The Alabama Democratic Executive Committee will meet in Montgomery today to vote on rescinding Marshall's candidacy and naming a replacement. Two Jefferson County Democratic groups have recommended Nicole Gordon Still as the party's pick, and Still is the favorite to receive the nod if Marshall is removed.
Legal Schnauzer has learned that Still, through her prominent lawyer father, has ties to the Rileys. That, plus the curious timing of the charges against Marshall, indicate political considerations are at least partially driving the process.
Race seemingly has played a strong factor in the case since the Alabama State Bar announced on August 3 that it was temporarily suspending Marshall's license over charges that she misappropriated $30,000 in a client's fund. Marshall and three other lawyers who have expressed an interest in the court position are black; Still is white.
Gov. Bob Riley appointed Still to the judgeship in June 2009, but she had to run for re-election this year. Still spent $105,000 on her campaign and outspent Marshall by almost 8:1. But in the July 13 primary, Marshall won handily with 55 percent of the vote; Still came in second.
No Republican has qualified for the race, so the Democratic nominee is likely to take office in January 2011. It increasingly looks like that nominee will be Still. And it appears that her family connections to Bob and Rob Riley are helping her cause.
Still's father is Bruce Gordon, who has practiced law in Alabama for 45 years and is a partner in the Birmingham firm Gordon Dana Knight &; Gilmore. Still was with the firm, and her name was on the masthead, until Bob Riley appointed her to a judgeship.
Still's campaign Web site notes that she was among three candidates chosen by a nonpartisan commission to be submitted to the governor. But that might not tell the whole story.
For several years, Bruce Gordon and the Gordon Dana law firm represented a company called Alabama Pain Consultants in a lawsuit involving Aspen Medical Products. That case is ongoing, and the Gordon firm has withdrawn from representation of Alabama Pain Consultants. But the case establishes a tie between Bruce Gordon, Nicole Gordon Still's father, and Rob Riley.
Alabama Pain Consultants is owned by Thomas Spurlock and David Marshall. Spurlock, a chiropractor, works in the UAB Department of Surgery and is a business partner with Rob Riley. Spurlock is an owner and officer in Performance Group LLC, a company whose other owners include Rob Riley.
As we have reported here at Legal Schnauzer, Performance Group and Alabama Pain Consultants are among the defendants in a federal whistleblower lawsuit, alleging they have engaged in Medicare fraud.
Consider a few passages from the whistleblower lawsuit. Here's one:
Beginning during or before 2005, defendant Spurlock routinely forged the signatures of physicians on prescriptions for physical therapy services to be provided by Spinal Rehab and Performance Group. In addition, Spurlock forged the signatures of physicians on certificates of medical necessity for medical equipment to be provided by Alabama Pain.
Beginning during or before 2005, defendant Spurlock, a chiropractor, signed his name as "Thomas Spurlock, M.D." on prescriptions for physical therapy and certificates of medical necessity for medical equipment for the purpose of misleading others regarding his authority to order such items and ultimately have them paid by insurers, including Medicare. . . . (the whistleblower) has witnessed Spurlock forge the signatures of numerous doctors who practice in and around Birmingham.
How deep did the fraud go?
Beginning in 2005, defendants Spurlock and Marshall instructed employees of Spinal Rehab and Performance Group entities, including (the whistleblower), to provide every patient from those physical therapy clinics with medical equipment from defendant Alabama Pain, a medical equipment company owned by Spurlock and Marshall. Employees were instructed to ensure that each physical therapy patient received a back brace, a transcutaneous electrical nerve stimulator ("TENS unit"), and/or a cervical collar. Pursuant to the instructions of Spurlock and Marshall, these items were to be provided regardless of whether they were medically necessary.
And here is more:
As an inducement to carry out this fraudulent scheme, Spurlock and Marshall paid employees bonuses or commissions for each piece of Alabama Pain medical equipment provided to physical therapy patients. Employees received $50 for each back brace, $25 for each TENS unit, and $25 for each cervical collar. . . . As a result of this fraudulent scheme, hundreds of claims were submitted to Medicare for medical equipment that was not medically necessary.
This alleged fraud was being conducted by Rob Riley's business partners. And those partners eventually were defended in another lawsuit by Bruce Gordon. A source tells Legal Schnauzer that Gordon and his firm, which included Nicole Gordon Still at the time, represented Alabama Pain Consultants well into 2008 and only withdrew when the company failed to pay legal bills.
Did Bruce Gordon's efforts to help bail out Rob Riley's business partners have a payoff? Well, Gordon's daughter was appointed to a judgeship in 2009.
And when Nicole Gordon Still failed to win the Democratic primary in mid July, the Alabama State Bar waited about three weeks before suddenly coming up with charges against the woman who beat her--Kenya Lavender Marshall.
Much remains unclear about this story. But this much is clear:
* Rob Riley and his business associates have stepped in some major legal doo-doo and probably could use some friendly judicial faces to help them wipe the stink off their shoes.
* Rob Riley and Nicole Gordon Still have quite a bit in common. They both have lived charmed, prosperous lives, driven largely by the fact they have powerful, influential daddies.
Are these powerful white families--and the Alabama legal establishment--joining forces to ensure that a black candidate never is seated as a judge, even though she apparently won an election fair and square?
Alabama citizens who care about justice should be giving that question a lot of thought over the next few days?
Meanwhile, here is a video of Kenya Lavender Marshall's appearance before a Democratic Party group earlier this week: