Sunday, September 30, 2007
H. Thomas Wells Jr., a lawyer in the Birmingham office of Maynard Cooper & Gale PC, made his proposal in an op-ed piece in today's issue of The Birmingham News.
Wells is on the right track. He notes that the Alabama State Bar is seeking to end partisan elections for Supreme Court and appellate judges, and instead use a merit-based appointment process. Wells intends to push for that proposal in the state and help take it nationwide.
Wells' ideas are similar to those recently expressed by Sue Bell Cobb, chief justice of the Alabama Supreme Court and the only Democrat on either the Supreme Court or the Alabama Court of Civil Appeals.
What would Wells like to see happen? A nine-member Judicial Nominating Commission would identify top candidates, focusing on ability and impartiality (wow, what a concept!). The governor would make selections from that list. Once appointed, judges would face periodic "retention" elections, in which voters would decide whether to keep them.
Such systems are used for all judges in 15 states and for some judges in 18 others. At the other end, 13 states use nonpartisan elections, and eight states (including Alabama) use partisan elections to elect Supreme Court judges.
Wells and Cobb seem to be well-meaning folks of integrity. But they also are part of the legal establishment, and therefore they probably do not want to shake things up too much. Your humble Legal Schnauzer most definitely is not part of the legal establishment and would have no problem shaking things up a whole bunch.
Our justice system, both in Alabama and across the country, does not need a nip here and a tuck there. It needs a radical sleazectomy. And the Schnauzer stands ready, scalpel in paws, ready to help get the procedure under way.
We will go into the Schnauzer's proposals in detail down the road. But a few quick ideas for now:
* Wells' idea for merit appointment of appellate judges doesn't go nearly far enough. The sleaze starts in the trial courts, and those positions need merit appointment, too.
* Bar associations should push for reform that goes beyond judicial selection. Wherever there is an unethical judge, you can rest assured an unethical attorney is nearby. I'm not sure about other bar associations, but the Alabama State Bar is way too easy on slimebag lawyers. Just consider my own situation: The fact that someone like William E. Swatek still has a bar card--with his almost 30-year record of ethical violations--is a disgrace to the profession. Get rid of the vermin--permanently.
* The American Bar Association should call for judicial oversight commissions with some real bite. Such organizations, including the Alabama Judicial Inquiry Commission, are notoriously worthless. Our courts will never be honest until there are oversight groups in place that lawyers and judges truly fear.
* The above will never happen as long as the law remains a self-regulated profession. That must change. Normal citizens need to be heavily represented on all oversight groups.
Much more on all of this coming down the road.
Saturday, September 29, 2007
The circuit court said Fuller should consider and rule on Siegelman's request in an "expeditious" manner and that Fuller's order "should explain the reasons" for whatever he decides.
The circuit court seems to be saying this to Fuller: "Do your damn job or we'll do it for you, pronto."
Siegelman attorney David McDonald seems to interpret the order the same way. "It's great news for Governor Siegelman because what it means is , we actually have to have a consideration on the actual merits of the bond pending appeal," McDonald said.
Glynn Wilson of Locust Fork World News and Journal has an interesting take on the Siegelman decision, plus a copy of the court document.
The 11th Circuit ruling is one small step in unmasking Fuller for what he is--a biased, lazy Republican appointee who never should have been in charge of the Siegelman/Richard Scrushy case. And Fuller is hardly the only GOP slimeball in positions of authority in Alabama. Our state courts are infested with them, like roaches, and Legal Schnauzer will be unmasking them in the weeks and months ahead.
Friday, September 28, 2007
Evidence in the Minor case strongly suggests that the answer to both questions is yes.
Consider the case of Oliver Diaz, a justice on the Mississippi Supreme Court. Diaz is a Republican, although he has enjoyed bipartisan support and was appointed to the bench by former Governor Ronnie Musgrove, a Democrat. Diaz was a longtime friend of attorney Paul Minor, a major supporter of Democratic candidates, and received loans guaranteed by Minor.
Diaz wound up being indicted by the federal government on corruption charges and eventually was acquitted, both in the initial corruption trial and a subsequent tax-evasion trial. Fellow defendants Minor and former judges Wes Teel and John Whitfield were convicted in a second corruption trial.
Interestingly, Diaz was the only member of the Mississippi Supreme Court to be indicted, but he was not the only justice to have a loan guaranteed by Minor.
Former Chief Justice Ed Pittman had Minor guarantee a $40,000 campaign loan from Peoples Bank in Biloxi when Pittman ran for re-election in 1996. Records show that Pittman's campaign repaid half of the $40,000 plus interest, but there is no indication any other payments were made, leaving Minor to repay the rest.
After receiving the loan guarantee from Minor in 1996, Pittman heard three cases involving Minor's clients. He ruled in favor of those clients in each case, although in one of those cases he significantly reduced damages to Minor's client.
In the 2001 Accu-Fab decision covered in our previous post, Pittman wrote a 5-3 decision affirming a $2-million jury verdict given Minor's client in a wrongful-death case. And in the 2003 Archie Marks decision, Pittman joined four justices in affirming liability but reducing damages from $3.6 million to $1.6 million.
Diaz, who joined the high court in 2000, did not take part in either of those decisions, evidently feeling that loan guarantees from Minor might call his impartiality into question.
The bottom line? Pittman received a loan guarantee from Minor, ruled in Minor's favor on three cases, and was not indicted. Diaz received a loan guarantee from Minor, recused himself from Minor's cases, and was indicted.
Why was Diaz indicted while Pittman was not? Was there something in Pittman's background that caused the Bush Justice Department to lay off of him?
Robert McDuff, Diaz's attorney, had this to say on the matter: "There's probably not an elected judge in America who didn't receive campaign contributions or loans from attorneys. That does not violate federal law. What violates federal law is if the judge rules differently because of the contribution than he otherwise would have.
"I am not surprised that Chief Justice Pittman wasn't charged since I don't think he violated federal law. But Justice Diaz didn't violate federal law either, and I'm surprised he was indicted, particularly since he took the extra step of withdrawing whenever Paul Minor had a case before the Supreme Court."
Is it possible this prosecution was driven by politics more than federal law?
Thursday, September 27, 2007
The Paul Minor case involved an attorney and three judges from the Mississippi Gulf Coast, so it's not surprising that some of the underlying lawsuits involve oil rigs, ships, barges, and such.
Accu-Fab v. Richard Ladner, 778 So. 2d 766 (2001) was one such case. Keep in mind that the Accu-Fab case was central to the government's corruption case against Diaz.
One absurdity strikes even the casual observer right off the bat. Diaz did not participate in hearing the case. He recused himself, evidently because Paul Minor represented the heirs of Richard Ladner and Minor had helped secure loans for Diaz. Evidently thinking this could call his impartiality into question, Diaz did not participate. And apparently no evidence was presented that Diaz sought to influence the other justices.
So what was the government thinking by using Accu-Fab in an attempt to show that Diaz acted corruptly? One can only wonder. But even if Diaz had participated, it would be hard to see where the case was wrongly decided, and that's why it's worth our while to check out Accu-Fab. (Plus, I just find these sea-related cases fascinating; guess that comes from watching Lloyd Bridges in Sea Hunt as a kid.)
Ladner was working as a subcontractor's employee on the roof of a casino barge when he fell through a hole in the roof and later died from his injuries. A jury awarded his heirs $2 million in damages against the general contractor and another of its subcontractors. The Mississippi Court of Appeals first reversed and then affirmed the lower-court ruling. The contractors appealed to the Mississippi Supreme Court, which also upheld the ruling.
Several contractors and subcontractors were involved, which makes things complicated. But here's the gist: A subcontractor was hired to construct the stairwells and stringers on the barge and had requested that the general contractor not install roof decking until the stairs had been installed. Due to time constraints, the general contractor denied the request and went ahead with the roof decking. The subcontractor received permission to cut a hole in the roof in order to facilitate installation of the stairway.
The hole was cut on a Saturday, and the job was supposed to be completed by the end of the weekend. But the prefabricated stairway did not fit properly, so the subcontractor could not complete installation and took the stairway back to its shop for refabrication. Neither the subcontrator nor the contractor placed any warning signs or barricades around the hole. They did nothing to cover the hole in the roof.
On the following Monday morning, Ladner (an iron worker) fell through the hole in the roof and later died of his injuries. Ladner's heirs sued, seeking compensation for his death.
There was little question of liability, and the case mostly involved the contractor and various subcontractors trying to blame one another. The jury wound up attributing 70 percent fault to the contractor, 25 percent to the subcontractor, and 5 percent to Ladner.
An interesting side note: When Ladner was taken to the hospital, a nurse mistakenly thought he was an employee of the contractor and ordered a drug test. It came back positive, and a marijuana cigarette was found in Ladner's pocket at the time of the fall. The trial court excluded the drug evidence because there was no foundation showing that Ladner was actually impaired at the time of the fall. The Supreme Court affirmed on this and all other counts.
Evidence of negligence in Accu-Fab was overwhelming, so even if Diaz had participated in the case, it's hard to imagine how the government hoped to prove corruption based on this case.
The weakness of the case against Diaz borders on the absurd. And we have shown that the cases against attorney Paul Minor and judges Wes Teel and John Whitfield also do not hold up well under scrutiny.
