Wednesday, September 30, 2009

Siegelman Prosecutors Used Threats Against Witnesses

Prosecutors in the Don Siegelman case discussed the possibility of filing a bar complaint in order to obtain the desired testimony from a cooperating witness.

Prosecutors also appeared to condone the unlawful removal of documents from an off-site facility. And they openly discussed and laughed about a plan to obtain proffer testimony from defendant Richard Scrushy, seeking a plea agreement without advising his attorneys that their client had already been named in a sealed indictment.

Those are three of many revelations in a letter from whistleblower Tamarah Grimes to U.S. Attorney General Eric Holder about prosecutorial misconduct in the Siegelman case. Grimes' letter is dated June 1, 2009, and she was fired eight days later from her position as a paralegal in the Department of Justice's Office in the Middle District of Alabama.

Holder so far has taken no public action regarding what appears to be clear retaliation against a government whistleblower who used proper channels to reveal improper, and possibly criminal, conduct.

The complete Grimes letter to Holder can be viewed here:

Grimes Letter to Holder (PDF)

The threat of a bar complaint involved witness Lorree Skelton, an attorney. It was essential, investigators said, that Skelton's testimony support that of Nick Bailey, who was scheduled to testify about a meeting between then-Governor Siegelman and former HealthSouth CEO Richard Scrushy. Bailey was to testify about the exchange of a check and a supposed conversation between Siegelman and Scrushy, information that would prove critical to obtaining convictions in the case.

Grimes writes to Holder, however, that Bailey was not at all certain about what he had witnessed. "Mr. Bailey repeatedly said he did not know and he was not sure," Grimes writes. "The prosecutors coaxed and pressured Mr. Bailey to 'remember' their version of alleged events. Mr. Bailey appeared apprehensive and hesitant to disappoint the prosecutors."

Similar pressure was applied to Loree Skelton. Writes Grimes:

The prosecutors also threatened to revoke the plea agreement of another cooperating witness, Loree Skelton, unless the witness agreed to testify in a certain manner to support Nick Bailey's meeting-check-conversation testimony. The prosecutors told the attorney for Ms. Skelton that under the plea, she was required to provide "full cooperation," and it was within their discretion to decided what constituted "full cooperation." If Ms. Skelton did not testify in the desired manner, her testimony would not be considered "full cooperation." The prosecutors threatened to revoke the plea unless Ms. Skelton testified in the desired manner. Loree Skelton was a lawyer, and there was discussion of filing a bar complaint as leverage to obtain the desired testimony."

Assistant U.S. Attorney Stephen P. Feaga was lead prosecutor on the case, with close assistance from fellow AUSA J.B. Perrine and acting U.S. Attorney Louis Franklin. Grimes describes Feaga in almost Napoleonic terms. "Mr. Feaga would frequently comment, 'Gentleman, we are making history here,'" Grimes writes. "Unfortunately, the lines between fact and fiction became hopelessly blurred as a result of these tactics."

Questionable tactics also were used against Scrushy and his attorneys. Writes Grimes:

Before trial, I heard Mr. Feaga, AUSA Perrine and Mr. Franklin openly discuss and laugh about a plan to obtain proffer testimony from defendant Richard Scrushy, seeking a plea agreement without advising his attorneys that their client had already been named in a sealed indictment. Richard Pilger from Public Integrity and Joseph Fitzpatrick from the State AG's Office were more hesitant to engage in this particular conduct but even more hesitant to challenge the authority of Mr. Feaga."

Franklin eventually removed Grimes from "The Big Case" after she and coworker Janie Crooks voiced concern about the removal of documents from the Waste Management hazardous landfill at Emelle, Alabama. Company officials had prohibited removal of documents from the site, but Grimes and Crooks arrived to find FBI Agent Tyler McCurdy and contract employee Vallie Byrdsong loading boxes of numbered documents into their vehicles:

I asked FBI Agent McCurdy about this. He replied that Mr. Franklin had approved the removal of the documents and instructed Mrs. Crooks and me to assist. We declined to participate in this particular activity because we felt it would be criminal theft of property.

What happened to a member of the Siegelman prosecution team who voiced concerns about criminal theft? In Grimes case, she was removed from the team:

Mr. Franklin advised me not to come back to the off=site facility because I made to many complaints to too many people and my presence was a distraction. Mr. Franklin's words to me were, "There is only one problem here, and that problem is you!"

In other words, I was the only person questioning the propriety of certain routine practices, and I was the only person unwilling to do "whatever it takes," regardless of the ethical or legal implications of the conduct.

Another UAB Administrator Hits the Exits

The exodus of high-level administrators continues under the corrupt regime of President Carol Garrison at the University of Alabama at Birmingham (UAB).

Evidence continues to mount that my former employer has serious problems under its current "leadership." We've written extensively about numerous legal woes that are the direct result of poor management at UAB--and more lawsuits almost certainly are in the works.

Some of those legal actions involve faculty members who have taught on campus for 20 to 30 years. Now, it appears a number of longtime administrators are bailing out, too.

The latest is Sheila Sanders, who was UAB's vice president for information technology and chief information officer. She is set to become vice president for information services at Wake Forest University Baptist Medical Center in Winston-Salem, North Carolina.

Cheryl Locke, former head of UAB Human Resources, and Gary Mans, former director of public relations, also have left UAB in recent months. And those are just the exits I know about.

Locke, like Sanders, now is at Wake Forest Baptist Medical Center. Mans is at the University of Louisville. All three former UABers took positions that appear to be a step down from their former jobs. At best, they appear to be lateral moves.

UAB employees can retire with full benefits after 25 years of service, and Sanders probably had been at the university about that long. She simply might have decided to take retirement and start a new career elsewhere. It's also possible she didn't like what she was seeing at UAB.

Interestingly, Locke, Mans, and Sanders all had some connection to my unlawful termination.

Locke upheld my termination even though her own grievance committee found that I should not have been fired. When I asked Locke for a copy of the grievance committee's written report, she refused to provide it.

Mans posted a defamatory statement about me in the comments to an article about my termination on the Chronicle of Higher Education's Web site. Mans, apparently at the behest of President Garrison, stated that my firing was due solely to work-performance issues, when UAB's own grievance committee had found that I should not have been fired at all.

Sanders' involvement, to my knowledge, was less direct. One of her employees, Sean Maher, testified at my grievance hearing that he had been asked to monitor my computer usage for roughly a month. Interestingly, Maher did not indicate that he had been asked to monitor the computer usage of anyone else in my work area.

Maher said his investigation apparently was done to determine if I was writing my personal blog with university equipment. What did Maher find? He said his investigation showed that I did not type the first word of my blog on my work computer, which I knew all along. I also didn't research my blog at work, as UAB seemed to allege in it's vague termination letter.

Was Sheila Sanders uncomfortable that her department was being asked to conduct a bogus witch hunt against a 19-year employee who had not violated any university policy? Was Sanders uncomfortable with other tasks that were being asked of her department, perhaps targeting other UAB employees in inappropriate and perhaps unlawful ways?

Here's the most interesting question of all: Was Sanders aware that research fraud that first surfaced at UAB in 2001 is still going on--and with a new administration in Washington vowing to crack down on Medicare fraud--did she decide that now was a good time to "get out of Dodge"?

I first met Sheila Sanders probably 20 years ago, when she and I were both early in our UAB careers. She seemed like a sharp, well-intentioned person, and she steadily worked her way up to become a vice president.

The vast majority of people I've met at UAB are good people who do productive and valuable work. Sheila Sanders appeared to be one of those kind of people. But I've seen some people who, as they moved into the management side of things, checked their consciences at the door. Could Sheila Sanders have turned into one of those types, in an effort to climb the ladder? I hope not.

If Sanders is hoping to find a quiet, peaceful environment at Wake Forest, she might be in for a rude awakening. A source tells Legal Schnauzer that a potentially major employment-related legal case could be breaking at Wake Forest soon, with Cheryl Locke in the middle of it. The case involves information technology, so Sheila Sanders could wind up in the middle of it, too.

Interestingly, the case involves some of the same issues that have plagued UAB in recent years. If Sanders is not familiar with the case, she probably will be very soon.

Tuesday, September 29, 2009

Obama Justice Department Tries to Protect Corrupt Alabama Prosecutor

As expected, the Obama Justice Department has issued a defense to criminal-contempt allegations made against several prosecutors in the Northern District of Alabama, acting under Bush-appointed U.S. Attorney Alice Martin.

The criminal-contempt allegations grew from the prosecution of Huntsville defense contractor Alex Latifi on federal arms-control charges. News broke last week that Latifi's lawyers stated in court documents that Martin and her assistants concealed exculpatory evidence and deliberately misled the court during the 2007 trial, which ended with an acquittal on all charges.

Obama appointee Joyce White Vance now oversees the Northern District of Alabama, and in a move that should give progressives considerable pause, she has authored a motion that defends one of the most notorious prosecutors of the George W. Bush era. To make matters worse, Vance's defense of Alice Martin is extraordinarily weak.

That, of course, is because Martin and her henchmen almost certainly did withhold evidence, suborn perjury, and obstruct justice, as alleged.

