Spencer Bachus (right) in an area
hit by tornadoes
Many progressives probably would say they knew all along that U.S. Rep. Spencer Bachus (R-AL) was a tool. But this spring's tornadoes in Alabama, and their aftermath, should erase any doubt.
As we reported earlier this month, Alabama's entire Republican delegation in Congress--including Bachus--voted against funding for satellites that are a critical component of accurate weather forecasting. News of Bachus' vote broke about a week after tornadoes killed more than 230 people in Alabama.
That did not keep Bachus from touring areas devastated by the tornadoes and issuing somber statements that made it appear he actually cares about the safety of Alabama citizens. But the 10-term Congressman is having an increasingly difficult time running from his vote on weather satellites. As a resident of Bachus' district, I've become disgusted that Democrats have not been able to mount a challenge to Bachus since 1998. But Bachus now has gift-wrapped an issue with which an able Democrat should be able to beat him about the head. Will a progressive step up to the plate and give Spencer Bachus a much-deserved boot to the curt in 2012? Time will tell.
But for now, this much is clear: Spencer Bachus stuck by his "conservative principles" and voted to cut federal spending at the expense of accurate weather forecasting in Alabama and elsewhere. That could cost thousands of American lives in an age where tornadoes seem to be hitting with increasing frequency and ferocity. (See Missouri, Joplin.) Spencer Bachus needs to pay a political price for his arrogance and shortsightedness.
To no one's surprise, Alabama's right-wing mainstream press has been trying to provide cover for Bachus and his Republican buddies in Congress. Mary Orndorff, of The Birmingham News, reported on May 8 about the gap in satellite coverage. Orndorff wrote that Janet Lubchenko, administrator of the National Oceanic and Atmospheric Administration (NOAA), had confirmed the gap--and it was caused by deep cuts this spring in the fiscal 2011 budget. Orndorff then included this passage about Bachus:
U.S. Rep. Spencer Bachus, R-Vestavia Hills, said Lubchenko told him about the gap in satellite coverage while they were visiting the weather service office in Calera last weekend after the storms.
"I said that I would work to minimize if not eliminate any delays or disruptions in the launch of this new system which would provide enhanced coverage and protection," Bachus said Friday. "This issue has not received the attention it needs and it is something that we should work on in a bipartisan way."
Orndorff conveniently failed to mention that Bachus had voted for the budgetary cuts that imperiled satellite coverage. But her reporting did indicate that Bachus had no idea his votes in Congress have repercussions.
Now, even The Birmingham News is struggling to cover up Spencer Bachus' ineptitude. The paper reported last week that Bachus is asking the Department of Defense to help shore up the gap in satellite coverage. Here is how Orndorff reported it:
Federal budget cuts have blown a hole in the satellite program for the National Oceanic and Atmospheric Administration. Anticipated delays replacing a satellite mean the agency starting in 2017 will not have the kind of detailed atmospheric data that forecasters used to give Alabama several days' notice of the April 27 tornado outbreak. Without the extra warning time--which made people more alert of the potential for tornadoes and prompted school officials to close early--Bachus said the number of deaths in Alabama would have been much higher.
So Spencer Bachus admits that accurate weather forecasting saved huge numbers of lives in Alabama. But he still does not own up to his vote. Near the end of the article, Orndorff tells us this:
When Congress in April slashed $38 billion from the remainder of the current 2011 fiscal year budget, the NOAA satellite program took a big hit. President Barack Obama has requested slightly more than $1 billion for the satellite program in 2012, but even if it is fully funded, Lubchenco said the coverage gap is still likely when a temporary satellite ends its mission in 2016 or 2017.
The spending cuts were part of a compromise agreement reached to avoid a government shutdown, and all seven members of the Alabama House delegation, Republican and Democrat, voted for them, including Bachus.
"When you do across-the-board cuts, you throw out the good with the bad, the baby with the bathwater," Bachus said. "We need to fix this problem now."
In a roundabout way, near the end of the article, Orndorff tells us that Bachus voted for the spending cuts. (And oh, by the way, Democrats voted for them, too.) Notice that Orndorff never presses Bachus to explain his vote. She let's him say "we need to fix this problem now," without asking why he helped cause the problem in the first place.
If Spencer Bachus had any political courage, he would say something like this: "The most important issue for me in Congress is to toe the conservative party line and continue George W. Bush's massive tax cuts for the wealthiest Americans. If that means we have to cut funding for weather satellites that help save thousands of lives, so be it. You've elected me to Congress 10 times to be a doctrinaire Republican, and that's what I'm going to be. If you want a representative who cares about protecting lives, you'll need to vote for someone else. Given that Democrats haven't run anyone against me since 1998, good luck with that."
Democrats now have an important issue they can use to unseat Spencer Bachus--or at least make him sweat a little bit. And Bachus clearly knows that he might have a political problem on his hands.
