Tuesday, November 30, 2010

An Alabama Fox Now Is Guarding the Foreclosure Henhouse

GMAC Mortgage is at the heart of the evolving foreclosure-fraud story. And who has GMAC picked to help "review" its activities in the burgeoning scandal? Why, an Alabama law firm that helped create the mess in the first place.

Birmingham-based Bradley Arant Boult and Cummings, which touts itself as Alabama's largest law firm, is one of three outfits that GMAC has tabbed to conduct an "independent review."

The blog Naked Capitalism, in a post titled "Foxes Now Minding Very Big Henhouse," finds Bradley Arant's involvement to be problematic, noting that the Alabama firm has been GMAC's national counsel on real-estate servicing matters for some time.

Writes Naked Capitalism:

Given Bradley Arant’s long-standing and extensive involvement in GMAC’s mortgage business, how can it legitimately be part of the team conducting the review? It’s incentives will be to minimize any problems, for a host of reasons, the most important being so as not to ruffle a big meal ticket and to avoid the exposure of any issues that might create liability for the firm.

We've written several times about Bradley Arant, and it has never been in a positive light. That's because the firm seems to be about as "pro business" and "right wing" as you can get--and it seems to have little interest in fundamental matters of justice, or the rights of regular folks. It's main interest seems to be cold, hard cash.

Consider Rob Campbell, a partner at Bradley Arant who happens to be Governor Bob Riley's son-in-law. Campbell and other Riley allies have helped the firm rake in huge sums of state dollars over the past eight years.

More recently, we've written about Ted Rollins, a member of one of America's wealthiest families, who was the beneficiary of numerous extraordinary--not to mention unlawful--rulings in a divorce case in Shelby County, Alabama. Rollins is based in Charlotte, NC, but he has ties to Alabama, mainly because his real-estate development interests have been represented by . . . Bradley Arant. Two of the firm's lawyers, Dawn Helms Sharff and Walter Sears, have been particularly involved with Rollins' activities, including a recent $380-million Wall Street IPO for his firm, Campus Crest Communities.

We will be writing much more about Ted Rollins and his ties to Bradley Arant. And we will be keeping an eye on the firm's involvement with GMAC Mortgage and the foreclosure-fraud story.

We've seen no sign that the esteemed lawyers of Bradley Arant are remotely interested in matters of truth and justice. The chances of such lawyers actually getting to the bottom of what caused the foreclosure mess are extremely slim. It's much more likely that they will try to help cover it up.

Here is What Birmingham Needs In A Downtown Baseball Park

Birmingham is planning to build a downtown baseball park, and we think it's one of the neatest ideas to come from the city in years. Unfortunately, it appears the city intends to built the ballpark in the wrong location. Fortunately, we have a resident who is knowledgeable about such matters and knows exactly how the project should proceed.

The big question: Will someone in city government listen to this fellow before it's too late?

Plans call for moving the Birmingham Barons of the Class AA Southern League to a downtown site from Regions Park in Hoover. If the new ballpark is not built in the right spot, however, everyone involved would be better off leaving the Barons in the suburbs.

Over the past 20 years or so, downtown areas across the country have been revitalized with the construction of ballparks that offer both modern amenities with classic, old-timey sensibilities. The best of these parks merge a functional baseball facility with a modern cityscape, creating an environment that provides comfort, attractive sight lines, and a strong sense of place. The idea, in essence, is to mix the simplicity of a sandlot with the majesty of skyscrapers--or whatever vistas a particular city has to offer.

Many of these projects have been smashing successes, at both the major- and minor-league levels. The best of them are like baseball cathedrals, true works of art that promote both a sporting spirit and a sense of community. A few examples:

San Francisco's magnificent AT & T Park sits on China Basin Channel. No wonder the Giants won the World Series this year. Who wouldn't be inspired from playing in this place?

Pittsburgh's PNC Park sits on the shores of the Allegheny River and might be the finest stadium in the history of baseball. The Pirates are an awful team, but they have a splendid place to play. In fact, the only negative I've heard about going to PNC Park is that you have to watch the Pirates play.

Birmingham does not have a river running through it. And we do not sit on a breath-taking bay. But for a medium-sized city, we do have an attractive skyline. And the new ballpark needs to take advantage of that.

Here's the problem: Current plans call for the new ball park to be built near Railroad Park, a 19-acre green space that opened in summer 2010. Railroad Park is probably the second neatest idea to come out of Birmingham recently, and it promises to be a major plus for years to come. But it has nothing to do with baseball, and there is no reason to connect it with the new ballpark. Railroad Park is about history, nature, and interactive activities. The proposed Railroad Park district needs to focus on those attributes.

The new baseball park needs to be viewed as a separate matter. The proposed location near Railroad Park is several blocks from the downtown district and would limit the use of the city's skyline for aesthetic purposes. The ballpark needs to be a place where citizens come to view a sporting event--and drink in the metropolitan vibe all around them. A downtown ballpark needs to be smack in the middle of DOWNTOWN.

Again, if you are going to build the baseball facility near Railroad Park, you might as well leave the Barons in Hoover. Regions Park is only 22 years old, and while it lacks the ambiance of a downtown park, it's nestled amid pine trees and remains a mighty fine place to watch a ballgame.

What to do? A Birmingham resident named Craig Krawczyk knows exactly what to do. And Mayor William Bell and the Birmingham City Council need to be listening to him.

Krawczyk is an architect with Birmingham-based Live Design Group. Long fascinated with sports venues, Krawczyk, on his own, drew up a full design for a baseball park in Birmingham--one that would be in the Civil Rights district, in the midst of downtown. "I just thought it would be a fun thing to do, something to play around with at night," he said.

What Krawczyk came up with is a stroke of genius--exactly what Birmingham's downtown ballpark needs to be, where it needs to be. Wrote The Birmingham News, in a profile of the architect:

His plans feature details such as an event space with a view of the ballfield and a sculpture garden that links to the Birmingham Civil Rights Institute.

But the design is more than just pie-in-the-sky ideas.

Krawczyk considered practical needs for the project, including logistics for visitors and ways the facility would mesh with the rest of downtown.

While most of the buzz about a new downtown ballpark centers on a site near Railroad Park, Krawczyk said he sees benefits in having it closer to downtown offices and the Civil Rights District.

Krawczyk's design is both a practical and an artistic winner:

"It's pretty close to the Civil Rights Institute to take advantage of all the parking structures over there, and it's within walking distance of the basic business core, so business people can bring clients and walk over for the afternoon," he said.

It's also close to the Alabama Theatre and the McWane Science Center, which is good for families and others who want to fill up an entire day with downtown activities, he said.

"I didn't want it to be completely hypothetical," he said. "I wanted it to have somewhat of a client, with real-world parameters."

From what we understand, Krawczyk has not spoken with anyone at City Hall. But he and his colleagues at Live Design Group need to get involved in this project, pronto. They know what they are doing.

Consider the photo below of the architect with a rendering of his design. Notice how it incorporates the city's skyline beautifully into the overall scenario. Front and center would be the Regions Harbert Plaza, which is Birmingham's most attractive modern building--and to my untrained eyes, one of the most attractive buildings of its kind anywhere.

Downtown Birmingham features an attractive, modern skyline, along with a number of timeless buildings that have made up the city's core for decades. Krawczyk's design is an ideal blending of the city's past, present, and future.

Regions Harbert Plaza

It would put Birmingham on par with baseball-based projects that have energized downtowns across the country.

Birmingham often has needed outsiders to help it move forward. Krawczyk is that kind of guy. He grew up in Ohio and remembers attending a Cleveland Indians game when he was about 5 years old. "I couldn't tell you anything about the game itself, but I remember going to that stadium and being in awe of the place," he said. "I think I spent more time looking at the building than watching the game."

