Wednesday, June 30, 2010

Inaction on Siegelman Case Helps Earn a Thumbs Down for Kagan

Elena Kagan's nomination for a seat on the U.S. Supreme Court should be rejected because of her support for enhanced executive authority and her weak record on civil rights, according to a nonpartisan research organization in Washington, D.C.

The Justice Integrity Project (JIP) opposes Kagan largely because she has been part of a leadership team in the Obama Department of Justice that has failed to address constitutional abuses by federal prosecutors and judges during the George W. Bush administration.

How does JIP reach this conclusion? By focusing heavily on the prosecution of former Alabama Governor Don Siegelman. Kagan's seemingly unprincipled stance on that case looks even worse in light of the U.S. Supreme Court's decision yesterday to vacate the judgment against Siegelman and remand the case to an appellate court for further review.

Kagan's confirmation hearings began Monday in the U.S. Senate, and she is expected to be confirmed. But according to JIP, citizens who care about constitutional principles should be concerned about what Kagan might bring to the nation's high court:

“Our nation faces unprecedented threats, with constitutional issues too often decided by a Supreme Court on a partisan, result-oriented basis,” said JIP Executive Director Andrew Kreig. “We need reform. This nominee’s track record on key civil rights issues does not deserve public trust or confirmation─especially given her direct involvement in several notorious cases while representing DOJ as solicitor general.”

Kreig points specifically to the case of Siegelman and codefendant Richard Scrushy. As solicitor general, Kagan filed a brief urging the Supreme Court not to hear an appeal in the case:

JIP argues that Kagan’s undue deference to executive authority, particularly after nomination by her friend Barack Obama, violates the warning of Federalist No. 76 explaining the need for a Senate process that avoids cronyism.

Exhibit A is how Kagan rubberstamped DOJ misconduct in the Siegelman case: In 1999, Scrushy contributed at Siegelman’s request to the non-profit Alabama Education Lottery Foundation. Siegelman then reappointed Scrushy to a state board. At sentencing in 2007, authorities sent the two away in chains for seven-year terms. But an unprecedented bipartisan coalition of 91 former state attorneys general last year told the Supreme Court that such donations are routine and not a crime.

The Siegelman case gets even uglier when you look at it closely, Kreig says--and that's something Kagan and others in the Obama administration have been unwilling to do:

More generally, an in-depth JIP investigation has confirmed that the two defendants were systematically framed, with a cover-up extending to the current administration. Here’s what JIP’s executive director has reported in articles published over the past 13 months:

Authorities headquartered their all-out attack on Siegelman, Alabama’s leading Democrat, from the secure location of an Air Force base. The prosecution had the effect of helping a European-led consortium in its ongoing effort to win $35 billion in Air Force contracts for a next generation of tanker planes, which would be assembled in an Alabama factory. Meanwhile, fraud in Scrushy’s company unrelated to his criminal conviction enabled lawyers suing HealthSouth and its insurers to feast on a $2.8 billion state court civil fraud judgment against him and HealthSouth during his imprisonment.

Of particular concern to JIP is Kagan's apparent willingness to overlook blatant misconduct by federal judges, such as Mark Fuller of Siegelman-case fame:

As described more fully by JIP reports, the two-party system cannot be relied upon to provide the facts in a typical hearing about such vast sums. The money benefits key figures from both parties and through the justice system. Pro-prosecution rulings by Mark Fuller, chief federal judge in Alabama’s middle district, helped ensure guilty verdicts. Fuller has been enriched on the side by $300 million in federal contracts awarded since 2006 to Air Force contractor Doss Aviation, Inc., a closely held company that the judge controls as its largest shareholder. Doss trains Air Force pilots and refuels Air Force planes globally.

In an article yesterday at Huffington Post, Kreig noted that the Supreme Court rejected the arguments Kagan had made as solicitor general on the Siegelman appeal. And he decried a culture in Washington, D.C., fostered by members of both parties, that looks the other way on matters of fundamental justice:

Neither political party has much stomach to poke into the web of military and financial relations that some of us have reported as key factors prompting the prosecution. The judge's company Doss Aviation, for example, has a remarkably important role in training Air Force pilots and refueling Air Force planes. As amplified in my group's statement against the Kagan nomination yesterday, there's far more to that part of the story than most want to explore publicly, especially in wartime and especially given the business relationships involved.

To encourage reform, JIP has launched a special section on its Web site, featuring critics of Kagan, the confirmation process, and the burgeoning executive branch. Kreig points to ongoing events in the Gulf of Mexico as an example of issues likely to face Kagan:

With scant oversight, U.S. presidents increasingly lead the way on economic policies, war-making and mandatory health insurance of dubious constitutionality, as well as warrantless electronic surveillance, torture, and prosecutorial immunity from liability.

Looking ahead, the courts must address mass suffering from BP’s Gulf oil volcano, too often minimized as a “spill.”

Kreig is alarmed by the arrogance he sees from current members of the Supreme Court. And he notes that oversight of justices usually ends with confirmation:

Justice Antonin Scalia, one of those three Republicans who in essence picked Bush as president, famously told a CBS correspondent asking about his decision, “Get over it!” Similarly, Scalia said, “Get a life!” to a critic of his vote to keep secret the vice presidential records of his hunting partner, Dick Cheney, about White House meetings with energy company CEOs.

Is Kagan up to changing that ugly culture? Kreig doesn't think so:

“Kagan’s Harvard, Obama and Clinton credentials would probably lead to easy confirmation during normal times,” Kreig concluded, "with her longtime advisory services for Goldman Sachs simply another feather in her cap."

“But many people are now scared, or angry at Washington and at crony capitalists alike," he said. "People want─and deserve─a reliable advocate on the Court for our basic freedoms.”

Former Aide to Bob Riley Is Found Murdered In Her Mobile Home

A former aide to Alabama Governor Bob Riley was found dead in her Mobile home on Monday morning. Police officers are treating the case as a homicide.

Zoa White, 69, was found dead in her Spring Hill Avenue home when police responded to a report of a burglary. Police have not disclosed the manner of death, nor whether anything was taken from the home.

White had worked on Riley's 2006 re-election campaign and served as director of special projects for the Alabama Department of Economic and Community Affairs (ADECA).

Bill Johnson, who ran unsuccessfully in the 2010 Republican primary for governor, served as director of ADECA under Riley. It's unclear if Johnson and White worked for ADECA at the same time.

Johnson, however, has become one his former boss' harshest critics, raising questions about campaign funds Riley allegedly received from Mississippi gaming interests, funneled through disgraced GOP lobbyist Jack Abramoff.
In fact, Johnson has said that a federal investigation into gambling-related activity in the Alabama Legislature should focus on Riley and other anti-gaming forces, not just pro-gaming Democrats.

Johnson also has filed a complaint with Alabama Attorney General Troy King, alleging numerous conflicts of interests involving the governor and members of his family.

Friends described Zoa White as generous, kind, and elegant. Reports the Mobile Press-Register:

"I would like for people to know she was everything," said friend Jean Hearn. "So kind and generous. She was a beautiful person and she was beautiful in spirit."

Neighbors and friends were shocked by White's death:

As investigators combed the 69-year-old's home for clues Tuesday, friends and neighbors were still reeling from the news.

"Everybody here just loved her a lot," said Cindy Hayes, a receptionist at Dauphin Realty where White once worked as an agent. "She was an extremely nice person and she would help anybody."

White, a mother and grandmother, eventually left a successful real estate career to work on broader social issues for the state.

Mobile County District Attorney John Tyson, who doubles as commander of Riley's Anti-Gambling Task Force, is a key figure in the investigation of White's murder. Officials were remaining tight lipped this morning:

Police spokesman Officer Ron Wallace said in an e-mail, "There is no new information to give at this time."

Wallace declined to say how White was killed, deferring to the results of the autopsy that was scheduled to be performed Tuesday morning. As of Tuesday afternoon, autopsy findings had not been made public. . . .

Police have declined to say if anything was taken from White's home, or if there were signs of forced entry.

Asked Tuesday why investigators would not release how White was killed, or if she was the victim of a burglary, Wallace said, "The information from yesterday's release is all we have now."

Here is a report from Mobile television station WKRG: News

Tuesday, June 29, 2010

Siegelman Judgment is Vacated--What Does It Mean?

The U.S. Supreme Court this morning vacated a judgment that upheld the convictions of former Alabama Governor Don Siegelman and codefendant Richard Scrushy, ordering the 11th Circuit Court of Appeals to review the case in light of last week's ruling on honest-services fraud.

What does it all mean? There is no simple answer to that question. But it probably means that Siegelman and Scrushy, the former CEO of HealthSouth, stand a heightened chance of having their convictions overturned. It should mean that Mississippi attorney Paul Minor, and codefendants Wes Teel and John Whitfield, stand a significantly heightened chance of having their convictions overturned. And it means Siegelman supporters probably will want to bone up on a case called Yates v. United States, 354 U.S. 298 (1957).