Alabamians need to be reminded that there is a price to pay for mindlessly electing conservatives to Congress. Does a Democrat have the guts to step up and remind them?
The five commissioners who govern a rural Alabama county were arrested last week. What did the entire Bullock County Commission do to merit being charged with felonies? They violated the Alabama Competitive Bid Law, according to a statement from the state attorney general's office.
It's certainly possible that Bullock County's finances and procedures are a wreck--and that criminal activity was involved. Violations reportedly showed up when the Alabama Examiners of Public Accounts conducted an audit from October 2008 to September 2009. Irregularities also appeared on audits in 2006 and '07.
But a reasonable person, looking at the broad picture, could ask: Was the real reason these people were arrested that they represent a county that is mostly black, relatively poor, and largely Democratic? In other words, are political prosecutions still the tool of choice for the conservative elites who rule Karl Rove's Alabama--even with Barack Obama in the White House? Are such shenanigans still going on in other "deep red" regions of the country?
Alabama's new attorney general, elected in the Republican windfall of November 2010, is Luther Strange. "Big Luther" is a former oil lobbyist who used to work at Birmingham's Bradley Arant, one of the most right-wing, "pro business" law firms in the state. Strange also fell out of the "Bob Riley Political Family Tree," which includes some pretty ugly branches, bearing names such as Jack Abramoff, Michael Scanlon, Bill Canary, and of course, Karl Rove.
When Bob Riley was Alabama's governor from 2002-2010, Bradley Arant received millions of dollars in state contracts--and the firm employs Riley's son-in-law, Rob Campbell. Before Riley left office, he reportedly met with Strange to cut a deal--if Strange would pledge to protect the Riley children (Rob, Minda, and Krisalyn) and steer state dollars their way, Riley would help raise funds for a future Strange run at the governor's mansion.
The inquiry into Bullock County's finances started under the Riley administration, with Strange following through now on arrests. Is this payback for some slight that Riley perceived coming from Bullock County during his administration? Could this be part of a larger GOP plan to continue terrorizing Democrats in the Deep South?
Bullock belongs to a strip of counties that starts to the northwest of Montgomery and runs to the capital city's southeast, representing what passes for a Democratic stronghold in Alabama.
What did the commissioners in Bullock County allegedly do that was so awful? Here is how one news report summarized it:
Attorney General Luther Strange announced the arrests of all five members of the Bullock County Commission on felony charges of bid law violations. The commission chairman is additionally charged with an ethics law violation.
Commission Chairman Ronald Wynord Smith, 56, of Union Springs, was arrested last night, as was Commissioner John Livingston Adams, 43, also of Union Springs. The remaining commissioners, who were arrested today, are Dock McGowan, 82, of Banks; Alonza Ellis Jr., 45, of Union Springs; and James McArthur Perry, 64, of Union Springs.
Attorney General Strange's Office presented evidence to a Bullock County grand jury, resulting in the indictments on May 18. Specifically, the indictments charge each commissioner with one count of intentionally, knowingly or recklessly spending an amount greater than $15,000 for inmate food at the Bullock County Jail without entering into free and open competitive sealed bids, in violation of Code of Alabama, Section 41-16-50. Additionally, the chairman, Smith, is charged with failure, as the head of a governmental agency, to report a possible ethics law violation.
The report goes on to state:
The matter was referred to the Attorney General's Office by the Alabama Examiners of Public Accounts. An audit covering the time period of October 2008 to September 2009 included a finding by the Examiners that “The Code of Alabama 1975, Section 41-16-50, states that all expenditure of funds of whatever nature for labor, services, work, or for the purchase of materials, equipment, supplies, or other personal property involving $15,000.00 or more should be subject to the Alabama Competitive Bid Law. The Commission paid at least $61,000.00 for supplies and $24,000.00 for food for the Jail without letting bids as required by the Alabama Competitive Bid Law.”
This involved food for inmates and a sum totaling $85,000. If we are to believe that the five commissioners conspired to enrich themselves, it looks like they each made $17,000. At this point, it's unclear if anyone benefited at all from this; the commissioners might mainly be guilty of sloppy or inadequate paperwork.
Was someone lax about following procedures in Bullock County? Possibly. Was someone getting rich off this scheme? Doesn't look like it. Does this merit punishment that could total 10 years imprisonment for each commissioner? We don't think so.
While we are in "question mode," here are a couple to consider: What are the chances that Luther Strange and the Alabama Examiner of Public Accounts will take a look at the books from Bob Riley's reign as governor, noting the gravy train that ran to Bradley Arant and the Riley Jackson law firm, headed by Rob Riley in Homewood? I suspect Sheryl Crow will bear Karl Rove's love child before we see that happen.