It stands to reason that someone in the Justice Department should respond to the motion from Latifi's attorneys. But why was it Joyce Vance? As Martin's successor, and the current supervisor over several assistants who allegedly were involved, Vance clearly has conflicts in this matter. Why did she not recuse herself and hand the matter over to a DOJ representative from outside the Northern District?

Because Vance did not step aside, we appear to have an Obama appointee trying to cover up wrongdoing by perhaps the worst prosecutor in the corrupt Bush Justice Department. Is that "change we can believe in"?

And it raises this question: Is Joyce Vance interested in justice or is she interested in protecting the legal status quo in Alabama? As the wife of a state circuit-court judge, Robert Vance Jr., does Joyce Vance want to make sure she doesn't rock the boat of our state's corrupt "justice" establishment?

Vance spends 31 pages trying to defend Martin and her minions against indefensible behavior in the Latifi case. Our response when we had finished reading the entire thing? "This is pathetic."

The gist of Vance's argument is three-fold:

* Any misconduct by prosecutors was not willful (yeah, right);

* Latifi was acquitted, so the withheld information was not "material," and he wasn't prejudiced or harmed in any way (try telling Latifi that);

* The issues should be addressed in an ongoing investigation by the DOJ's Office of Professional Responsibility (OPR), not in a criminal-contempt proceeding. (The OPR has been investigating this forever, and it previously found that Alice Martin did not commit perjury in an employment case when the record shows she clearly did. Why, again, are we supposed to trust the OPR?)

Here are a few of many nauseating statements made in Vance's motion:

Because Movants were acquitted—even without the allegedly favorable work orders—they cannot claim injury from the nondisclosure of those documents. And that means the documents were not “material” for purposes of Brady.

Here, there was no prejudice at all. Although the Government did not disclose the Work Orders, it did not rely on those documents at trial. And Movants were acquitted on all counts of the indictment even without the benefit of those documents. Thus, pretrial disclosure of the Work Orders—which related to only one count out of six—would not have affected this case in any meaningful way.

Other courts agree that there can be no finding of contempt under Section 401(1) absent proof (beyond a reasonable doubt) that the alleged misbehavior “actually obstructed the administration of justice—by delaying proceedings, making more work for the judge, inducing error, imposing costs on parties, or whatever.”

The tone of Vance's motion seems to be: "OK, Alice Martin and her Gang that Couldn't Shoot Straight probably withheld evidence, suborned perjury, prosecuted a defendant they knew was not guilty, and generally butchered the Alex Latifi case to high heaven. But hey, Latifi got good lawyers and was lucky enough to get an honest and competent judge and was acquitted--so, hey, no harm, no foul."

If that is Joyce Vance's idea of justice, she needs to go into another profession. And she should do the people of her district a favor and step down now. We've had plenty of clowns masquerading as prosecutors in the Northern District of Alabama. We don't need another one.

Whistleblower's Letter Reveals Corruption in Siegelman Prosecution

Leura Canary, U.S. attorney for the Middle District of Alabama, wrote press releases about the Don Siegelman case that were distributed under the signature of assistant prosecutor Louis Franklin. Also, Canary regularly had two assistants communicate her suggestions about the Siegelman case to Franklin.

All of this took place after Canary had announced her recusal from the Siegelman case. And they are two of many stark examples of prosecutorial misconduct outlined in a letter dated June 1, 2009, from whistleblower Tamarah Grimes to U.S. Attorney General Eric Holder.

Eight days after writing the letter, Grimes was fired from her position as a paralegal for the Department of Justice in Montgomery, Alabama. So far, there is no indication that Holder has taken any action in the matter.

The complete Grimes letter can be viewed here:

Tamarah Grimes Letter to Eric Holder (PDF)

Grimes tells Holder that Canary's recusal claims were false regarding the prosecution of Siegelman and former HealthSouth CEO Richard Scrushy in what became known as "The Big Case" in the Montgomery office. Patricia Snyder Watson, the district ethics officer and first assistant U.S. attorney, was a frequent conduit of information to and from Canary. Writes Grimes:

Mrs. Canary publicly stated that she maintained a "firewall" between herself and The Big Case. In reality, there was no "firewall." Mrs. Canary maintained direct communication with the prosecution team, directed some actions in the case, and monitored the case through members of the prosecution team and Mrs. Watson.

Grimes said she regularly raised concerns with Watson about misconduct among prosecutors on the Siegelman case--to little effect:

Mrs. Watson advised me that The Big Case was the most important case in the office and that U.S. Attorney Leura Canary would grant prosecutors virtually unlimited latitude to obtain a conviction. Mrs. Watson told me that as a paralegal, I did not have standing to question the actions of a federal prosecutor, and that if Mrs. Canary found out that I had done so, I would certainly be disciplined for insubordination.

With the threat of disciplinary action hanging over her head, Grimes tried to ignore the misconduct. But it was hard to ignore overt negotiations of proposed testimony of key cooperating witnesses Nick Bailey and Lanny Young. The lead prosecutor, Assistant U.S. Attorney Stephen P. Feaga, instructed investigators to meet with Bailey and Young frequently. Writes Grimes:

Mr. Feaga instructed the investigators how to approach the cooperating witnesses on a particular subject and specified what he needed the witness to say in order to support his prosecutorial theory. For instance, Mr. Feaga would say, "See if you can get him to say it like this . . . , " "Ask him if he is comfortable saying it like this . . . ," or "I need him to say it like this . . . ." The investigators would return from meeting with the cooperating witnesses to report to Mr. Feaga, who would send the investigators back with new instructions.

Grimes said she was not the only person concerned about prosecutors' creative approach to the facts of the case:

I recall one of the investigators, FBI agent Keith Baker, commented on the conduct by saying, "There is truth, there are facts, and then there are "Feaga facts."

"Feaga facts" apparently were present in what proved to be the key testimony against Siegelman and Scrushy:

I particularly recall one meeting in which cooperating witness Nick Bailey was persuaded to recall something that he claimed he did not actually recollect. The matter concerned a meeting between Governor Siegelman and Richard Scrushy, a check and supposed conversation, which eventually led to the convictions in The Big Case. Mr. Bailey repeatedly said he did not know and he was not sure. The prosecutors coaxed and pressured Mr. Bailey to "remember" their version of alleged events. Mr. Bailey appeared apprehensive and hesitant to disappoint the prosecutors.

After reading Grimes' stunning letter to Holder, we are left with numerous questions, but these two jump out at us:

* How could convictions possibly stand when the key witness clearly was coaxed into making statements regarding events that he did not actually recall?

* Tamarah Grimes was fired eight days after writing this letter to Eric Holder. But the U.S. attorney general, our nation's chief law-enforcement officer, apparently has done nothing about it. Why is Holder sitting on his hands when a DOJ whistleblower, who went right to the top with her concerns about prosecutorial misconduct, has clearly faced retaliation for speaking out? Does anyone in the Obama administration have a spine when it comes to matters of justice? Will anyone ever take steps to clean up the cesspool in Montgomery, Alabama? Why has the Obama administration allowed Leura Canary to remain on the job?

And here's a really interesting question. Alabama's two Republican U.S. senators, Jeff Sessions and Richard Shelby, have objected to two highly-regarded nominees for the Middle District position--Michel Nicrosi and Joseph Van Heest. Why do Sessions and Shelby object so strongly to these nominees? Is it possible that a real federal prosecutor in Montgomery, Alabama, might unearth some unsavory activities related to Sessions and Shelby themselves? Why is Obama allowing Sessions and Shelby to hold the Middle District of Alabama hostage?

As John McCain once said, "Elections have consequences." Well, Obama was elected president, and he should not allow Sessions and Shelby to hold up the appointment of a new federal prosecutor in Montgomery. He should nominate Nicrosi or Van Heest and move forward, kicking Leura Canary unceremoniously to the curb--where she belongs.

(To be continued)

Monday, September 28, 2009

Web Anonymity Takes Another Legal Hit

For the second time in recent weeks, a court ruling has indicated that anonymous statements made on the Web might not be as protected as users think.

A judge in Sacramento, California, recently opened a small window for the plaintiff in a lawsuit to discover the identities of individuals who posted derogatory comments about him on a blog.

We recently posted about a New York case where a judge had ordered Google to turn over information about an anonymous blogger who had made nasty comments about fashion model Liksula Cohen. The order led to information that revealed the blogger to be Rosemary Port, another woman with ties to the fashion industry. Port now has filed a lawsuit against Google for failing to protect her identity.

As we noted in the earlier post, this issue hits close to home here at Legal Schnauzer. I've received numerous anonymous threatening comments to my blog, including two that essentially said "yours is coming" and another threatening my job roughly a month before I was fired at the University of Alabama at Birmingham (UAB), where I had worked as an editor for 19 years.

I have filed an EEOC charge against UAB, the precursor to a civil rights/employment lawsuit. Part of discovery in a future lawsuit will entail determining who sent the threatening blog comments.

Interestingly, the California story also involves an employment case at a university. Here is how reporter Hudson Sangree, of the Sacramento Bee, describes it:

In the Sacramento case, a former police officer with the University of California, Davis, filed a lawsuit against the UC regents in February, claiming discrimination and breach of a settlement agreement in a prior lawsuit.

David Greenwald, who operates a blog called The People's Vanguard of Davis, wrote about the legal dispute, and his readers weighed in with comments.