On the down side, today's Supreme Court finding is, in a sense, a smokescreen. It might lead to long-delayed justice for victims of political prosecutions. But it does not address the real problem--that corrupt federal prosecutors and judges caused this grave injustice to happen.

From a Siegelman standpoint, today's ruling is filled with irony. That's because the 11th Circuit already has overturned the honest-services fraud convictions against him--although those convictions stand against Scrushy.

The issues remaining against Siegelman involve bribery and obstruction of justice. So how could last week's Supreme-Court ruling on honest-services fraud--involving former Enron executive Jeffrey Skilling and former media magnate Conrad Black--help Siegelman?

Well, that's where the Yates case enters the picture. Justice Ruth Bader Ginsburg cited the case in her majority opinion last week. And here is the key general finding in Yates:

Constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory.

It's undisputed that the Siegelman jury was instructed on theories involving honest-services fraud. But the U.S. Supreme Court has found that theory now is legally invalid. Yates states that such an instruction, in essence, "muddies the water" of a case and raises issues of constitutional error.

Here is the reference to Yates in Ginsburg's opinion in the Conrad Black case, which is styled Black v. the United States:

On appeal, Defendants urged the invalidity of the jury instructions on honest-services fraud. Under the rule declared by this Court in Yates v. United States, 354 U. S. 298, 312 (1957), a general verdict may be set aside “where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Relying on that rule, Defendants urged reversal of their mail-fraud convictions.

While this all sounds like good news for Siegelman and Scrushy, here is one major word of caution: Yates is subject to a "harmless error" analysis. In other words, on remand, the 11th Circuit could find that the invalid instruction on honest services did not have a major impact on the verdict. Given that the 11th Circuit already has proven unfriendly to the defendants in the case, that certainly could happen.

Today's finding definitely should be good news for the Minor defendants. That's because their bribery convictions were overturned by the U.S. Fifth Circuit Court of Appeals, and fraud is the central issue remaining. Based on the Supreme Court's new definition of honest-services fraud, the chances of those verdicts being overturned should be high.

On the down side, however, we do not even know if the Supreme Court will hear the Minor case, and Raw Story reports that a notice is not expected until October. Also, the Fifth Circuit, much like the 11th Circuit in the Siegelman case, already has proven unfriendly to the defendants.

That brings us back to the real issue in these cases: The district courts and circuit courts have acted in an abominably corrupt manner--and yet the Supreme Court keeps remanding issues back to courts that already have proven they can't rule lawfully in these cases.

Today's news is encouraging in the sense that the Siegelman and Minor defendants now stand a better chance of being freed. But they never should have been in prison in the first place. Ethical prosecutors, not under the influence of the corrupt Bush Justice Department, never would have brought these cases. Under the law, there was never any bribery or honest-services fraud from the outset. If prosecutors somehow did manage to bring the cases, ethical district judges would have kicked them out long before they ever reached a jury.

That's not just our opinion, by the way. We have written numerous posts that conclusively show that both the Siegelman and Minor cases were based on unlawful jury instructions and other wrongheaded rulings by the trial judges--Mark Fuller and Henry Wingate, respectively. Here are links to just a couple of many posts that show the convictions in both cases were unlawful:

How the 11th Circuit Cheated Don Siegelman: A Summary

The Paul Minor Ruling: More Evidence of Our Crumbling Justice System

Consider what these defendants have lost while corrupt prosecutors and judges played games with their lives. Just consider this curious timeline from the Siegelman case:

Conviction, June 29, 2006

Sentencing, June 29, 2007

Supreme Court Order, June 29, 2010

How ironic is that? Siegelman and Scrushy have lost four years of their lives--and that doesn't count all of the headaches they went through leading up to the trial. The same general time frame applies to the Minor case, although it has been even worse for those defendants. They had to go through two trials because the first resulted in a hung jury.

Paul Minor, in fact, has now served four years in federal prison. He was not allowed to attend his wife's funeral, nor the wedding of his only son.

All for alleged "crimes" that he did not commit--and, in fact, do not exist under the law. We say that because the Minor defendants were convicted on jury instructions that Judge Henry Wingate pulled out of thin air. They had little, if anything, to do with the actual relevant law.

Today is a step forward for justice in the Siegelman and Minor cases. But when will those responsible for these travesties be held accountable? And how will these defendants ever be made remotely whole?

Until those questions are addressed, justice remains a long way off.

Monday, June 28, 2010

Video: Dolphins and a Whale Struggle to Survive in BP Oil Slick

A new video from an Alabama environmental investigator shows more than 50 dolphins, some of them dying, in the BP oil slick. The video also shows a sperm whale with oil all around its blow hole and red splotches down its back, as if it's been "basted in crude."

John Wathen provided perhaps the most dramatic early images of the oil spill and uttered the unforgettable phrase: "The Gulf appears to be bleeding." In his latest video--filmed June 21--Wathen provides disturbing images of the struggle for life in the Gulf of Mexico.

Wathen spots several pods of dolphins, one of 18 animals and another of 36. Some of the dolphins appear to be struggling to breathe, others appear to be dead or dying. Some of the dolphins, Wathen says, seem to be looking up at his aircraft, "Wondering, 'Why is my world burning down around me?'"

The video includes stark footage of at least seven fires that are set in an effort to burn off oil. "From the size of these fires, it seems as though we are trying not only to kill everything in the Gulf of Mexico, but everything that flies over it, as well," Wathen says.

At one point, he refers to a "massive fire from hell, putting toxins into the air. . . . Will the Gulf ever be the same again?"

How bad is the situation in the gulf? Wathen says he and his pilot picked up heavy oil at 1.2 miles off Gulf Shores, Alabama. At 17 miles out, there was no more clear water in sight. At 23 miles out, the water took on a purplish, bluish hue.

Wathen calls those areas "rainbows of death that cover the entire horizon."

Here is Wathen's devastating summary: "From 1.2 miles off Gulf Shores, Alabama, to the Ground Zero site some 90 miles away, we haven't flown over a single square inch of clean water."

You can check out the full video below:

Obama's Legislative Successes Don't Translate Into High Approval Ratings

President Barack Obama's top three legislative goals--economic stimulus, health-care reform, and financial regulations--are about to be completed. So why is Obama experiencing some of the lowest approval ratings of his presidency?

The answer to that question probably is complex. But our guess is that Obama's failure to address the concerns of his progressive base is hurting him in opinion polls.

On the surface, it seems Obama should be earning high marks. But it hasn't worked out that way. Reports John McCormick of Bloomberg News:

Obama scored his latest victory last week as congressional negotiators approved the most sweeping overhaul of U.S. financial regulations since the Great Depression, just three months after passage of landmark health care legislation. He signed into law one of the biggest economic-rescue efforts in U.S. history less than a month after entering the White House.

Still, with unemployment at 9.7 percent, the president has been unable to convert the accomplishments during his first 17 months into political popularity.

The latest Gallup Poll shows both Obama's approval and disapproval ratings at 45 percent. Some of the negativity almost certainly is unfounded. We suspect quite a few Americans are grouchy over a recession that Obama inherited from George W. Bush. Others are unhappy with two poorly managed wars that Obama inherited. And some probably give him low marks because of the BP oil spill, which almost certainly was the result of lax government regulation during the Bush era.

But Obama does deserve blame for turning a deaf ear on his strongest supporters. Even with Obama's perceived legislative successes, many progressives have legitimate gripes. The economic stimulus package should have been more substantial. Health-care reform should have included a public option. Financial regulation is likely to remain too lax.

And the White House still doesn't seem to understand that many Americans actually care about this concept called "the rule of law." Those concerns were well articulated recently by Anthony Romero, executive director of the ACLU. Reports Josh Gerstein at Politico:

Asked why he's so animated now, Romero said: "It’s 18 months and, if not now, when? . . . Guantanamo is still not closed. Military commissions are still a mess. The administration still uses state secrets to shield themselves from litigation. There's no prosecution for criminal acts of the Bush administration. Surveillance powers put in place under the Patriot Act have been renewed. If there has been change in the civil liberties context, I frankly don't see it."

Neither do I. And if Obama doesn't begin to act on matters of fundamental law, his poll numbers are likely to continue heading in the wrong direction.

Friday, June 25, 2010

Confusion Reigns in Wake of Supreme Court Rulings on Honest-Services Fraud

The United States Supreme Court yesterday issued three rulings that limited the scope of the federal honest-services fraud statute. The rulings are of particular interest here at Legal Schnauzer because the statute in question was at the center of the Don Siegelman (Alabama) and Paul Minor (Mississippi) prosecutions, which we have covered extensively.

Defense attorneys had argued that the honest-services statute is hopelessly vague, allowing prosecutors to criminalize standard political behavior. Yesterday's Supreme Court rulings clearly limit use of the statutes to situations involving bribes or kickbacks. But those who were hoping for clarity from the Supreme Court almost certainly were disappointed.

The waters surrounding honest-services fraud remain muddy, so much that it remains unclear what, if any, impact yesterday's rulings will have on the Siegelman and Minor cases.