And what about this: The state's two major public universities, the University of Alabama and Auburn University, are run by boards that include some of the most prominent business titans in our state--and those institutions are subject to the competitive bid law. I've definitely seen signs that UA's campus in Birmingham (UAB) plays fast and loose with the bid law, and we will be taking a closer look at that. What are the chances that Big Luther and the Montgomery crowd will invade one of those hallowed campuses to arrest administrators and charge them with felonies? Did I mention Sheryl Crow, Karl Rove, and their love child?
This issue hits close to home because Mrs. Schnauzer and I have received an up-close look at the way a predominantly white county conducts business. We live in Shelby County, which is 86.7 percent white and overwhelmingly Republican. We know from first-hand experience that our county seat, Columbiana, is one of the most corrupt little hellholes on the planet. If financial hanky-panky was connected to the Shelby County Sheriff's Office--and I would bet my collection of Fleetwood Mac albums that it is--how would that be handled by Luther Strange and Co.? These options come to mind:
A. Ignore it
B. Quietly bring it to a commissioner's attention and say, "Please try not to do this anymore--or at least do a better job of hiding it. In fact, here is how you can hide it."
C. Arrest every commissioner and charge them with felonies.
"A" is the likely outcome, "B" is possible, and "C" comes under the heading of "no chance, no how, no way."
Shelby County commissioners could be burning babies and feeding them to wolverines, and they wouldn't suffer the indignities of "C." (If the babies were white future Republicans, option "B" would be called for; if the babies were "of color," option "A" would be the go-to choice.)
Folks who think America has reached a heightened state of reasonableness on race issues in the Age of Obama, might want to take a second look at what's going on in Bullock County, Alabama.
Now we are going to apply those rules to Infinity Property and Casualty and the University of Alabama at Birmingham (UAB), the organizations that "fired" Mrs. Schnauzer and me. Actually, we probably were not fired in the traditional sense of the world. We likely were the victims of "career hits," authorized by powerful forces from outside our workplaces because we've dared, on this blog, to speak the truth about legal and political corruption in Alabama. Still, it should be fun to grade these two organizations and see how they fare when it comes to "enlightened" management.
We encourage you to follow along with us and apply grades to your own employer. Let us know if you work for an outfit that actually finishes with a passing grade. You can check out the full "Ten Rules" at the end of this post.
First, we should note that the headline in our featured document is poorly stated. It should read, "Ten Rules On How to Fire An Employee--And Not Get Successfully Sued." In our society, there is nothing to keep someone from suing you--for getting out of bed in the morning or wearing the wrong color of socks. I should know; my criminally inclined neighbor sued me for picking up trash out of my own yard. (As Dave Barry would say, I'm not making this up!)
The issue is not preventing a lawsuit--because you can't do that in the US of A; it's preventing a successful lawsuit.
Now, let's check out our rules and see how Infinity and UAB fare:
No. 1--Document the employee's personnel file
Infinity, you might recall, fired Mrs. Schnauzer for being "tardy" after they had told her to change her start time each day from 9 to 9:30 a.m. in order to assist with the company's large customer base in California. When she did as she was told, and started arriving at work about 9:20 every day, they let it go on for about three months--never saying a word that anything was wrong. Then, all of a sudden, they claimed she had three months' worth of tardies and fired her. Infinity did prepare a written warning a few days before Mrs. Schnauzer's termination. But it was based on false information and did not confirm to the company's own policies--which require it to give oral warning after three tardies, written warning after six tardies, etc. Mrs. Schnauzer never received any oral warnings about tardies--and that's because she wasn't tardy, and the company's own actions show that.
UAB essentially made no efforts to document its claims that I was using work resources to write my personal blog. I never received any warnings regarding such activities. UAB policy requires progressive discipline--oral warning after a first offense, written warning after second, possible termination after a third. I never received any warning, under university policy, for any offense--and that's because I hadn't committed an offense. UAB's own actions indicate that. When asked during my grievance hearing to provide documentation to support her decision to fire me, my supervisor, Pam Powell, repeatedly said she didn't have any. Asked to provide documentation of any warnings she had issued, Powell said she didn't have any.
Grades: Infinity, F; UAB, F
No. 2--Employers should be consistent in discharging employees
At Infinity, Mrs. Schnauzer, who was in her late 40s, was put on a strict time clock. Several coworkers, who were in their 20s, worked on flex time. In other words, it was essentially impossible for a younger employee to be tardy. Mrs. Schnauzer was accused of being tardy even when she showed up 10 minutes prior to her scheduled start time.
At UAB, I was 51 years old when I was essentially fired for writing a blog--on my own time, on matters of public concern--that someone in the power structure didn't like. A coworker who was about 25 at the time actually was writing his blog and other political content on his work computer and did not get fired.