But those are not the only factors that raise questions about the government's prosecution in Mississippi. Was this a "political hit," similar to what appears to have happened with the Don Siegelman case in Alabama? Were the Minor defendants targeted by a Republican-led justice department not because they were corrupt but because they had Democratic leanings? Will Congress include this case in its investigation into selective prosecution by the Bush Justice Department?
We will turn our attention soon to some other interesting questions raised by the Paul Minor case.
Wednesday, September 26, 2007
Diaz joined judges Wes Teel and John Whitfield, along with attorney Minor, as defendants in the first trial, which took place in 2005. Diaz was acquitted on all counts, and was acquitted in a subsequent trial on tax-evasion charges. The jury in the first corruption trial acquitted the other three defendants on some charges and failed to reach unanimous verdicts on others, leading to a retrial earlier this year. The three defendants were found guilty on all charges in the retrial.
As we've noted in recent posts, the government's cases against Minor, Teel, and Whitfield do not hold up well under close scrutiny. But the case against Diaz borders on the absurd.
For one, Diaz did not participate in some of the Supreme Court rulings that were at the heart of the government's case. He recused himself from a number of cases involving Minor's clients, and there was no evidence that he attempted to persuade other members of the court to vote Minor's way.
And even in a case where Diaz did participate, the lawsuit at the heart of the government's case against him offers almost no evidence of corruption. In other words, evidence strongly suggests that the court's rulings were correct, regardless of loans Minor had arranged for Diaz (which were allowed under Mississippi law).
Let's take a closer look at one case. In Rex Armistead v. Bill Minor, a law-enforcement officer sued a newspaper columnist for defamation. Columnist Bill Minor, Paul Minor's father, writes a column called "Eyes on Mississippi" that is published in newspapers across the state. Here is a good summary of the case.
In April 1998, Bill Minor wrote a column that was sparked by a story in The Memphis Commercial Appeal about Rex Armistead's service as a paid investigator for the "Arkansas Project," an effort by American Spectator magazine to develop exposes about President Bill Clinton.
Minor's column recounted Armistead's activities dating to the 1960s. Minor described Armistead's "odoriferous background in Mississippi, ranging all the way from head-bashing of black civil-rights workers to concocting a bizarre homosexual scandal in an attempt to defeat a gubernatorial candidate."
As a public figure, Armistead had to show that Bill Minor acted with actual malice, meaning the columnist knew the published statements were false or acted with reckless disregard for the truth. Actual malice has long proved to be an extremely difficult standard for public figures to reach in defamation cases, and the Supreme Court (including Diaz) ruled 8-0 that the trial court correctly dismissed Armistead's case.
The Supreme Court found that Bill Minor's column was substantially true and was supported by information from numerous other publications. "While it may be evident that Minor does not hold Armistead in high regard, such feelings do not amount to actual malice," Justice James W. Smith Jr. wrote.
Smith went on to write: "As the United States Supreme Court has noted, 'minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge can be justified.' Put another way, the statement is not considered false unless it 'would have a different effect on the mind of the reader from that which the pleaded truth would have produced.' Masson v. New Yorker Magazine Inc. 501 U.S. 517."
To make the government's case against Diaz even weaker, Paul Minor did not even serve as an active attorney in his father's case.
Let's take a look at another lawsuit the government cited in prosecuting Diaz. And this one, like the Bill Minor case, adds to the evidence that the case against Diaz was extraordinarily weak.
The careful reader might ask him or herself: If the government's case was this weak against Diaz, was it really substantially stronger against the other three defendants? Does the weakness of the case against Diaz call into question the entire prosecution? Was this a "political hit," similar to what appears to have happened in the Don Siegelman prosecution in Alabama?
Tuesday, September 25, 2007
This is the kind of case that makes me think I should consider going to law school. The facts and the law are very interesting, even if you don't consider the broader implications.
And by broader implications, I mean the possibility that the Minor prosecution was a "political hit," similar to the Don Siegelman prosecution in Alabama and part of a larger Bush administration scheme to attack trial lawyers who were sources of funds for Democratic candidates.
The Archie Marks case adds to the evidence that the Minor case was wrongly decided. But on its own, the Marks case is fascinating stuff. So let's give it a close look.
By the way, I was able to find little information on The Peoples Bank case because it was settled. There were no appellate rulings. The Marks case was appealed to the Supreme Court of Mississippi and can be readily found if you have access to a service such as Lexis-Nexis or Westlaw. Here is a summary of the case.
Archie Marks was employed by Diamond Offshore as a roustabout on its vessel, the Ocean Nugget. In April 1998, Marks injured his back while carrying a bucket of water up some stairs. Marks subsequently filed suit against Diamond and others, claiming breach of contract, negligence, and maintaining an unseaworthy vessel in violation of general maritime law.
Paul Minor represented Marks, and in June 2000, the case went to a bench trial before Circuit Judge John Whitfield.
According to the government indictment, Minor had arranged two loans for Whitfield totaling about $140,000. In July 2000, Whitfield entered a $3.75 million judgment in favor Marks, Minor's client. The Supreme Court of Mississippi upheld Whitfield's finding on liability, but reduced the damages to $1.64 million.
After Minor and Whitfield were convicted on corruption charges, the Supreme Court of Mississippi issued a decision on April 26, 2007, withdrawing its earlier opinion, vacating the trial-court judgment, and remanding the case for a new trial.
A layperson, at first glance, might consider the verdict in favor of Marks to have been tainted. After all, Minor apparently did arrange loans for Judge Whitfield, who then ruled in favor of Minor's client. The casual observer might look at it as a cut-and-dried example of bribery.
But when you study the law, and look closely at the facts of the Marks case, at least one layperson (your humble Legal Schnauzer) has concluded that Judge Whitfield's ruling was largely correct. And it certainly appears that Marks could not support a finding of bribery and honest-services mail fraud against Minor and Whitfield.
Why would I, of all people, come to this conclusion? After all, this blog started mainly because I was the victim of corrupt lawyers and judges in Alabama. But my interest goes beyond my case to our justice system in general.
My experience in Alabama courts has caused me to work up what I hope is an appropriate and "healthy" contempt for those who would abuse our justice system. And while my initial instinct might have been to consider Minor and Whitfield a couple of scoundrels, I came to a different conclusion after taking a closer look.
Here's why I think they acted within the law:
* The Ocean Nugget is a "jack-up rig" that performs oil-drilling operations in the Gulf of Mexico, off the shore of Louisiana. Marks was assigned to clean the upper pipe rack deck in preparation for moving the vessel. In order to do this, Marks had to fill a five-gallon mop bucket with water from faucets on the main deck, located one deck below the area he was to clean. Due to the size of the upper deck, this required Marks to make repeated trips up and down the stairs to get fresh buckets of water. After approximately seven trips up the stairs with a bucket of water, Marks felt a sudden pain in his back and legs. He completed his shift, but was unable to get out of bed for his next shift and was taken ashore for medical treatment. Marks returned to his home in Gulfport, MS, to recuperate under a conservative regimen of steroid injections and physical therapy. After Marks failed to improve, doctors recommended back surgery, which was performed in July 1998. About six months after the surgery, the surgeon concluded that Marks had reached maximum medical improvement and had experienced 25 percent total body loss pursuant to American Medical Association guidelines. The doctor said Marks could no longer perform his duties as a roustabout.
* A vocational expert at trial testified that Marks' reading, spelling, and math abilities were at or below a first-grade level. Marks' previous work history had entailed only heavy manual unskilled labor. The expert testified that, based on Marks work history and cognitive deficits, the injury had caused him to be permanently and totally disabled. Diamond presented an expert stating that Marks was capable of working an eight-hour day and identified five available local jobs he could perform. The trial court discounted the testimony of Diamond's expert because she had never met Marks and had never performed any tests on him.
* Why was Archie Marks forced to repeatedly carry buckets of water up and down stairs? There was no water available on the upper deck because the vessel's faucets on that level were defective. Diamond's own installation manager testified that Marks should not have been required, or allowed, to carry a five-gallon bucket of water up and down stairs. Also, Marks' supervisor, who was responsible for the safe-work practices of his crew, was unable to read and was unable to convey the text of safety manuals to his crew.
* The Supreme Court of Mississippi concluded: "As the record clearly reveals, even under the standard of ordinary prudence under the circumstances, there is substantial evidence that Diamond was negligent and that its negligence was the proximate cause of Marks' injury."
* The Supreme Court also noted the special provisions of the Jones Act, which provides a cause of action for seamen injured in the course of their employment by their employer's negligence. "The seaman, while on the vessel, is subject to the rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of power which the law makes readily available to the landsman. His complaints to superior officers of unsafe working conditions not infrequently provoke harsh treatment. He cannot leave the vessel while at sea. . . . In the performance of duty he is often under the necessity of making quick decisions with little opportunity or capacity to appraise the relative safety or alternative courses of action." In other words, maritime employers have a special duty to protect their vulnerable employees. And the Supreme Court agreed with Whitfield that Diamond had failed to live up to this duty.
