Ray, and Paul H. Greenwood.

Vogtle’s grandfather, Alvin W. Vogtle, had been the Chairman and President of Southern Company, Alabama Power’s parent company, before retiring in 1983. A nuclear power plant currently under construction in Georgia is named after his grandfather who also had served as a fighter-pilot during World War II.

Vogtle’s father, Jesse S. Vogtle Sr., was a partner at Balch Bingham decades ago before assuming an executive position at Alabama Power.

How dramatic is the Balch Bingham breakup? Forbes compares it, perhaps with tongue and cheek, to the friction between Meghan, Harry, and the British Royal Family:

Southern Tradition includes cronyism and nepotism, but this breakup, exodus appears to symbolize something worse than Megxit in the UK.

The elite enclave of Mountain Brook looks like they, too, have had enough of Balch Bingham (Vogtle, Jr. had served on the city council there), especially after Mountain Brook residents David and Anna Roberson had to sell their home and personal possessions allegedly because of Balch’s failure to tell the truth.

What about the present and the future for Balch Bingham? Both appear to be murky, Forbes reports:

And who is left holding the fort?

The illustrious Schuyler Allen Baker, Jr. another Brookie who has refused to settle the Newsome Conspiracy Case or work with us, the CDLU (Consejo de Latinos Unidos), to bring necessary change to Balch and end the unsavory if not criminal conduct at the firm.

And there are three more controversies coming:

(1) The Newsome Conspiracy Case is still active and new discoveries in the past week could expose Balch’s alleged perjury and unethical conduct wide open. (Ironically, before becoming an attorney, Burt Newsome used to refer work to Vogtle, Jr. when Newsome worked at AmSouth Bank in their Special Assets Division. Newsome had no issues with Balch Bingham until they allegedly targeted him, had him wrongly arrested in a “staged arrest,” and defamed him.)

(2) The alleged unethical, immoral, and possibly corrupt meeting and secret deal between U.S. Attorney Jay E. Town, Mike Cole, and Alabama Power CEO Mark A. Crosswhite may become a deadly stake in the heart.

(3)A new documentary on Balch Bingham will outline the matters that Balch has refused to apologize for or acknowledge.

Wednesday, January 15, 2020

Russian hackers and spies are seeking Ukraine-related dirt on Joe and Hunter Biden in apparent effort to help Donald Trump get re-elected in 2020 presidential race



Offices of a Burisma subsidiary in Kyiv, Ukraine 












 (From Getty Images/New York Times) 

















Donald Trump is not the only person seeking dirt via Ukraine on Democratic front-runner Joe Biden ahead of the 2020 election. Russian hackers are doing the same thing, according to a report in The New York Times.

Does this prove 2020 collusion that Special Counsel Robert Mueller was unable to nail down on the 2016 campaign? That remains unclear, but it does suggest -- having gotten away with it once -- Russians are trying to help Trump again. Write Times reporters Nicole Perlroth and Matthew Rosenberg:

With President Trump facing an impeachment trial over his efforts to pressure Ukraine to investigate former Vice President Joseph R. Biden Jr. and his son Hunter Biden, Russian military hackers have been boring into the Ukrainian gas company at the center of the affair, according to security experts.

The hacking attempts against Burisma, the Ukrainian gas company on whose board Hunter Biden served, began in early November, as talk of the Bidens, Ukraine and impeachment was dominating the news in the United States.

It is not yet clear what the hackers found, or precisely what they were searching for. But the experts say the timing and scale of the attacks suggest that the Russians could be searching for potentially embarrassing material on the Bidens — the same kind of information that Mr. Trump wanted from Ukraine when he pressed for an investigation of the Bidens and Burisma, setting off a chain of events that led to his impeachment.

Is this reminiscent of Russian attacks on Hillary Clinton and the Democratic National Committee in 2016? Yes, it is:

The Russian tactics are strikingly similar to what American intelligence agencies say was Russia’s hacking of emails from Hillary Clinton’s campaign chairman and the Democratic National Committee during the 2016 presidential campaign. In that case, once they had the emails, the Russians used trolls to spread and spin the material, and built an echo chamber to widen its effect.