Grades: Infinity, F; UAB F
No. 3--If possible, employers should discharge employees during their introductory or probationary period
Mrs. Schnauzer had been an Infinity employee for about three years when she got fired.
I had been a UAB employee for 19 years when I got fired.
You might say both employers missed the "probationary boat" by just a little bit. (By the way, don't you love the sheer nastiness of this rule?)
Grades: Infinity, F; UAB, F
No. 4--Inform the employee of the true reason he is being let go
Please excuse us, but Mrs. Schnauzer and I burst out laughing when we read this one.
At Infinity, imagine if they had made this statement: "Mrs. Schnauzer, we're firing you because you and your husband filed a lawsuit against an unethical debt collector, and one of our favorite law firms represents the debt collector, and you aren't caving in to threats from the law firm, so . . . well, that's why we're firing you. Hope you don't mind. And oh, by the way, we don't like your husband's blog either."
At UAB, imagine if they had made this statement: "Schnauzer, you have really ticked off Governor Riley and his conservative buddies with that infernal blog of yours. What makes you think you can tell the truth about corrupt judges, lawyers, and politicians in this state? The governor's friends want you gone, and they are used to getting their way, so . . . well, that's why we are firing you. Good luck in your future endeavors during the never-ending George W. Bush recession."
Did those conversations ever take place? Nope.
Grades: Infinity, F; UAB, F
No. 5--Employers should hold supervisors accountable for how they supervise
Again, we broke out laughing when we read this one.
Greg Kees, Mrs. Schnauzer's supervisor at Infinity, told her in front of about 12 coworkers that she was to change her start time to 9:30. Kees, however, failed to make that change in the company's electronic timekeeping system, and that's why Mrs. Schnauzer showed up as tardy for three months. My wife, in essence, got fired because of her supervisor's incompetence. If he did it intentionally at the company's direction, and we suspect that's the case, she got fired for reasons that are utterly depraved and malicious.
According to word from some of my former coworkers, my UAB supervisor ultimately got more or less forced to retire. Did my situation have anything to do with that? I don't know, but we'll give UAB a slight benefit of the doubt.
Grades: Infinity, F; UAB, D-
No. 6-- Employers should consider offering severance pay to discharged employees in exchange for the employees’ complete release of all potential claims against the company
This was not a factor in either of our cases, although we certainly are prepared for both employers to try to cheat us should our legal cases reach a settlement stage.
Grades: Incomplete
No. 7--Employers should establish an internal procedure for employees to challenge terminations that they perceive as unfair
According to its employee handbook, Infinity has a grievance process. But in the real world, we found, it is worthless. Mrs. Schnauzer's grievance process consisted of her writing an e-mail to Pam Jenkins in human resources and saying she was wrongfully terminated, based on false information and administrative screw ups. Mrs. Schnauzer said she had been told to work a 9:30 schedule and was not tardy. She also said her supervisor had wrongfully accused her of regularly taking unscheduled absences on Mondays; those were scheduled and approved vacation days. Ms. Jenkins admitted that the accusations about Monday absences were false and said she would note that in Mrs. Schnauzer's record. Otherwise, Ms. Jenkins claimed, the company had followed policy--and Mrs. Schnauzer was still fired.
UAB actually comes close to receiving a decent grade for its grievance process. I went through it, and the committee came to the correct conclusion--that I should not have been terminated. University policy, however, allows the HR director and the president to ignore the committee's recommendation--and that's what they did in my case, upholding my termination. This loophole makes UAB's policy worthless--at least when it has a corrupt president and HR director, as it did when I went through the process.
Grades: Infinity, F; UAB, D-
No. 8--If an employee does sue over his or her discharge, the employer should not be too quick to settle the lawsuit
Don't you just love this one? The message, essentially, is this: No matter how badly you screwed someone, no matter how wickedly you violated federal law, drag the process out as long as possible.
This speaks volumes about how managers, and their lawyers, think. Here is the exact advice for managers: "Force the employee to expend time, effort and money to pursue the lawsuit before settling it."
By saying the case should be settled, the lawyers essentially are admitting that management has wronged someone. But they encourage employers to toy with injured people anyway.
We haven't reached this stage yet. But to put it bluntly, these are the words of evil individuals.
Grades: Incomplete
No. 9--Prior to discharging an employee, make sure that he or she has not recently exercised any “protected rights”
Again, we burst out laughing at this one. (Had no idea this exercise would be so funny.)
This probably does not apply to Mrs. Schnauzer's situation at Infinity. She was blindsided to such extent that she was pretty much assassinated on the job--before she knew what had hit her.
It definitely applies to my situation at UAB. As I've reported previously, my supervisor conducted a harassment campaign against me for about the last six months I was on the job. It got so bad that I finally complained to her and her superior about age discrimination, and I filed a formal grievance in HR. Under university policy, an employee is to use the grievance process without fear of reprisal. Under federal law, an employee is to complain about protected rights without fear of retaliation. Did UAB observe those rights, under the law? Not exactly. I was promptly placed on administrative leave and then fired.
We also have shown that the real reason I was fired had to do with the content of this blog, specifically my reporting on the Don Siegelman prosecution. Anita Bonasera, UAB's director of employee relations, admitted as much in a tape-recorded phone conversation I had with her. (By the way, don't you just love that title, "Director of Employee Relations"? Sounds like Bonasera actually cares about employees . . . gag, hack, snort.) You can check out the audio here:
No. 10--At the time an employee is discharged, reach an agreement with the employee about how the employer should respond to requests for a reference regarding the employee
This was never a factor in either of our cases. I suspect that's because when a manager knows he is cheating an employee, these issues never enter his mind.
Can you imagine the Infinity or UAB managers making this statement: "We know we are firing you for blatantly unlawful reasons, but hey, we'll give you good references in the future. That should make things about even, don't you think?"
What kind of final grades do Infinity and UAB receive? They both fail--utterly, totally, and miserably.
But they still have a chance to improve their grades. When it comes to the rule that says "drag the process out, even when you know you've screwed the employee," we feel quite certain that they will score quite high.
If you ever get cheated out of your job, as Mrs. Schnauzer and I have been, here is one of the first truths you will learn about the employment-law racket: For every lawyer who represents plaintiffs in employment cases, there are probably a dozen who represent defendants.
In fact, that ratio is way too conservative; it probably should be more like 1:25. That so many more lawyers would rather represent business types than regular people says a lot about the legal profession. It tells you that there is more money to be made from representing people who commit wrongs than representing the victims of wrongdoing.
That's not to say that all employment complaints are meritorious. My guess is that a fair amount are weak or downright bogus. But I would also suggest that quite a few, maybe half (just to put a general number on it), are solid to very strong. Certainly you wonder how the legal profession justifies the lopsided ratio in favor of lawyers who represent defendants.
Here is another truth you will quickly learn: Many law firms that represent plaintiffs in employment cases are one- or two-person shops, with limited resources; most of the firms that represent defendants are the biggies, the kind who can throw four or five lawyers at you and almost bottomless resources. In Birmingham, outfits like Bradley Arant, Haskell Slaughter, Balch and Bingham, Maynard Cooper and Gale, Sirote and Permutt, and Burr Forman all have "labor and employment" sections that represent only defendants.
Based on my quick research, it appears these firms have anywhere from 12 to 30 lawyers who specialize in labor and employment law. Combined, that is more than 100 lawyers, just in six Birmingham firms, who represent only defendants in employment cases. I might need to rethink that 1:25 ratio.
All of these firms have Web pages that feature high-minded rhetoric about how they want to help management avoid employment problems before they get started. That sounds reasonable. But this information apparently never made it to the two places where Mrs. Schnauzer and I worked--Infinity Property and Casualty and the University of Alabama at Birmingham (UAB). In fact, I would bet this information never makes it to many employers--or the employers who do have it willingly ignore it.
My favorite bit of advice for management types comes from the Birmingham firm of Leitman Siegal Payne and Campbell. It's titled "Ten Rules on How to Fire an Employee--and Not Get Sued." I like a law firm that doesn't pussyfoot around. And you have to admire the sense of "underhanded honesty" that is inherent in that title. (You can read the document at the end of this post.)
In fact, we will show that both UAB and Infinity seemingly went out of their way to create problems where none existed. And we will grade these august organizations on each of the 10 rules. Trust me, it's going to get ugly.
Lilly Ledbetter's name has become synonymous with the struggle for equal pay in the United States. The Alabama resident's name is forever attached to the Lilly Ledbetter Fair Pay Act, which President Barack Obama signed in the wake of a high-profile lawsuit that ultimately was decided against Ledbetter.
We recently learned that Ledbetter remains involved in the effort to level playing fields in the American workplace. We also learned, based on a review of public documents, that Ledbetter apparently shares something with us here at Legal Schnauzer: She was shafted by her own attorneys.
Ledbetter traveled to Washington, D.C., back in November to help push for the Paycheck Fairness Act, which had passed the U.S. House and was being debated in the Senate. The measure would ensure that women do not face retaliation for seeking information about what their male co-workers earn.
Ledbetter's pay, compared to her male co-workers at Goodyear Tire and Rubber in Gadsden, was a central issue in the lawsuit that went all the way to the U.S. Supreme Court and turned Ledbetter into a national figure. The Paycheck Fairness Act is considered an important followup to the Lilly Ledbetter Fair Pay Act. But the initial effort to pass the measure did not have a happy ending in the Senate. Reports The Birmingham News:
The bill, backed by women's organizations and President Obama, failed by two votes, with all 58 Democrats voting in favor while all 41 Republicans opposed it. Three Republican women senators who previously voted for the Lilly Ledbetter Fair Pay Act voted against the Paycheck Fairness Act.