Thursday's rulings revolved around former Enron official Jeffrey Skilling, former newspaper magnate Conrad Black, and former Alaska legislator Bruce Weyhrauch. So what actually happened? Here is how David Savage of The Los Angeles Times describes it:

In ruling on "honest-services fraud," the justices said Skilling and Black were wrongly convicted on that charge. All nine justices agreed that such fraud was too vague to constitute a crime unless a bribe or kickback was involved. But both men were convicted on other charges, and the Supreme Court sent their cases back to lower courts for further proceedings.

What about the third case? Savage writes:

In a case from Alaska involving a former state legislator, Bruce Weyhrauch was charged with fraud for having contacted a firm about a possible job for after he left the Legislature. He did not get the job, but he voted on a bill that was favorable to the firm. A federal appeals court ruled he could be convicted of a crime based on this undisclosed conflict of interest. However, the Supreme Court reversed that decision Thursday in a third of the three rulings limiting the scope of honest-services fraud.

Where does that leave supporters of the defendants in the Siegelman and Minor cases? Confused mostly. A headline in today's Birmingham News states: "Ruling Could Help Siegelman Appeal." That, unfortunately, is misleading.

Reporter Mary Orndorff quotes a Siegelman lawyer as saying Thursday's rulings do not address the statute in the campaign-contribution context, so that might enhance the chances of the high court hearing Siegelman's appeal.

That might be the case. But honest-services fraud no longer is a factor in Siegelman's case--at least for him personally. As we reported back in December, the U.S. 11th Circuit Court of Appeals already has overturned the honest-services fraud convictions against Siegelman, so that no longer is a direct issue in his case. The counts that were upheld against Siegelman involved mainly bribery.

To make matters even more murky, however, the honest-services convictions against Richard Scrushy, Siegelman's codefendant, were upheld. So the statute does remain a factor in the broad Siegelman case. Here is how we described it earlier:

The U.S. 11th Circuit Court of Appeals overturned the honest-services fraud convictions against Siegelman, so that no longer is an issue in his case. His appeal to the U.S. Supreme Court involves bribery and obstruction of justice.

The 11th Circuit upheld the honest-services fraud convictions against Scrushy, so the cases currently before the U.S. Supreme Court could have an impact on his appeal.

Yesterday's SCOTUS rulings could have a more direct impact on the Paul Minor case. That's because the U.S. Fifth Circuit Court of Appeals ruling in that case was exactly the opposite of what happened on the Siegelman appeal in the 11th Circuit--it threw out the bribery convictions but left the honest-services fraud convictions in place.

Former U.S. Solicitor General Ted Olson is handling the Minor appeal for the U.S. Supreme Court, and here is his statement in the wake of yesterday's rulings:

The decisions today in the Skilling and Black cases reflect the Court's well-founded concerns about the vague and overbroad language of the honest services statute. I am pleased that the Court took this opportunity to narrow the scope of the virtually limitless statutory language. Mr. Minor's case will afford the Court another opportunity to impose meaningful limits on the honest services statute and to ensure that the statute is not used to punish political speech fully protected by the First Amendment.

An Associated Press report states that the high court is expected to announce on Monday whether it will hear appeals from Siegelman and Scrushy. It's unclear when an announcement might be made regarding the Minor appeal.

This much is clear: As we have shown in numerous posts, the defendants in both the Siegelman and Minor cases were wrongly convicted, and it's not a close call. At the district-court level, the cases never should have gone to juries. At the circuit-court level, the convictions should have been overturned completely.

In other words, the U.S. Supreme Court should not be fooling with the Siegelman and Minor cases. All defendants should have been free months ago. The real issue in the Siegelman and Minor cases is not the vagueness of the honest-services law, but the corruptness of the federal prosecutors and judges who handled the cases.

That's the real elephant in the room in these cases--and the U.S. Supreme Court probably wants no part in addressing that. It should be addressed by Congress and the U.S. Justice Department. Until that happens, justice will not be fully served.

Thursday, June 24, 2010

Soccer Referee Receives More Scrutiny Than An Oily U.S. Judge

Who should receive more scrutiny--(a) A referee at a World Cup soccer match; or (b) A judge in a U.S. courtroom.

The answer, it seems obvious, should be (b). But in the real world, as proven by events of recent days, the answer is (a). And to anyone with a sense of justice, that should be as disturbing as the sound of a thousand vuvuzelas.

The lead characters in this morality play are: (1) Koman Coulibaly, the soccer official who disallowed an apparent game-winning goal in the United States' World Cup match against Slovenia; and (2) Martin Feldman, the U.S. district judge who overturned the Obama administration's moratorium on offshore drilling in the wake of the BP oil spill.

How did the soccer world deal with Coulibaly's apparent gaffe? Assessors gave Coulibaly a poor evaluation and found that it was "highly unlikely" that he would take any further part in the tournament.

How did the justice world deal with Feldman's ruling, which appears to be demonstrably corrupt? With a collective shrug of the shoulders. That's because the doctrine of judicial immunity allows judges to do most anything they want, without personal repercussions.

Prosecutorial immunity, the ugly cousin of judicial immunity, already is under intense scrutiny. The oil-moratorium ruling shows that similar scrutiny should be visited upon judicial immunity.

In theory, judicial immunity sounds like a reasonable idea. It is designed to ensure the "independence" of the judiciary, allowing judges to rule "fearlessly," without concern about being sued in the aftermath of their rulings.

But what about judges who intentionally rule unlawfully and violate the civil rights of those who come before them? In practice, judicial immunity becomes a license to cheat for unethical judges. Martin Feldman apparently is such a judge. And as we have shown through three years' worth of posts here at Legal Schnauzer, he has plenty of company.

How corrupt was Feldman's ruling? Consider this from Yahoo News:

The federal judge who overturned Barack Obama's offshore drilling moratorium reported owning stock in numerous companies involved in the offshore oil industry—including Transocean, which leased the Deepwater Horizon drilling rig to BP prior to its April 20 explosion in the Gulf of Mexico—according to 2008 financial disclosure reports.

U.S. District Judge Martin Feldman issued a preliminary injunction today barring the enforcement of the president's proposed six-month moratorium on deepwater drilling, arguing that the ban is too broad.

Why would Feldman make such a ruling? Because it's likely to have a positive impact on his pocketbook:

According to Feldman's 2008 financial disclosure form, posted online by Judicial Watch [pdf], the judge owned stock in Transocean, as well as five other companies that are either directly or indirectly involved in the offshore drilling business. . . .

The report discloses that in 2008, Judge Feldman held less than $15,000 worth of stock in Transocean, as well as similar amounts (federal rules only require that judges report a range of values ) in Hercules Offshore, ATP Oil and Gas, and Parker Drilling. All of those companies offer contract offshore drilling services and operate offshore rigs in the Gulf of Mexico. Judge Feldman also owned between $15,000 and $50,000 in notes offered by Ocean Energy, Inc., a company that offers "concept design and manufacturing design of submersible drilling rigs," according to its website. None of the companies were direct parties to the lawsuit seeking to overturn the ban.

A judge has a duty to recuse himself when a reasonable person would find that his participation presents the "appearance of impropriety." Would a reasonable person find that Feldman had a conflict of interest in the moratorium case? Would a reasonable person find that Feldman's participation presented an appearance of impropriety? It's hard to see how the answer to both questions is not yes.

So why did Feldman ignore his duty to recuse and participate in a case where he clearly should have stepped aside? Because he knows judicial immunity protects him, as long as he is acting in his judicial capacity.

Feldman's ruling might be overturned by judges up the line. But will Feldman suffer any personal consequences for his bogus ruling, as Coulibaly did simply for making a mistake in a soccer match? Nope.

How perverse is the doctrine of judicial immunity? I recently discovered an Alabama case where a federal judge ruled that a state judge overseeing domestic-relations cases was protected by judicial immunity, even though he was alleged to have participated in a criminal enterprise to fix court cases.

As Dave Barry would say, "I'm not making this up." The ruling found that, even if the state judge were proven to have participated in a criminal enterprise, he still was protected because his corrupt rulings were made in his official capacity.

We soon will be shining significant light on that ugly Alabama case. But for now, here is a sad truth about the world we live in: We care much more about the mistakes of a soccer referee than we do about the clearly corrupt rulings of state and federal judges.

No wonder our justice system is in such a mess.

Wednesday, June 23, 2010

Ties to Labor Unions Can Be Dangerous At One Alabama University

The business dean at an Alabama university tried to force a department chairman to help unlawfully terminate a faculty member who has ties to labor unions and liberal politics, according to a lawsuit filed in U.S. District Court.

Glenn Feldman has taught labor economics and other subjects at the University of Alabama at Birmingham (UAB) since 1996 and earned tenure in the School of Business in 2002. But Feldman alleges in a lawsuit that Dean David R. Klock, who arrived at UAB from Cal Poly Pomona in 2008, has twice tried to fire him.