What impact have baseball parks had in other cities? Consider just a few examples:

Autozone Park in Memphis is considered by many to be the finest minor-league ballpark in the country. It is home to the St. Louis Cardinals' Class AAA team:

Victory Field makes dramatic use of the Indianapolis skyline for the Class AAA Indianapolis Indians:

Fifth Third Field has become an attractive home for the Class AAA Toledo Mud Hens, the team Corporal Max Klinger made famous in M*A*S*H. Like the Birmingham Barons, the Mud Hens had played at a suburban stadium before their move downtown:

In the 30-plus years that I have lived here, the Birmingham Civil Rights Institute undoubtedly is the most significant project to take shape downtown. But in terms of grand scope and potential long-term impact, the downtown ballpark becomes No. 1. It's critical that the project be done the right way. And Craig Krawczyk is the guy who needs to lead the effort. Let's check out an interview with the architect:

Monday, November 29, 2010

Will Federal Judge Get Off Easy for Snorting Coke With a Stripper?

Jack T. Camp

Want to get off lightly if you ever get caught buying drugs while packing heat and cavorting with a stripper? Make sure you are a federal judge.

That's the lesson from the sordid tale of Jack T. Camp, a U.S. District Judge in Atlanta who recently pleaded guilty to charges related to his arrest in a hotel parking lot back in October. As part of the plea deal, Camp resigned his position--and he will be sentenced on March 4. But press reports indicate that Camp probably will get off with the kind of kid-gloves treatment that would not be afforded a regular citizen.

From the Atlanta Journal-Constitution (AJC):

Camp pleaded guilty to one felony, aiding and abetting a felon's possession of cocaine, a painkiller and marijuana. He also pleaded guilty to two misdemeanors -- possession of illegal drugs and giving his government-issued laptop to the stripper.

Camp must serve at least 15 days in custody. Federal sentencing guidelines recommend a term of four to 10 months in prison, although Camp and his attorneys can ask for a more lenient sentence.

Camp could wind up getting off with home confinement or probation. As a judge, the Reagan appointee was noted for his harsh sentences. Such sentences, apparently, do not seem so inviting when Camp is on the receiving end.

What was the key to Camp's softball treatment? Federal prosecutors allowed him to get away without pleading guilty to a gun-possession charge. At least one Atlanta lawyer, Bruce Harvey, had the guts to stand up and criticize the plea deal:

Harvey criticized the plea deal reached between Camp's legal team and the U.S. Justice Department's public integrity section. He questioned, for example, why prosecutors did not require Camp to plead guilty to a gun possession charge, which would have exposed him to a more severe sentence.

"Once again," he said, "it's the little people who get caught in the gears of the system, and those who run the system reap all the benefits."

Here's another sign that it helps to be a federal judge: Camp is allowed to remain free on $50,000 bond. Several victims of Bush-era political prosecutions, including former Alabama Governor Don Siegelman and codefendant Richard Scrushy--were "convicted" for actions that are not even crimes and were immediately taken into custody, in shackles.

Sherry Ann Ramos

Sherry Ann Ramos is the stripper/informant who helped bring down Judge Camp. The Smoking Gun (TSG) calls Ramos "Atlanta's Most Notorious Stripper." Reports TSG:

The Atlanta stripper who worked with the FBI to snare a federal judge on drug and gun charges is a convicted felon who spent three years in prison for her role in a methamphetamine distribution operation, The Smoking Gun has learned.

If you had a case before a federal judge, wouldn't you love to know he was hanging out with Sherry Ann Ramos after hours? And it gets worse. Writes TSG:

Ramos was originally indicted in January 2005 on a narcotics distribution charge, but later cut a plea deal to a lesser count of using a phone to arrange the sale of more than 50 grams of methamphetamine. In describing the unnamed stripper/informant used in the Camp probe, FBI agents noted that the snitch's rap sheet included a “federal felony conviction for use of a telephone in connection with a drug trafficking crime.”

Ramos’s codefendant in the methamphetamine case, Juan Carlos Ramos, pleaded guilty to three felony charges and was sentenced to 12 years in prison (he is scheduled to be released in May 2015). The nature of the relationship between the Ramoses is unclear.

Federal court records show that shortly after Ramos was released from prison in November 2008, she was accused of violating various terms of her probation, including using marijuana, drinking alcohol to excess, and “associating with known felons.”

How big a sleazebag is Camp? Consider this AJC report on the court's statement at Camp's plea hearing:

The statement said [Camp and Rollins] met to have sex, smoke pot and snort cocaine and ground-up pain pills. It noted that Camp got a deputy U.S. marshal to run a criminal background check of the stripper, saying he was renting out a house and wanted to check out a possible female renter. It said he followed the stripper to drug deals, bringing along a loaded handgun for her protection.

When the stripper, described only as "Confidential Informant-1," asked Camp on Oct. 1 to accompany her to a drug deal and watch her back, the judge did not hesitate, saying he'd not only bring his "little pistol," he'd bring his "big pistol," too. When Camp was arrested, agents found two handguns in his car; one was loaded with a round in the chamber, the hammer cocked and the safety on.

Gee, I wonder what "big pistol" the judge was referring to. This is the kind of high-minded "jurists" we have on the federal bench, folks. Based on what I've seen of state and federal judges, Camp hardly is a lone "rotten apple."

Camp has plenty of company in judicial sleazedom, but it's laughable to see how some in the legal community have tried to make excuses for him.

John Stuckey, one of Camp's former law partners, grasped for an explanation of the judge's behavior:

In trying to explain the unexplainable, several friends have mentioned that Camp had a severe head trauma several years ago after he was thrown from his bicycle. He was in intensive care for nearly a week, said Stuckey.

“I’ve had conversations with old friends trying to come up with reasonable explanations,” Stuckey said. “There is no rational explanation. You’d have to look at the irrational. Possibly the head injury.

“If true, it’s an inexplicable deviation of character, a Jekyll and Hyde effect.”

If Camp's legal buddies were concerned about the effects of a head injury, why were they OK with him staying on the bench? Did they think it was OK for their pal to rule on federal cases when they suspected his brain was scrambled by head trauma? Why did they only become concerned about the injury's possible effects on his behavior after "His Honor" got nailed by the feds?

That's typical of how many lawyers view our "justice" system. If something causes regular citizens to get cheated in court, it's to be shrugged off, excused, or covered up. The victims are described as "disgruntled litigants." But if something causes a member of the legal fraternity to look bad, it must be explained away.

After all, it's just not possible that Jack T. Camp was a rotten, no-good scoundrel all along.

Sunday, November 28, 2010

And You Thought the TSA Was Messing Around With YOUR Junk . . .

This Thanksgiving week will forever be remembered as the one where "don't touch my junk" became part of the American vernacular.

It also will be remembered as the time when many citizens realized the U.S. Transportation Security Administration (TSA) plans to continue with full-body scans and enhanced pat downs for the foreseeable future.

With that in mind, we need to consider who will lead this effort in years ahead. Our crack Legal Schnauzer research team has come up with just the guy. His name is Tony Jerod-Eddie. He currently plays on the defensive line for the Texas A&M University football team. But he's got a heck of a future with the TSA.

In a recent game against Nebraska, Jerod-Eddie's Aggies forced a fumble, prompting the usual wild scramble for a loose football. Nebraska tight end Ben Cotton made the recovery, but he probably wishes he hadn't.

As officials tried to unpile the players, Jerod-Eddie grasped Cotton in a most delicate location. It was an exam that would make a proctologist proud, but officials missed it. Instead, they saw Cotton kicking blindly at the opposing player who was practicing the wrong kind of "ball handling."

The result? A penalty flag for unsportsmanlike conduct . . . against Cotton.

Thanks to the miracles of YouTube and television cameras--the game was on national TV--we all can see what the officials missed. (See video below; Jerod-Eddie is No. 83 in the maroon jersey.) Texas A&M Coach Mike Sherman said he talked with Jerod-Eddie and warned him about "extracurricular activity" on the field--but he did not suspend the player.

The bottom line? Tony Jerod-Eddie violated another person and got away with it.

Heck, let's forget about Jerod-Eddie and the TSA. He's got all kinds of  potential as a lawyer. Wouldn't be surprised to see him wind up as a judge.