"It is upsetting to me that something that would benefit everyone got caught up in politics," Ledbetter said in a telephone interview Thursday while driving back to her Jacksonville home.
Ledbetter came to national attention after the U.S. Supreme Court overturned a nearly $4-million judgment in her favor against Goodyear Tire and Rubber. In a 5-4 decision in 2007, the high court ruled that Ledbetter was not entitled to back pay because she had filed her claim more than 180 days after receiving her first discriminatory paycheck.
The ruling prompted Congress in 2009 to pass the law bearing Ledbetter's name, making it easier for workers to pursue pay-discrimination claims. Ledbetter has not rested on the laurels of one legislative victory:
Over the past two years, Ledbetter says she has made dozens of speeches across the country and met hundreds of people who say her willingness to stand up for her rights inspired them to do the same. Last month, Ledbetter spoke at the Women's Leadership Institute at Auburn University as part of its Extraordinary Women Lecture Series.
Institute Director Barbara Baker said Ledbetter is an inspiration to women across the country. "Lilly is such a brave woman," Baker said. "Most people figure why fight the system because you can't win. She showed us how you can make a difference."
Baker said Ledbetter is to be commended for using her notoriety to continue the fight for gender fairness in the workplace. "She's become the public face of equal pay," Baker said.
We certainly applaud Ledbetter's efforts. After all, we know from firsthand experience what it's like to be cheated in the workplace based on gender, age, and other unlawful factors. Reports The Birmingham News:
Women currently receive 77 cents for every dollar paid to men, according to the National Women's Law Center. The disparity is even larger for women of color, who make only 62 percent compared to men, Baker said.
"Right now in 2010, women over their lifetime receive $365,000 less than men," she said. "That is unacceptable."
Our support for Ledbetter became even stronger after we recently reviewed documents in her legal case. That review indicates Ledbetter's own lawyers made some colossal blunders in her lawsuit against Goodyear.
Fame has come Ledbetter's way in the wake of the U.S. Supreme Court ruling overturning the judgment in her favor. But she walked away from the case pretty much with nothing on the financial end. Public records indicate that might not have happened if her lawyers had handled her case differently.
Ledbetter was represented by Birmingham-based Wiggins Childs Quinn and Pantazis (WCQP), the largest employment law firm in Alabama. WCQP lawyers Robert Wiggins, Jon Goldfarb, and C. Michael Quinn represented Ledbetter. And our review indicates they made several key decisions that wound up costing their client big time.
We don't know if the WCQP lawyers intentionally screwed up the Ledbetter case or if they simply acted in an incompetent fashion. But either way, their client suffered because of it. And as regular readers are aware, we know what it's like to have your own lawyer either work against you--or screw up and leave you holding the proverbial bag.
By the way, the assessment that Ledbetter's lawyers screwed up her case does not come from me; it comes from the words of federal appellate judges, as found in public documents that we will be examining shortly.
Lilly Ledbetter truly is a national hero. A book, Grace and Grit: My Fight for Fairness at Goodyear and Beyond, is due in January 2012. And she has had discussions about turning her story into a movie.
One side of the story that has not been examined, to our knowledge, involves the actions of Ledbetter's own lawyers. The folks at Wiggins Childs generally have been portrayed as good guys who got blind-sided by a partisan Supreme Court.
We have little doubt that the current Supreme Court is partisan--and probably prejudiced against plaintiffs in discrimination cases. But we also have little doubt, based on public documents, that Wiggins Childs seriously botched the Lilly Ledbetter case.
We will be taking a closer look at the issue in future posts.
Below is a video of Lilly Ledbetter discussing the Paycheck Fairness Act.
Most Americans, thankfully, never will know what it's like to experience a third term of the George W. Bush administration. But here in Alabama, we have a pretty good idea what it would be like. That's because we are living it--under President Barack H. Obama.
Want the latest evidence? Obama announced this week that he would nominate Constance Smith Barker as a member of the Equal Employment Opportunity Commission (EEOC). Barker currently is an EEOC commissioner, appointed in 2008 by . . . George W. Bush. Before that, she was a shareholder at the Montgomery, Alabama, firm of Capell and Howard, known for being Karl Rove's base of operations when he conducts business in our fair state.
What, again, was that change we were supposed to believe in? Apparently that did not include Alabama. In fact, this is just one of several mind-boggling appointments that Obama has made or proposed in Alabama. Starting to make me think I might as well have voted for John McCain in 2008.