In one instance, Feldman states, Klock tried to get a key department chair, Lance Nail, to change his vote from yes to no on Feldman's application for full professor. According to Feldman's complaint, Klock told Nail, "We are going to fire this guy anyway, and it wouldn't look good if we just promoted him."

Nail, who since has become the business dean at the University of Southern Mississippi, refused to change his vote, and Feldman became a full professor on October 1, 2008.

But that, the lawsuit alleges, has not kept Klock from trying to run off Feldman. At one point, Klock said Feldman would experience "pain . . . considerable pain" if he insisted on staying at UAB.

Klock followed through on that threat, arbitrarily moving Feldman from a 12-month to a nine-month contract, cutting his pay by almost $30,000, and refusing to pay for Feldman's benefits and family health care for three months in 2009.

Feldman served as director of UAB's Center for Labor Education and Research (CLEAR) before Klock tried to shut down the center and kick away a $3-million federal grant in the process. CLEAR eventually relocated to Jefferson State Community College in Birmingham.

Why is all of this happening? Feldman says it's largely because the university, apparently at the insistence of Provost Eli Capilouto, wants to appeal to a conservative audience.

According to Feldman's lawsuit, UAB has "engaged in a pattern and practice of marketing the school and conforming it to an extent to attract conservative, affluent white students in order to increase the financial resources and reserves of the School of Business and its reputation to the conservative, pro-business community. . . . UAB and the School of Business administration has engaged in a long series of acts of creating a hostile work environment for those faculty who do not fit within this conservative, affluent, white atmosphere."

Feldman, who is of Hispanic descent, alleges race discrimination, retaliation, breach of contract, First Amendment violations, and more in his lawsuit. He is seeking lost and back wages, compensatory damages, attorney fees and costs, and other relief.

This story hits close to home here at Legal Schnauzer because UAB is the same university that unlawfully terminated me in May 2008 largely because of my criticism on this blog of the Bush Justice Department, especially its handling of the Don Siegelman prosecution.

I have firsthand experience with the current corrupt UAB administration and its tendency to lie, cheat and violate both federal law and its own policies when it wants to get rid of someone who it perceives has upset the conservative applecart.

In an e-mail to UAB President Carol Garrison, dated November 30, 2009, Feldman painted a stark picture of life in the School of Business, noting that he hardly is alone as a target of harassment. Writes Feldman: "Most of those affected are suffering in official silence, too fearful of retribution to object--except in hallways and behind close office doors. But the climate of fear in the UAB School of Business is palpable."

Feldman called on Garrison to take action. "Please intervene directly to stop the retaliation, retribution, harassment, hostile work environment, and disparate treatment that my family and I have been made to suffer for a long time now. I do not wish to make this matter more public and external than it already is.

"This whole sordid matter constitutes a disgraceful chapter in the history of what could be a great university. President Garrison, I call on you to do something concrete, tangible, direct, and immediate to correct it."

Those words apparently fell on deaf ears because the threats and harassment continued, and Feldman was forced to file a lawsuit in May 2010.

That does not surprise me. Garrison's own grievance committee found that I should not have been terminated, but the UAB human-resources director upheld my firing anyway--and Garrison refused to change it. We've presented considerable evidence here--and will be presenting much more--that Carol Garrison has a severely damaged moral compass. The Glenn Feldman story teaches us that some of her key lieutenants, such as Eli Capilouto and David Klock, also seem to be lacking in the ethics department.

How bad is it at UAB? You have a dean intentionally trying to corrupt the promotions process, in ordered to run off a tenured faculty member, and the president is made aware of that--and she does absolutely nothing about it.

You can learn more details about the ongoing rot at a major Southern university by checking out the Feldman complaint below:

Feldman Lawsuit

Tuesday, June 22, 2010

Would Rahm Emanuel's Exit Be Good News for Justice?

White House Chief of Staff Rahm Emanuel will leave his position in six to eight months, according to a report from the London Telegraph.

Could that be good news for those who care about justice issues? The answer is yes. In fact, Emanuel's exit might be the best news progressives have received since President Barack Obama took office.

Meanwhile, NBC reports that while a congressman in Illinois, Emanuel tried to trade favors with embattled Illinois Governor Rod Blagojevich while he was in office. Blagojevich's corruption trial is under way in Chicago, and one wonders if the latest revelations could force Emanuel's White House exit to come sooner rather than later.

Emanuel's time as chief of staff has been marked by a series of disappointments for progressives. An excellent piece by Jane Mayer in the February New Yorker indicated that Emanuel played a primary role in developing the White House policy to "not re-litigate the past." That means Emanuel was key in the decision, so far, to overlook probable crimes by members of the George W. Bush administration.

Here's how we put it in an earlier post:

Mayer portrays Emanuel as a purely political animal who cares little about fundamental issues of right and wrong. And her article lends support to a long-time Obama mentor who recently complained that Emanuel is poorly serving the president and should exit the administration as soon as possible.

Is Emanuel the architect of Obama's nonsensical "look forward, not backward" policy on justice issues--an approach that seems to be hurting Democrats at the ballot box? Mayer's article indicates that the answer to that question is yes.

Emanuel, Mayer writes, sees the U.S. Department of Justice as a tool to be manipulated for political purposes. And that has put him on a collision course with Attorney General Eric Holder:

Emaunuel, Mayer writes, adamantly opposed a number of Holder's decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws.

Ever mindful of possible political fallout, Emanuel feared that Holder's decision would alienate the intelligence community. But Holder was profoundly upset after reading classified documents that described CIA prisoner abuse. Writes Mayer:

Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

Holder has almost been invisible since taking office. And Mayer indicates Emanuel has a lot to do with that.

If Emanuel indeed leaves after the November midterm elections, will it mean the Obama administration suddenly will get tough on justice issues? That remains to be seen.

But given the White House's dismal performance so far on justice issues, an Emanuel exit can only be taken as a hopeful sign. And we think the White House would be wise to ditch Emanuel now and replace him with a true progressive well in advance of the November elections.

Monday, June 21, 2010

Sharks and Submerged Oil Spell Trouble Off the Alabama Coast

A two-inch layer of oil is hugging the sea floor off the Alabama coast, according to a report in the Mobile Press-Register. The news comes roughly a week after a layer of floating crude came ashore in the same area at the Bon Secour National Wildlife Refuge.

Perhaps most alarming is news that unusually large schools of sharks have been spotted just off Alabama beaches. This could be a sign that bait fish upon which sharks feed have moved closer to shore because of low oxygen levels caused by the BP oil spill.

The Press-Register report provides more grim evidence of the oil spill's impact. Writes reporter Ben Raines:

The Press-Register found a number of patches of submerged oil 40 to 100 feet off the beach, apparently collecting along rip currents and sandbars. The carcasses of sand fleas, speckled crabs, ghost crabs and leopard crabs were spread throughout the oil, a thick layer of the material caking the bodies of the larger crabs. Their claws looked as if they been turned into clubs made of oil.

Those weren't the only alarming scenes from Raines' report:

Dark patches seen in deeper water Friday might also have been oil, but exceptional numbers of large sharks meant diving down to investigate was not an option. Hammerhead, bull and other sharks were schooling around a boat anchored in 6 feet of water just outside the breaking waves.

Most of the sharks in the deeper water were 6 feet long or more. Smaller sharks could be seen inside the first sandbar, in one case in a school 27 strong.

Huge schools of bait hugged the seashore, attracting large numbers of birds. King mackerel, Spanish mackerel, mullet, ladyfish, speckled trout and other fish schooled in unusually large numbers amid the sharks.

Dead fish seen onshore seemed to have collected in the areas closest to the underwater oil. It was unclear if the fish died because of exposure to the oil.

Scientists are reporting very low oxygen levels off the Alabama coast, Raines reported:

The Dauphin Island Sea Lab measured large areas of low oxygen water just off the beach at Fort Morgan last week, beginning in water around 20 feet deep. Monty Graham, a University of South Alabama scientist, theorized that the population of oil-consuming microbes had swelled, and those tiny animals consumed lots of oxygen.

Sea life begins to die if oxygen levels drop below 2 parts per million.

Graham found some areas where the oxygen level was below 1, and that could explain reports of strange behavior among fish:

"The low oxygen explains things we've been hearing, like reports of flounder swimming on the surface," Graham said.

The low oxygen levels offshore may also explain the dense aggregations of fish seen in the surf zone. The turbulent area near shore is naturally high in oxygen due to the influence of the breaking waves.

You can check out a video report from the Press-Register about current conditions on the Alabama coast.

Submerged oil at Bon Secour shoreline

Was Television Reporter Targeted for Retaliation in Montgomery?

A television journalist who recently produced a critical report about Alabama Governor Bob Riley has been arrested for assault and escape after an encounter late last week with a Montgomery police officer.

WSFA reporter Eileen Jones, 66, allegedly drove over an officer's foot and drove away after being told she was under arrest. Jones reportedly was driving to the scene of a tanker-truck accident, where she was planning to do a live report.

In January, Jones produced a report about Alabama's electronic-bingo controversy where she quoted Governor Bob Riley as warning those who might "get too close to the families."

Is it coincidence that Jones now finds herself charged with misdemeanor assault and felony escape in an incident where police officers appear to have behaved in a questionable manner?

Given Riley's apparent control over the state's law-enforcement apparatus, and his thirst for revenge against those who displease him, we would not be surprised if Jones was targeted for special attention.

Officers claimed that Jones never identified herself as a news reporter. But Jones' version of events is quite different. Reports the Montgomery Advertiser:

. . . Jones said she identified herself as a reporter as soon as the officer approached her vehicle. She said she rolled down her window and told the officer she was there to do a live broadcast. He asked her who she was and she told him she was Eileen Jones with WSFA, she said.

She said she then walked away and called someone. She waited a long time for him to return and began to worry that she would not make it to the truck in time for the broadcast.

Jones said she honked her horn and beckoned the officer to her car. When he approached the car again, he was yelling at her, she said.

"I said, 'Why are you yelling at me? I just want to talk to you,'" Jones said, adding that she does not remember what the officer was saying to her.

The scene quickly turned even uglier:

The officer then walked away again, she said.

Jones said she decided then to drive over to where the officer was standing.

That is when the officer yelled that she had run over his foot and that she was under arrest, she said.

Jones said it did not seem likely that she could have run over his foot without even noticing.

"I think I would have felt it in the car if I had run over his foot," she said.

Jones, who is black, said the officer's behavior made her concerned for her safety:

Jones said the officer began to frighten her after that. He reached into her vehicle and tried to pull her out, she said.

"I was scared of that officer. I didn't know what he was going to do. I really thought it was going to be another Rodney King," Jones said.

Jones said he was jerking and pulling her and that her arm was still red and swollen Friday.

The seat belt was the only thing that kept him from pulling her out of the car, she said.

"I am sure he sprained his ankle when he was trying to pull me out of the car," she said.

Jones has been with WSFA for 18 years, and State Rep. Alvin Holmes (D-Montgomery) says he plans to look into the situation:

Alabama Rep. Alvin Holmes, D-Montgomery, said the black community in Montgomery was disturbed by the situation and that he plans to hold a mass meeting next week. Holmes said he plans to get national black leaders involved.

Holmes said that to not do something would be a "betrayal to the dream of Dr. King."

"Eileen Jones is on TV almost every day. Even if she did not identify herself as a news reporter, he knew she was a news reporter. But she was a black news
reporter ...

"We are not going to sit idly by and let this happen to her."
Is it a stretch to think that the governor's office might have targeted Jones? Well, we have seen firsthand evidence that those close to the Rileys don't mind interfering with individuals and their livelihoods. The Alabama Supreme Court, in a ruling that overruled clear precedent, essentially made Bob Riley the "supreme ruler" over the state's law-enforcement function. (Interestingly, Eileen Jones reported that story for WSFA.) And the Jones run-in with law enforcement came almost immediately after Alvin Holmes announced last week that the U.S. Justice Department had told him it would review a complaint he had filed about Riley's refusal to pay a Montgomery law firm that was hired by the Legislature. Holmes said the matter had been turned over to the DOJ's criminal division.

Here is a reminder about why Bob Riley might be unhappy with Eileen Jones. This is a YouTube clip that was generated from Jones' January report about the governor. At least one other Montgomery station broadcast a clip from the same interview, so Jones was not the only reporter on the story. In this segment, she does appear to be the reporter asking questions of Riley, prompting his comment about "the families":

UPDATE: The Montgomery Advertiser reports on June 22 that the felony escape charge against Eileen Jones has been dropped. A misdemeanor assault charge will proceed in Montgomery Municipal Court.

Thursday, June 17, 2010

Will Abramoff Tale Ever Fully Unravel in the Deep South?

Disgraced Republican lobbyist Jack Abramoff recently was released from federal prison in Maryland to a halfway house. His sentence is due to end on December 4 for his convictions on fraud-related charges.

But here is the looming question about Abramoff: Has he cooperated with federal officials in such a way that the full tale of Bush-era corruption will be revealed?

The Abramoff story, the subject of a new documentary film called Casino Jack and the United States of Money, is national in scope. But it has strong roots in the Deep South, especially in Alabama, Mississippi, and Texas.

If Abramoff indeed "spilled the groceries" to federal officials, some prominent political figures with ties to the South might have reason to be extremely nervous.

Reports the Associated Press:

As part of his plea deal, Abramoff cooperated in a long-running Justice Department investigation that led to the convictions of former Rep. Bob Ney, R-Ohio, former Deputy Interior Secretary J. Steven Griles and several top Capitol Hill aides.

But how far did Abramoff's cooperation go? What about political figures who go way beyond Bob Ney and J. Steven Griles?

Southern politicos with reported ties to Abramoff (and his fellow felon Michael Scanlon) include Alabama Governor Bob Riley, Mississippi Governor Haley Barbour, former Texas Congressman Tom DeLay, and (of course) former Bush White House strategist Karl Rove.

Perhaps no one has stronger ties to Abramoff and Scanlon than Alabama's Bob Riley. Bill Johnson, a former member of Riley's cabinet, says Abramoff should be called to testify in an ongoing federal investigation of gambling-related matters in Alabama.

The probe, so far, has focused mainly on pro-gambling Democrats in the Alabama Legislature. But Johnson says it should also look at Riley and his ties to Mississippi gaming money that reportedly was laundered through Abramoff and Scanlon.

Is the story of "Casino Jack" Abramoff about to wind down? Or is it just starting to heat up?

National Public Radio (NPR), in a recent review of the Casino Jack film, provides an encouraging hint. It comes when NPR discusses director Alex Gibney's approach to the subject and compares his work to that of Michael Moore:

What Gibney does share with Moore is an unapologetically leftist ideological streak. Knowing that, his ability to get interviews with prominent conservatives is impressive. Former Texas Congressman Tom DeLay, in particular, sits down for an extensive Q&A with Gibney in which he proves remarkably candid—and shockingly unrepentant—about his alignment with Abramoff.

Unfortunately, the one on-camera interview Gibney doesn't score is with Abramoff himself. The director spoke to his subject a number of times while researching the film, but Abramoff—a federal prisoner, and involved in ongoing investigations to boot—wasn't allowed to appear on camera. While the film contains a great deal of archival footage of Abramoff, from childhood through to his conviction, along with mountains of e-mail correspondence in which he gloats with associates over his schemes, the lack of Abramoff's current perspective is an unfortunate omission.

So as of May 6, 2010, the date of the review, Abramoff was involved in ongoing investigations? Does that mean some prominent Republican sphincters might be getting tight?

Let's hope so.

Wednesday, June 16, 2010

Oil Spill Shines Spotlight on Obama's Greatest Shortcoming

Those who have labeled the BP oil spill as "Obama's Katrina" are wildly off base. The two disasters, and the government's ability to react to them, are radically different. But the crisis in the Gulf of Mexico does reflect perhaps the most glaring weakness of the Obama presidency--and it's one we've been writing about for months.

We are talking about the White House's failure to launch an aggressive effort to clean up the mess it inherited in government agencies from George W. Bush. We have focused primarily on the U.S. Department of Justice. But recent pieces by Joe Klein in Time magazine and Tim Dickinson in Rolling Stone show the Obama administration deserves some blame for allowing governmental dysfunction to help lead to environmental disaster in the Gulf Coast.

We have pointed to the Middle District of Alabama, where the wretched Bush appointee Leura Canary remains in the U.S. attorney post, as an example of Obama's slow actions in the U.S. Department of Justice.

Klein says Obama has been similarly slow to clean up the mess in the Interior Department's Minerals Management Service (MMS), which is charged with overseeing offshore drilling. Writes Klein:

Obama is not blameless. A month before the spill, he insinuated himself into the "Drill, baby, drill" camp by agreeing to a deal, first proposed by Republican Senator Lindsey Graham, in which offshore drilling and nuclear power would be added to legislation taxing carbon fuels and promoting alternative energy. There was a certain logic to that. All three forms of energy—fossil, nuclear and alternative—are necessary as the transition to a greener, more efficient economy takes place. But drilling can be defended only if it is closely managed and regulated, and Obama's Interior Department allowed the MMS to marinate in its own stink for 15 months without overhauling it before disaster struck. It was another bit of evidence that Obama, the candidate of change, had overlooked the most important, if least dramatic, change needed after the Bush Administration's wall-to-wall neglect—a renewed commitment to actual governance after an era when the slick and grease of marketing slogans and political posturing had polluted our national life.

Let's ponder this: Obama's Interior Department "allowed the MMS to marinate in its own stink for 15 months without overhauling it before disaster struck." Those are powerful words. And Klein is not the only one firing such charges at the White House.