* As to the issue of damages, the Supreme Court stated: "We concede that the trial court had ample material in the record to justify a high award of damages." The Supreme Court, though, did reduce the damage award by $2 million, to $1.64 million.
In summary, the Mississippi Supreme Court agreed with Whitfield that there was overwhelming evidence of negligence on the part of Diamond. It agreed that Whitfield had ample evidence to justify a high award of damages. And as we noted earlier, the loans Minor arranged for Whitfield were allowed under Mississippi law.
If Whitfield's rulings were properly grounded in fact and law, and the Mississippi Supreme Court found that they were, the Marks case cannot support a finding of bribery or honest-services mail fraud against Whitfield and Minor.
And yet, Whitfield currently is in prison because a jury found that he handled this case corruptly. And Minor is in prison because a jury found that he caused Whitfield to handle the case corruptly.
The facts and the law of the Marks case simply do not support a prosecution, much less a conviction, on corruption charges. And neither do the facts and the law of The Peoples Bank case.
That's why I look for Congressional investigators to focus heavy attention on Mississippi, as well as Alabama, in their scrutiny of the Bush Justice Department.
Monday, September 24, 2007
We have noted that the Minor case has important connections to the Don Siegelman prosecution in Alabama, the broader Bush Department of Justice (DOJ) scandal, and my own Legal Schnauzer case.
Thanks to Scott Horton, of Harper's, we now know that there might have been particularly sinister motives behind the Minor prosecution. Horton reported on Saturday that his sources are telling him that the Bush administration devised a scheme in late 2001 or early 2002 to target wealthy trial lawyers who are sources of campaign funding for Democratic candidates. Horton's sources say at least five raids have been conducted on law offices around the country, seeking financial data and other information that could be used in criminal prosecutions. The idea? To dry up sources of Democratic funding.
Minor certainly fits the profile of a wealthy trial lawyer who was generous with his funding of Democratic candidates. And if the scheme Horton describes is proven, it might turn out that Minor was one of its first targets.
In posts last week, we described the applicable law in the Minor case and noted strong evidence to suggest the case was wrongly decided and might have been a "political hit" similar to the Siegelman prosecution in Alabama. We particularly noted strange rulings and jury instructions by Judge Henry Wingate (a Republican appointee) that do not appear to square with case law.
Now we look at the two lawsuits that were at the heart of the government's case against Minor and Judges Wes Teel and John Whitfield. The government's case claimed that Minor provided a series of loans to the judges in exchange for favorable rulings on cases he had before them. The primary charges against the defendants were federal funds bribery (18 U.S. Code 666) and honest-services mail fraud (18 U.S. Code 1346), and they were found guilty on all counts.
We noted earlier that the key to a bribery and honest-services mail fraud conviction is a finding that acts were taken with knowledge that they were unlawful, depriving citizens of the judges' honest services. The central question is this: Did the judges actually make unlawful rulings, rulings that were not supported by the facts and the law?
The first lawsuit in the government's case was The Peoples Bank v. USF & G. Minor, representing The Peoples Bank of Biloxi, MS, filed the lawsuit on August 25, 1998. I don't have a lot information about the specific issues involved in the case. But something tells me it involved banking and insurance. (You've got to get up early to sneak one past the Legal Schnauzer.)
For our purposes, we don't need to know a lot about the issues in the case. We do know that on October 16, 2000, Judge Wes Teel ruled in favor of Minor's client, The Peoples Bank, on a discovery issue. USF & G had claimed that certain information was privileged and should not be produced in discovery.
In December 2001, Teel ruled in favor of The Peoples Bank on the issue of liability. About three days after the ruling, the parties held a settlement conference, and USF & G agreed to pay $1.5 million to settle the case. The government alleged that Minor received approximately $500,000 in attorney's fees.
As I've noted previously, I was not present at the trial. But even the government's indictment does not provide any information showing that Teel's rulings were contrary to law. It does not state the nature of the privilege claim that USF & G made, but even a pseudo-lawyer such as myself knows that judges have great leeway in ruling on discovery matters. Information that might not be admissible at trial still is discoverable. Privileged information is not discoverable, but I see no information indicating that Teel's ruling was incorrect.
And there is no indication that Teel's ruling on liability was contrary to law. As I've noted earlier, it would not be unlawful for Teel to rule in Minor's favor if the law and the facts indicated he should rule in Minor's favor. And the loans Minor provided to Teel were allowed under Mississippi law. (Although you could count me among those who think such loans, gifts, etc. should not be allowed.)
Several apparent facts make this seem like a weak case for the government to base its corruption charges. If attorneys for USF & G felt Judge Teel was prejudiced against them and was ruling contrary to law, they had several steps they could have taken:
* They could have filed an interlocutory appeal under Rule 5 of the Mississippi Rules of Appellate Procedure.
* They could have filed a writ of mandamus under Rule 21 of the Mississippi Rules of Appellate Procedure.
* They could have filed a motion seeking Judge Teel's recusal and appointment of a new judge.
If none of that worked, they could have contacted journalists in the business press and alerted them to wrongdoing in Mississippi courts. I suspect business journalists pay attention when representatives of USF & G call.
I see no indication that the attorneys for USF & G took any of these steps, which makes me think they did not see Judge Teel's rulings as being ungrounded in law.
Perhaps the most important point regarding The Peoples Bank case is this: Teel made no final ruling in the case. USF & G chose to settle, but there was nothing to keep the company from moving forward and taking the case to trial.
The government's decision to charge Teel and Minor with corruption offenses on a case where Teel did not even make a final ruling seems highly questionable.
Sunday, September 23, 2007
I suspect my unruly neighbor, a guy named Mike McGarity, might have had grounds for a legitimate lawsuit against Briarwood. Why do I think this? The previous owner of the house next door to me was Fred Yancey, the highly successful football coach at Briarwood Christian School, a ministry of Briarwood Church. Yancey's former players include Simeon and Tim Castille and Charles Hoke at Alabama, Andrew McCain at Auburn, and Joe Craddock at Middle Tennessee State. Briarwood used to be terrible in football. But when Yancey came on board, some serious talent started showing up.
The Lions started winning state championships, and I have a feeling the Christians enjoyed that. I think they were seriously determined to see to it that Yancey and his talented players stuck around.
In December 1998, Yancey moved under mysterious circumstances (no for-sale sign in the yard, no ad in the paper, apparently no MLS listing) and wound up living at a house on the Briarwood campus, evidently free of charge. Sweet deal for Fred Yancey; not such a sweet deal for me, his former neighbor.
The buyer of Yancey's house, and my new next-door neighbor, was Mike McGarity.
Evidence suggests that Briarwood played a major role in the sale and purchase of Yancey's house, the transaction that caused me to wind up with Mike McGarity (and his substantial criminal record) as my next-door neighbor. Evidence also suggests that the transaction was not handled properly, allowing McGarity to build a fence on my yard, essentially stealing 300-400 square feet of my property. And finally, evidence suggests that Mike McGarity bought a house with some possible structural problems. I know for a fact that the house has had problems with water coming in the basement.
Much more on Briarwood coming down the road. But these are some issues to chew on.
Scott Horton, of Harper's, reports on the lawsuit and says some tough questions in Goff's interrogatories could lead to answers about Riley's ties to disgraced GOP lobbyist Jack Abramoff.
Goff alleges that Riley, former Lt. Gov. Steve Windom, and others conspired to destroy his workman's compensation insurance business.
Will Goff's lawsuit finally cause something to stick to Teflon Bob? Stay tuned. Horton reports that the governor is highly agitated about the case and is asking for help in making it "go away".
In another post, Horton comments on the machinations of Alabama's major news outlets and their intriguing effort to heap slime on Democrats and ignore Republican sleaze. To the Legal Schnauzer's great delight, Horton calls out Victor Hanson of The Birmingham News and hints that Hanson is behind efforts to cover up GOP wrongdoing.
Not sure if Horton is referring to Victor Hanson III, the current publisher of the News, or his father, Victor Hanson II, who is retired but probably remains a major voice in the paper's coverage. My guess is he's talking about Victor II rather than "three Is" (as News staffers call him).
I don't know much about Victor III, but my guess is that Victor II is the guy pulling the ideological strings at the paper. And Victor II is a member of Briarwood Presbyterian Church, a large, wealthy and extremely conservative congregation in Birmingham's suburbs.
As I've noted several times, I strongly suspect that Briarwood Presbyterian Church, and its private Christian school, are involved in the legal problem that has caused me so much grief. And I suspect that's why the News has gone out of its way to make sure nothing about my case reaches print.
But who needs their print? You can read all about it here at Legal Schnauzer. And speaking of Briarwood, let's examine the church's footprint on my legal woes.
As expected, Alabama Attorney General Troy King is still firing verbal volleys over the commutation of LaSamuel Gamble's death sentence in a Shelby County murder case. "No more standing with criminals. No more standing against victims," King told the audience at a rally commemorating homicide victims.
I'm not a particularly big fan of Troy King, but he has a point, at least when it comes to Shelby County. I've been the victim of crime twice in Shelby County, and both times the office of District Attorney Robby Owens handled it horribly. In the most recent instance, a felony assault, Owens' staff insists it was a misdemeanor, and Owens himself has refused to respond to my letter asking him to prosecute the case correctly under the law.