Here is a little background on Constance Smith Barker, from a White House press release:
Constance Smith Barker currently serves as Commissioner of the Equal Employment Opportunity Commission. Prior to her appointment by President George W. Bush, Ms. Barker was a shareholder for 13 years at the law firm of Capell and Howard, P.C. in Montgomery, Alabama. Before she entered private practice, Ms. Barker was General Counsel to the Mobile County Public School System for 11 years. She also served as a part-time municipal judge for two municipalities in Mobile County, Alabama and was active in Mobile County’s juvenile justice system. Previously, Ms. Barker worked as an Assistant District Attorney in the 11th and 13th Judicial Circuits of Alabama. In 2007, she was awarded the Alabama State Bar’s Award of Merit for outstanding service to the legal profession. Ms. Barker has served on the boards of the Mobile Area YWCA and the Montgomery Symphony Orchestra. She holds a B.A. from Notre Dame University and a J.D. from the University of Alabama, School of Law.
That doesn't really tell you much. The good stuff comes from this piece at the Web site Affirmative Action Blog Spot. It came after her appointment as an EEOC commissioner in 2008 . . . by George W. Bush. Here is a snippet:
Connie has practiced employment law at Capell and Howard, P.C. since 1996, when she joined the firm as a shareholder. She represents a broad cross-section of commercial, manufacturing, retail and professional firms. Her clients include manufacturing plants, retail businesses, medical groups, physicians, real estate development and investment firms, and an architectural and engineering firm.
Translation: Barker spent much of her professional career defending businesses that discriminate. Has she ever been a plaintiff's attorney in an employment case, representing a victim of discrimination? Apparently not.
The Affirmative Action Blog Spot piece does say this:
Her efforts are equally focused on the prevention of discrimination claims and the defense of lawsuits. She works closely with corporate clients to guide their decision-making process through the mine fields of potential discrimination liability.
That part about "prevention of discrimination claims" sounds nice. But what if her prevention efforts did not work? What if her corporate clients cheated employees anyway? She apparently defended the cheaters. Has she ever stood up for a victim of discrimination? We see no signs of it.
In short, Constance Smith Barker has spent much of her career making sure that employees are denied equal opportunity in the workplace. And the Obama administration thinks she would be a good choice to enforce equal-opportunity laws?
Consider a few other Alabama head-scratchers from the White House:
Abdul Kallon, U.S. judge, Northern District of Alabama--Kallon came to the bench from the Birmingham law firm of Bradley Arant Boult and Cummings. It might be the most conservative, corrupt law firm in Alabama--and there is a lot of competition for that "honor." Kallon's background, before becoming a judge, was almost identical to Barker's. He defended employers who discriminate against workers. Just before being nominated to the federal bench, he represented Campus Crest Communities, the Charlotte-based company that has been hit with multiple claims of sex and race discrimination. We already have written quite a bit about sleaze connected to Campus Crest Communities, and its CEO Ted W. Rollins. We will be writing much more. And this is an outfit that Abdul Kallon helped defend.
Joyce White Vance, U.S. attorney, Northern District of Alabama--Vance has worked in the U.S. Justice Department since 1991, but before that, she was an associate at the Birmingham law firm of . . . Bradley Arant. (Are we seeing a pattern here?) For good measure, Vance is married to Jefferson County Circuit Judge Robert Vance, and we have presented clear evidence that he is grotesquely corrupt, primarily interested in protecting lawyers who cheat their own clients.
George Beck, U.S. attorney, Middle District of Alabama--Beck is Obama's nominee to replace Leura Canary, the notorious Bush appointee who ramrodded the Don Siegelman prosecution. Given Beck's background, you wonder why Obama would even bother to replace Canary. Beck, like Constance Smith Barker, is from Capell and Howard, the firm known to open its welcoming doors for Karl Rove. During the Siegelman case, Beck represented the government's star witness, Nick Bailey, who largely is responsible for a conviction that runs contrary to clear legal precedent. According to press reports (60 Minutes) and sworn filings by multiple parties, Beck allowed Bailey to be interrogated some 70 times and browbeaten by prosecutors, who repeatedly provided coaching for his testimony. Reports also indicate that prosecutors failed to turn over key evidence to defense lawyers, and Beck apparently allowed this to happen.
Beck's supporters, who seem to consist of Birmingham lawyer G. Doug Jones and a handful of other monied elites, are pulling out all the PR stops to get their guy on the job. (Jones, by the way, apparently became "monied" through his alliance with lawyer Rob Riley, the son of former GOP governor Bob Riley, in a federal lawsuit against individuals and entities connected to HealthSouth Corp.) A piece this week at mainjustice.com presents Beck as a hero of the civil-rights movement. Caution: You might want to have a vomit bag handy before reading this.
Mainjustice did report that Beck has a net worth of $8.6 million, with financial interests in 21st Sentry LLC and Chosen Oils Inc. Sounds like a man of the people, doesn't he?