The headline on Dickinson's story, just out in Rolling Stone, speaks volumes:

The Spill, The Scandal and the President

The inside story of how Obama failed to crack down on the corruption of the Bush years--and let the world's most dangerous oil company get away with murder

The headline is rough, and the story is rougher. Dickinson compares the Obama response to Bush's failure to heed warnings about the 9/11 attacks:

Like the attacks by Al Qaeda, the disaster in the Gulf was preceded by ample warnings--yet the administration had ignored them. Instead of cracking down on MMS, as he had vowed to do even before taking office, Obama left in place many of the top officials who oversaw the agency's culture of corruption. He permitted it to rubber-stamp dangerous drilling operations by BP--a firm with the worst safety record of any oil company--with virtually no environmental safeguards, using industry-friendly regulations drafted during the Bush years. He calibrated his response to the Gulf spill based on flawed and misleading estimates from BP--and then deployed his top aides to lowball the flow rate at a laughable 5,000 barrels a day, long after the best science made clear this catastrophe would eclipse the Exxon Valdez.

Dickinson writes that an even bigger problem could be looming on the horizon. And Ken Salazar, Obama's Interior secretary, doesn't seem to get it:

Most troubling of all, the government has allowed BP to continue deep-sea production at its Atlantis rig--one of the world's largest oil platforms. Capable of drawing 200,000 barrels a day from the seafloor, Atlantis is located only 150 miles off the coast of Louisiana, in waters nearly 2,000 feet deeper than BP drilled at Deepwater Horizon. According to congressional documents, the platform lacks required engineering certification for as much as 90 percent of its subsea components--a flaw that internal BP documents reveal could lead to "catastrophic" errors. In a May 19th letter to Salazar, 26 congressmen called for the rig to be shut down immediately. "We are very concerned," they wrote, "that the tragedy at Deepwater Horizon could foreshadow an accident at BP Atlantis."

Dickinson does not let Salazar, or Obama, off the hook. After all, BP submitted its application for the Deepwater Horizon under Obama, not Bush. In fact, the application came only two months after Obama had taken office. And approval came on April 6, 2009, less than a month after the application had been submitted:

It's tempting to believe that the Gulf spill, like so many disasters inherited by Obama, was the fault of the Texas oilman who preceded him in office. But, though George W. Bush paved the way for the catastrophe, it was Obama who gave BP the green light to drill. "Bush owns eight years of the mess," says Rep. Darrell Issa, a Republican from California. "But after more than a year on the job, Salazar owns it too."

While Bush created a corrupt, criminal mess at MMS, the Obama administration deserves to take its lumps in the blame game, Dickinson writes:

Salazar himself has worked hard to foster the impression that the "prior administration" is to blame for the catastrophe. In reality, though, the Obama administration was fully aware from the outset of the need to correct the lapses at MMS that led directly to the disaster in the Gulf. In fact, Obama specifically nominated Salazar--his "great" and "dear" friend--to force the department to "clean up its act." For too long, Obama declared, Interior has been "seen as an appendage of commercial interests" rather than serving the people. "That's going to change under Ken Salazar."

Salazar claimed that his crackdown at MMS went beyond "codes of ethics." Except that it didn't. Writes Dickinson:

Salazar did little to tamp down on the lawlessness at MMS, beyond referring a few employees for criminal prosecution and ending a Bush-era program that allowed oil companies to make their "royalty" payments--the amount they owe taxpayers for extracting a scarce public resource--not in cash but in crude. And instead of putting the brakes on new offshore drilling, Salazar immediately throttled it up to record levels. Even though he had scrapped the Bush plan, Salazar put 53 million offshore acres up for lease in the Gulf in his first year alone --an all-time high. The aggressive leasing came as no surprise, given Salazar's track record. "This guy has a long, long history of promoting offshore oil drilling--that's his thing," says KierĂ¡n Suckling, executive director of the Center for Biological Diversity. "He's got a highly specific soft spot for offshore oil drilling." As a senator, Salazar not only steered passage of the Gulf of Mexico Energy Security Act, which opened 8 million acres in the Gulf to drilling, he even criticized President Bush for not forcing oil companies to develop existing leases faster.

Attorney General Eric Holder seems to be taking a similar approach in the Justice Department. Just yesterday, we reported that Holder's DOJ is stonewalling on turning over documents related to the political prosecution of former Alabama Governor Don Siegelman. This is almost 17months after Obama took office.

It's possible that Obama inherited a worse mess from his predecessor than any president in American history. Because of that, many of his supporters--including me--tend to cut him some slack. But Klein and Dickinson indicate it is well past time to get a raggedy ship into shape.

Will the Gulf disaster prompt Obama to move aggressively to repair dysfunctional government agencies? Perhaps. But for now, the outlook does not look promising. Writes Dickinson:

"Employees describe being in Interior-–not just MMS, but the other agencies–-as the third Bush term," says Jeff Ruch, executive director of Public Employees for Environmental Responsibility, which represents federal whistle-blowers. "They're working for the same managers who are implementing the same policies. Why would you expect a different result?"

Tuesday, June 15, 2010

Obama DOJ Is Stonewalling on Records Connected to Siegelman Case

The Obama Justice Department is withholding more than 250 documents related to the recusal of the U.S. attorney whose office oversaw the prosecution of former Alabama Governor Don Siegelman.

John Aaron, an attorney in Alabaster, Alabama, filed a Freedom of Information request in early 2006 seeking information about the recusal of Leura Canary. The Justice Department, then under the control of George W. Bush, turned over almost no information, so Aaron filed a federal lawsuit in 2009.

Barack Obama appointees, of course, now oversee the Department of Justice (DOJ). But Aaron's lawyer says the department continues to stonewall and has asked a judge to throw out the lawsuit.

Reports the Mobile Press-Register:

"It seems to me that transparency is not a priority," said Scott Hodes, a Washington, D.C.-area attorney representing Shelby County resident John Aaron in a lawsuit seeking the records. "They'd rather hide things, obviously."

Canary, a Bush appointee, remains the top federal prosecutor in central Alabama. Her husband, Bill Canary, is head of the Business Council of Alabama and a close associate of former White House strategist Karl Rove. Jill Simpson, an Alabama lawyer and whistleblower, has testified under oath before Congress that Bill Canary played a central role in initiating a politically driven prosecution of Siegelman, a popular Democrat.

Canary announced in 2002 that she was stepping aside from the Siegelman investigation. But supporters of the former governor have claimed that she remained involved with the case. Reports the Press Register:

In a court filing, however, Aaron said he believes the documents would show that Canary remained in touch with members of the team that prosecuted Siegelman and former HealthSouth Chief Executive Richard Scrushy despite her official recusal from the case.

Aaron also said that he thought the records could provide "critical evidence" in Scrushy's bid for a new trial.

The Justice Department, so far, has turned over little more than newspaper clippings, according to court filings. The DOJ admits it is withholding 259 pages of documents. What is its rationale? It sounds pretty flimsy to us:

Among other reasons for withholding the records, the Justice Department argues that they involve communications between Canary and agency legal staff that are covered by attorney-client privilege.

While Canary is a high-level public official, the Justice Department also says that releasing the information could result "in harassment in her private life" and expose her to "derogatory inferences ... in connection with the underlying criminal case."

This raises several obvious questions:

* How on earth could Leura Canary's communications with her own staff members be protected by attorney-client privilege? Since when are Canary's staff members "representing" her?

* One innocent man (Richard Scrushy) already is in federal prison and another (Don Siegelman) could be returning to federal prison, but the DOJ is mostly concerned about "derogatory inferences" that could be drawn about Canary's conduct?

* If the DOJ is concerned about "harassment in her private life" and "derogatory inferences," is it more or less admitting that Canary engaged in misconduct? Why would those be issues if Canary had acted properly?

* Is the DOJ aware that Canary is a public official, who is paid by public funds, and taxpayers have a right to know if she acted in a lawful fashion? Why would the DOJ be concerned about Canary's "private life" more than a possible abuse of the public trust?

Just when you think the Obama administration can't look much worse than it already does on justice issues, something comes along to tell you, "Oh yes, it can."

A Musical Message from Louisiana for BP's Clueless CEO

Tony Hayward, CEO of oil giant BP, struck many a nerve when he said, "I'd like my life back" in the wake of the worst environmental disaster in U.S. history.

One of those nerves belongs to Louie Ludwig, a New Orleans-based songwriter who has seen his home state damaged in a way that might not be repairable.

Hayward's comment inspired Ludwig to write a song called "Hey, Tony," reminding the CEO that he's not the only one who would like to have his life back.

"Hey, Tony" and its accompanying video make a powerful statement about the callous nature of some modern corporations. We wanted to share it with our Legal Schnauzer readers:

For those who want a reminder about one of the most tone-deaf comments ever made by a corporate titan, check out Hayward in action here:

Monday, June 14, 2010

Wall Street Journal: Oil Spill Is a Failure of Government

The Deepwater Horizon oil rig was serviced partially by Halliburton, owned by Transocean, and leased by BP. But a columnist for The Wall Street Journal (WSJ) writes that the explosion on the Horizon and resulting oil spill are largely a failure of government.