Some of those comments, posted anonymously and under a pseudonym, caught the attention of the former UC police officer, Calvin Chang, and his attorney, Anthony Luti.

They believed UC insiders had posted the comments and wanted to find out who they were. In July, Luti served a subpoena on Google, the Vanguard's former host, demanding names, e-mail addresses and log-in information.

Google informed Greenwald, and his lawyer, Donald Mooney, filed a motion to quash the subpoena. He argued the information was protected by the First Amendment.

The judge's ruling was a mixed bag, but it left open the possibility for the plaintiff to obtain the information he seeks:

In a tentative ruling issued Tuesday in Sacramento Superior Court, Judge Shelleyanne Chang (no relation to the plaintiff) ruled mainly in Greenwald's favor.

But the judge said the plaintiff could pay an independent third party to perform an Internet address trace to determine if those who posted comments were the people he thought they were. Only then could their information be revealed, she ruled.

"The court agrees that if the comments posted on the blog were authored by 'managing agents' of the university, they would constitute evidence relevant to the existing claims against the university, including breach of the settlement agreement," the judge wrote.

Sangree quoted Matt Zimmerman, of the Electronic Frontier Foundation, about the current state of the law:

In general, he said, courts have been protective of the right to anonymous speech. Political advocates have long used pen names or written anonymously, he said.

But there have always been exceptions to free-speech protections, and the area has grown more complex with the explosion of bloggers on the Internet.

Only a few high-level appellate courts have taken up the issue, he said, leaving rulings mostly in the hands of lower courts.

So far, courts have tended to side with anonymous commenters. But not totally. Writes Sangree:

Where plaintiffs can make a plausible case for defamation, the justices ruled, online anonymity may be breached. "When vigorous criticism descends into defamation," they wrote, "constitutional protection is no longer available."

It sounds like my situation might be a case of first impression. What if an anonymous Web comment indicates someone has information about unlawful conduct, possibly a crime, that caused someone to be cheated out of their job? Perhaps we will be finding the answer that question in the coming weeks and months.

Thursday, September 24, 2009

Obama Appointee Plans to Defend Corrupt Bush Prosecutor in Alabama

Charges of criminal misconduct finally are starting to fly against federal prosecutors in the Don Siegelman case. Similar charges now are being raised against prosecutors in another Alabama case.

But an Obama appointee apparently is set to defend Alice Martin, former U.S. attorney for the Northern District of Alabama and one of the most notorious prosecutors of the George W. Bush era.

Attorneys for Huntsville defense contractor Alex Latifi say Martin and her assistants concealed exculpatory evidence and deliberately misled the court during Latifi's 2007 prosecution on federal arms-control charges. Latifi was acquitted, and charges of prosecutorial misconduct are being reviewed by the DOJ's Office of Professional Responsibility. A federal judge ordered that the government reimburse Latifi for attorney fees and costs, a matter that currently is under appellate review.

In a motion filed September 14, Latifi's attorneys allege that Martin, assistant U.S. attorneys David H. Estes and Angela Redmond Debro, and special agents David Balwinski and Marcus Mills (Army Criminal Investigations Command) violated federal laws regarding subornation of perjury. According to the motion, prosecutors "deliberately presented false, incomplete, and misleading information to this court in violation of 18 U.S.C. 1622."

The statute reads:

Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.

Joyce White Vance, the Obama appointee who now serves as U.S. attorney for the Northern District of Alabama, apparently intends to defend her Bush-appointed predecessor. In an e-mail to, Vance wrote:

This filing by defense counsel is, of course, an advocate’s point of view. The United States will file its response, as ordered by the court, within 14 days, explaining why we disagree with defense counsel’s interpretation of events, she said.

The Latifi case has drawn significant coverage in the mainstream press. It was chronicled in a superb piece by Lynda Edwards for the ABA Journal, which we discussed here, here and here.

David J. Lynch, of USA Today, also wrote a compelling story about the case, which we discussed here.

An argument could be made that the Latifi case is the ugliest episode of the Bush DOJ--and that's saying something. As Lynch notes in his piece, "Feds knock; a business is lost," evidence strongly suggests that Latifi was targeted because he is of Iranian descent.

In her article, "The Curious Case of Alex Latifi," Edwards quotes one of Alice Martin's assistants, David H. Estes, as saying: "We don't care if Latifi is innocent. Our goal is to put him out of business."

If those words don't send chills down your spine, then you must not have a spine.

So let's see if we have this straight: Alice Martin and her henchmen, probably with the most vile of racist motives, intentionally tried to ruin the prosperous business of an Alabama man. And Joyce White Vance, an appointee of our nation's first black president, is going to defend those actions?

Veteran attorney and journalist Andrew Kreig, in a recent piece at Huffington Post, reminded us about the proper role of the federal prosecutor:

Almost every federal prosecutor knows the famous guidance provided in 1940 by Attorney Gen. Robert Jackson, the future Supreme Court Justice and chief U.S. Nuremberg war crimes prosecutor. Jackson urged all U.S. attorneys to remember that the government never loses a case when justice prevails, regardless of which side "wins" in the short term. Isn't it time to start acting on that?

Will Joyce White Vance act on it? Will she stand up for justice? Or will she try to protect and defend the "win at all costs" ethos of the Bush DOJ?

If Vance indeed tries to defend the abominable Alice Martin, it might be time for progressives to seriously start asking if the Obama administration is deserving of their support.

Change we can believe in? It's starting to look like the campaign slogan should have been: "We'll protect the people you are trying to get rid of."

The Alex Latifi case is likely to speak volumes about whether Team Obama gives one iota about justice. And right now, it does not look encouraging.

Workplace Victims Earn Victories, Big and Small

As we have noted here at Legal Schnauzer, folks who decide to fight back against workplace wrongdoing often face a stacked deck. Employers usually have more resources than individuals who have faced some unsavory act in the workplace. And the federal bench, stacked with Republican appointees, often is not sympathetic to the cause of employees.

But the little guy sometimes can overcome the odds and land a serious blow to the jaw of an abusive employer. In fact, we've seen several recent examples of just that. And it's encouraging to note that the mainstream press seems to be paying attention to workplace issues. Some highlights:

Florida VA Hospital Hit With Big Jury Verdict
A federal jury in Tampa, Florida, has awarded $3.73 million to four women who faced retaliation after filing discrimination claims against the Bay Pines VA Medical Center in St. Petersburg.

Reports William R. Levesque of the St. Petersburg Times:

The jury's decision came after a three-week trial that cast an unflattering spotlight on work conditions at the hospital, where the plaintiffs say a climate of fear exists among employees afraid to speak out.

The female plaintiffs said supervisors opened a concerted campaign to discredit them and push them out of their jobs after they filed employment discrimination claims on a variety of issues.

Those complaints included allegations that administrators discriminated against women by denying them good job assignments and that older doctors were being unfairly attacked by administrators.

The award is expected to be reduced, but the verdict still strikes a blow for victims of workplace retaliation. Reports the Times:

The VA's liability for damages awarded for emotional pain and anguish is capped at $300,000 per plaintiff under federal law, so the verdict is expected to be reduced by a judge to $1.33 million.

VA administrators, however, might not be out of the woods:

Attorney Joe Magri said he will suggest to members of Congress and the VA that an investigation be opened into illegal retaliation by Bay Pines administrators against those who file Equal Employment Opportunity claims for workplace discrimination.

"The evidence showed that the retaliation went to the highest levels of the Bay Pines administration," said Magri, who tried the case with co-counsel Ward Meythaler. "The appropriate regulatory agencies need to look into what's going on there and why it's going on."

California Newspaper Spotlights Retaliation Case
Speaking of the VA, you would think that a federal agency would have some clue about how to follow federal employment laws. But you would be wrong.

We recently posted about Ann Williams and Jamie Fox, two women who were fired at the VA's Oakland Regional Center after speaking up about anti-gay harassment and a hostile working environment.

Now one of California's major newspapers, the Oakland Tribune, has picked up on the story. Reporter Angela Hill writes:

Just a few days before she was fired in June 2008, Ann Williams of El Cerrito, a Navy veteran and former mayor of Pinole who is openly lesbian, was fed up with months of taunts and anti-gay comments from a male co-worker at the Oakland Regional Office of the Department of Veterans Affairs.

Matters had reached the point where she feared for her safety, she said.

So she went to her superiors, complaining of anti-gay harassment and a hostile work environment. Another co-worker, Navy veteran Jamie Foxx, of Sebastopol, a straight woman, came forward as a witness.

Less than a week afterward, both were fired on the same day, their termination letters citing poor performance during their training period despite the fact the two have documents showing they received positive reviews not long before.

The Tribune article provides insight into the human cost of workplace discrimination:

In the meantime, neither has been able to find work, Williams' car is about to be repossessed, and both say the emotional toll has been immeasurable.

"I never experienced anything like this in my life," Williams, 59, said during an interview in her home. "I'm in tears all the time about this. We are professionals. We wanted to do something good and work with veterans. And this is how we were treated in the VA. We want (the VA) to be held accountable, and we want back pay and compensation."

"This was a career for me, with potential for advancement in the VA," Fox said. "I just spoke up on Ann's behalf on principle. I felt I did the right thing and that I was protected under EEOC rules, but apparently not."