Wednesday, November 24, 2010

Why Is Federal Judge Stalling on Siegelman Ruling?

Don Siegelman

A federal judge has delayed ruling on whether the judge who presided over the Don Siegelman case should be allowed to rule on motions for a new trial.

Robert Hinkle, a U.S. District Judge in Florida, says he will wait until the U.S. 11th Circuit Court of Appeals has ruled on appeals filed by Siegelman and codefendant Richard Scrushy. Siegelman and Scrushy contend that U.S. District Judge Mark Fuller, who oversaw their trial in Montgomery, should not be allowed to continue hearing post-trial challenges.

What does it mean? It's hard to know for sure, but we think it might be a good sign for Siegelman and Scrushy. We also think it's a sign that the federal judiciary is trying to protect Fuller, one of its own rogue members.

The record in the Siegelman case is filled with grounds that require Fuller's recusal. In fact, the law requires Fuller to make that ruling on his own. But he shuffled it off to another judge. And now that judge, Hinkle, is shuffling his feet, seemingly in hopes that the 11th Circuit will take him off the hot seat.

This all is driven by the U.S. Supreme Court's ruling in June that vacated the judgment in the Siegelman case and ordered the 11th Circuit to review the case in light of the high court's findings on honest-services fraud in a case involving former Enron executive Jeffrey Skilling.

A case styled Yates v. United States, 354 U.S. 298 (1957) is likely to drive the 11th Circuit's review on Siegelman. Here is the key holding 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.

What does that mean in everyday language? Here's how we put it in an earlier post:

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.

If the jury was tainted by an instruction that now is unlawful, what happens next? Well, that is where Yates presents a mixed bag. Yates involved 14 defendants who had been convicted of conspiring to advocate the overthrow of the U.S. government. The U.S. Supreme Court wound up ordering acquittals for five defendants and new trials for the other nine.

The 11th Circuit already has shown that it is quite capable of botching any ruling on the Siegelman case. It's possible that the Atlanta-based court will find "harmless error" in light of the Skilling ruling and grant Siegelman/Scrushy neither an acquittal nor a new trial.

Our guess is that Robert Hinkle hopes the 11th Circuit will take the legal monkey off his berobed back by granting an acquittal. That way, he won't have to address all of the evidence that suggests Mark Fuller never should have presided over the Siegelman case in the first place.

Tuesday, November 23, 2010

Stench Grows Stronger Around Death-Penalty Case in Alabama

Katherine Helen Gillespie

An Alabama jury yesterday recommended the death penalty for Ryan Gerald Russell, who was convicted of killing his 11-year-old cousin.

Katherine Helen Gillespie died from a gunshot wound to the head in June 2008. Her body was found in an SUV at the home where she lived with Russell, her legal guardian. Court documents showed that Russell had planned to adopt Gillespie.

Gillespie's death is a sad and baffling story. And it is picking up a strong hint of injustice as Russell probably heads to death row for a crime that does not appear to fit the definition of murder. Gross incompetence by investigators and defense attorneys--not to mention the judge's history of unethical behavior--seem to be glossed over.

Shelby County Circuit Judge J. Michael Joiner will sentence Russell on December 16. Joiner can accept the jury's recommendation or sentence Russell to life in prison without parole.

As we reported yesterday, two curious elements of the Russell prosecution jump out:

* His court-appointed defense attorneys, Mickey Johnson and Rick Vickers, chose not to put on any defense. Its common for defense lawyers not to put the defendant on the stand. But to present no defense at all, to present no rebuttal to the prosecution's case? Can you imagine Johnny Cochran handling the O.J. Simpson defense in such a fashion? Of course, Johnny Cochran was not a court-appointed attorney.

* An evidence technician admitted under cross examination that his team left behind four guns at the scene, including what they now believe to be the murder weapon. The prosecution had determined that one gun was used in the shooting but changed its mind when one of Russell's family members found another gun in his home several months later.

Here is perhaps the most stunning element of this case: Based on press reports, from both The Birmingham News and the Shelby County Reporter, no evidence was presented that tied Russell to the actual act of shooting Gillespie. Articles about the testimony of a forensics expert made no mention of fingerprints, powder residue, or any other evidence that proved Russell fired the weapon. Yes, the gun was found in Russell's house. But proof beyond a reasonable doubt that he fired the gun? If any was presented at trial, it was not reported in the press.

Ed Moran, from the Alabama Department of Forensic Sciences, testified about this crucial part of the case. The Birmingham News reported on Moran's testimony in an article with the headline: "Girl shot at close range, expert says." Did Moran present any evidence about who did the shooting? If he did, it's not in the article?

Ryan Gerald Russell

Did either of Russell's court-appointed defense attorneys ask Moran this simple question: "Do you have any evidence that proves conclusively that Mr. Russell pulled the trigger in this close-range shooting?" If such a question was asked, there is no mention of it in any article. And if such a question had been asked, it appears the answer would have been no.

The list of adults who failed Katherine Helen Gillespie is long. Why was an 11-year-old girl living in a home with a man who kept roughly 40 guns on hand? Why was an 11-year-old girl living in a home with a man who had a drinking problem so severe that he apparently would black out at times?

Emily Webber, Russell's former girlfriend, testified about the serious nature of his drinking problem and the threat it posed to Katherine. From the Shelby County Reporter:

Webber said she lived with Russell at 5048 Kerry Downs Road for a total of a year and half, including the first six months Gillespie came to reside at the home. Webber said she was not living with them at the time of the crime.

Both times Webber moved out of the residence, she said it was because of Russell’s constant drinking. Webber said there were several occasions when Russell was drinking and driving with Gillespie and other children in the car. She often found vodka bottles in the car.

“The home of an alcoholic is not a suitable environment for a family, especially a family with children in it,” she said.

Webber said she couldn’t control Russell when he was drinking. She said he often wouldn’t realize he was walking around the house without clothes on if he’d been drinking.

“All I wanted was to give Katherine the perfect little family that she deserved,” she said. “This is a child that lost her mother at an early age and had no father figure in her life. That is not what she had with Ryan in the home continuing to drink.”

“I went to Ryan’s family several times and told them ‘Ryan has a drinking problem. I need help. I need to get Katherine out of this environment,’” she added.

Webber's concerns went unheeded. And that, apparently, helped cost Katherine Helen Gillespie her life.

Evidence about Russell's drinking only adds to the questions about the murder conviction in this case. It appears the prosecution did not prove that Russell fired the weapon in question. And if he did, it's hard to see the intent required for a murder conviction, much less the aggravating circumstances required for the death penalty.

This whole case smells like a railroad job, and I've seen that kind of thing happen before in Shelby County courtrooms. I've been writing for three-plus years about the unlawful actions of Judge J. Michael Joiner in the lawsuit a neighbor filed against me. That experience caused me to start a blog about judges, lawyers, prosecutors, and other officials who abuse the public trust. I wound up losing my job because of what I've written on this subject.

Now the same judge who butchered a relatively simple civil matter is probably going to wrongfully send a man to death row. This is a classic example of why we need to pay close attention to the kinds of people we entrust with the role of judge.

I've written in exhaustive detail on this blog about many of the unlawful rulings Joiner made in my case, apparently in an effort to favor his buddy, opposing counsel William E. Swatek. But I still get an occasional comment from a reader that goes something like this: "That the judge in your case is corrupt, or ruled unlawfully, is a matter of opinion. Just because you think it's so doesn't make it fact."

Actually, it is fact. Anyone who lives in Alabama, or is passing through, can stop at a courthouse, find a public computer and look up the case. It's Mike McGarity v. Roger Shuler, CV 00-1248 in Shelby County Circuit Court. (Anyone who has access to AlaCourt, can look up the case there.) If you know the relevant procedural law, you don't even have to read the case file to see much of the corruption; it's apparent just from checking the docket report.)