I will be posting much more soon about my experience as a felony-assault victim in Shelby County, and the way Robby Owens' office has mishandled the case.
More Heat for Shelby DA
Evidently I'm not alone in my concerns about the Shelby County DA's office. Today's Birmingham News includes a most interesting letter to the editor. It is titled "Owens' office warrants scrutiny" and is written by G.E. Johnson of Childersburg, AL.
Johnson says he was the victim of a violent crime in 2003 in Shelby County. Johnson says the offender in his case got off easy because a year earlier, in his role as a private investigator, Johnson had uncovered evidence in a high-profile murder trial that helped his client win his case. Evidently that ticked off the powers that be in Shelby County, and when Johnson became a victim, the offender was allowed to plead to the lesser of three offenses and did not have to answer for his actions in court.
Mr. Johnson's letter, of course, presents one side of things. But based on my own experience, I certainly don't doubt that such politics could take place in Shelby County, even in a case involving violent crime.
What's with Rapid Troy?
I've referred to Alabama Attorney General Troy King as "Rapid Troy the AG Boy," and I realized that maybe I need to explain that little cultural allusion.
My wife was reading one of my posts the other night and asked, "Don't you mean Rabid Troy?"
Poor girl. She grew up on a musical diet of mostly R&B and disco. (She even has the complete Village People collection; not sure many people could, or would want to, claim that distinction.) I grew up on what I call "white guy" rock and pop (Eagles, Fleetwood Mac, CCR, etc.), with some folkies and 70s singer-songwriter types thrown in. In the latter category one of my favorites was the late, great Jim Croce.
One of Croce's tunes from the early 70s was "Rapid Roy the Stock Car Boy." It wasn't one of his big hits, but it was one of those nifty slice-of-life songs for which Croce was known ("Bad, Bad Leroy Brown," "You Don't Mess Around With Jim," etc.)
Anyway, that's where the "Rapid Troy" reference comes from. And it seems appropriate because, as you can tell from the lyrics, "Rapid Roy" has a reference to Alabama. Croce did at least one other great Alabama song that I'm aware of, "Alabama Rain." You can see the lyrics to that song here.
One other note about Jim Croce, who died in a plane crash in the 70s. I had the good fortune to visit San Diego a couple of years ago and was delighted to discover the restaurant, Croce's, which was started by Jim's widow, Ingrid. The restaurant is in San Diego's wonderful Gaslamp District, and features both good food and neat memorabilia. Definitely worth a visit if you are ever in San Diego, which is one of America's great cities. The new baseball stadium is terrific, too, and it's just off the Gaslamp District.
Saturday, September 22, 2007
That thought arises after reading a fascinating, and truly frightening, post from Scott Horton, of Harper's. Horton's sources tell him that the Bushies developed a scheme in late 2001 and early 2002 to target certain trial lawyers who were the sources of funds for Democratic candidates. This plan was hatched with the thought that two trial lawyers, Hillary Clinton and John Edwards, were Bush's most likely challengers in 2004.
The scheme involved raids of law offices, seizing financial records and looking for anything that could be used in criminal prosecutions. The goal? To dry up major sources of funds for Democratic candidates.
According to Horton's sources, at least five such raids are known to have occurred, perhaps the most prominent in Michigan and Los Angeles.
One must wonder if Mississippi attorney Paul Minor was one of the first targets of this plan. Minor and two former Mississippi judges have been convicted on various corruption charges and sentenced to combined sentences of more than 25 years.
In recent days here at Legal Schnauzer, we have focused on the Minor case, pointing out what appear to be serious irregularities in the handling of the case. We will continue our analysis of the case very soon.
Our interest in the Minor case was driven by its connections to the Don Siegelman prosecution in Alabama, the larger DOJ scandal, and my own case involving clear judicial corruption by Republican judges in Alabama (which has gone ignored by the Bushies).
Thanks to Scott Horton, we now know that all of this may have been driven by a scheme that is more insidious than anything I could have imagined.
The idea seems to be this: If you can't beat someone in the arena of ideas, if you can't beat them based on the law and the facts, try to ruin them financially. Now that I think of it, my Legal Schnauzer case seems like a mini-example of just that philosophy.
You might recall this earlier post where I referred to the judges in my case as "financial terrorists." They repeatedly made unlawful rulings--denying motions for summary judgments that, by law, had to be granted--causing my case to drag on and my legal bills to mount. The plan, I think, was that my wife and I would eventually crack and allow them to achieve whatever goal they were after. And as I've noted several times, I suspect the scheme in my case had to do with protecting Briarwood Presbyterian Church, a large suburban Birmingham congregation that is extremely conservative and wealthy--a big backer of GOP causes.
We'll turn our attention to Briarwood down the road. But our more immediate interest is the case of Mississippi attorney Paul Minor, who was a major source of funds for Democratic candidates? Was he a target of "financial terrorists," some who were far more powerful and ruthless than the ones who came after me?
We return to that subject shortly.
The Justice Department has refused to release 514 pages of documents related to Canary's recusal to Alabaster attorney John Aaron.
Aaron filed a Freedom of Information request and initially was told there were no such documents. Then the Bush DOJ responded: Whoops, check that, there are 516 pages related to Canary's recusal, and you can have two of them. And what were the two pages? A 2002 press release announcing Canary's recusal.
"How stupid does the government think we are to be satisfied with a five-year-old press release?" said Siegelman lawyer Vince Kilborn.
Kilborn's question is profound and goes way beyond the Siegelman case. Republicans who are corrupt (and I'm sure that doesn't include all of them; Jill Simpson has proved there are Republicans with integrity, and I don't think she's the only one) tend to think Americans in general are stupid. Actually it might be better stated this way: Certain Republicans, the loyal Bushies, etc., think Americans are so stupid or inattentive--or have so bought into Republican rhetoric regarding race, crime, tax cuts, religion, etc.--that they will let the GOP get away with most anything.
But you wonder: Will even the white suburban GOP base, even the white suburban base in the Deep South, start to wake up at some point? Will they see that the DOJ is refusing to release documents, Karl Rove and Harriet Miers are refusing to testify . . . will they finally see all of this and say: Something seems terribly wrong here?
Here is some rich irony: If the DOJ scandal truly explodes at some point, chances seem good the match will be lit in a GOP stronghold, the Deep South. The Don Siegelman case appears to be leading the way in the Congressional investigation, and I don't think the Paul Minor case in Mississippi will be far behind.
Friday, September 21, 2007
King Artur vs. Teflon Bob
U.S. Rep. Artur Davis (D-AL) and Alabama governor Bob Riley were sparring the other day via the U.S. mail, and now they are doing some verbal jousting over the phone lines. Sounds like the two might be coming to some kind of peace after reports about Davis' hiring for his Congressional office of an Alabama two-year college employee. Davis had said such arrangements are specifically permitted by House rules. Riley had said he does not support the practice of paying two-year college employees to work in the office of politicians. A couple of interesting points that came out of today's story:
* Riley acknowledged that he had used a Department of Defense employee for a short time in his Congressional office when he served in Washington, something The Birmingham News neglected to report in its original story. Davis said that's equivalent to his arrangement with former two-year colleges employee Gina Bailey McKell. Riley, whom we've come to know as "Teflon Bob" here at Legal Schnauzer, seemed to think there was a difference. Teflon Bob also had problems with King Artur's characterization of problems in the two-year system as a "partisan, political turf war." Gee, can't imagine why Davis might think Alabama Republicans could resort to partisan politics
* Love this quote from Teflon Bob about the two-year college scandal in Alabama: "The questionable and corrupt conduct that has been painstakingly uncovered is real. I applaud (those) who are working to clean up these problems and stop them."
Well, I've got news for you, Teflon Bob. Corruption in Alabama's courts, while they were overseen by one of your appointees, also was real. And I have zero doubt that it still is real. You went on national TV in November 2005 (to encourage a boycott of Aruba over that nation's handling of the Natalee Holloway case) and said you wanted to know about problems in Alabama's justice system. I took your statement seriously and sent you a lengthy e-mail, outlining the corruption I've experienced from Republican judges in our state. Your administration has done nothing about it. Why is that?
You say you want to stop corruption, but people close to you seem to do their best to encourage corruption and cover it up. Dax Swatek, your campaign manager, is the son of William E. Swatek, who has an almost 30-year record of unethical behavior in the legal profession (including some interesting problems in criminal court, which we will be reporting soon here at Legal Schnauzer.). This includes filing a bogus lawsuit against me. But William E. Swatek has repeatedly been the beneficiary of unlawful rulings by Alabama judges, costing me and Alabama taxpayers thousands of dollars. It appears that William E. Swatek's family ties to your administration have helped him become Teflon Bill--the sleazy Shelby County attorney who gets away with just about anything in Alabama courts. I realize we have separation of powers, and as governor, you don't control the judicial branch. But you certainly have the bully pulpit, and you could use it to shine a light on Alabama's corrupt courts. Why haven't you done it, if stopping corruption means so much to you?
And why not call for a commission to investigate the events of election night 2002 in Baldwin County? Wouldn't it be nice to assure Alabamians that you became governor in a honest manner?
Rapid Troy vs. the DAs
Alabama Attorney General Troy King continues to draw fire from the state's district attorneys. Rapid Troy the AG boy had yanked a death-penalty case from Shelby County DA Robby Owens, and the Alabama District Attorneys Association didn't take kindly to it. "The attorney general has no idea about these things because he has never stood where we stand every day," said Ken Davis, president of the DA group. "Many of our members were fighting for the rights of victims when the attorney general was still in grammar school." Ouch.
Rapid Troy appears to be positioning himself as the "pro-death penalty candidate" for a future run at the governor's office. Look for him to return fire soon in this little intramural spat.
More BS in Shelby County
Speaking of Robby Owens, the Shelby County DA, Troy King is turning him into a sympathetic figure. Trust me, Owens doesn't deserve it. He claims to be about honor and integrity. Well, I was the victim of a felony assault last October by my Neighbor From Hell (NFH), and Owens' office has persisted in ignoring clear law and ruling it a misdemeanor. I wrote Owens a letter in January, outlining the facts and the law in the case and asking him to contact me promptly so the case could be prosecuted properly. I've never heard from him.
I refuse to sign a misdemeanor complaint for an offense that I know was a felony, so looks like NFH is going to get away with a crime. And Owens' says he cares about crime victims?
I will be writing about the assault in detail very soon here at Legal Schnauzer, but here is the short version of what happened: NFH took a roadside sign (which qualifies as a "dangerous instrument" under Alabama law) and swung it with two hands as hard as he could, hitting me in the back and leaving a bleeding abrasion (which qualifies as "physical injury" under Alabama law). There is no question he had intent to hit and injure me; no one else was in the vicinity, so it certainly was not a reckless or negligent act. Have doubts about whether or not this was a felony? Check out Code of Alabama 13A-6-21 and read item (a) (2). I've got a stump in my backyard that could tell this was a felony, committed by a guy with at least eight criminal convictions in his background, including violence-related and sex-related offenses, plus an offense that involved lying to a police officer. But Owens and Co. think they can't prosecute this guy? Good grief, Babec the lowland gorilla at the Birmingham Zoo could get a conviction on this.
(By the way, I'm tired of the cute nicknames for my neighbor from hell. The guy's name is Mike McGarity, and he works at Blue Cross and Blue Shield of Alabama in Birmingham. Best I can tell, his job title is "bar-code operator," whatever that is. You have to wonder how a guy with McGarity's criminal record was able to land a job at Blue Cross, which as a federal Medicaid contractor, is supposed to do thorough background checks on prospective employees. Much more about Mike McGarity, his "interesting" past, and his evidently lax employer coming soon. You'll see exactly what I mean about neighbor from hell.)
But back to Owens. You might recall this recent post about the death-sentence commutation of LaSamuel Gamble. That ruling, by Shelby County Circuit Judge J. Michael Joiner, is the one that got Troy King riled up at Owens, who testified that Gamble should be taken off death row in the wake of a recent U.S. Supreme Court decision related to sentencing for murderers who were juveniles at the time of their crimes.
Joiner said he made his ruling because it would be "constitutionally unfair" to keep Gamble on death row following the Supreme Court decision. Reading those words from Joiner almost caused me to have an attack of projectile vomiting.
Not because I have a problem with his ruling, which actually is based on the law (a rarity for Joiner). But Joiner is the judge who I've seen repeatedly make unlawful rulings in my case, always favoring Mike McGarity (he of the extensive criminal record) and his attorney, William E. Swatek (he of numerous ethical violations).
I know Mike Joiner to have zero regard for fairness and the constitution, and concepts such as due process and equal protection of the law. So I knew that could not be the real reason he commuted Gamble's death sentence.
But thanks to Robby Owens I think I have an idea what was behind Joiner's thinking. In this post yesterday Owens first said he supported the commutation as a matter of "honor and integrity." Then he turned right around and admitted that, in his mind, it really was a political matter. Owens said he was concerned that leaving Gamble on death row would turn into a rallying point for death-penalty opponents.
It's rare that you see a lawyer make such an unwittingly honest remark. But you can rest assured that Joiner was thinking along the same lines. That's an incestuous bunch down at the Shelby County Courthouse; they all think alike. And it's highly unlikely that Joiner's decision had anything to do with fairness or the constitution.
Rather, it was about laying low, out of the spotlight, a spotlight like the one being shined in the Jena 6 case. Joiner runs a corrupt little empire down in Columbiana, Alabama, and the last thing he wants is attention, particularly the kind that might come with leaving LaSamuel Gamble on death row.
Heck, Al Sharpton is in the neighborhood, just a couple of states away in Louisiana. It would have been easy for Sharpton and friends to stage a protest over the Gamble case on Main Street in Columbiana.
But J. Michael Joiner was having none of that. I imagine the mere thought of Al Sharpton outside the Shelby County Courthouse would cause Joiner to soil himself.
I've had to represent myself in a trial, and take it from me, it's a scary experience. But one of the scariest parts for me was the process used for developing jury instructions.
Here's how you might think it would work: The judge is supposed to know the law, and he is well paid, so you figure he would tell the jury what the law is and maybe throw in a few citations or two--to show the jury how smart he is and maybe impress them a bit. Seriously, you would think he would include citations for all statements of law, just so the jury would know it's deliberations are well grounded.
But that's not how it works, at least in my experience. Each side writes up what it thinks the jury instructions ought to be and hands them to the judge. The two sides talk to the judge in earnest tones, the judge shuffles the papers around a bit, maybe goes to his chambers or the bathroom (watch out for wide stances!), and then returns to read the law to the jury. I'm not even sure if the jury gets a written copy of the jury instructions. Don't think they did in my case; I know I didn't get a copy.
I was well acquainted with the applicable law in my case. But by the time we had traded papers, and the judge had shuffled them around, and hummed and hawed, and taken a bathroom break or two, I had no idea if his instructions to the jury were correct.
Based on my own experience, I was intrigued to read the jury instructions for the Minor trial when they showed up on the Web. I don't know if they are still on the Web or not. But I do know that judges have enormous power when it comes to the instructions that jurors hear. Keeping in mind the power of Judge Henry Wingate, here are some points in the Minor jury instructions that jumped out at me:
Honest-services mail fraud and state bribery laws
Wingate says: "This deprivation of 'honest services' owed to the State of Mississippi refers to the bribery laws of the State of Mississippi. . . . In order to deprive the State of Mississippi of their honest services, defendants John H. Whitfield and Walter W. "Wes" Teel must have owed the State of Mississippi a duty that is defined by the bribery laws of the State of Mississippi and have violated that duty."
Legal Schnauzer says: I don't get it. I've seen numerous cases of case law that state honest-services mail fraud need not be connected to state law. One example is U.S. v. Frega, 933 F. Supp. 1536 (1996): "The mail fraud statute . . . did not need to reference state law in order to define fraudulent conduct." Or how about this: "An honest services mail fraud or mail fraud conviction does not require proof of a state-law violation." U.S. v. Walker, 490 F. 3d 1282 (2007). So your humble correspondent is confused. Why is the judge tying the federal mail-fraud charge to state bribery law? Hmmm.
A judge's honest views
Wingate says: "If the particular judge acted in a particular circumstance, based upon his honest views not corrupted by a bribe, his actions do not constitute a deprivation of honest services under the mail and wire fraud statutes."
Legal Schnauzer says: That matches the law I've read. But how can the judge prove this if he is not allowed to call an expert witness to testify that his rulings were fair and correct under the law?
Wingate says: "You may find specific criminal intent even though you may find that the rulings were legal and correct, that the official conduct would have been done anyway, that the official conduct sought to be influenced was lawful and required by law, and that the official conduct was desirable or beneficial to the public welfare."
Legal Schnauzer says: Sounds like the prosecution wrote this one. So you are saying, "The loans and gifts etc. can be legal (which they were), and the judges' rulings can by lawful and correct, and the jury still can find criminal intent?" Excuse me while I scratch my head. Actually, excuse me while I say you are flat-out wrong. Consider this case law: "Even if a public official engages in 'reprehensible misconduct related to an official position,' his conviction for honest services fraud cannot stand where the conduct does not actually deprive the public of its right to [his] honest services, and it is not shown to intend the result." U.S. v. Walker, 490 F. 3d 1282 (2007). Clearly, the public cannot be deprived of a judge's honest services if the judge's rulings in a case were fair and correct--no matter how many loans (legal ones) an attorney might have provided to the judge. So your Honor, what gives? And finally consider this: "Undisclosed, biased decision-making for personal gain, whether or not tangible loss to the public is shown, constitutes a deprivation of honest services." U.S. v. Antico 275 F. 3d 245 (2001). Where is the biased decision-making in the Minor case? We will look at this more closely in a moment, but you didn't give the judge defendants a chance to show that their decision-making was not biased. Why?
Wingate says: "Prior to January 19, 1999, the laws of the State of Mississippi governing judicial elections and/or campaigns did not require the disclosure on a campaign finance disclosure form of loans to a campaign nor the fact that any such loan was guaranteed by some third party or the identity of the guarantor, if any. . . . Money obtained by a public official as a borrower on a loan from a bank, and transactions to obtain or renew such a bank loan, do not ordinarily constitute income to the public official for any such reporting purpose. . . . Further, no such financial disclosure laws in Mississippi require the disclosure by a public official of the name of a source of actual income; instead the law requires only that the types of sources of gross income be disclosed on the Statements of Economic Interest. . . . Proof that a defendant failed to comply with the directives of a Statement of Economic Interest, standing alone, is not proof that a federal law has been violated."
