Wednesday, March 2, 2011

An Ineligible Federal Judge Is Presiding Over Bingo Case In Alabama

Wallace Capel Jr., left, at an event
 at Maxwell Air Force Base
 in Montgomery

Wallace Capel Jr., a magistrate judge in the Middle District of Alabama, set aside three days this week for arguments about the use of wiretaps in an ongoing bingo-related prosecution.

The hearings are due to end today, but there is one slight problem with the whole scenario. Capel is not qualified to be a federal judge in Alabama.

Capel is handling many pre-trial matters in the bingo case. In fact, he recently presided over a hearing that addressed a number of issues, including the sharing of evidence the government has gathered against Country Crossing's Ronnie Gilley.

Our research, however, indicates that Capel does not meet the requirements for the job he holds. According to public records, Capel is not a member of the Alabama State Bar--and that would make him ineligible to be a federal magistrate judge in Alabama.

If critical issues have been decided by an ineligible judge, that would seem to make the bingo prosecution hopelessly tainted.

Capel served as a U.S. magistrate in Michigan before being appointed to the Alabama position in December 2006. But he is not a member of the Alabama State Bar, and his appointment could mean he is practicing law without a license--which is a crime in Alabama:

Unlawful Practice of Law: Code of Alabama 34-3-1

Is a criminal overseeing the prosecution of 11 individuals who have been indicted in the bingo case? And why was it necessary for the legal establishment in Montgomery to go to Michigan to find a magistrate judge in late 2006?

We will ponder those questions, but first, let's look at the applicable law. Our research indicates Capel never was eligible to even be considered for a federal judgeship in Alabama.

The appointment of U.S. magistrate judges is governed by 28 U.S. Code 631, which states, in pertinent part:

(b) No individual may be appointed or reappointed to serve as a magistrate judge under this chapter unless:

(1) He has been for at least five years a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, except that an individual who does not meet the bar membership requirements of this paragraph may be appointed and serve as a part-time magistrate judge if the appointing court or courts and the conference find that no qualified individual who is a member of the bar is available to serve at a specific location.

The first sentence under section (1) is murky. It says a candidate must have been a member in good standing of "the highest court of a state" for at least five years. It does not specifically say it has to be the state in which he is to serve--and Capel is a member of the Michigan Bar.

Our research indicates, however, that the statute has been interpreted to mean that the candidate must have been a bar member in the state where he will serve for at least five years.

The Web site of the Federal Judicial Center (FJC) describes the history, duties and qualifications of magistrate judges. It states:

The Federal Magistrates Act of 1968 (82 Stat. 1107) created the new title and expanded the magistrates’ authority to conduct misdemeanor trials with the consent of the defendants, to serve as special masters in civil actions, and to assist district judges in pre-trial and discovery proceedings as well as appeals for post-trial relief. The act also authorized a majority of district judges on any court to assign to magistrates “additional duties as are not inconsistent with the Constitution and laws of the United States.”

Under the act of 1968, magistrates are appointed by the district judges of each district court and are required to be members of the bar of the highest court within the state where they serve.

That makes it pretty clear that Wallace Capel Jr. is not qualified to be a magistrate judge in Alabama. The only way to get around the bar-membership requirement would be to have Capel appointed as a part-time magistrate, with the appointing court finding that "no qualified individual who is a member of the bar is available to serve at a specific location." Was such a declaration made when Capel was appointed? We have not found a record of one.

Montgomery, our state capital, is crawling with lawyers, many of whom undoubtedly are qualified to be a U.S. magistrate. Our guess is that quite a few of them would slit their grandmother's throat for a chance to be a federal judge. The notion that no one could be found to take the job in Montgomery is preposterous.

So why was Wallace Capel Jr. imported from Michigan?

We don't know the answer to that question. Former Governor Don Siegelman and codefendant Richard Scrushy were convicted in June 2006, and Capel did not arrive in Alabama until December of that year.

The job description for federal magistrates says they will "assist district judges in pre-trial and discovery proceedings as well as appeals for post-trial relief."

Was Capel brought here to help manage the post-trial process in the Siegelman/Scrushy case? Is his role now to ensure that the bingo defendants are convicted in a tainted trial? What role did Chief Judge Mark Fuller, the George W. Bush appointee who handled the Siegelman trial, play in Capel's appointment and ongoing unlawful involvement in Alabama's federal justice system? Does this latest news--when taken with recent allegations against U.S. Supreme Court Justice Clarence Thomas--mean our federal court system is hopelessly corrupt, from top to bottom?