Joiner, by my conservative estimate, made 20 to 30 unlawful rulings in my case, all favoring Bill Swatek and his client, Mike McGarity. But I tend to focus on summary judgment because that's the most important issue, the one that would have brought the case to a lawful conclusion. And the indisputable record shows this:

The case had to be dismissed on so many grounds--eight to 10, at least--that I filed three motions for summary judgment (MSJ), each raising distinct issues of fact and law. On the first MSJ, McGarity filed a response, but he filed no timely evidence as required by law. He did file an affidavit--which did not dispute the fundamental facts and law at hand--but it was 10 days late and had to be stricken as a matter of law. Joiner denied summary judgment anyway.

On the second and third MSJs, McGarity filed no response at all--no affidavit, no evidence, nothing. That meant the evidence I filed, which was different from the evidence in the first MSJ, was uncontroverted. In such circumstances, Alabama law is clear: Summary judgment must be granted and the case dismissed. In fact, the law in all jurisdictions is clear: Such an MSJ simply cannot be denied, and it's a "nondiscretionary" ruling. It's about as clear and universal as law can get, like "three strikes and you're out" in baseball.

But Joiner could not get it right, and he denied all three MSJs. I could teach a seminar on all of the procedural, statutory, and case law that says this cannot be done. But here is the simplest way to understand it, straight from Alabama case law:

"When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing." Voyager Guar. Ins. Co., Inc. v. Brown 631 So. 2d 848 (Ala., 1993).

It can't get much more clear than that. For those who think I'm a misguided, loony conspiracy theorist, I invite you to check the public record in Mike McGarity v. Roger Shuler, CV 00-124, and then read Voyager Guar. Ins. Co. v. Brown. That will show you that J. Michael Joiner is, in fact, corrupt--and it's not a matter of anyone's opinion.

Back to the matter at hand: We have a demonstrably corrupt judge overseeing what appears to be a deeply flawed trial that could result in a man wrongfully being sent to death.

Is Ryan Gerald Russell a troubled individual? It sure looks like it. Would I want my child left in his care? Not in a million years. Do we have any proof that he actually fired the gun that killed Katherine Helen Gillespie? I don't see it. Do we have any proof that he intended to kill his young cousin? I don't see that, either.

Should we allow J. Michael Joiner, with his documented record of unethical behavior, to send anyone to death row? No, we should not.

Will there be any means of correcting what appear to be numerous mistakes in this trial--once the state has killed Ryan Gerald Russell. No, there will not.

Tragically, we cannot bring Katherine Helen Gillespie back. By all accounts, she was a beautiful, cheerful, loving, smart little girl with a bright future. We should use her death to closely examine a justice system that is badly broken. A system that cannot get the simplest of civil matters right has no business taking anyone's life.

Pentagon Commits Blunder on $40-Billion Tanker Project With Alabama Connections

A $40-billion Air Force refueling-tanker project could wind up being built largely in Alabama, and some reports indicate the hotly contested contract has been a driving force behind political prosecutions that have engulfed our state for the past decade or so--including the Don Siegelman fiasco.

Any developments in the battle between Boeing and the European Aeronautic Defence and Space Co. (EADS) is big news here in the Heart of Dixie--even if it involves a colossal screw up by the Pentagon. The latest actions from the geniuses who run our military-industrial complex is so comical that it brings back memories from the '80s of $10,000 screw drivers and $100,000 toilet seats.

The Air Force recently sent out internal bid assessments--but sent them to the wrong parties. Here is how the Mobile Press-Register describes it:

The U.S. Air Force said . . . that it inadvertently sent internal assessments of the bids for its $40 billion refueling tanker contract to the wrong manufacturers, potentially compromising the high-profile competition between Boeing Co. and the European Aeronautic Defence and Space Co.

The Air Force recently sent computer files to the rival bidders but mixed them up -- delivering its technical review of Boeing’s bid to EADS, and vice versa. The information included pricing data that is closely guarded by the companies as a crucial factor in the high-stakes competition.

A winner of the 179-plane contract was expected to be announced by November 12. But that deadline has passed, and it now looks like an announcement will not come until after the first of the year. Air Force officials say the recent gaffe will not disrupt the bidding process. But some observers are not so sure about that. Both sides now could have grounds for protesting the outcome of the process, reports The New York Times:

Industry consultants said the mistake could provide the loser with grounds to protest the contract, delaying a decade-long push to replace refueling planes from the Eisenhower era.

“This seals the deal that this contract award will not be the last word,” said Richard L. Aboulafia, an analyst at the Teal Group in Fairfax, Va.

What is at stake? Here is how the Times sums it up:

The Air Force’s first effort to replace the tankers collapsed after corruption charges involving a leasing proposal with Boeing.

Northrop Grumman and EADS, the parent of Airbus, then won in 2008, only to have the government block the award after Boeing protested. Northrop dropped out earlier this year, leaving EADS to bid alone.

The award of the contract is also highly political, with thousands of jobs at stake in Washington State, where Boeing would assemble its planes, or Alabama, where EADS would build a factory if it won the contract.

How does the competition stack up?

The EADS tanker, which is based on an A330 commercial airplane, is larger than Boeing’s tanker, based on its 767 jets. Most analysts expected the EADS plane to score more highly on fuel and cargo capacity, while Boeing’s jet was likely to be cheaper to house and operate.

As a result, analysts have said that the bidding would come down to a final shootout over which company would offer the lowest price.

When the word "billions" is being throw around, you can rest assured that chicanery might be involved. Andrew Kreig, of the D.C.-based Justice Integrity Project, already has reported on that. In fact, Kreig reports, the Air Force tanker competition played a major role in the political prosecution of former Alabama Governor Don Siegelman during the George W. Bush years:

The prosecution of former Alabama Governor Don Siegelman was driven partly by efforts to secure a massive Air Force tanker contract for a European company, according to a new report at Huffington Post.

According to an article by veteran attorney and journalist Andrew Kreig, Siegelman was prosecuted as part of a broad, Republican-driven campaign to land the $35-billion contract for the European Aeronautic Defense and Space Co. (EADS).

How did Siegelman get caught up in a heated competition that pits EADS against U.S.-based Boeing? If it wins the contract, EADS has pledged to build a large assembly plant near Mobile, Alabama. And Kreig's sources say "pro business" forces in Alabama decided the state would stand a better chance of landing the assembly plant if a Republican was governor instead of Siegelman, a Democrat.

Siegelman himself has discussed the possibilities that his ties to Boeing helped make him a target. Writes Kreig:

The EADS-led plan would replace Boeing Corp., the previous tanker builder. Years ago, EADS used competitive intelligence agents to show that Boeing had bribed an Air Force procurement officer. My article noted that an EADS victory would enable an assembly plant in Alabama, as advocated by four European heads of state, major global financiers and some U.S. politicians.

"The ring of truth in the article," Siegelman wrote me last week after publication and follow-up, "is that Republicans wanted EADS, and I was close to Boeing because I had helped them expand their National Missile Defense Center in Huntsville and had them locate a manufacturing facility for the Delta IV and Delta II Rockets in Decatur, AL."

So an innocent man's life is in tatters and our democratic principles have been trampled . . . but hey, a billion-dollar contract is at stake. Republicans like the smell of that "b" word, and they won't let little matters of right and wrong get in the way.

Thanks to the Air Force, we now have a touch of comedy to add to an otherwise sordid story.

Monday, November 22, 2010

Death-Penalty Case Emits a Foul Odor in Alabama

Ryan Gerald Russell

Nothing will cure you of support for the death penalty quite like an encounter with a corrupt judge. And nothing will give you pause quite like seeing a demonstrably corrupt judge in charge of a capital-murder case.

J. Michael Joiner is the circuit judge in Shelby County, Alabama, who changed my views on the death penalty. Joiner soon will determine whether a man lives or dies, and that should be terrifying to every citizen who cares about fundamental democratic principles.