Legal Schnauzer says: Wow, sounds like the defense wrote this one, and you evidently agreed that this is the law. So tell me again: How did these people get convicted? Were they convicted for "concealing" transactions that they didn't have to reveal anyway? Did the jurors sleep through your instructions?
Paul Minor's alleged concealment
Wingate says: "As to defendant Paul Minor. He was never a public official, nor candidate for office; therefore, he was not required to file any such disclosure at any time."
Legal Schnauzer says: "Well snip my pickle and call me Shlomo (to quote the cantankerous Dr. Kelso on Scrubs). News reports say Minor and Co. were convicted mainly because of their acts of concealment. But you seem to be saying that the judges weren't required to reveal certain information, and Minor, heck, he could "conceal" stuff all he wanted. He's not a public official. So tell me again, how did these folks get convicted?"
Legal Schnauzer has the last word (after all, it is my blog): Your Honor, you appear to have made some serious mistakes in jury instructions. If some of your rulings and jury instructions are supported by law, I sure as heck can't find the law. (If anyone else can find it, please let me know.) And in instances where your jury instructions were correct, it appears that the highly educated jury chose to ignore them.
Ah, justice in Mississippi. Sounds a lot like justice in Alabama.
The Biloxi Sun Herald reported Wingate's explanation: The rulings didn't have to be fair to constitute bribery. Evidently Wingate's logic applied to the honest-services mail fraud charges, too.
Based on my research, Wingate's ruling essentially prevented Minor, Whitfield, and Teel from putting on a defense. And I don't believe his ruling was correct under the law. I suspect this point will be at the heart of appeals in this case.
Let's examine a few key factors:
* As we noted in an earlier post, under Mississippi law at the time, it was legal for an attorney to provide loans, gifts, or cash to judges. (My understanding is that this is still legal, although I believe there have been limits placed on the amounts. I don't like this practice one bit. I also don't like judges playing footsie with lawyers on golf courses, as happened in my case. But all of that is legal, whether I like it or not. Here is what's not legal: Taking loans/cash from an attorney--or playing footsie on a golf course with an attorney--and then making unlawful rulings that favor said attorney in court. And when the U.S. mails are used in the course of the case, as they almost always are, it becomes a federal crime.)
* The government's indictment repeatedly states that Minor provided things of value (loans, cash, checks) in exchange for favorable treatment in lawsuits that Minor had before the judges.
* I have seen nothing in either the statutory or case law (on both bribery and honest-services mail fraud) that says it would be unlawful for Minor to receive favorable treatment in lawsuits--especially if the facts and law in a case indicate he and his client should prevail. The issue, it seems, is not whether Minor received favorable treatment but whether he received unlawfully favorable treatment--treatment not supported by the law and the facts. And that is why it is baffling that expert witnesses were not allowed to testify as to the correctness of the judges' decisions.
* Keep in mind that key term "corruptly" in our definition of bribery: "An act is done corruptly if it is done intentionally with an unlawful purpose." How can there be an unlawful purpose if the judges' rulings in Minor's cases were supported by the law and the facts--if the rulings were, in fact, lawful?
Now let's return to the issue of mail fraud. Recall the three-pronged approach to a general mail fraud case? Here is how it reads for an honest-services mail fraud case:
1. The defendant made up a scheme or plan to deprive the victim of his or her right to honest services;
2. The defendant acted with the intent to deprive the victim of his or her right to honest services; and
3. The defendant used, or caused someone to use, the mails or the nation's telecommunications system to carry out the scheme or plan. (Ninth Circuit Model Criminal Jury Instructions.)
Clearly the government proved No. 3 in the Minor case. The defendants caused the U.S. mails to be used for a number of legal documents, checks, etc.
But how can a victim be deprived of his or her right to honest services if the judges' rulings in Minor's cases were lawful? And can there be criminal intent if the judges' rulings in Minor's cases were lawful?
To answer those questions, we need to look at the two lawsuits that were made the heart of the government's case. We will do that in just a bit.
Thursday, September 20, 2007
Nick Bailey: My Bad
Nick Bailey says he's sorry for helping to send his former boss, ex-Alabama Governor Don Siegelman, to prison. Siegelman must be deeply touched. Bailey is heading off to prison himself, and before he goes, he makes a few contradictory statements. On the one hand, Bailey says he told the truth at the Siegelman trial. But on the other hand, he says, if he had it to do over again, he would not take the government's plea agreement and take his chances with the jury. Call me dense, but Tricky Nick can't have it both ways can he? If he told the truth at the trial, then how would it help him to pass on the plea agreement and take his chances with the jury? His testimony would be the same wouldn't it? And that would accomplish nothing but sending both Siegelman and himself to prison for seven or so years. Is that what Nick has in mind here? I don't think so. Either he lied on the stand at the trial or he would have lied on the stand had he not taken the plea agreement? Which one is it, Nick?
Artur Davis Fire Back
The Birmingham News still is after U.S. Rep. Artur Davis (D-AL), evidently for having the temerity to question the activities of the Bush Justice Department. But Davis is not one to take things lying down. Check out the letter to the editor he fired off to the Newshounds. Notice how the News story hints that Davis somehow violated Congressional rules in the hiring of Gina Bailey McKell. Notice how Davis says, "The practice of public agencies lending out staff members and paying their salaries is specifically permitted by congressional rules. The rules make no distinction between whether the agency is state or federal." Take that Newshounds!
GOP Follies, Part I
Things are getting interesting in the corruption case of Bessemer Judge Dan King. Dan King (a Republican) is being pursued by Alabama Attorney General Troy King (a Republican) evidently because Rapid Troy didn't like Dan the Man's ruling in a high-profile gaming case. Now comes Earl Carter, circuit clerk in Bessemer, saying in a sworn affidavit that the indictment of Dan King was not handled according state law. And Carter seems to be pointing a finger at Circuit Judge Teresa Petelos (a Republican) for causing the impropriety. Judge Petelos is married to Tony Petelos (who is, guess what, a Republican), the mayor of Hoover, Alabama, and longtime Republican official at both the local and state levels. Where will all of this GOP fussin' and fightin' lead? Can't wait to see.
GOP Follies, Part II
Speaking of Rapid Troy (King) the AG Boy, he's making news on another front. Rapid Troy is defending his decision to yank a death-penalty case away from Shelby County District Attorney Robby Owens (a Republican, natch). Owens had argued against the death penalty for convicted murderer LaSamuel Gamble in the wake of a U.S. Supreme Court decision barring the execution of people who committed murder while they were juveniles. This didn't go down well with Rapid Troy, a staunch proponent of the death penalty. Which leaves me with this question: Is it possible to root against both contenders in a GOP Deathmatch? Rapid Troy gives me the creeps because he looks like that android character in Terminator 2. And my firsthand experience with Owens and his office tells me he runs an operation that is both shoddy and corrupt (par for the course at the Shelby County Courthouse). A couple of very interesting quotes from Owens. One, he says, "I can't sacrifice honor and integrity to be a Troy King or a Nifong," referring to the Duke lacrosse-team prosecutor, Mike Nifong. Hmmm, we will be taking a close look at the honor and integrity of Owens' office in the very near future. Also, Owens said he thought leaving Gamble on Death Row would turn his case into a rallying point for death-penalty opponents. I thought Owens was interested in honor and integrity, not politics. Hold that second thought from Owens. We will return to it down the road.
Chris McNair Sentenced
Former Jefferson County Commissioner Chris McNair is sentenced to five years in prison for his role in a sewer-contractor probe. McNair's case is just one of several where a public official who is an African-American and/or a Democrat (McNair is both) has been targeted by Alice Martin, U.S. attorney for the Northern District of Alabama. That's not to quibble with the McNair prosecution (he confessed to wrongdoing) or the others, necessarily. But I'm trying to figure out how many Republican officials Ms. Martin has gone after. Anybody know the answer to that one? Anybody?
According to press reports, the key issue was concealment. In fact, a headline in the Biloxi Sun Herald on April 1, 2007, seems to say it all: "Conspirators brought down by their clandestine transactions."
The government alleged, and evidently proved to the jury's satisfaction, that Teel and Whitfield attempted to conceal the conspiracy by failing to disclose their financial relationships to Minor on reports required by the state of Mississippi. The government also alleged that Minor attempted to conceal his role by using intermediaries to hide his identity and by causing false documents to be created to hide that he was the source of funds paid on behalf of the judges.
Why was the evidence of concealment so crucial? The Sun Herald's April 1 story makes it clear: "Nobody testified Minor asked the judges for favors. Although the FBI had searched his office, confiscated his files and his computers, no note or e-mail made reference to requests for the judicial favors."
So despite the fact there was no hard evidence that Minor asked for favorable treatment from the judges, the three men are going to federal prison for a total of about 25 years.
How did that happen? After all, in a previous trial, a jury was not able to come to unanimous verdicts on any of the charges against Minor, Teel, and Whitfield.