Here is a Schnauzer prediction for you: If Capel is allowed to rule on these wiretap issues, he will find for the government, and against the accused, across the board--unless, of course, he sees this post and decides, "Uh, maybe I'd better not do that."

For now, let's ponder these important questions: (1) How many legal cases in Montgomery, both criminal and civil, have been stained by a judge who is not qualified for his job and probably is committing a crime, the unlawful practice of law? (2) Will someone in authority do anything about what appear to be unlawful actions by U.S. Magistrate Judge Wallace Capel Jr.? (3) What excuses will the judicial machinery concoct in an effort to justify the Capel appointment?


Molli & Jim said...

As we know, Alabama mainstream media will not touch this story. If his rulings end in a mistrial it is scary to think who they would assign next to replace Capell.

Anonymous said...

Wallace Capel Jr:He was previously a magistrate for the United States District Court for the Eastern District of Michigan.
I bet he knows Judge Richard Alan Eslen who conveniently lived in the same area of western Michigan as Erik Prince who we all know now took flight to the "can not extradict" UAE.

That same month, Chief U.S. District Judge Richard Alan Enslen of the Western District of Michigan ordered the government to pay $404,737 to lawyers representing a company called Ranger Electronic Communications Inc. in another Hyde Amendment case.

He concluded that federal prosecutors had failed to disclose evidence that might have helped prove that the owners of the company were innocent of charges of illegally importing radio equipment.

In his ruling, Judge Enslen, quoted from Hyde’s speech on the floor of the U.S. House of Representatives during debate on his amendment.

"[Some federal prosecutions are] not just wrong, but willfully wrong . . . frivolously wrong," the judge stated. "[These federal prosecutors] keep information from you that the law says they must disclose.. . . They suborn perjury."

Anonymous said...

Uh, or maybe he has family in Alabama and he and his wife wanted to move here after working in Michigan. BTW, he's a Democrat.

Panamaed said...

It would seem he has had ample time to pass the Alabama Bar Exam.

Panamaed said...

Wallace Capel, Jr. was appointed by Bush and Uncle Bucky Bush's Lord Abbett totes the note at Country Crossing.

Could that be a conflict, too?

Robby Scott Hill said...

Well, the John Eidsmoe & Wallace Capel situations mean you don't need a law license to practice law in this state, only a law degree. I just opened my law office & am taking clients.

Anonymous said...

Wallace Capel is qualified to serve as a U.S. Magistrate Judge. I have appeared before him many times. Your "journalism" argues by implication and misunderstanding that he is not qualified because he is not a member of the Alabama bar. In fact, most federal attorney and judge positions require only that a person be a member of the highest court of A STATE. There is no requirement that an attorney or judge be a member of the state in which they are appointed.

He is a Democrat, a former prosecutor and public defender, and experienced as a United States Magistrate Judge in Michigan. He was extremely qualified to hold the job he holds.

If Judge Capel rules against the defendants on the wiretap issue, it is likely that this will be because the law is against them. Additionally, as a US Magistrate Judge, his rulings are in the form of Reports and Recommendations to which the parties may file objections to the district judge (US Dist Judge Myron Thompson - also a Democrat and also an excellent judge) for further review before trial.

You cannot call it journalism and ask questions which suggest the answers. That is what FOXNEWS does and we know that is not journalism. Please, please please, do more homework before you jump to conclusions in anticipation of adverse rulings in a case in which you have already decided the outcome.

legalschnauzer said...

Anon No. 3:

My post doesn't say Capel is unqualified; it says he's ineligible, and that is true based on a clear reading of the law. The Federal Judicial Center, as cited in the post, says a magistrate must be a member in good standing with the bar in which he is to serve. What I think might happen down the road in the case is a sidebar issue. The main point is that Capel is not eligible to serve in his position--no matter how qualified he might. And it doesn't matter one iota whether he is a Democrat or a Republican.

Robby Scott Hill said...

Most of these federal attorney & judge positions the anonymous commentator refers to are with the Department of Defense where these attorneys & judges decide matters of military criminal justice & military contract law. There is no bar exam for military attorneys, so the Pentagon accepts membership to practice before the highest court of a state as the litmus test or proof of basic level of competence. Then, a military attorney will attend JAG school & acquisition schools for further instruction in military & contracting law. Unlike Military Courts, Federal District Courts hear matters of state law via their diversity jurisdiction, Erie jurisdiction & supplemental or ancillary jurisdiction all the time. Capel is learning his Alabama law via OJT or on the job training, something that is frowned upon in the military. He needs to take the bar exam.