It is particularly alarming in light of peculiar actions in the case of Ryan Gerald Russell, who was convicted last Friday in the 2008 death of Katherine Helen Gillespie, his 11-year-old cousin. The jury is scheduled to return to court this morning to recommend a sentence--death or life in prison without parole. Joiner can accept or reject the jury's recommendation when he sentences Russell at a later date.

Press reports about the trial raise numerous questions. Did Russell receive a legitimate defense? Was the investigation tainted by gross incompetence? Did evidence prove that Russell intentionally killed a child for whom he was legal guardian?

Here is the most alarming question for us: Did a corrupt judge cut corners and twist arms in order to get the desired outcome in Shelby County's first capital-murder trial in roughly 10 years? Joiner is the judge who was at the heart of my legal headaches, so I've seen firsthand how crooked he can be.

In a heavily conservative county, it is important for Joiner, Sheriff Chris Curry, and District Attorney Robbie Owens to burnish their "tough on crime" bonafides. Is it beyond them to cook a murder case in order to score political points? The answer, in my view, is a resounding no.

Katherine Helen Gillespie

The death of Katherine Helen Gillespie is a sad and tragic story. She was born through artificial insemination to a mother who died when she was 7 years old. She did not have a father, so she lived with her maternal grandmother until the summer of 2007. At that point, the grandmother developed signs of dementia, and Gillespie came to live in Inverness with the 37-year-old Russell, a distant cousin who was single and reportedly planned to adopt her.

Katherine Gillespie had been at summer camp on June 16, 2008, and it appeared Russell was going to be late picking her up. A camp counselor later testified that Gillespie was concerned as it got closer to 6 that evening, and Russell had not picked her up, but she was happy and smiled when he made it on time.

Three teenagers reported later that evening being rear-ended by an SUV. When they followed the SUV, it went to Russell's residence. Two of the teens, Andrew Stone and Robert "Bo" Montiel, later testified that a young girl, presumably Gillespie, got out the SUV and asked them in a tearful voice not to call the police about the collision. They said Russell stayed in the vehicle and eventually backed it into the garage.

One of Russell's ex girlfriends went to the house after relatives told her they had not been able to reach him for several days. She discovered Katherine's body inside the SUV.

A Shelby County jury deliberated 35 minutes before finding Russell guilty last Friday. It's hard to understand how a jury could come to such a quick decision when the investigation seemingly was handled by rejects from the O.J. Simpson case.

Don Gould, a retired evidence technician, admitted under cross examination that his team left behind four guns at the scene, including the one they now consider to be the murder weapon. Reports The Birmingham News:

Under questioning by defense attorney Mickey Johnson, Gould said that he considered that the crime scene was successfully processed despite four guns being left behind including one that officials now say is the murder weapon. The processing did recover 37 guns, including one that was initially considered the murder weapon.

"To me it was because I found everything possible, I could find," Gould said of the evidence recovery. The gun considered the murder weapon, a .40-caliber Glock, was found months later hidden under a couch when a family member of Russell's removed his belongings from the house.

Yes, one of the defendant's family members found what is believed to be the murder weapon months after the fact--and the investigative team initially misidentified the murder weapon. But a jury still reached a decision in only 35 minutes?

It probably did not help Russell's cause that his court-appointed attorneys chose to put on no defense. Not only did they decide not to put Russell himself on the stand, they put on zero defense--no witnesses, no evidence, zilch. Reports The Birmingham News:

Mickey Johnson, one of Russell's court-appointed attorneys, said there was no reason for the defense to call any witnesses or for Russell to take the stand himself because the defense doesn't think the prosecution has put on any evidence that shows the shooting was intentional.

"It's always a mistake to attempt to rebut something that hasn't been shown," Johnson said.

Under normal circumstances, Johnson's explanation might sound reasonable. But I've seen how "justice" is practiced in Shelby County--and the decision to put on no defense for Russell smells funny to me.

Consider my experience with Judge Joiner on a relatively minor matter--a property-related civil issue with my criminally inclined neighbor. When the neighbor, Mike McGarity, sued me, it was readily apparent he had no case--and the lawsuit had to be dismissed (summary judgment) on at least eight to 10 grounds.

When my attorneys filed a motion for summary judgment, which was properly executed and supported with relevant evidence via affidavits, McGarity responded with no timely evidence. That meant summary judgment had to be granted and the case dismissed. But Joiner refused to follow black-letter law and denied my motion, without explanation.

The case had to be granted on so many legal grounds, that I filed two more motions for summary judgments, citing distinct issues of fact and law. McGarity did not respond to either motion--no evidence, no legal response, nothing. Under the law, my evidence had to be taken as uncontroverted and the case dismissed. Joiner again refused to follow black-letter law, denying my motion without explanation. The case wound up going to trial, costing my wife and me (and Alabama taxpayers) tens of thousands of dollars.

Why did Joiner take such blatantly unlawful actions? It was probably because McGarity's attorney, William E. Swatek, is one of several "local counsel" types who seem to receive all kinds of favors at the Shelby County Courthouse.

Multiple sources have told me that Mickey Johnson also fits into the "local counsel" crowd, and like Swatek, is buddies with Joiner. I'm told that Johnson, unlike Swatek, actually can be a competent lawyer when he sets his mind to it. But I wonder if someone encouraged him not to set his mind to it in the Ryan Gerald Russell case.

After getting an eyeful of Judge Mike Joiner's chicanery in my own case, I decided that America no longer needs the death penalty. If we have judges who can butcher routine civil matters, we don't need to put those same judges in charge of life-and-death matters.

My guess is that a Shelby County jury today will recommend the death penalty for Ryan Gerald Russell. I suspect Joiner will go along with that recommendation a few weeks down the road.

Why should I care? Russell apparently has been a problem drinker for a long time, and evidence certainly suggests that he might have been responsible for Katherine Gillespie's death. Under Alabama law, a murder  can become a capital offense when the victim is under 14 years of age.

But was this a murder at all? Under Alabama law, murder generally requires "intent to cause the death of another person." Was such intent shown beyond a reasonable doubt? And could any jury possibly determine that in 35 minutes?

Martin Luther King once said: "An injustice anywhere is a threat to justice everywhere."

I think you could amend that slightly to produce a similar thought: "An injustice by a judge in one case, raises questions about that judge's actions in all cases."

Mike Joiner is not fit to judge a cow-milking contest at a county fair. He has demonstrated that he lacks a functioning conscience. That such a man could wind up ordering a man to be put to death . . . well, that should give all of us pause.

Thursday, November 18, 2010

Why Is the FBI Interested in Recruitment of Auburn Football Star?

Cam Newton

President Barack Obama has taken a "look forward, not backwards" approach to possible crimes of the George W. Bush administration. But the Obama Department of Justice (DOJ) is involved in an investigation surrounding the nation's premier college football player.

Yes, the same DOJ that has ignored the activities of Karl Rove, Dick Cheney and Co. is examining the recruitment of Cam Newton, Auburn University's star quarterback and the front runner for this year's Heisman Trophy.

If that sounds nuts to you, it means you have a functioning brain and conscience. If the Obama administration does not realize that it seems nuts . . . well, that might largely explain why the president's party took a thrashing in the midterm elections.

Thanks to his absurd "look forward, not backwards" statement, Obama has signaled that he is not serious about justice issues from day one. With word that the FBI is involved in the Cam Newton investigation, the Obama DOJ is in danger of moving into joke territory.

Who is Cam Newton? If you have to ask that question, you don't follow college football--and you clearly do not live in Alabama, my home base. The National Football League is littered with outstanding players who came from Alabama universities. But Newton might be the most dynamic player to come through the Heart of Dixie since Bo Jackson.

With dazzling running and throwing skills packed into a 6-6, 250-pound frame, Newton has led Auburn to an undefeated season and No. 2 national ranking. But stories started popping up last week about money being involved in Newton's recruitment. And now, we learn that the FBI has interviewed at least one key player in the Newton story, according to the Jackson Clarion-Ledger.