WSJ's editorial page long has been known for its "curious" conservative take on world affairs. But the recent oil-spill column, by Dan Henninger, is over the top, even by WSJ standards. Consider this nugget from Henninger:

This may well be Obama's Katrina, but presidencies come and go. The more lasting lesson of the Gulf fiasco is to discover how belief in the omnipotence of government had risen to the level of mysticism for so many, and not just on the left. Some conservatives joined the do-something chorus to "stop" oil gushing with hellish force from deep inside the earth's core. (Set aside for now the interesting matter of just how vast the reserves of oil actually are down there.)

Let's try to interject a little reality into Henninger's fantasy island. First, we know that for some 30 years the American right has been trying to weaken the power of government to regulate business. That was a central tenet of the Reagan Revolution, and it has become embedded in our society--especially during the eight years of the George W. Bush administration.

We recently learned that in 2000, when Democrat Bill Clinton was president, the U.S. Minerals Management Service still was competent enough to have issued a report for Shell oil company outlining the potential for disaster from deepwater drilling. When Bush took office in January 2001, such warnings were ignored, and the administration pushed to speed up off-shore drilling. We are now dealing with the consequences.

Henninger's argument is like depriving a child of nutrients for years and then griping when he doesn't become a world-class athlete.

As conservatives are prone to do, Henninger overstates the alleged "omnipotence" of government. It's doubtful that even the most ardent liberal would believe that government can resolve any disaster, no matter how grave. I'm not aware of anyone who touts the government as some kind of regulatory Superman.

Some 50 years of history tell us, though, that reasonable regulation does have the power to prevent, or limit the effects from, the screwups that are a natural by-product of risk-driven capitalism.

Henninger, we suspect, doesn't see the irony in his own words. Consider this:

Coming as it did on the heels of various other government fiascoes and embarrassments—the subsidized-mortgage crisis, ethanol, California issuing IOUs, Bernie Madoff, ultra-deep public debt, infrastructure turning to dust everywhere—the Gulf mess is the moment for the American people to reconsider just what they think government can do, or should do.

Almost every example that Henninger cites is a product of weakened regulatory authority, emboldened and corrupted business practices--or both.

The problem, Mr. Henninger, is not government. It's a governing philosophy, one that Ronald Reagan and your colleagues at the WSJ editorial page have been touting for decades, that seeks to free corporations from regulatory oversight.

Henninger's column reads like something from a joke Web site, such as The Onion. But we can only assume that the WSJ crowd intends for it to be taken seriously.

Hopefully, the American public will be smart enough to see through such right-wing tripe. If they can, the Reagan Revolution will sink into oblivion--like the Deepwater Horizon. And our country will be better for it.

Alabama Connection Spotlights the Lighter Side of John Wooden

John Wooden, perhaps the greatest coach in an American sport, was laid to rest Friday in Los Angeles.

Wooden died June 4 at age 99, leaving behind a breathtaking coaching legacy. His UCLA men's basketball teams won 10 national titles, seven of them in a row, and had an 88-game winning streak. None of those records is likely to be approached, must less broken.

Wooden grew up in Indiana and spent most of his professional life in California. But in a roundabout way, he has a strong tie to Alabama. And that helped produce maybe the best story of all that have been reported since the coaching giant's death.

How is Wooden connected to Alabama? Well, the man who took on the unenviable task of succeeding Wooden at UCLA was Gene Bartow. In two seasons as the Bruins' coach, Bartow went 52-9 and made one trip to the NCAA Final Four. But Wooden had set the bar so impossibly high that UCLA fans were unhappy with those results.

So when the University of Alabama at Birmingham (UAB) wanted to start an intercollegiate athletics program and sought Bartow's counsel, the coach was ready to get out of Westwood. He became UAB's athletics director and head men's basketball coach, building a Hall of Fame career of his own.

Bartow has been retired for several years and is battling stomach cancer. But he remains a vibrant figure on the Alabama sports scene. Kevin Scarbinsky, of The Birmingham News, sought him out for his memories of Wooden--and Bartow provided a classic.

Both Wooden and Bartow long have been seen as true gentlemen in a field that has been known to produce some raucous characters. When Bartow arrived at UCLA, it seems the humble Wooden wanted him to take over his office. The equally humble Bartow felt he should take a smaller office and let the legend stay in place.

They compromised, Scarbinsky reports, by sharing the big office for several months until Wooden moved out. But the "Wizard of Westwood" didn't move out without having some fun.

He developed the habit of answering the phone: "Coach Bartow's office. This is John Wooden speaking."

One can only wonder how many callers were left speechless by that introduction.

"I can still hear him saying that," Bartow says.

Wooden left a host of homespun sayings that applied to life on and off the basketball court. They have come to be known as "Woodenisms," and Gene Bartow could tell you that the gentlemanly coach tended to practice what he preached.

Here are a few of our favorites:

"Things turn out best for the people who make the best of the way things turn out."

"Adversity is the state in which man mostly easily becomes acquainted with himself, being especially free of admirers then."

"Be quick, but don't hurry."

"A coach is someone who can give correction without causing resentment."

"If you're not making mistakes, then you're not doing anything. I'm positive that a doer makes mistakes."

"Failure is not fatal, but failure to change might be."

"Consider the rights of others before your own feelings and the feelings of others before your own rights."

"It's what you learn after you know it all that counts."

"Talent is God-given. Be humble. Fame is man-given. Be grateful. Conceit is self-given. Be careful."

"Success is never final; failure is never fatal. It's courage that counts."

Sunday, June 13, 2010

Will Prayer Resolve Oil-Spill Crisis on Alabama Beaches?

Oil washed ashore in major amounts on Alabama beaches Saturday, providing the strongest evidence yet that the state will suffer significant damage from the BP oil spill.

One citizen reacted by calling on churches to lead prayer trips to the coast.

While we respect anyone's right to practice their faith, we are afraid this will be a case of "too little, too late."

Actually, it's probably a case of "the wrong kind of prayer, at the wrong time."

Jo Dawson, a member of Bethel Baptist Church of Pea Ridge in Shelby County, told The Birmingham News she is trying to organize prayer trips to Gulf Shores, Orange Beach, and other areas hit by the BP spill.

"The best thing to do is pray," Dawson said. "I don't think BP is going to solve this. Only God can stop this. We need to pray to God to stop the leak and keep the ecosystem from being destroyed. I don't see any solution but divine intervention."

I agree with Dawson on a number of fronts. I don't think BP will solve it either. And I'm not sure there is a man-made solution to the problem.

Unfortunately, I suspect it's a little late to be asking for the Almighty's help. I don't claim to be a theological expert, but life experience has taught me that you can't repeatedly make bad decisions and then expect God to bail you out at the 11th hour.

As a nation, we've been making bad decisions regarding the oversight role of government for at least 30 years. Too many Americans, including myself for about 10 years, bought into the Reagan Revolution and its mantra to get government out of the way of business.

I don't know Dawson's age, but she probably would have been better served to have started her prayer effort back in the early 1990s. That's when it was becoming clear, even to me, that Reagan's ideas were leading the country down a dangerous path.

A good prayer might have gone something like this: "Lord, we pray that you will grant our citizens the wisdom to see that we need reasonable government oversight over corporations. Help us to understand that while businesses do a lot of good, we need regulation to keep human greed in check and to protect the greater good. Help us to choose leaders who will represent the interests of all Americans, including 'the least of these,' and who will protect the natural resources that sustain all life. Amen."

What if American Churches had been teaching such a prayer instead of handing out "voting guides" that encouraged the election of "conservative," pro-business candidates? What if congregants really bought into such a prayer and acted accordingly? Would we have a brewing disaster in the Gulf of Mexico right now?

I doubt it. My guess is that George W. Bush, Dick Cheney, and Karl Rove never would have sullied our White House. And Alabama's beaches still would be among the most beautiful in the world.

There is irony in Dawson's call for prayer. Like me, she apparently lives in Shelby County. And unfortunately, that happens to be one of the most conservative counties in Alabama. It's so conservative, in fact, that we have almost no Democratic officeholders in the county.

I certainly have no problem with Dawson's efforts to rally folks behind prayer. But I would suggest that she also needs to enlighten Shelby County citizens about their voting habits.

Perhaps the BP spill will not damage the Gulf of Mexico beyond repair. But if we continue to elect leaders who promote a pro-greed, anti-regulation stance, we will almost certainly have another major spill down the road. And at some point, we are going to ruin one of the most important ecosystems on the planet.

Prayer is fine, but God gave us brains. It's time more of us started using our brains when we go to the voting booth.

Friday, June 11, 2010

Bush Ignored Warnings From 2000 About Deepwater Oil Spills

U.S. government regulators warned in 2000 about the myriad problems that could be caused by a deepwater oil spill. But the George W. Bush administration ignored such warnings and issued an executive order in May 2001 that pushed to speed up the search for oil.

The disaster scenario was contained in a May 2000 offshore drilling plan for Shell oil company, according to a report from McClatchy Newspapers and Truthout. The author of the report was the U.S. Interior Department's Minerals Management Service (MMS), which has come under heavy criticism in the wake of the ongoing BP oil spill in the Gulf of Mexico.