Missouri Whistleblower Receives $500,000
A former aide to Missouri Governor Matt Blunt has received a $500,000 settlement in a case alleging that he was fired after raising concerns about the administration's e-mail deletions.

Blunt, a Republican, had maintained that Scott Eckersley was fired for legitimate reasons. But a letter from Missouri Attorney General Chris Koster defended Eckersley's reputation and concluded that—contrary to public assertions from Blunt's administration—Eckersley had offered advice about Missouri's open-records law.

Governor Jay Nixon, who succeeded Blunt in January, had promised a letter clearing Eckersley's name. But the Nixon letter did not go far enough, Eckersley said. Reports the Kansas City Star:

Koster's letter is more specific. It states that evidence refutes assertions that Eckersley never offered advice about the Sunshine Law; that Eckersley had received permission to do limited legal work for his family while employed by the governor's office; and that there is no basis for accusations that Eckersley was possibly using illegal drugs.

“When reading the two letters together, it's clear that this is an exoneration, and that I accomplished what I set out to do,” Eckersley said. “The principles in this suit are what were important to me, and one of those principles was clearing my name both personally and professionally.”

Wednesday, September 23, 2009

Don Siegelman Case Might Be Repeating Itself in Alabama

Is the Don Siegelman case playing out all over again, this time in Mobile, Alabama?

The case of noted outdoorsman Edmond H. "Eddie" Smith IV is alarming enough to make that a legitimate question.

Siegelman, one of the most successful politicians in Alabama history, has spent nine months in federal prison and could be headed back there, pending the outcome of various motions and appeals. Smith has been in the Mobile County Jail for more than eight months on a federal firearms-related conviction.

We have reviewed both cases and concluded that both men are not guilty of the crimes with which they were charged. Our research indicates it's not a close call, in either case.

So how does this happen in what is supposed to be the greatest democracy on earth? How do two men, with very different backgrounds and personalities, wind up in federal custody for crimes they did not commit?

Both appear to be victims of a corrupt U.S. Department of Justice, one that became grossly dysfunctional under George W. Bush and remains deeply troubled roughly nine months into the Barack Obama administration.

Siegelman clearly was the target of a political prosecution. Smith appears to have been targeted in what we have called a "financial prosecution," a case driven not by a lust for political power but by the allure of an attractive (and valuable) piece of property.

Neither case appears to have been brought, or prosecuted, based on facts or law. Both cases seem to represent a perverse form of "justice" that has become a trademark of the deep-red Deep South, particularly in Alabama.

How has Dixie become home to a "toxic stew" of politics and justice that can produce outrages such as the Siegelman and Smith cases? Perhaps we can shine light on that question by examining the similarities between the two cases:

* The Mobile Press-Register Connection--Eddie Curran, a reporter for the Mobile Press-Register, is credited with "breaking" the Siegelman story. Curran produced a multi-part series, more than 100 stories in all, on the Siegelman administration. Curran also produced a multi-part series on Eddie Smith in 2007. (Paul Cloos edited both series.) In both series, the Press-Register generated voluminous amounts of unflattering information about the subjects. But there was precious little about actions that would rise to the level of crimes. In the case of Siegelman, even federal prosecutors did not include much of Curran's material in the criminal case. In the case of Smith, the paper provided details about several legal entanglements that pre-dated the series. But there is little, if any, information about ongoing unlawful activity on Smith's part. Despite that, both Siegelman and Smith wound up as targets of federal prosecutions. The bottom line? Press-Register "investigations" have a curious way of leading to federal prosecutions, whether the stories point to actual criminal wrongdoing or not.

* A Bush-Appointed Judge--U.S. District Judge William H. Steele, a George W. Bush appointee, oversaw the Smith prosecution in the Southern District of Alabama. Another Bush appointee, Mark Fuller, oversaw the Siegelman case in the Middle District of Alabama. Bush seemed to have particularly big plans for Steele. The president nominated Steele for a seat on the 11th Circuit Court of Appeals in 2001, but the nomination became stalled in the Democratic-controlled Senate Judiciary Committee because African-American groups protested Steele's decisions in two civil-rights cases as a magistrate judge. The 11th-circuit nomination wound up going to Bill Pryor. Is Steele cut from the same cloth as Mark Fuller? Sure looks that way.

* A Dysfunctional Prosecutor's Office--Alabama perhaps is best known for its corrupt Bush-appointed U.S. attorneys in the Northern District (Alice Martin) and Middle District (Leura Canary). But the Southern District has not been much better. While the Northern and Middle districts suffered from poor leadership, the Southern District has had almost no leadership at all. David York, Bush's original appointee, resigned amid allegations of an improper relationship. Deborah Rhodes, who had served in U.S. attorney offices in San Diego and Philadelphia, took over in 2005. In 2007, Rhodes was asked to wear two hats--becoming principal associate deputy attorney general in Washington, D.C., along with her duties in Mobile. Is it safe to say that the Mobile U.S. attorney's office has been a rudderless ship for several years? It sure looks that way.

* Questionable Prosecutorial Tactics--This is a theme that cropped up time and again in Alabama during the Bush years. And the questionable tactics tended to pay off when Bush-appointed judges were in charge. In the Siegelman case, prosecutors wrote a vague affidavit that disguised the fact that the alleged criminal actions took place well outside the five-year statute of limitations. Fuller let them get away with it. In the case of Alabama Rep. Sue Schmitz, prosecutors filed a motion in limine that asked the court to strike most of Schmitz' key defenses. A Bush-appointed judge, David Proctor, let them get away with it. In the Smith case, prosecutors filed a motion in limine asking the court to prevent Smith from arguing that he pleaded guilty to a misdemeanor, not a felony, in an underlying state case. Steele let them get away with it, cutting off Smith's No. 1 defense. A motion in limine is designed to reject evidence that is inadmissible or unfairly prejudicial. In Alabama during the Age of Bush, prosecutors and judges appear to have used them to deprive defendants of critical, and legitimate, defenses.

(To be continued)

Tuesday, September 22, 2009

Pressure on Justice Department Intensifies in Siegelman Case

Attorneys for former Alabama Governor Don Siegelman are requesting an evidentiary hearing, in part to determine if federal prosecutors committed crimes in their handling of the case. Siegelman also directly targets U.S. District Judge Mark Fuller, saying Fuller's handling of the trial constitutes a "screaming violation of due process."

Meanwhile, a central figure in the Siegelman story calls on Attorney General Eric Holder to step down from the case, because of conflicts related to his former law firm, and ask President Obama to appoint a special counsel.

A heightened sense of drama now surrounds the Siegelman case, and veteran attorney/journalist Andrew Kreig lays it out in a compelling overview piece at Huffington Post. Writes Kreig:

What we now face is as dramatic a moment as I've ever seen in 35 years as a professional in this field, first as a news reporter covering federal courts and more recently as an attorney and commentator.

At this point, the Justice Department is either going to help enforce silence about Judge Fuller and the others who are accused of official misconduct, or else DoJ will stop making preposterous arguments to prevent a public hearing on the evidence, and potential new trial before a new judge. Then the evidence will take its course, whatever that might be.

Siegelman's latest court filing is filled with hard-hitting attacks against the Montgomery, Alabama-based judge and prosecutors who oversaw the trial. The complete document can be read here:

Siegelman Evidentiary Hearing

The filing focuses on what it calls a "smoking gun" e-mail provided by Justice Department whistleblower Tamarah Grimes:

The prosecution acts as if the “smoking gun” third email from District Ethics Officer and First Assistant United States Attorney, Patricia Snyder (later Watson) does not exist. But it does.

That email included the following:

“I wanted to let you know that Tami has agreed to work on the big case that Steve Feaga and J.B. Perrine are busily working up. Since this case has ACE potential, having her work on it is justified. Leura [Mrs. Canary] and Louis [Franklin (“Franklin”) who was supposed to be in charge of the Siegelman case after the alleged recusal] both liked the concept, and Tami is excited about it as well. Because of the large volume of documents involved.”

The e-mail could have criminal implications for federal prosecutors, the Siegelman team states:

If the facts show that the third email is accurate, attorneys and others in the Department of Justice and the United States Attorney’s Office for the Middle District of Alabama may have engaged in criminal conduct, as well as having violated a statute prohibiting conflicts of interest by employees of DOJ.

In a footnote, the filing cites criminal statutes that might have been violated:

18 U.S.C. § 208 (a) (conflict of interest); 18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony) among others.

Alleged threats to government witness Nick Bailey also could have criminal implications for prosecutors:

Again, all the evidence is not in, but if it turns out that the Government threatened witnesses, those who did so may have their own problems. 18 U.S.C. § 1512 (Tampering with a witness, victim, or an informant).

The filing saves its harshest language for Judge Fuller, who oversaw the trial involving Siegelman and former HealthSouth CEO Richard Scrushy. Fuller was shown a postal-inspector report about the authenticity of alleged juror e-mails, and that draws considerable attention in the filing:

Even if the Court did not read the report, it doesn’t matter. The Government secretly commissioned the Postal Inspector to determine the non-authenticity of the emails. After it received the report, it did not tell the defense, but it was shown to the Court. If there was ever anything that smacked of the appearance of judicial impropriety, this was it. It was also a screaming violation of due process to have secret investigations arranged by the Government and to conceal the results from the defense.