How did Cam Newton go from football hero to major character in a story that might have criminal implications? It started when a couple of individuals with ties to Mississippi State University said Cecil Newton, Cam's father, was shopping his son's services. Some reports have indicated that Cecil Newton wanted "more than a scholarship" in exchange for Cam's wondrous quarterbacking skills. Figures in the range of $150,000 to $200,000 have been cited.

Newton did not sign with Mississippi State, so the question lingers: What did Auburn, MSU's rival in the Southeastern Conference, do to satisfy Cecil Newton? So far, reports indicate that neither Auburn nor Cam Newton have done anything wrong--and the quarterback continues to shine. But if it is determined that Cecil Newton's actions made Cam ineligible, a shining Auburn season could go up in flames.

All of this is compelling, especially here in football-mad Alabama. But why is the FBI involved? These are matters normally left to the NCAA, which governs college athletics.

The Cam Newton story provides more evidence that the Obama DOJ is rudderless. Consider some of the issues from the George W. Bush years that the DOJ has deemed not worthy of attention:

* Torture

* Warrantless wiretapping

* Political prosecutions

* Unlawful firings of U.S. attorneys

* Going to war on false premises

What is worthy of the DOJ's interest? Cam Newton's recruitment.

We knew Obama was a sports fan--and we like that about him--but this is getting ridiculous.

Mr. President, what does it take to embarrass you about your performance on justice issues? If this doesn't do it, I'm not sure that anything will.

Wednesday, November 17, 2010

Judges Routinely Favor the Interests of the Legal Profession

We recently wrote about the legal field's status as America's only truly self-regulating profession--and made a case that such status helps breed corruption in our courtrooms.

A reader took issue with my conclusion and asked me to provide evidence to support my contention that it is a bad idea to have lawyers overseeing lawyers. This blog--through our coverage of the Don Siegelman and Paul Minor political prosecutions, plus my own legal travails--has presented ample evidence that our justice system desperately needs reform.

But I suspected my reader wanted something more than that. So I came up with even more compelling evidence--and it comes from a member of the legal profession.

Benjamin H. Barton, an associate professor at the University of Tennessee College of Law, has written an article that asks this compelling question: "Do Judges Systematically Favor the Interests of the Legal Profession?"

Barton's answer is a resounding "yes." And he provides plenty of evidence, and insider analysis, to back it up. Many of the skewed results from American courtrooms can be described by what Barton calls the "lawyer-judge hypothesis":

Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

Barton's article is academic in nature and gets into some pretty heavy stuff, such as "new institutionalism" and "public choice theory." But here is a solid bottom-line description of what he is talking about:

Judges tend to come from a very select group of individuals who have thrived within the institution of legal thought and practice. As a result judges take a particular set of deeply ingrained biases, thought-processes, and views of the world with them to the bench. These institutions can’t help but color and control judicial thinking and outcomes, and the cases that affect the legal profession as a whole are just one of many cases where the institution of judicial thought plays itself out.

Why would judges be biased in favor of lawyers? Barton provides plenty of reasons:

A brief study of judges -- who they are, how they are trained, what their jobs are like, and salary effects -- leads to the inevitable conclusion that judges will regularly favor the interests of lawyers over other litigants. Many judges rely upon lawyers to get or keep their jobs. Most state judges face some type of election (either contested or retention), and lawyers provide most of the elected judiciary’s campaign donations. In elective states – including merit selection states with retention elections – bar associations frequently endorse judicial candidates, and conduct and publish “bar polls” on the judges. Many judges were selected for their positions through “merit plans” that place substantial selection authority in state and local bar associations. Any judges who hope to join the federal judiciary rely upon the ABA for a favorable rating. Bar associations have further massaged the judicial salary incentive by working tirelessly for higher salaries for judges.

Lawyers, it turns out, do much of a judge's work for him. So it's only natural that a judge would want to keep them happy:

A closer examination of the nuts and bolts of a judge’s job also demonstrates how critical lawyers are to the work of judging. In the advocacy system most judges rely on the lawyers to do the great bulk of the work in trying, briefing, researching, or investigating cases. When the system is working properly the judges sit back and decide cases based on the legal and factual work of the lawyers. I’ve noted before how this aspect of the judicial incentive structure has led directly to higher barriers to entry, including the requirement of three years of law school and an ever more difficult bar exam – because judges and current lawyers both profit when entry tightens. On a more basic level, most judges probably do not want to face a courtroom of disgruntled lawyers on a regular basis, simply because of their ongoing, working relationship.

Barton examines five key areas where the legal profession has clearly acted to protect its own interests:

* Attorney-client privilege;

* Non-compete agreements;

* Right to counsel vs. right to remain silent (in criminal cases);

* Legal malpractice;

* Model Rules of Professional Conduct.

Barton shows how each of these areas is manipulated to benefit lawyers. And he explains how it happens:

The creation and maintenance of the unique self-regulatory apparatus of the American legal profession speaks volumes about the relationship of the bench and bar. The first thing to note is that state supreme courts, and not state legislatures, govern the regulation of lawyers in all fifty states. Thus lawyers have the only true claim to professional self-regulation: from top to bottom they are governed by lawyers. Predictably, this control has led to “a degree of self regulation far beyond either the reality or even the expectations of any other professional group.”

It's impossible to overemphasize this point: State supreme courts, not state legislatures, regulate lawyers. And that means citizen legislators, many of whom are non-lawyers, have almost no say in governing our courtrooms.

What are we, the public, left with? A dysfunctional justice system--and Barton puts it in blunt terms:

As a general rule foxes make poor custodians of hen houses, and I have argued at length elsewhere that self-regulation has led inexorably to self-interested regulations. There are a number of irrefutable examples from the ABA Rules, which include regulations restricting competition through stringent rules on advertising, client solicitation, client referrals, and unauthorized practice in another jurisdiction or assisting in unauthorized practice. These regulations are defended as a hedge against creeping commercialization, but critics see naked restraints of trade.

Is there hope for our system? Barton examines one possible change that sounds radical on its face--but really it is not radical at all:

I do not think it is obvious that all judges should be lawyers. To the contrary, it may be right that no lawyers should be judges. In many civil law countries judges are trained and educated separately from lawyers. Perhaps that is a better model.

Moreover, the idea that only lawyers should be judges is of relatively recent vintage in the United States. In the 18th, 19th, and early 20th century many judges and justices of the peace were not lawyers (and many current justices of the peace are still non-lawyers). Predictably, bar associations were at the forefront of the (largely successful) effort to eliminate lay judges. These efforts occurred simultaneously to the bar’s overall professionalization movement that included the push for a bar examination, required legal education, and the unified bar. Given the potential benefits to the profession, and the key role that the judiciary played in the success of the professionalization movement, bar associations clearly made a wise choice.

So lawyers have benefited from the elimination of lay judges. But what about the rest of us? Barton is not so sure:

Aside from history and international precedents, Adrian Vermeule has recently argued that there should be at least one non-lawyer Justice of the U.S. Supreme Court, and possibly more. Non-lawyer judges can also be defended on populist or egalitarian grounds. It is beyond the scope of this article to build a complete defense or indictment of the primacy of lawyer judges. Instead, I will note that it does add another wrinkle to a larger ongoing debate about the structure and nature of our judiciary.

Nevertheless, the lawyer-judge hypothesis established herein proves that lawyers have enjoyed preferential treatment. The severity of the problem and what should be done about it, if anything, are ultimately issues for further contemplation and study.

Tuesday, November 16, 2010

Are Democrats on the Verge of Extinction in Some Parts of the U.S.?

A recent article in The Birmingham News noted that Democrats, in the wake of the midterm elections, might be nearing extinction in Alabama. That makes you wonder if the same could hold true in other states.

It's an absurd notion, of course. Nothing reminds voters of Democrats' good qualities like several years of Republican rule. But the News' article raises a deeper issue that definitely is worth pondering.

It notes the profound impact of race on the rise of the Republican Party in Alabama--and elsewhere. And that raises this troubling question: Has America's white majority become so addled and agitated with race-based fears that it is incapable of making rational decisions to address the nation's problems?