Experts and former MMS officials say they have known for at least a decade that deepwater oil production could lead to disaster. Reports McClatchy:

A decade ago, U.S. government regulators warned that a major deepwater oil spill could start with a fire on a drilling rig, prove hard to stop and cause extensive damage to fish eggs and wetlands because there were few good ways to capture oil underwater.

The Bush administration, however, was not interested in hearing about such warnings:

Yet over the past decade, the risks faded into the background as America thirsted for new oil sources, the energy industry mastered new drilling technologies and the number of deepwater wells in the Gulf swelled into the thousands. Then-President George W. Bush ushered in the new era with an executive order on May 18, 2001, that pushed his new administration to speed up the search for oil.

"I think it was certainly overwhelmed by the excitement of all the oil and gas that was starting to show up in the seismic studies and the technical excitement of how to drill these reservoirs," said Rick Steiner, a veteran environmental scientist who reviewed the document for McClatchy. "I think that had a way of subduing the real concern about the risk of these things."

Regulators in 2000 proved to be remarkably prescient:

The Shell plan, which Greenwire, an environmental news service, first reported last week, described a worst-case scenario for a deepwater blowout that in several instances reads like a preview of what's happened since BP's Deepwater Horizon rig began spewing crude into the Gulf seven weeks ago.

While noting that a major blowout was very unlikely, the Shell plan said: "Regaining well control in deep water may be a problem since it could require the operator to cap and control well flow at the seabed in greater water depths . . . and could require simultaneous firefighting efforts at the surface."

The BP disaster started when the drilling platform exploded, sending a towering wall of flames into the sky and killing 11 workers before it sank.

The report was on target about the difficulties such a blowout would present:

The 2000 Shell plan also cautioned that an oil gusher wouldn't behave the same way in deepwater as one would in shallow water, where most drilling to that point had been done. "Spills in deep water may be larger due to the high production rates associated with deepwater wells and the length of time it could take to stop the source of pollution," it said.

McClatchy interviewed a marine biologist, now retired, who helped prepare the Shell plan. His analysis of the BP spill?

Dennis Chew, a marine biologist who helped prepare the plan but has since retired after 21 years with the MMS, studied it again this week and said: "Bottom line, this (BP) blowout was preventable." However, he blamed the accident on human error and BP "cutting corners. . . . "
Chew and two other members of the team that prepared the Shell plan told McClatchy that MMS scientists had analyzed the potential impact of deepwater blowouts as far back as the late 1990s.

"Ten or 15 years ago, there used to be 200-page (environmental impact statements) on nothing but spills," Chew said. "It got to where people got tired of wading through them."

Bush officials, it turned out, weren't interested in listening to scientists. And Americans now are paying an enormous price:

The 2000s, however, ushered in an era of aggressive, government-backed offshore oil production. In May 2001, Bush, acting on recommendations from the oil industry, signed an executive order that required federal agencies to expedite permits for energy projects and paved the way for greater domestic oil exploration.

The rush to drill in deep water swept aside warnings from MMS scientists and others, experts said.

Coffee Spill Leads To Catastrophe at BP Headquarters!

We already know the fine folks at BP don't have much of a clue when it comes to trying to solve a spill at one of their deepwater oil rigs in the Gulf of Mexico.

But what happens when folks start spilling coffee in conference rooms at BP headquarters? How does the BP brass handle that?

Not too well, we learned recently. The scene gets ugly--and awfully funny--in a hurry.

Thursday, June 10, 2010

UAB Professor Faces Discrimination Because of Ties to Labor Movement

A professor at an Alabama university has faced discrimination and harassment partly because of his ties to organized labor and liberal politics, according to a lawsuit filed in U.S. District Court.

Glenn Feldman has taught labor economics, macroeconomics, labor history, and more since 1996 at the University of Alabama at Birmingham (UAB). He is a full professor with tenure, but his lawsuit claims university officials tried to unlawfully fire him, in part because of his ties to labor unions and the Democratic Party.

UAB is the same university that unlawfully terminated me in May 2008 largely because of my criticism on this blog of the Bush Justice Department, especially its handling of the Don Siegelman prosecution.

Feldman, who is of Hispanic descent, alleges race discrimination, retaliation, breach of contract, First Amendment violations, and more in his lawsuit. He is seeking lost and back wages, compensatory damages, attorney fees and costs, and other relief.

According to Feldman's complaint, he is not alone in facing a hostile work environment at the UAB School of Business. He says others have suffered retaliation for not fitting a model that seeks to "attract conservative, affluent white students" in order to enhance the school's "reputation to the conservative pro-business community."

Such discrimination apparently can be traced to the arrival of David R. Klock as dean at the UAB School of Business in March 2008. Klock came to Birmingham after spending roughly two years as business dean at Cal Poly Pomona.

Feldman has a distinguished academic background, with five degrees, including a master's from Vanderbilt University and a Ph.D. from Auburn University. He has written seven books, is co-author of one book, and has written almost 100 scholarly articles. You can check out Feldman's biography here:

Glenn Feldman's Curriculum Vitae

Most of Feldman's career at UAB has been spent in the Center for Labor Education and Research (CLEAR), which offers clinics and seminars on labor issues for businesses, unions, and other groups throughout the Southeast. CLEAR's funding included a five-year, $3-million grant for a Workplace Safety Training (WST) program from the National Institute of Environmental and Health Services (NIEHS).

In October 2006, Feldman was named director of CLEAR and became principal investigator on the NIEHS grant and several other smaller grants.

When Klock came on board as dean, according to Feldman's complaint, he immediately began efforts to dismantle programs that did not fit the corporate image he wanted to project for the School of Business.

Within three months of his arrival, Klock closed the UAB Small Business Development Center, which provided services for individuals interested in starting and operating small businesses. Klock quickly turned his attention to CLEAR. States the Feldman complaint:

In an introductory meeting with CLEAR officials, Klock questioned CLEAR's value to the School of Business, stating that he was a "street fighter," that he had been hired as an "agent of change" and that it is his intention to start "mini revolutions" among other departments in the business school by depicting CLEAR's funding as a waste of resources.

Feldman and other faculty members contacted union leadership in an effort to help keep the center functional. In May 2008, the United Steel Workers of America sent approximately 400 faxes to UAB officials in support of CLEAR. Despite that, UAB initiated efforts within the Alabama Legislature to close CLEAR. The center and most of its employees eventually moved to Jefferson State Community College in Birmingham.

Assured that his tenure rights would be respected, Feldman decided to stay at UAB and teach in the Department of Finance, Economics, and Quantitative Methods (FEQM).

Roughly two weeks after announcing his decision to stay, Feldman was called to a meeting with Klock and Associate Provost Harlan Sands. They told Feldman that they had made an "institutional decision" to terminate Feldman's employment at UAB, effective September 30, 2009.

Feldman stated that as a tenured full professor, he could not be terminated without cause and without 12 months notice per university policy. Klock and Sands did not take that well, with Klock warning there "would be pain . . . considerable pain" if Feldman insisted on staying at UAB.

Klock arbitrarily moved Feldman from a 12-month to a nine-month contract and reduced his pay by almost $30,000. The dean also refused to pay for Feldman's benefits and family health care for three months in 2009.

Klock then initiated efforts to question Feldman's "academically qualified" status for accreditation purposes. This came even though Feldman had been deemed "academically qualified" throughout his tenure at UAB and had survived previous accreditation processes with the Association to Advance Collegiate Schools of Business (AACSB).

Feldman's complaint outlines a pattern of such abuses in the UAB School of Business under Klock:

As part of this pattern and practice, UAB and the School of Business administration have engaged in a long series of acts of creating a hostile work environment for those faculty who do not fit within this conservative, affluent, white atmosphere. Other faculty members who are minorities and women have suffered similar conduct as complained of by the Plaintiff, while similarly situated conservative white employees have not.

This all hits close to home for your humble blogger. As a former UAB employee, I know from firsthand experience that the above statement from Feldman's complaint is based in fact. I was fired largely because I chose to write, on my own time, what could be called a progressive blog. There is no doubt in my mind that I would still be working at UAB if I had chosen to write a conservative blog.

It also hits close to home because I know Glenn Feldman personally. I interviewed him several times during my time at UAB and always found him to be informed, insightful, and engaging. In fact I wrote the following article for UAB Magazine about one of Feldman's books, "From Demagogue to Dixiecrat: Horace Wilkinson and the Politics of Race."

Unions in Dixie: Labor and Race in the South

That article was written in 1999, before George W. Bush was "elected" president of the Unites States in 2000, before Carol Garrison was named president of UAB in 2001, and before Bob Riley "defeated" Don Siegelman for governor of Alabama in 2002.

Exploration of what might be called progressive ideas was encouraged at UAB back in 1999. But the university has taken a decidedly rightward turn since then--and that has led to considerable ugliness.

Glenn Feldman's lawsuit is just the latest example of that.