Speaking of hiding critical evidence from the defense, that is on the mind of Alabama attorney and Siegelman-case whistleblower Jill Simpson. She notes that Attorney General Eric Holder asked for a conflict waiver from President Obama on September 4 so that Holder could remain involved in the case of former U.S. Senator Ted Stevens (R-AK). The conflict arose because Holder's former law firm, Covington & Burling, now represents Public Integrity Section Chief William Welch, who is the subject of a criminal investigation for his actions in the Stevens case. Obama granted the ethics waiver, allowing Holder to remain on a case where he appeared to have a conflict.

Simpson points out, however, that Welch also was involved in the Siegelman case. And that means Holder has a conflict there, too. Says Simpson:

I wonder what (Holder) will do now that Siegelman has made William Welch part of his case, as many have encouraged him to do for months.

I do not believe (Siegelman) knew at the time he filed this last paperwork that Covington & Burling was representing William Welch; it has been a secret in Washington and quietly handled behind the scenes. But I suspect firecrackers will go off about this in all the cases in the South where Welch is accused of wrongdoing and helping hide facts that needed to be turned over to defendants, just as took place in the Stevens and Siegelman cases.

Holder should remove himself from the Siegelman case and make arrangements for Obama to appoint a special counsel, Simpson says. Also, she wonders how long the White House has been aware of Holder's conflict regarding the Siegelman case--and others in the Deep South:

Shame on them for allowing an attorney general to stay in a case where he thinks he might have a conflict. He needs to not be overseeing any cases where his old firm is involved, and since Mr. Welch is their client, AG Holder should have gotten out of the Siegelman case the minute he knew it; Mr. Welch's misconduct has been covered in numerous articles.

It is important to the citizens of our country that the Justice Department always appear to be conflict free, and we need to let President Obama know that Holder is not conflict free. . . . .

The damage (Holder) has done overseeing the Siegelman case while his old firm had Welch as a client is not something that can be corrected. The attorney general should dismiss the case and ask for a new trial.

Alabama's Right-Wing Publishers Are Hitting the Exits

The job security of publishers at Alabama's right-wing metro newspapers seems to have gotten shaky.

First came news that Victor Hanson III is retiring as publisher of The Birmingham News. Hanson, 53, became publisher in 2001.

Now we learn that Howard Bronson has been forced out at the Mobile Press-Register. And Bronson isn't happy about it. He has filed a lawsuit against the newspaper and its owners, claiming breach of contract and other wrongful acts when he was asked to retire.

What is behind these moves? Financial concerns almost certainly are part of it. The newspaper industry is struggling mightily as advertising revenue dwindles and readers turn to the Web for news and opinion.

Could something else be in play? The Press-Register and reporter Eddie Curran are credited with "breaking" the Siegelman story, leading to the governor's prosecution on federal corruption charges. The Birmingham News also played a major role throughout the Siegelman case and in coverage of the Alabama two-year colleges story, which has focused largely on Democrats serving in the state legislature.

Thanks largely to the reporting of Harper's Scott Horton, we now know that both newspapers enjoyed alarmingly cozy relationships with federal prosecutors during the George W. Bush era. Is it possible that someone is looking into the improper role Alabama newspapers might have played in helping to bring political prosecutions? Could that have contributed to the exit of newspaper publishers in Birmingham and Mobile?

If so, that would mean someone at the Obama Justice Department actually is awake and cares at least a little bit about rampant wrongdoing in the Bush DOJ. So far, we've seen little evidence that anyone on Team Obama has such an outlook. It's our guess that these exits are based mainly on financial difficulties in the newspaper industry, a situation that isn't likely to improve with the shuffling of publishers.

Monday, September 21, 2009

Whistleblower Is the Target of Dirty Tactics in Karl Rove's Alabama

What happens to individuals who incur the wrath of the right-wing machine that has come to rule Alabama since Karl Rove arrived on the scene in the mid 1990s?

If you are former Governor Don Siegelman or former HealthSouth CEO Richard Scrushy, the Department of Justice tries to turn you into a "criminal."

If you are me, a blogger who happens to write uncomfortable truths about Alabama's GOP-controlled justice system, someone cheats you out of your job.

If you are Tamarah Grimes, a former legal aide in the Middle District of Alabama, you experience both. After Grimes blew the whistle on prosecutorial misconduct in the Siegelman case, right-wing forces seemingly pulled out all the stops--costing Grimes her job AND compiling bogus criminal charges against her.

Do loyal Bushies, many of whom still call the Justice Department home, play dirty? Oh, yes. And that is the central message in part II of Andrew Kreig's interview with Grimes at OpEd News.

Did the Justice Department welcome Grimes' revelations about prosecutorial misconduct in the Siegelman case? Not exactly. The Office of Inspector General (OIG) referred her for a criminal investigation, arbitrarily waiving her right to confidentiality with arbitrator Sharon Stokes, of Atlanta. Says Grimes:

Then Mrs. Stokes and Rita Sampson, Assistant Director of the Executive Office for United States Attorneys EEO Staff, supposedly "neutrals" in the EEO process, began corresponding with DoJ's Office of Inspector General to push for a criminal investigation of me. Later, I discovered that Mrs. Sampson was no neutral at all. Mrs. Sampson formerly worked with the Executive Office's General Counsel and as former General Counsel for the FBI. On March 19, 2008, DoJ Special Agent Ronald Gossard of the Inspector General's office in Sharon Stokes' district of Atlanta requested that I be indicted on criminal charges arising from confidential discussions with the “neutral” mediator during an active mediation. The request was addressed to Assistant United States Attorney Melvin Hyde, Jr. in the U.S. Attorney's Office in Columbus, GA.

What was at the heart of Gossard's request that Grimes be indicted on criminal charges? Grimes tried to find out, and after considerable stalling from the DOJ, she determined that the request was based on charges that she had improperly tape recorded conversations while serving on the Siegelman prosecution team. Grimes was compelled to take part in a Kalkines interview, which means a government employee is required to answer questions about her official duties so long as the government also grants the employee immunity from prosecution based upon that information.

Did the DOJ uphold its end of the bargain? Not exactly. Says Grimes:

In violation of Kalkines, DoJ used my testimony from March 27, 2008, against me to accomplish my termination. According to a Report of Investigation authored by Special Agent Gossard on June 12, 2008, the investigation failed to develop any substantive evidence to support the charges against me. However, in Gossard’s sole opinion, I was guilty of making false statements to a federal law enforcement officer under oath during my Kalkines interview for every occasion I denied making statements to the mediator about the existence of audiotapes. Later, in an internal administrative action, DOJ accused me of lying to a federal agent. I asked them to produce the audiotapes, and of course they could not. There are none. There never were.

What did Gossard wind up doing? Better take a deep breath before you read this because it boggles the mind:

Special Agent Gossard issued, “OIG Report of Investigation No. 2008-00904,” from which I draw many of these specifics and timelines. The report concludes that although no evidence was developed to support the allegation that I made audiotape recordings of anyone at all, for any reason at all, he concluded that I made false statements because I denied making audiotape recordings.

You heard that right. Grimes denied making audiotape recordings, the DOJ failed to produce any evidence that such recordings existed, but the DOJ charged her with lying to a federal agent for making what--according to their own evidence--was a truthful statement.

This is reminiscent of what happened to me at UAB. All of us in the Office of Periodicals had multiple components to our job descriptions. But two of them clearly were: (1) Use the Web to keep track of Alabama-related news events that could become story ideas for our various publications; and (2) Use the Web to learn about blogs, audio/visual sites, and other forms of "new media" in order to develop possible new projects for our clients. I did those two things--along with all of my other duties--and my boss determined they were "non-work related activity"--even though she had told me to do them.

Nutty, indeed.

Grimes puts her experience in perspective:

The main thing is that I never said I had made audiotape recordings. That is a false claim. The no-win nature of the process is that the only alleged evidence is a claim that I made a verbal claim that I had a tape, and yet I was being criminally accused of denying it. There is no audiotape. No smoking gun.

Legal Profession Tries to Hide Misconduct from the Public

If I had to pick just one thing that is wrong with our dysfunctional justice system, it would be this: The law is a self-regulating profession, meaning that complaints of wrongdoing against a lawyer almost always are heard by other lawyers. And lawyers often have a vested interest in sweeping their profession's "dirty undies" under the mattress, rather than airing them out for public view.

A recent article by Reporter John Schwartz in The New York Times shows that, even in the age of the World Wide Web, the legal profession clings to its ethos of self-protection over self-disclosure. Who are the losers in this game of "hide and don't seek"? The public. And that's just the way the legal profession wants it.

Schwartz reports that a number of brave lawyers have taken to various online social-media sites to gripe about judges. Did the associations and commissions that oversee the legal profession look into the complaints to see if, indeed, the judges were incompetent, or worse, corrupt? Not exactly.

Instead, they took action against the complaining lawyers, issuing reprimands, fines, and other forms of discipline. Schwartz focuses on Sean Conway, a Florida lawyer who blogged about a Fort Lauderdale judge, calling her an "evil, unfair witch." Reports Schwartz:

Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.