We can't ponder that question without thinking back to "White America Has Lost Its Mind," a Village Voice article from a couple of months ago. Writer Steven Thrasher presented Sarah Palin, Christine O'Donnell, Glenn Beck, and other right-wing luminaries as evidence that white people in America are playing with a few loose shingles.

Thrasher's piece is alternately alarming and entertaining, and here is his central theory: White Americans started going around the bend when Barack Obama was elected president in November 2008.

In our minds, Thrasher definitely was onto something--and the midterm results seem to confirm it. But we can't help but ask this question: Did the unraveling of white America begin way before the rise of Barack Obama?

Thrasher's piece was a fascinating read before the election, and it might be an even more enlightening read now. But we're not sure that we agree with Thrasher's core theory. In fact, we would argue that he is being way too kind toward white Americans. We submit that signs of mental instability were present in our "honky precincts" long before most of us had ever heard of Barack Obama.

I feel qualified to comment on this subject because: (A) I am definitely a honky; and (B) Before finally pulling my head out of a certain orifice in the early 1990s, I was part of the problem. It shames me now to write these words, but I voted Republican through much of the 1980s. Do I have an explanation for this depraved behavior? Nope--other than, "I must have temporarily lost my mind."

You see, I know what it's like to have your mind twisted by the conservative noise machine. Been there, done that. But I think Thrasher is mistaken if he thinks it started with Barack Obama.

The Birmingham News, in its assessment of Alabama Democrats, seems to agree with me. Here is how reporter Charles J. Dean opens his piece:

What do dinosaurs and Democrats have in common?

They once roamed Alabama.

That's one of the jokes making the rounds after what was a triumphant election for Alabama Republicans and a disaster for state Democrats.

But behind the joke is a real question: In the wake of a historic election that saw Democrats lose every single statewide race and lose control of the Legislature for the first time in 136 years, is the Alabama Democratic Party, like the dinosaur, extinct?

Natalie Davis, a professor of political science at Birmingham-Southern College and a one-time Democratic candidate for the U.S. Senate, has harsh words for her party:

"This party has tired leadership and it offers voters nothing that speaks to their daily concerns and needs," Davis said. "Name me a policy proposal that has been passed with Democratic leadership which speaks to the needs of working families. . . . I have a hard time coming up with one."

Did the Democrats' problems, as The Village Voice contends, really begin with Barack Obama? Without his funky name, I suspect many Americans would forget that Obama is even black. Heck, the guy makes Don "No Soul" Simmons look like James Brown.

But The Village Voice says even a black president "lite," such as Obama, is too much for white America to handle. Here is how Thrasher puts it:

About 12:01 on the afternoon of January 20, 2009, the white American mind began to unravel.

It had been a pretty good run up to that point. The brains of white folks had been humming along cogently for near on 400 years on this continent, with little sign that any serious trouble was brewing. White people, after all, had managed to invent a spiffy new form of self-government so that all white men (and, eventually, women) could have a say in how white people were taxed and governed. White minds had also nearly universally occupied just about every branch of that government and, for more than two centuries, had kept sole possession of the leadership of its executive branch (whose parsonage, after all, is called the White House).

But when that streak was broken—and, for the first time, a non-white president accepted the oath of office—white America rapidly began to lose its grip.

That's darned good writing. And it's accurate--as far as it goes. But Thrasher needs to take a trip on the way-back machine. Why did white America begin to rapidly lose its grip with Obama's inauguration? Because it already had been losing its grip for years.

Consider the Clinton years. In December 1992, I distinctly remember seeing my first "Impeach Clinton" and "Don't Blame Me, I Voted for Bush" bumper stickers--and President-Elect Clinton had not even taken office yet.

"Are these people nuts?" I remember saying to myself. The answer, it seems clear now, was yes.

And I would submit that the ungluing of white America actually goes back farther than that. I trace it to the founding of the Moral Majority in 1979, when Jimmy Carter was president. Many Americans believe that the Moral Majority, and the "Christian Right" that followed it, started out of a concern about abortion rights. Actually, Jerry Falwell started the Moral Majority in reaction to a Carter-administration plan to remove the tax-exempt status for private schools that practiced segregation.

With Ronald Reagan and George H.W. Bush ruling the White House for 12 years, white Americans felt a sense of security through the 1980s and into the early '90s. I am convinced that many whites thought Republicans would dominate presidential politics for the foreseeable future. So when Clinton proved them wrong about that, they reacted with extraordinary vitriol.

And it went way beyond bumper stickers. At the first opportunity, Republicans launched the Whitewater investigation, which dealt with matters long before Clinton was president--and even before he was governor of Arkansas.

Could you imagine Democrats investigating George W. Bush over events that started 14 years before he was president? Could you imagine the country tolerating such an abuse of prosecutorial power? I certainly can't. Hell, Barack Obama is afraid to support an investigation of apparent crimes while Bush was president.

White America put up with Whitewater because Bill Clinton was a Democrat. And in retrospect, that might have been a glaring warning sign that white America was starting to lose its mind.

As we noted in a recent post, a warped interpretation of Christianity seems to be driving our democracy into a state of dysfunction. That's why I lay much of the blame for our current mess at the feet of religious "leaders" such as Jerry Falwell and Pat Robertson--and many of their lesser-known brethren.

How much delusional garbage spews forth from America's pulpits every Sunday morning? Huge amounts is my guess. Much of it is un-Christian, un-Biblical, and certainly un-American.

Want a profound take on the 2010 midterms? Consider the words of William H. Stewart, a professor of political science at the University of Alabama:

Stewart said what happened Nov. 2 in Alabama was the final fulfillment of President Lyndon Johnson's prediction when he signed the Civil Rights Act in 1964.

"President Johnson at that time said the act would eventually lead to the death of the Democratic Party in the South, and he was essentially right," Stewart said. "What happened election night has really been coming for almost 50 years. I think the Republican Party began its ascent in 1964 and in 2010 it completed the journey in Alabama."

Where do we go from here? Steven Thrasher's piece in The Village Voice made me laugh out loud several times. But the harsh reality is this: White folks still make up a solid majority of the U.S. population. And when a significant proportion of that majority acts in irrational ways, it is not a laughing matter. It is downright dangerous.

Huge numbers of Americans in the midterm elections voted to restore the policies that brought us to the edge of economic ruin. That is a sign of warped thinking, which can have catastrophic consequences. And there is nothing funny about that.

If you are like me, you could use a little humor after examining this grim subject. So let's return to Don "No Soul" Simmons, an unforgettable character from the 1987 comedy classic Amazon Women on the Moon. If Obama is too much, what kind of black guy can white America handle? Maybe "No Soul" is the answer. (Warning: This clip includes "No Soul" Simmons singing Three Dog Night's Joy to the World, plus a hysterical cameo from B.B. King. If you aren't prepared for it, you might hurt yourself.)

Monday, November 15, 2010

Is Warped Christianity Threatening Our Democracy?

A misguided view of Christianity is chipping away at fundamental American principles, according to a new book about a shadowy religious/political organization in Washington, D.C.

Jeff Sharlet, in the new book C Street: The Fundamentalist Threat to American Democracy, shows how the group known as "The Family" influences foreign policy, the military, and other key elements of our government.

Based on personal experience, I would say a C Street-like mindset has invaded our courtrooms and corrupted our justice system at all levels. We also suspect that many boardrooms, and even universities, are infected with a values system that gives elites exalted status over everyday folks. In the end, this bastardized form of religion might pose a greater threat to America than Osama bin Laden ever could.

This is Sharlet's second book about C Street. In 2008, he wrote The Family: The Secret Fundamentalism at the Heart of American Power. In an interview about his new book, with Scott Horton of Harper's, Sharlet provides some frightening insight into the C Street mindset. Much of it is based on a relatively obscure passage from the Bible, Acts 9:15: “This man is my chosen instrument to take my name… before the Gentiles and their kings.”