The Sun Herald reported there were significant differences between the first and second trials. Nine members on the second jury possessed college degrees or some level of higher education. They included an accountant, an educator, and the jury forewoman who worked as a computer-technology instructor for the state Department of Corrections. A forewoman who works for the Department of Corrections? Think she might be pro-prosecution?
(Note: Having represented myself in court, I've had my own experience with jury pools and jury selection. I'm highly suspicious of how jury pools are chosen for certain cases. I will touch on this topic again when I get into more specifics about my trial. The Sun Herald story doesn't say it, but the implication is that the first jury pool was more working class, with more people of color; the second jury pool was more professional class, with fewer people of color. If that was indeed the case you must wonder: How did that happen? Also reminds you of jury-pool issues that were raised in the Siegelman-Scrushy case. And we all know how that second trial turned out--a lot like the second trial in the Minor case.)
Wrote the newspaper: "Prosecutors pored over the first trial transcript and were prepared with objections when defense attorneys attempted to introduce testimony about their clients' good acts, including Minor's loans to other friends and acquaintances."
Judge Henry Wingate often found the objections valid, ruling such testimony irrelevant.
The judge plays a critical role in any trial, so let's take a closer look at some of Judge Wingate's rulings.
All three of the defendant judges evidently had significant financial problems. Defendant judge Oliver Diaz had marital problems and wound up getting a divorce. (His ex-wife, Jennifer Diaz, struck a plea agreement with prosecutors.) Minor, at some point, developed an alcohol problem. And most people probably would consider it fishy for an attorney to be making loans to judges before whom he has cases. If I were an opposing party against Minor before one of these judges, I know I would have a serious problem with it.
But did these men actually commit the crimes of which they were charged? (Minor, Teel, and Whitfield were convicted; Diaz was acquitted.) Or were they targets of a politically motivated prosecution by the Bush justice department, similar to the one faced by Don Siegelman in Alabama?
A close look at the case raises serious questions about whether Minor and company ever should have been charged--or convicted. And it indicates that other Mississippi judges were engaged in similar conduct to the Minor defendants, without drawing any attention from prosecutors. And perhaps most importantly, it reveals some strange decision making by Judge Henry Wingate, including jury instructions that do not seem to square with actual law.
In an earlier post, we noted the key elements of honest-services mail fraud, which accounted for seven of the 14 counts against Minor, Teel, and Whitfield. The other central charge was bribery under 18 U.S. Code 666. The gist of the offense, for the one offering the bribe, is this:
"To corruptly give, offer, or agree to give anything of value to any person, with intent to influence or reward an agent of a state or local government, in connection with any business, transaction, or series of transactions of such government or agency involving anything of value of $5,000 or more when such state or local government or agency received, in any one-year period, benefits in excess of $10,000 under a federal program." (Indictment against Paul Minor, Wes Teel, John Whitfield.)
An act is done corruptly "if it is done intentionally with an unlawful purpose." (Indictment.)
While the Minor case was held in federal court, aspects of the case were controlled by Mississippi law. And here is a critical point to remember: Prior to January 15, 1999, the laws governing judicial elections and/or campaign finance (Mississippi Code 23-15-1021 and 23-15-1023) did not limit the amount of money an individual or company could contribute to the campaign of a judicial candidate. Also, state law at the time did not require the disclosure on a campaign finance disclosure form of loans to a campaign nor the fact that any such loan was guaranteed by some third party or the identity of the guarantor, if any." (Jury instructions in trial of Paul Minor, Wes Teel, John Whitfield.)
In other words, for a lawyer to make gifts and loans to judges before whom he has cases is not, in and of itself, illegal in Mississippi. Based on my research, it appears to be common practice around the country, and I'm not sure it's illegal in any state.
Personally, I think such gifts, contributions, and loans from lawyers to judges should be banned across the board. But I'm not the one making the law here.
Let's look at some of the key factors involved, and serious questions raised, in the Paul Minor case.
Wednesday, September 19, 2007
For example, on September 15, 2003, a fire heavily damaged the Biloxi law office of defendant John Whitfield, who is black. Fire officials later determined the blaze was arson. To my knowledge, the crime has not been solved (Jackson Clarion-Ledger, August 13, 2005).
In the Siegelman case, Rainsville attorney Dana Jill Simpson had a fire at her home around the time she was preparing to sign an affidavit stating that the Siegelman prosecution was politically motivated.
The Minor case involves some folks of substantial means. Defendant Paul Minor has a net worth of $12.6 million. From 1994 to 2003, the time period in question, cases handled by Minor & Associates brought in more than $71 million. According to Minor's defense attorneys, only 2.2 percent of that--$1.6 million--came from the cases federal prosecutors cited in their indictment (Biloxi Sun Herald, June 3, 2005).
For good measure, Minor earns $2.5 million a year from a settlement with tobacco companies. (Biloxi Sun Herald, Sept. 8, 2007).
All of which makes you wonder: Why would Paul Minor bother with bribing state judges? Why would he bother to work at all? (I sure wouldn't if I had that kind of cash.)
But here is the bigger question: How did Paul Minor wind up facing an 11-year sentence in federal prison? Oliver Diaz, a former State Supreme Court Justice who was acquitted in the case, made his feelings clear after the sentences were handed down.
"We have a U.S. Justice Department that is corrupt," Diaz said. "And I think we've seen the result of a political prosecution, and we see three men who really are innocent being sent to prison." (Biloxi Sun Herald, Sept. 8, 2007)
The prosecutor and judge were Republican appointees. Mississippi has non-partisan judicial races, but it is well understood that Minor, Teel, and Whitfield are Democrats. Minor particularly was known for using his wealth to help Democratic candidates. Diaz is a Republican, but he and Minor have been longtime friends, and Diaz enjoyed bipartisan support.
Is there evidence to support Diaz' claims of a political prosecution? Let's take a look.
Paul Minor is a very successful south-Mississippi lawyer who became a multimillionaire based on his skills as a trial attorney. He won a number of high-profile cases involving tobacco, asbestos, wrongful death, and personal injury. His father, Bill Minor, is a longtime Mississippi journalist known for his courageous reporting during the civil-rights era. Paul Minor is known to support, both philosophically and financially, the causes of the Democratic Party.
A federal investigation of Minor and three judges began in 2002 on the Mississippi Gulf Coast. The three judges who wound up being indicted, along with Minor, are former State Supreme Court Justice Oliver Diaz, former Chancery Judge Wes Teel, and former Circuit Judge John Whitfield. Minor was accused of securing loans for the judges in exchange for favorable rulings on cases before them.
In the first trial in 2005, a jury acquitted Diaz on all charges. He later was acquitted on tax-evasion charges in a separate indictment. The same jury in the first trial acquitted Minor, Teel, and Whitfield on some corruption charges and failed to agree unanimously on others.
Federal prosecutors decided to retry Minor, Teel, and Whitfield, and they were found guilty on all charges in March 2007. Charges included bribery, racketeering, conspiracy, and honest-services mail fraud.
Leading the prosecution were Dunn Lampton, U.S. attorney for the Southern District of Mississippi, and Noel Hillman, then chief of the Public Integrity Section of the U.S. Department of Justice. Lampton is a Republican appointee and Hillman has since been nominated to a federal judgeship by the Bush White House.
The judge, Henry Wingate, is a Republican appointee.
Sentencing in the case was announced on September 7. Minor was sentenced to 11 years in federal prison; Whitfield and Teel were sentenced to 110 months and 70 months, respectively.
(Source: Jackson Clarion-Ledger, Sept. 8, 2007)
But as I noted earlier, half of the counts in the Minor case--and two-thirds of the counts in the Don Siegelman case in Alabama--involved honest-services mail fraud.
The Minor and Siegelman cases involved a very similar set of charges--bribery, conspiracy, racketeering, etc. I suspect most citizens have a fairly good idea of what bribery and conspiracy are. Racketeering probably is a little more fuzzy, but a lot of folks have a general idea of what that means.
But honest-services mail fraud? Ask most people about that, and you are likely to draw a blank stare. The statute, however, is a powerful tool in the hands of federal prosecutors. Take a look at most any corruption case involving public officials, and you are likely to find charges of honest-services mail/wire fraud.
So what exactly is honest-services mail fraud?
First, a little history. Prior to 1987, a long line of court cases had held that the federal mail and wire fraud statues encompassed schemes to defraud citizens of an intangible right to honest government from public officials. But in McNally v. U.S., 483 U.S. 350 (1987), the U.S. Supreme Court ruled that the fraud statutes encompassed only property interests and not intangible rights to honest services. Congress responded in 1988 by enacting 18 U.S. 1346, essentially overturning McNally and reinstating the honest services provision.
Another point to keep in mind: State criminal statutes tend to be fairly precise in their wording. Federal statutes, as we will see, tend to be much more broadly written. And that puts huge amounts of discretion in the hands of federal prosecutors--a frightening amount, some might say.
So what do the statutes actually say. Here is 18 U.S. 1341, the mail fraud statute. And here is 18 U.S. 1343, which is pretty much the same thing, only for wire fraud. And here is 18 U.S. 1346, which reinstates the honest-services provision into the law.