Here is the rub, however, and it's an issue that Downey fails to address. If Conway were to use official channels to complain about the judge, his concerns almost certainly would be ignored.

I know because I've seen how state legal-oversight bodies work. I've filed complaints against three different judges with the Alabama Judicial Inquiry Commission. In each case, I did more than just "air gripes." I presented extensive evidence that each judge had repeatedly and intentionally ruled contrary to clear, simple law. I presented evidence that each judge either was incompetent, biased, or corrupt--or some combination of all three.

No action was taken on any of my complaints. None of them was even investigated.

I filed a complaint against lawyer William E. Swatek with the Alabama State Bar. Swatek has been disciplined by the bar three times previously, including a suspension of his license for acts of "fraud, misrepresentation, deceit, and dishonesty." And that does not include a criminal prosecution against him for perjury in the early 1980s. Swatek somehow managed to be acquitted, even though public documents indicate he clearly was guilty, and that allowed him to keep his bar card.

Bar rules state that a lawyer with previous disciplinary problems is subject to particularly close scrutiny. But was my complaint even investigated? Nope.

I know of a Jefferson County man who filed a bar complaint against Swatek, and it involved a case where someone almost lost his life. Did the Alabama State Bar do anything? Nope. (Much more on this case is coming in a future post.)

The Times does not say if Conway, the Florida lawyer, had tried to use official channels to complain about the judge. But it sounds as if Conway felt he was out of options. And his concerns involved issues that could deprive defendants of their right to a fair trial--and their freedom:

In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blog created by a criminal defense lawyers’ group in Broward County. The judge regularly gave defense lawyers just one week to prepare for trials, when most judges give a month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those cases to the back of the line.

“All I had left were my words,” Mr. Conway said, adding that he decided to use the strongest ones he had.

If I could offer Mr. Conway some advice, it would be this: The next time, you criticize a judge online--and I hope you will do it if it is justified--don't just use words like "unfair evil witch." Spell out exactly how he or she is acting contrary to law. Show how he or she is violating procedural, statutory, or case law--and what that means to the parties involved. And don't write on a blog that is read mostly by other lawyers. Write where the general public is likely to see it.

We have written before about the law as a self-regulating profession--and spotlighted the problems that causes. We have proposed solutions, and John Schwartz' article convinces us even more that non-lawyers must get involved in the process. Here are our earlier words, and we stand by them today:

Lawyers have proven that they can't regulate themselves, so let's stop pretending that they can. Most bar associations scare lawyers about as much as Barney Fife scares the criminals of Mayberry. And most judicial inquiry boards scare judges about as much as Otis the Town Drunk scares the criminals of Mayberry.

We need citizen boards with the power to disbar, impeach, fine, spank, apply wedgies, and recommend indictments for wayward lawyers and judges. Obviously these boards will need to be trained by honest lawyers (perhaps law professors?). And they will need lawyers available for advisory purposes. But citizens need to be the ones who determine if lawyers and judges are following the law. And citizens need to be given the teeth to bite bad lawyers in the britches--until it hurts.

Friday, September 18, 2009

Football Coach's Criminal Trial Was a Lose-Lose Proposition

Everyone involved is likely to come out a loser following the trial of a Kentucky high-school football coach on criminal charges related to the death of one of his players on the practice field.

A Louisville jury yesterday found Coach David Jason Stinson not guilty of reckless homicide and wanton endangerment in the death of 15-year-old Max Gilpin in August 2008. Stinson's supporters reacted to the news with relief and tears, but the coach hardly is left a winner. He probably is faced with paying massive legal bills on a teacher's salary.

One of the biggest losers is Commonwealth Prosecutor R. David Stengel, a Democrat who brought a case that had almost no chance of success from the outset. Jurors deliberated only 90 minutes before returning a verdict.

The biggest problem with the case? The statutes in question did not come close to matching the alleged actions on the football field the day of Gilpin's death. As we reported in a recent post, experts found huge problems with both charges:

The Louisville Courier-Journal quotes one veteran attorney:

“The classic example of reckless homicide is firing a gun into a crowded building and killing somebody,” said defense lawyer Steve Romines of Louisville. “Having kids run wind sprints doesn't equate to that.”

The wanton endangerment charge looks flimsy, too. Reports the Courier-Journal:

It may be even harder for the prosecution to convict Stinson on the wanton endangerment count because it requires proof that he knew about the risks to Max's health and consciously disregarded them, said University of Kentucky professor Robert Lawson.

“They must prove he saw the risk . . . and said, ‘To hell with it, I'm going to do it anyway,'” said Lawson, the main author of Kentucky's laws on crime and punishment.

The case did not get any better for prosecutors at trial. Several of Gilpin's teammates testified that on the day in question, they ran only a few more wind sprints than normal. Three of Gilpin's classmates, and his stepmother, testified that Gilpin had complained of not feeling well throughout the day he collapsed.

The biggest blow to the prosecution, aside from its own decision to bring a bad case, was expert testimony showing Gilpin was not dehydrated after his collapse. Prosecutors argued that Stinson had withheld water from his players, causing Gilpin's death. But evidence showing lack of dehydration tended to counter that argument.

Gilpin's parents might have been a double loser. They have filed a lawsuit related to their son's death, which is common in such cases. It's certainly possible that the school district and various officials and coaches will be found to have civil liability. But the Gilpins' civil case might have been hurt by the outcome of the criminal case. Our guess is that they eventually will receive a settlement in the lawsuit, but it might not be what it would have been without the criminal matter.

Other big losers were the taxpayers of Kentucky, who spent probably several hundred thousand dollars on a case that simply did not fit the definition of criminal behavior.

Finally, the case shows there is widespread misunderstanding about the purpose of our criminal-justice system. One Courier-Journal article stated that the prosecution, despite Stinson's acquittal, "sends a strong message" that coaches must err on the side of caution when sending their players through practices on hot days.

But our criminal-justice system is not about sending messages. We're talking about cases where a defendant's freedom often is at stake. Such cases are about this question: Do the facts and the relevant law indicate that a crime was committed?

The answer to that question, in the Stinson case, clearly was no.

Civil cases can bring justice to those who have been harmed--and they can send messages. But if prosecutors pursued the Stinson case in order to "send a message," they were on the wrong track from the outset.

Thursday, September 17, 2009

Don Siegelman and the Poisoning of American Politics

Numerous media outlets have reported in recent years on the coarsening of our culture. A country that once exhibited a sense of grace and humility now seems awash in people who are rude, arrogant, selfish, and dishonest.

If our overall culture has one leg in the sewer, what about our political culture? It seems to be covered in slime from head to toe, with no better example than the bogus prosecution of former Alabama Governor Don Siegelman.

Andrew Kreig, a Washington, D.C.-based attorney and journalist, shows in a recent piece at Huffington Post how the Siegelman prosecution showcases a political culture that is covered with muck.

Kreig focuses on a recent Justice Department filing that argues that Siegelman and codefendant Richard Scrushy have presented "no evidence" since their 2006 bribery convictions that justifies a hearing or new trial. You can almost hear Kreig's jaw hitting the floor as he writes that:

No evidence?

As too often in the past, DoJ officials look like they're exaggerating to block justice and to protect themselves. By seeking to imprison Siegelman for 20 additional years, DoJ clearly seeks to end public debate about Alabama’s most prominent Democrat. He held that distinction for years, at least until he narrowly lost re-election in 2002 following still-mysterious Election night switches of 6,000 votes out of his column in a rural county after polls closed.

Kreig goes on to cite the mountain of evidence that suggests Siegelman and Scrushy were unlawfully prosecuted and convicted:

New evidence since Siegelman’s 2006 trial includes claims of judicial bias and corruption, plus DOJ political prosecution orchestrated by Rove, judge-shopping, jury tampering, failing to comply with prosecutor recusal, firing a DoJ whistleblower, and suppressing evidence that DoJ tried to blackmail its central witness against Siegelman with a sex scandal.

How much more evidence do you need? Not only do everyday Americans have problems with the truth these days, so do the folks who carry out federal prosecutions. That's comforting.

Kreig is not alone in pointing out the dysfunction that has come to permeate our political and justice systems. A group of 91 former state attorneys general recently petitioned the U.S. Supreme Court to hear an appeal in the Siegelman case, coming on the heels of a similar petition from nine U.S. law professors.

The petitions are written in polite legal language, but their essential message to the Supreme Court is this: "Our trial and appellate courts now are so corrupt that they butchered this case and imperiled the freedom of all politicians and their financial supporters. You've got to do something!"

You can check out the documents here:

Siegelman--Former State Attorneys General (PDF)

Siegelman--Law Professors (PDF)

Does such dysfunction have consequences for all of us? Oh yes, says Andrew Kreig:

The all-out federal criminal prosecution launched against Siegelman in 2004 remains the centerpiece of unresolved evidence that Karl Rove used DoJ to target Democratic officials nationwide. In-depth public scrutiny of the DoJ's high-ranking prosecution teams risks revelations about similar problems in hundreds of other disputed DoJ investigations that altered the nation’s political map during the Bush years.

In the long run, however, DoJ risks even more – including public confidence that it's protecting our rights to fair elections and trials – if it shirks its responsibility to endorse a full hearing to clear the air.

University of Alabama Continues to Exhibit Clueless Leadership

The folks who run the University of Alabama System continue to look like a bunch of dolts.