Then, as now, the Russian hackers from a military intelligence unit known formerly as the G.R.U., and to private researchers by the alias “Fancy Bear,” used so-called phishing emails that appear designed to steal usernames and passwords, according to Area 1, the Silicon Valley security firm that detected the hacking. In this instance, the hackers set up fake websites that mimicked sign-in pages of Burisma subsidiaries, and have been blasting Burisma employees with emails meant to look like they are coming from inside the company.

The hackers fooled some of them into handing over their login credentials, and managed to get inside one of Burisma’s servers, Area 1 said.

“The attacks were successful,” said Oren Falkowitz, a co-founder of Area 1, who previously served at the National Security Agency. Mr. Falkowitz’s firm maintains a network of sensors on web servers around the globe — many known to be used by state-sponsored hackers — which gives the firm a front-row seat to phishing attacks, and allows them to block attacks on their customers.

“The timing of the Russian campaign mirrors the G.R.U. hacks we saw in 2016 against the D.N.C. and John Podesta,” the Clinton campaign chairman, Mr. Falkowitz said. “Once again, they are stealing email credentials, in what we can only assume is a repeat of Russian interference in the last election.”

Russia's dirt-digging campaign is not limited to the digital world; it also involves good old-fashioned, on-the-ground spying in Ukraine. And it appears Russia's efforts to boost Trump did not end with the 2016 campaign; they continued from his earliest days in the White House:

The Russian attacks on Burisma appear to be running parallel to an effort by Russian spies in Ukraine to dig up information in the analog world that could embarrass the Bidens, according to an American security official, who spoke on the condition of anonymity to discuss sensitive intelligence. The spies, the official said, are trying to penetrate Burisma and working sources in the Ukrainian government in search of emails, financial records and legal documents.

The Russian government did not immediately respond to requests for comment, nor did Burisma.

American officials are warning that the Russians have grown stealthier since 2016, and are again seeking to steal and spread damaging information and target vulnerable election systems ahead of the 2020 election.

In the same vein, Russia has been working since the early days of Mr. Trump’s presidency to turn the focus away from its own election interference in 2016 by seeding conspiracy theories about Ukrainian meddling and Democratic complicity.

The result has been a muddy brew of conspiracy theories that mix facts, like the handful of Ukrainians who openly criticized Mr. Trump’s candidacy, with discredited claims that the D.N.C.’s email server is in Ukraine and that Mr. Biden, as vice president, had corrupt dealings with Ukrainian officials to protect his son. Spread by bots and trolls on social media, and by Russian intelligence officers, the claims resonated with Mr. Trump, who views talk of Russian interference as an attack on his legitimacy.

Any dirt that might surface on Joe Biden likely would revolve around his son, Hunter:

The corruption allegations hinge on Hunter Biden’s work on the Burisma board. The company hired Mr. Biden while his father was vice president and leading the Obama administration’s Ukraine policy, including a successful push to have Ukraine’s top prosecutor fired for corruption. The effort was backed by European allies.

The story has since been recast by Mr. Trump and some of his staunchest defenders, who say Mr. Biden pushed out the prosecutor because Burisma was under investigation and his son could be implicated. Rudolph W. Giuliani, acting in what he says was his capacity as Mr. Trump’s personal lawyer, has personally taken up investigating the Bidens and Burisma, and now regularly claims to have uncovered clear-cut evidence of wrongdoing.

The evidence, though, has yet to emerge, and now the Russians appear to have joined the hunt.

All of this raises a few obvious questions. If Russians obtained dirt on the Bidens, with whom would they likely share it? The answer seems to be the Trump campaign and administration? Would this point to the kind of criminal collusion that Mueller failed to pin down in his probe of the 2016 campaign? It sure looks like it from here.