The original passage was about the Apostle Paul. But members of The Family evidently think it applies to them. Horton asks, "How do the men who gather at C Street interpret this passage?" Replies Sharlet:

The clue is in the emphasis the Family puts on those last two words. “Their kings” is italicized in the document from which I quote it in the book, “Eight Core Aspects of the vision and methods.” It was distributed to potential new members of the Family, the organization behind C Street, at the 2010 National Prayer Breakfast, the Family’s only public event. Every year, the Family uses American political leaders—they refer to them as “bait”—to attract foreign leaders they want to evangelize. The focus is on leaders, or “kings.” The Family twists Acts 9:15 into a justification for a complete inversion of Christianity, a faith that, whatever else one thinks of it, was born of a radically egalitarian premise. To the C Streeters, Christianity is all about elites. They pay lip service to helping the poor, but they believe the best way to help the weak is to help the strong.

The C Street mindset has played out in political scandals involving John Ensign, Mark Sanford, and Chip Pickering. Says Sharlet:

What makes C Street and the Family so unusual in the landscape of American fundamentalism is their explicit dedication to the ruling class. Help the weak by helping the strong means tending to the interests of men such as Ensign, Sanford, and Pickering. In Ensign’s case, where C Street attempted to negotiate payments for Ensign’s mistress’s family, you see the principle of what some Family leaders call “biblical capitalism” put into practice — they bargained a price for services rendered. In Sanford’s case, they actually managed his distraught wife, instructing her to refrain from any angry words—they’d take care of reprimands—and to keep her husband sexually satisfied. And Pickering, Pickering was just tawdry—they looked the other way while he rendezvoused with his mistress, a telecom heiress, in his C Street room. Such cover ups, were, to the Family, God’s work—anything to keep their chosen ones, their “kings,” in power.

I've seen a similar mindset from conservative judges in Alabama courtrooms. After being on the short end of numerous unlawful rulings, I've found myself saying, "These judges act like they are kings. They seem to think they can ignore the actual law and rule however they please."

This mindset hardly applies only to my personal situation. We've seen it at play in the Don Siegelman case, the Paul Minor case, and other Bush-era political prosecutions. I've seen evidence of it in several domestic-relations cases, where the "elite" party receives favorable treatment--and if children have to suffer because of it . . . well, that's tough.

Jeff Sharlet, I believe, has hit on an issue that has profound implications for American society. In fact, it has the power to ruin us.

Many elites, through their own selfishness or a warped view of religion (or both), believe it is more important to keep certain "chosen ones" in powerful positions than it is to uphold our democratic principles.

This kind of thinking, if unchecked, could lead to a disaster that will make 9-11 seem tame by comparison.  As awful as 9-11 was, America has shown a remarkable ability to recover from it. But if we fail to see that our society is rotting from the inside . . . well, there might be no way to recover from that.

Thursday, November 11, 2010

Here's How to Fix the Honest-Services Fraud Law

U.S. Supreme Court

The U.S. Supreme Court declared the federal honest-services fraud law unconstitutionally vague in late June, and a move already is afoot to reinvent the statute.

Based on early reports, it appears the Justice Department and Congress are taking the wrong approach. Anyone who has followed either of those institutions in recent years should not be surprised by that. But this is an important issue, and the fix on the fraud law needs to be done the right way.

We don't claim to be experts on the crafting of federal statutes. But we have studied the honest-services issue extensively, and we have some ideas on how the law should be worded.

First, we have conflicted feelings about the honest-services law. On the one hand, we are pleased that the Supreme Court's ruling in a case involving former Enron executive Jeffrey Skilling means the defendants in the Don Siegelman and Paul Minor cases have an enhanced chance to get their convictions overturned. Those two cases never should have come down to a technicality on the honest-services law; appellate courts should have overturned the convictions on numerous other grounds. But the Siegelman and Minor defendants could benefit from the high court's finding that the law now applies only in cases involving bribes and kickbacks--and we are all for anything that allows innocent people to go free.

The down side, however, is that the Skilling ruling essentially makes the honest-services law worthless. Other federal law already covers bribes and kickbacks, so the honest-services law--as it stands now--is pretty much unnecessary.

While prosecutors unquestionably used the old honest-services law in an abusive fashion, such a statute is needed. The point of the law is to punish misconduct where there is a non-financial motive--or where a financial motive cannot be proven.

Scott Horton, of Harper's, reports that the Senate Judiciary Committee is considering a revision that would allow the prosecution of "undisclosed self-dealing." That language, Horton points out, is just as vague as the old language.

What to do? Here are a couple of Schnauzer suggestions. We certainly do not present these as any sort of "final word" on the subject. But we think they might be a starting point toward forming an honest-services law that passes the constitutional vagueness test and punishes the kind of non-financial crimes the statute was designed to address:

Our research indicates the honest-services law is needed in at least two key areas:

* Political appointments--This was at the heart of the Siegelman case. The former Alabama governor accepted a contribution to an education-lottery campaign and then appointed the donor (former HealthSouth CEO Richard Scrushy) to a hospital-regulatory board. It's undisputed that the contribution itself was legal. It's also undisputed that Scrushy was qualified to serve on the board; he had served on the same board under three previous governors. Because of that, the public was not actually deprived of Siegelman's honest services, and he and Scrushy did not violate the old law. To understand that, however, you have to dig into the case law. And the Supreme Court has found that the statute itself needs to be clear about what is criminal activity and what is not. So we propose that the new law include language that goes something like this: "An official deprives the public of its intangible right to honest services when he or she appoints individuals to positions for which they clearly are not qualified. A public official who accepts a donation and then appoints the donor to a position has not violated the statute--as long as the appointee has professional credentials that make him/her qualified to hold the position."

* Nondiscretionary Decision-Making--This was at the heart of the Minor case. Three former state judges, who had received campaign support from attorney Paul Minor, were found to have corruptly ruled on cases involving Minor's clients. There was only one problem, however, for the prosecution: All three judges had either recused themselves from the matters involving Minor, or they ruled correctly based on the facts and law in front of them. The public was not deprived of the judges' honest services because they ruled correctly in the cases, meaning Minor did not receive any improper benefit. Our research indicates that honest-services law often can come into play when an official is required to follow certain laws, procedures, rules, and regulations--but does not follow them. So we propose that the new law includes language that goes something like this: "An official deprives the public of its intangible right to honest services when he or she makes nondiscretionary decisions that violate applicable laws, procedures, rules, and regulations. An official who is required to act in a certain way and fails to do so violates the statute." 

This language would be aimed squarely at some of my favorite people--corrupt judges. I have repeatedly witnessed both state and federal judges who ignored black-letter law in order to rule in a way that unlawfully favors certain parties. In the cases I've seen, I don't know if the judges have received bribes or kickbacks--and that might be difficult for prosecutors to prove. But they clearly have violated the old honest-services law, especially when you dig into the case law. A provision such as the one above would make it clear, in the statute, that such dishonest dealings are criminal in nature.

Judges are not the only officials who violate the law in their nondiscretionary decision-making. But they are among the worst offenders. And the new law needs to have the kind of teeth that will make judges think twice before they cheat the parties who come before them.

Consider other kinds of bad actors who need to be subject to a new honest-services fraud law. Imagine a small-town mayor who is having an affair with a woman who owns several pieces of property along the town's main commercial strip. The mayor violates local zoning laws in order to give his paramour variances that allow her businesses a leg up on competitors. The woman has not paid the mayor a bribe or kickback, but she has provided another form of "benefit." The variances allow her to rake in cash, while depriving other businesses of a level playing field. In a broad sense, the public at large is deprived of the mayor's honest services, even though no bribe or kickback is involved.

The town almost certainly receives federal funds in some form, so that makes this a case for U.S. prosecutors. This is the kind of situation the honest-services fraud statute needs to address.

Should our Schnauzer suggestions be the final word on the subject? Of course not. But hopefully, we've provided the beginnings of a road map for a new honest-services law that will be less prone to abuse and more prone to punish the many bad actors who hold positions of trust.