The latest example? My former employer, the University of Alabama at Birmingham (UAB), apparently is not content to cheat people out of their jobs. Now UAB faces charges that it essentially stole intellectual property belonging to two local graphic artists. Interestingly, the case centers around UAB's Office of Public Relations and Marketing, where I worked before being unlawfully terminated.

The case also raises interesting questions about another lawsuit, one involving perhaps the best-known artist in Alabama--a man who has become synonymous with University of Alabama football. (More on that in a moment.)

Samuel and Amy Collins state in a federal lawsuit that UAB unlawfully used copyrighted illustrations in various print publications and on university Web sites. The Collinses cite roughly 250 instances where their illustrations were improperly used. Their complaint alleges copyright infringement and conversion, which is essentially a civil form of theft.

Defendants are the University of Alabama Board of Trustees (the legal entity for UAB), the UAB Health System Managing Board, and Ron Gamble, the director of UAB Creative Services.

I worked closely with Gamble for the past six or seven years. A couple of years ago, the managers in our office--including Gamble and my former supervisor, Director of Periodicals Pam Powell--became aflutter over this very issue.

It must have been around March 2007 because, according to the Collinses' lawsuit, that's when they notified Gamble that they had discovered one of their illustrations being used as the banner on the UAB Comprehensive Cancer Center Web site.

I can remember the editors in our group receiving cautionary notes about the use of copyrighted illustrations. Evidently someone wasn't cautious enough. The Collinses' complaint states that in September 2007 they discovered more than 200 of their illustrations on various UAB Web sites and publications, re-published or re-used beyond the scope of their respective licenses.

I'm not sure why Gamble is singled out as the only individual named in the lawsuit. I can think of several other folks, particularly Powell and Associate Vice President Dale Turnbough, who are responsible for UAB publications and Web sites--and should be held accountable in this case.

Gamble is one of many people at UAB who does real work--and does it well. It's possible Gamble screwed up in this situation. But based on my experience, my guess is that he was hampered, like everyone else in Public Relations and Marketing, by an utter lack of leadership from Dale Turnbough--and from her superior, Vice President Shirley Salloway Kahn. If the Collinses want to hold some individuals accountable, I hope they will look higher up the UAB food chain, beyond Ron Gamble.

God knows, I'm hardly a fan of Pam Powell at the moment. But she, too, operated under the handicap of lax leadership. In fact, Powell flat out told me that she didn't trust her UAB superiors to make a wise decision in naming her successor upon her retirement. That's one area where Powell and I agreed.

Turnbough and Kahn provide almost no oversight or support to those who work under them, and from where I sit, they are the ones who ultimately should be held accountable in the Collins lawsuit.

Come to think of it, I seem to recall seeing a memo from the UAB Office of Counsel about the issue of copyrighted images. That might explain this whole screwup. Based on what I've seen of University of Alabama lawyers, they would have to improve greatly to merit a comparison to The Three Stooges. If UA lawyers were involved, they probably are the source of the problem.

We will follow this case with great interest. The last time I checked the court file, UAB had filed its usual defense, claiming that its status as a state entity makes it immune from a lawsuit.

Interesting isn't it that an institution that rakes in more than $400 million a year in federal funds would claim that its immune from federal law? But UAB seems to do it almost every time it is sued. There are a number of exceptions to claims of sovereign and qualified immunity, and I suspect the Collinses' lawsuit will move forward--if they get a judge who is halfway honest, always a big if.

And what about that beloved artist we mentioned earlier. We are talking about Daniel Moore, who has become famed for his paintings of iconic moments in University of Alabama football. One can only imagine the number of dens and living rooms around Alabama that feature a Daniel Moore print.

In a baffling case of ineptitude and cluelessness, the University of Alabama Board of Trustees decided to sue Moore four years ago, claiming that he was improperly benefiting from use of the university's image. The case is ongoing, now on its sixth judge, and here is the latest.

Moore has filed a countersuit, and from where we sit, he clearly should prevail on First Amendment grounds.

The University of Alabama suing Daniel Moore is a little like the Catholic church suing Michelangelo. Few people on the planet have done more than Daniel Moore to portray the University of Alabama in a favorable light. And he is much loved by UA's supporters. So it makes lots of sense to sue him, right?

The Daniel Moore lawsuit might go down as one of the most ignorant legal maneuvers in history. But it's an example of the kind of short-sighted, ham-fisted thinking that rules in the University of Alabama System these days.

The Collins lawsuit--and my unlawful termination--are two other glaring examples. And there are others, including recent lawsuits involving longtime UAB faculty members, such as Susan Key, Rosalia Scripa, and Horace Huntley. And let's not forget lawsuits involving several international medical residents at the UAB family medicine training program in Huntsville--a subject we will be covering extensively in the coming weeks.

Now let's compare the Moore and Collins lawsuits for a moment. In one, the University of Alabama is hyper protective of its image. In the other, the University of Alabama says its perfectly fine to misuse images belonging to someone else.

See what I mean about ham-fisted thinking?

While we're at it, let's compare the Moore lawsuit to my unlawful termination. In one, the University of Alabama contends that Moore does not have a First Amendment right to create art based on public events. In the other, the University of Alabama apparently contends that an employee (me) does not have a First Amendment right to discuss matters of public concern on a blog that he produces on his own time.

Hey, at least university leaders are consistent on the First Amendment. They don't believe in it for anybody.

I don't know all of the facts and the law associated with the Moore and Collins cases. But I do know I'm going to be pulling for Moore and the Collinses to prevail big time.

If they do, perhaps that will help cause the people of Alabama to wake up and realize they need major changes in leadership at their flagship university.

Wednesday, September 16, 2009

Siegelman Prosecutors Received Extensive Perks From Their "Recused" Boss

Prosecutors in the Don Siegelman case regularly received perks from U.S. Attorney Leura Canary, even though Canary supposedly had recused herself. During the case, Siegelman prosecutors worked at an isolated, off-site location that was accessible only to them--and were subject to almost no managerial review.

Those are among numerous revelations from Department of Justice whistleblower Tamarah Grimes in a fascinating interview with attorney/journalist Andrew Kreig at OpEd News.

Grimes wrote a letter to Attorney General Eric Holder on June 1, 2009, about prosecutorial misconduct in the Siegelman case. She was fired on June 9 from her position as a legal aide in the DOJ's Middle District of Alabama office in Montgomery.

Grimes provides numerous insights into the dysfunctional environment that surrounded the prosecution team in the Siegelman case. And she makes it clear Canary remained intimately involved, long after she had supposedly recused herself.

Canary lavished perks on those who were working what the office called "The Big Case." Grimes tells Kreig:

The victory-at-all-costs mentality of the prosecution of The Big Case pervaded the office. Every question was answered with, "This is the most important case in the office." Every milestone in The Big Case was rewarded with a personal acknowledgement from U.S. Attorney Leura Canary. When the superseding indictment was unsealed, Mrs. Canary hosted a party at the Marina to celebrate. This pattern of special recognition by Mrs. Canary was repeated throughout the case. Eventually, there was new office furniture, premium office space in the new building, plum appointments and assignments, conferences and seminars, new titles, generous time-off and no supervision, all-related to the work on The Big Case. FBI Agents also received perks and rewards for their work on the case.

How special was The Big Case in the Montgomery office?

We were told dozens of times that The Big Case was the most important case in the office, and that U.S. Attorney Leura Canary would grant the prosecution virtually unlimited latitude to obtain convictions. This message created a victory-at-all-costs mentality within the prosecution. This mindset was regularly reinforced by “victory” celebrations hosted by Leura Canary at every milestone in the prosecution. As you know, Leura Canary was alleged to have recused herself during this time.

Victory celebrations? Most Americans probably did not realize that federal prosecutors worked that way. They also probably did not realize this:

The Big Case prosecution team did not work within the U.S. Attorney's Office. Instead, it was in an isolated off-site location accessible only to the prosecution team. There was a complete lack of normal managerial and peer oversight at the offsite.

Was this special location for the prosecution team a minor detail? Not in Grimes' view. She says it was a breeding ground for dysfunction and improper conduct:

In my personal experience, these circumstances created a perfect storm. It was an environment not at all conducive to self-control, personal or professional responsibility or accountability. In that isolated off-site location, away from any managerial oversight, the situation quickly deteriorated into a false sense of invulnerability and omnipotence among the prosecution.

What was it like to work in the Montgomery office during the Siegelman case? Grimes provides disturbing details:

The prosecution of The Big Case divided the employees along ethical and ideological lines. The first group, comprised of those willing to do whatever it took to succeed, received extraordinary rewards and preferential treatment with the full support of Mrs. Canary. The second group, comprised of those who opposed unethical and sometimes unlawful conduct, were subjected to harsh retaliation. The third and final group simply sought to keep their heads down and make it through the day without getting on the wrong side of the "right" people and losing their jobs.

This is the reality of life in the Montgomery U.S. attorney's office for dozens of DOJ employees. As a consequence of observing harsh retaliation, it is difficult to find a single employee willing to risk his or her job to honestly discuss the matters without fear of reprisal. This is particularly true since they have seen me and the other employees who were willing to stand up for principles and ethics escorted from the building and terminated.