Tuesday, January 14, 2020

Missouri resident Scott J. Wells withdraws guilty plea in child-pornography case and rids himself of lawyer Brady Musgrave, who pressured him to make the plea


Scott J. Wells

A Missouri man who has been detained for almost three years on baseless child-pornography charges went into a recent federal hearing hoping to: (a) withdraw a guilty plea; (b) get rid of the court-appointed attorney who pressured him into the plea; (c) receive another court-appointed attorney (his fourth), hopefully one with at least a smidgen of integrity; and (d) be released from detention. Scott Wells accomplished items (a), (b), and (c), while failing (so far) only on item (d), court records show.

Based on what I've seen of federal court hearings, winning on three of four issues is a pretty strong outcome -- especially when your compromised previous attorney still is trying to get you to plead guilty, right up to the last moment, and you remain detained (it appears) largely because of statements from the prosecutor that are false, incomplete, or both.

Scott J. Wells, of Springfield, hardly is out of the woods in the child-porn case. But he is rid of the guilty plea that attorney Brady Musgrave pressured him into filing, he has appeared for the first time before U.S. District Judge Doug Harpool (as opposed to U.S. Magistrate David P. Rush, who royally has screwed up this case), and he has multiple grounds for a new attorney, Stuart P. Huffman of Whiteaker Wilson, to get the charges dismissed -- if Huffman, unlike previous court appointees Musgrave, Shane Cantin, and David Mercer, will fulfill the duty he is sworn to uphold.

A trial date is set for March 16, 2020, but well before then, Huffman should file documents to get the charges dismissed on at least three grounds: (1) The criminal complaint is deficient because it alleges that Wells committed offenses that are physically impossible to commit; (2) The indictment is deficient because it only copies statutory language and fails to cite any "particulars" re: offenses Wells supposedly committed; and (3) A search of Wells' home was conducted without probable cause, meaning evidence should be suppressed as unlawfully obtained.

Here were some of the key moments in the most recent hearing:


(1) Even a reputable judge makes goofy comments from the bench --  Doug Harpool should be a far better judge in the Wells case than magistrate David Rush, who pressed his lips against the prosecution's butt at every opportunity. Barack Obama appointed Harpool, a Democrat, to the federal bench in 2014, and I know enough about Harpool to believe he can be a fair and competent judge. [Full disclosure: I have known Harpool for years; we went to junior high school together, played on the same basketball team at South Kickapoo Junior High (now Cherokee Middle School) and played on the same youth baseball team (Dave's Angels) for one year. I've always liked Doug and considered him a good guy and would be very surprised and disappointed if he did not see U.S. v. Scott J. Wells for the garbage that it is and dismiss it. Still, Harpool reportedly made some statements in court that I find goofy and disturbing:

(a) He accused Wells of "wasting taxpayer dollars" by using four court-appointed attorneys -- Wells not only is entitled to an attorney, he is entitled to a vigorous and competent defense. His first three lawyers did nothing to defend him, and it remains to be seen if Stuart Huffman will break that mold. He's had plenty of time to file dismissal documents, and he apparently has not done it. If anyone is wasting taxpayer dollars it is prosecutor James J. Kelleher who brought charges without a whiff of probable cause.

Doug Harpool
(b) He said Wells has been detained "because that's what usually happens in these cases" -- That is a sorry-ass answer. We don't hold people behind bars in this country because that has happened to someone else facing similar charges. We only do it if the facts and law say the accused should be detained. Rush never conducted a serious inquiry on the detention issue, apparently buying prosecutor James Kelleher's every argument, which were not necessarily in line with reality. Court documents indicate Wells was detained largely based on his state conviction in a 2004 child sexual-abuse case. But the federal court seems to conveniently ignore that the state court overturned that conviction based on ineffective assistance of counsel from my brother, David Shuler, and a finding that at least one accusing witness had testified falsely under oath about the presence of scars on Wells' penis. Harpool should vacate Rush's ruling and conduct a new hearing on the issue.