Does reading that leave you with a glazed look in your eyes? Join the crowd. The legalese is mind-numbing isn't it?
To come to some understanding of federal fraud law, you need to read the case law. And that is much easier to decipher. Here is the crux of the matter:
* A person commits mail or wire fraud if he has (A) Perpetuated a scheme to defraud that includes a material deception; (B) with the intent to defraud; (C) while using the mails in furtherance of the scheme. Neder v. U.S., 527 U.S. 1 (1999).
So is that it? Well, not quite. Let's consider a few more key questions:
* What is a scheme to defraud? Courts have defined it as "a departure from community standards of 'fair play and candid dealings.'" U.S. v. Autori 212F. 3d 105 (2000)
* What is intent to defraud? Courts have defined it as "a willful act by defendant with specific intent to deceive or cheat." U.S. v. Stephens, 421F.3d 503, (2005)
* When does a person cause the mails to be used? Courts have said this occurs when he or she "acts with knowledge that the use of the mails will follow in the ordinary course of business." Pereira v. U.S., 347 U.S. 1 (1954)
* What about the "in furtherance" element? This requirement is satisfied by showing that the mailing was "incident to an essential part of the scheme."Schmuck v. U.S. 489 U.S. 705, (1989)
Is that it? We're getting there. A few other key considerations:
* Did the scheme succeed? Success of the scheme is irrelevant. The prosecution simply must show that "the defendants' scheme, if successful, would have deprived an individual of interests protected under the statute." U.S. v. Brown, 79 F. 3d, 1550 (1996)
* What about the "honest services" component included under Sec. 1346? Courts have stated that a public official has a duty to disclose information regarding a personal interest that may affect his judgment and therefore "undisclosed, biased decision making . . . regardless of tangible loss to the public . . . constitutes a deprivation of honest services." U.S. v.Lopez-Lukis, 102 F.3d 1164, (1997)
* Do public officials have to receive personal gain from their scheme? This is a matter of considerable debate. At least one judicial circuit has said yes. Most circuits have said no. In general, courts have held: "The prosecution need not prove that the scheme was successful or that the intended victim suffered a loss, or that the defendant secured a gain. The gist of the offense is a scheme to defraud and the use of interstate communications to further that scheme." U.S. vs. Louderman, 576 F. 2d 1383, (1978)
* Need a summary? Here it is: "The loss of good faith services alone establishes the breach." U.S. v. Silvana, 812 F. 2d 754, (1987)
Are we done yet? Yep, we're done for now. There are a few other specifics to consider, and we will address those when I go into the clear honest-services mail fraud that has been committed by judges and attorneys in the Legal Schnauzer case.
But this gives us some baseline knowledge for understanding the Paul Minor case in Mississippi, and to a great extent, the Don Siegelman case in Alabama. You can now consider yourself a certified pseudo expert in federal fraud law. Even the Unfrozen Caveman Lawyer would be impressed.
Now, onward to Mississippi!
What are these connections? In a nutshell, the Minor case is an example of a Republican-led justice department going after Democratic-leaning defendants (like the Siegelman case). It is an example of alleged corruption involving state judges and an attorney (like the Legal Schnauzer case). And if you study the case closely, you see signs that it might have been a political hit, a selective prosecution of the kind Congress is scrutinizing.
Let me state a few things up front: I am not an attorney, and I don't claim to have perfect knowledge of the law in the Minor case. I'm a citizen who became deeply interested in the Minor case when I realized it was about a subject--judicial corruption in the Deep South--that I have painful experience with. I became even more interested when I realized the case involved political overtones, much like those present in the Siegelman case in Alabama, and a set of charges that were almost identical to those in the Siegelman case.
While bribery charges have received the most attention in press coverage of the two cases, both really revolved around charges of honest-services mail fraud. And honest-services mail fraud is at the very core of the Legal Schnauzer case--and I will prove that in the weeks and months to come.
In the Siegelman case, 20 of 30-some counts (almost two-thirds; see journalists can do math) were for honest-services mail fraud. Siegelman was convicted on one of the 20 mail fraud counts. In the Minor case, seven of the 14 counts (exactly half; I should be a tax accountant) were for honest-services mail fraud. Minor and the two judges who were prosecuted with him were convicted on all counts.
So why do I, a regular guy with zero days of law school behind me, think I know anything about honest-services mail fraud? Well, I've read several law-review articles on the subject, I've studied applicable case law, and I've read about 30 articles on the Minor case in the mainstream press. I've also read the indictment and the jury instructions, both of which were available on the Web at one time.
I didn't attend the trial, and I don't have access to a trial transcript. So you see, my knowledge isn't perfect.But I think I have some insight worth sharing on the Minor case and how it connects to the Siegelman case, the Legal Schnauzer case, and the broader justice department scandal. I welcome input from readers who have information or opinions about the case.
A key point: I'm conflicted about the Minor case. If there is anyone who wants to see corrupt lawyers and judges punished, it's me. But when you've been around the law a little bit, you learn that it's important to set emotions aside and see what the law and the facts actually tell you. And I think you also have to look at the Minor case within the prism of what we are learning about the Bush justice department.
Another key point: I make no secret of the fact that I am a Democrat. But I want to make a serious effort to see things in an objective way on the Minor case. (Whether I succeed at that will remain open to debate.) When you read about the Minor case, and when you read about the Siegelman case for that matter, you get the sense that these folks were doing some things they shouldn't have been doing. In Siegelman's case, the warehouse deal, the transportation department stuff . . . he should have known better than to let some of that stuff go on. In the Minor case, Minor should have known better than to make loans to judges before whom he had cases--and the judges should have known better than to take such loans.
But again, we have to look at the actual law. Even the Montgomery jury found that Siegelman's actions related to the warehouse etc. did not amount to crimes; the conviction came down to a deal with Richard Scrushy to pay off the lottery campaign debt. And in the Minor case, Mississippi law at the time did not preclude loans from a lawyer to a judge. (Personally, I think such loans, contributions, and similar favors should be banned in all states; but it's the law, not my opinion, that matters.)
While I want any truly corrupt judges and attorneys to be punished, the Mississippi case leaves me with a queasy feeling. My research indicates there certainly are questions about the guilt of the defendants in the Mississippi case, and yet three men (all Democrats) are going to prison. Meanwhile, in Alabama, I have a case of honest-services mail fraud that should be a dead-solid cinch for a conviction--under the actual law. But the Bush justice department won't even look at it. And several corrupt men (all Republicans) go merrily on their way.
With all that said, let's look at Mississppi and the case of attorney Paul Minor and judges Oliver Diaz, Wes Teel, and John Whitfield.
Tuesday, September 18, 2007
Why is that? My guess is that reporters and editors are intimidated by judges, and judges and lawyers do their best to make the whole legal process seem baffling. Most media outlets don't want to invest the time and effort it takes to truly understand and uncover judicial corruption. Better to wait for the feds to do something and bring you a press release.
So again, you see the critical role of federal law enforcement in investigating and punishing rogue state judges. But we live in a time when the Bush Department of Justice is under investigation itself, for apparently practicing a blatant form of selective prosecution.
Does that mean some cases of judicial corruption will be investigated while others will be ignored? Does that mean such decisions will be based largely on political considerations? Does that mean that Republican judges, such as the ones I've encountered, can violate their oath (and federal law) with impunity without any fear of being punished? Does that mean Democratic judges, who may or may not have broken the law, are more likely to draw scrutiny?
Let's take a look at the Deep South and some recent or ongoing investigations/prosecutions of corrupt judges in state courts:
* First there is the Mississippi case we've noted several times involving attorney Paul Minor and judges John Whitfield and Wes Teel. Sentencing came down in the case about 10 days ago.
* An investigation of alleged judicial corruption was conducted for more than four years in Tampa, Florida. The case was closed last fall.
* Operation Wrinkled Robe has produced numerous guilty pleas in New Orleans, Louisiana.
* An ongoing bribery investigation in El Paso, Texas, has produced a guilty plea from at least one judge.
* A judge in Edinburg, Texas, committed suicide in 2005 amidst an FBI corruption probe.
You see that judicial corruption is not a taboo topic for the Bush Justice Department. It seems to prosecute some cases with gusto. But what is the difference between these cases and my case that Alice Martin, U.S. Attorney for the Northern District of Alabama, has so vigorously ignored?
Well, here's what I think: My case involves all Republican judges, who are all white and almost all male. And the case began in a suburban/rural jurisdiction.
I would invite readers to study the cases noted above and see if you discern a pattern to the prosecutions. See if you notice characteristics in these cases that are different from those present in the Legal Schnauzer case.
It might help to check a recent post from Scott Horton of Harper's, about a Wisconsin prosecutor with a history of going after people who fit a certain profile--Democrats from minority groups and inner cities--while largely ignoring potential wrongdoers from outside that profile.
Is that what's going on in these recent cases from the Deep South? I can't say for sure. I certainly support the prosecution of public officials who truly violate federal law, regardless of political affiliation. And I suspect judicial corruption is a bipartisan problem.
But a glance at recent judicial-corruption cases in the Deep South reveals some disturbing trends. And you learn even more when you look closely at a particular case. To do that, we will turn west to our neighbors in Mississippi.