Tuesday, September 15, 2009

Family Ties to Riley Pay Off Big Time for Birmingham Law Firm

A Birmingham law firm has raked in bucket loads of cash since Governor Bob Riley took office in 2002. Riley's son-in-law, Robert J. Campbell, just happens to be a shareholder at the firm--Bradley Arant Boult & Cummings.

The Montgomery Independent reported on August 20 that Riley had paid Bradley Arant at least $650,000 in public funds to advise a "task force on gambling" Riley created earlier this year.

But that only scratches the surface of the cushy relationship between Bradley Arant and the governor's office.

Bradley Arant's legal fees for representing the state of Alabama have increased almost 460 fold under the Riley administration, according to a Montgomery Independent story dated March 26, 2009.

Riley took office in January 2003, and Bradley Arant hired the new governor's son-in-law roughly nine months after the inauguration. Rob Campbell is married to Minda Riley Campbell, the governor's daughter.

Have connections to the Rileys paid off for Bradley Arant? Let's do some math, courtesy of the Montgomery Independent and reporter Bob Gambacurta.

Based on numbers from the Alabama Comptroller's Office, Bradley Arant received $7,264 for legal services from the state in the four years before Riley took office. As of March 17, 2009, the firm had received $3,339,258.77 for legal services since Riley took office. That's a 460-fold increase. Reports Gambacurta:

Section 36-25-5 of the Code of Alabama prohibits the use of public office for personal gain by a public official or a member of his or her family. Code Section 36 is the Alabama Ethics law.

Rob Campbell told the Independent that there is nothing improper or illegal about the firm doing business with the state while employing one of the governor's family members. John B. "Beau" Grenier, Bradley Arant's executive-committee chairman, insisted the firm is in compliance with state ethics law.

Grenier, however, declined to provide details about Campbell's compensation package or his contract with the firm.

A member of the Alabama Ethics Commission staff called the arrangement "somewhat problematic." Reports Gambacurta:

Questions have circulated on Goat Hill for years about the relationship between the Riley administration and the firm which employs his son-in-law. Because the Ethics Commission has never received a complaint against Riley, the matter has never been investigated.

Reliable sources tell The Independent such a complaint will soon be forthcoming.

This is the second ethics question to surface against Riley in recent weeks, coming on the heels of allegations that he had improperly contacted members of the Alabama Supreme Court about a pending gambling-related case.

Alabama's two largest newspapers, The Birmingham News and Mobile Press-Register, were all over the story when allegations of unethical conduct arose against former Democratic Governor Don Siegelman. In fact, the newspapers pretty much created the allegations with their enterprising reporting.

Has either newspaper reported on the recent signs of wrongdoing from the Riley administration? We haven't spotted the first word. If anyone sees evidence of reporting on these issues--from any newspaper other than the Montgomery Independent--please let us know.

Interestingly, a Bradley Arant partner named Matthew Lembke joined Riley's son, Rob Riley, in submitting affidavits to the U.S. House Judiciary Committee regarding the testimony of Alabama attorney and Siegelman-case whistleblower Jill Simpson.

As we reported here at Legal Schnauzer, the Riley and Lembke affidavits were filled with hedge language that did little, if anything, to counter Simpson's allegations that Siegelman was the target of a political prosecutions.

Was Lembke motivated to file his flimsy affidavit because of the financial boost his law firm was receiving from the Bob Riley administration? It certainly looks that way now.

Monday, September 14, 2009

Alabama Jury Awards $2.4 Million in Workplace-Retaliation Case

A federal jury in Birmingham recently struck a blow for victims of workplace retaliation.

Jurors found that Sumter County Sheriff Johnny L. Hatter must pay $2.4 million to two former employees who faced retaliation and wrongful termination on the job.

The jury awarded almost $1 million to Kimberly Smith-McKenzie, a part-time dispatcher who filed a sexual-harassment complaint after Hatter said he would offer her a full-time job if she participated in phone sex with him.

Jurors awarded $1.4 million to Bruce Walker, a deputy who said he was fired after supporting Smith-McKenzie and discussing the sexual harassment with a state investigator.

The case presents a number of intriguing angles.

One, the verdict is unusually large for an employment case. Does that mean jurors, with unemployment raging in the Bush recession, have a heightened sensitivity for those who are mistreated on the job?

Two, Alabama has a tortured history on race, but this case hints at progress in that area. Hatter and Smith-McKenzie are black. Walker, who stood up for a black victim of sexual harassment, is white.

Hatter's attorneys vowed to fight the verdict through post-trial reviews or appeals. The case has been a drawn-out ordeal for Smith-McKenzie and Walker. Reports Stephanie Taylor of the Tuscaloosa News:

Walker, a fourth-generation Sumter County resident, could not find a job in the county after he was fired, Robertson said, so he joined the U.S. Army. He had been a member of the National Guard for many years. The case, filed in 2001, languished in court because Walker was on active duty for much of the time.

Smith-McKenzie moved to Montgomery with her husband and son and works full time for the U.S. Postal Service.

Regular Legal Schnauzer readers know that I, like Smith-McKenzie and Walker, have been the victim of workplace retaliation. I complained about age discrimination and harassment against my former supervisor at the University of Alabama at Birmingham (UAB) and wound up being fired roughly three weeks later--contrary to UAB policy and federal law.

Retaliation seems to be rampant in the modern workplace, and we have written extensively about the subject--in Alabama and beyond.

Does the Sumter County verdict mean the ground has shifted on retaliation lawsuits? Does it mean that I, or other victims, will receive seven-figure judgments in our favor?

Absolutely not. In fact, it doesn't mean we will prevail at all. If I've learned anything about the federal-court environment, it's this: Juries can swing wildly from one extreme to another--on cases that appear to present similarly vile levels of misconduct.

So what can we take from the Sumter County case? Perhaps it is this message: If rogue employers, in Alabama or elsewhere, think juries are going to treat workplace retaliation as a frivolous matter . . . they might want to think again.

Thursday, September 10, 2009

Court Ruling Might Tighten the Reins On the Wild, Wild Web

A catfight between two women with ties to the fashion industry has evolved into a New York court case with possibly far-reaching implications for the way people interact on the Web.

The case might give pause to those who find it sporting to hurl insults and threats at others under the cloak of Web anonymity.

Here at Legal Schnauzer, we have been the recipient of numerous anonymous threats, and we know they can harm more than your reputation. They can help ruin your career, and we have been paying close attention to the case in New York.

The story in New York apparently started when model Liksula Cohen made a derogatory comment about fashion student Rosemary Port to Port's boyfriend. Port, who is from Florida, responded by starting an anonymous Google-based Web site called Skanks in New York, referring to Cohen as an "old hag" and a "ho."

Cohen sued Google to force the company to hand over identifying information about her cyber tormentor--and she won. Reported The New York Daily News:

A Manhattan Supreme Court judge forced Google to unmask Port, rejecting Port's claim that blogs "serve as a modern-day forum for conveying personal opinions, including invective and ranting" and shouldn't be regarded as fact.

Port has responded by filing a lawsuit against Google. Reports the Daily News:

"When I was being defended by attorneys for Google, I thought my right to privacy was being protected," Port said.

"But that right fell through the cracks. Without any warning, I was put on a silver platter for the press to attack me. I would think that a multi-billion dollar conglomerate would protect the rights of all its users."

Port's lawsuit should not get very far. The right to privacy never has been held to include the right to anonymously trash other people's reputations--and courts are unlikely to toss defamation law out the window now.

Like most bullies, Port seems to be nothing but a crybaby when she is unmasked. Notice that she is unhappy when the press "attacks" her. But her real attacks on Cohen's reputation? Those are perfectly fine.

Why does the "skank" case resonate here in SchnauzerWorld? Well, we know what it's like to be on the receiving end of cyber bullies. Our experience has centered mostly on anonymous threats--at least two of which apparently came from someone who was involved in costing me my job at the University of Alabama at Birmingham (UAB).

After a February 2008 post about connections between U.S. Attorney Alice Martin and Alabama GOP political consultant Dax Swatek, we received an anonymous comment: "Nut case, yours is comong (sic)."

After an April 2008 post, we received an anonymous comment claiming that I was blogging at work, and my employer, UAB, needed to be notified. On the date in question, I was taking a vacation day, so I was not blogging at work--then or any other time.

But roughly a month later, I was fired at UAB, after 19 years on the job, amid vague allegations that I was blogging at work. (By the way, UAB's own IT expert testified at my grievance hearing that those allegations were not true.)

Am I interested in the source of those anonymous threats? Oh, yes. Am I intrigued that a judge forced Google to turn over identifying information in the New York case? Yes, indeed.

What does the "skank" case mean for the Web in general? You can read a Web-oriented analysis of the case here. An excellent legal analysis is available here at

As a trial-court decision in New York, the "skank" case has no precedent value on other courts. But it's importance could go beyond legal technicalities:

The Cohen case still sets a precedent in the court of public opinion. This is a celebrity case that is being followed by a lot of people who otherwise would not be interested in the technicalities of Internet law. It is sending a clear message to would-be spiteful bloggers who are quickly learning that their cloak of anonymity may not be as thick as they once though it was. It is one more step along the road from Internet-as-Wild-West to Internet-as-suburb.