(c) Harpool reminds Wells that he faces "serious charges" -- Actually the charges are not serious, and Harpool would know that if he read the criminal complaint closely. It alleges that Wells engaged in misconduct that is physically impossible to commit. It's in the complaint, in black and white. Huffman, Scott Wells' new attorney, needs to bring that to the court's attention ASAP and get the charges dismissed.


(2) Prosecutor James Kelleher makes false or incomplete statements to the court to justify Scott Wells' unlawful detention -- According to Wells' family members, Kelleher told Harpool that Wells should remain detained because, after his sexual abuse conviction was overturned, he pleaded guilty to child endangerment in the 2004 -- and, as a matter of law, that makes Wells a "danger to society." This appears to be a repeat of Kelleher's argument before Rush, upon which we reported earlier -- complete with transcripts of the proceedings. Here, from one transcript, is what Kelleher argued before Rush, in March 2017:

The complaint obviously sets forth the facts supporting Mr. Wells' most recent involvement with child exploitation. There is also reference to the fact that back in 2004, he was convicted of sexual misconduct, statutory sodomy, incest, and child molestation in Circuit Court of Greene County. I am, of course, aware of that conviction, as I was the prosecutor who handled that -- that trial. It's frankly unbelievable that he is back before this court after being given the break that he was in relation to that case. The fact that he admitted that child pornography popped up on his computer is, obviously, ludicrous. The evidence in this case is overwhelming. The defendant's pleas to child endangerment, as well as the most recent conduct, clearly mark him as a danger to society. And consequently, Your Honor, I respectfully suggest to the Court that pretrial detention in this matter is appropriate.

Here is our analysis of Kelleher's statement, pointing out its serious flaws:

There you have it: Kelleher clearly bases his call for detention on a 2004 conviction that was overturned -- and Kelleher conveniently fails to mention that to the court. Kelleher also fails to mention that Wells' plea to child endangerment was an Alford plea, with no indication in the court record that Wells actually endangered anyone.

Here is how we described the Alford plea in the Wells case, an issue the prosecution generally has tried to avoid in the federal matter -- and that probably is because it blows their case for detention to kingdom come:

Wells agreed to an Alford plea of child endangerment to dispense with the first case. Trial Judge Don Burrell probably could have dismissed the whole case once a complaining witness was found to have lied about penis scars. But Burrell chose to overturn the conviction and give the state a chance to re-try, meaning Wells faced the prospect of going before a pro-prosecution jury in conservative Southwest Missouri.

With an Alford plea, a criminal defendant does not admit to the unlawful act and asserts his innocence. In essence, it is a type of guilty plea that allows the prosecution to save face for bringing a weak case. Nothing in the record even hints that Scott Wells actually endangered a child. Federal prosecutors now are trying to hold that case against Wells, even though he ultimately won it.

We have more details about the Wells' Alford plea, what it actually involved, and that is coming in a future post.


(3) Why was Brady Musgrave desperate to have Scott Wells maintain his guilty plea? -- Right up until the moment Harpool allowed Wells to withdraw his guilty plea, Musgrave was pressuring Wells to keep the guilty plea in place, according to family members. Was this an act of desperation on Musgrave's part, and if so, why was he so invested in a guilty plea?

In fact, family members state that, after Harpool granted withdrawal of the guilty plea, Kelleher and Musgrave stomped out of court, one after the other. What were they pissed off about? Had someone promised one or both of them handsome compensation if they could make a guilty plea stick against Scott Wells? Did at least one of them see dollar signs floating out the window when Wells' guilty plea was withdrawn?

Sources tell us that Kelleher comes from a moneyed background and likely doesn't need any additions to his cash flow. But public documents show Brady Musgrave is enmeshed in financial turmoil and certainly could use help (along with his wife and law partner) on debt issues. Was Musgrave hoping for a financial boost from the Wells case, and who would have provided it? We don't have a clear answer to that question. But we do know Musgrave and his associates have financial problems, proving that not all attorneys are rolling in big bucks.

More details on Brady Musgrave's financial struggles in upcoming posts.


(To be continued)