The bottom line? Obama repeatedly has made appointments in Alabama that help protect our state's elites, the very people who have turned the "Heart of Dixie" into a corrupt cesspool. In Alabama, Obama seems intent on providing "more of the same" and zero "change."
The same Republican plot that sparked the Don Siegelman prosecution might also have led to the downfall of former California Governor Gray Davis. Siegelman, the former Democratic governor of Alabama, raised the issue in interviews after last week's ruling from the U.S. Eleventh Circuit Court of Appeals that upheld most of his convictions from a 2006 corruption trial.
We have reported that the Eleventh Circuit ignored U.S. Supreme Court precedent by holding that a campaign-related transaction between Siegelman and former HealthSouth CEO Richard Scrushy amounted to bribery, even though no "explicit agreement" was involved. McCormick v. Unites States is the binding case on a charge of bribery in the campaign context, and that requires that prosecutors prove that an "explicit agreement" existed. Mark Fuller, the Bush-appointed judge who oversaw the Siegelman trial, did not hold prosecutors to such a standard, and the Eleventh Circuit essentially said, "Ah, that's OK . . . close enough."
So much for the "beyond a reasonable doubt" standard that supposedly applies in American criminal law.
Siegelman and I appeared on The Peter B. Collins Show to discuss the latest twists in a case that has become perhaps the best-known political prosecution in American history. You can listen to a podcast of the interview by clicking here.
Don Siegelman
Collins is based in San Francisco, and Siegelman noted parallels between his own experience in Alabama and the experience of Gray Davis in California. Davis was elected governor in 1998, held strong poll numbers throughout his first term, and was re-elected in 2002. But his approval ratings began to sink when a budget crisis and deregulation in the electricity industry led to widespread instability in California.
Davis' opponents spent some $66 million to stage a recall election in 2003, and Davis wound up being removed from office. He was replaced by Republican and film star Arnold Schwarzenegger, who has been in the news lately for events that have nothing to do with politics.
Why would Republicans target both Siegelman and Davis in 2002-03? Siegelman told Peter B. Collins that it all had to do with presidential politics. "Al Gore had decided he was not going to seek the nomination in 2004, and Gray Davis was the leading Democratic candidate for president at that time," Siegelman said. "I was a friend of Gray Davis, and I was thinking about entering presidential primaries in the South, to challenge George W. Bush.
"An interesting parallel is that one of Karl Rove's best friends, Grover Norquist, was at work in California to do in Gray Davis--and also was at work in Alabama to cause me trouble."
Both Siegelman and Davis had been involved in litigation against the tobacco industry, which also might have helped make them targets for Rove and his allies at the U.S. Chamber of Commerce.
Rove and others who were planning Bush's 2004 re-election campaign apparently were concerned about facing popular Democratic governors from the West and the South. After Davis and Siegelman went down, Bush wound up facing U.S. Senator John Kerry, of Massachusetts.
Siegelman picked up on this theme in an interview with Thom Hartmann. "The common thread between Gray Davis and Don Siegelman being taken down is Grover Norquist, who was one of Karl Rove's best friends from college. Rove wanted Gray Davis and me out of the way, so they could have a field of other Democratic candidates to contend with."
Siegelman expressed frustration at the Obama administration's refusal to hold Rove and others accountable for using the U.S. Justice Department as a political weapon during the Bush years. "The White House let Rove off the hook when they worked a deal with Congress that didn't require him to testify under oath. We've got to hold these people accountable. If they can prosecute me for a non-crime, they can do this to anybody in the country. We need to get it straightened out for the security of our democracy, as well as for my own freedom."
I told Collins that last week's ruling from the Eleventh Circuit indicates politics still is playing a leading role in the Siegelman case, almost five years after the trial. "In my view, Governor Siegelman and his codefendant, Richard Scrushy, were convicted of a crime that doesn't exist under the law. . . . It appears the Eleventh Circuit is trying to keep a thread of the conviction out there, to give some legitimacy to what happened in Montgomery, Alabama."
I also said that the Eleventh Circuit's failure to uphold Supreme Court precedent could signal a far more serious crime than anything alleged in the Siegelman case. "If this three-judge panel is being influenced by someone external to the process, that amounts to obstruction of justice. (18 U.S.C. 1503.) There also is a statute about interference with governmental operations that might apply. (That statute actually is 18 U.S.C. 371--Conspiracy to Defraud the United States.) That's where the real crime is here.
"It's clear that what Governor Siegelman and Mr. Scrushy did is not a crime under U.S. law. I hope the public will examine this 65-page document (from the Eleventh Circuit) and see what a joke it is compared to the actual law. Then, someone should look at these judges, their e-mails and external communications. Someone is pulling their strings."
You can view the full Siegelman-Thom Hartmann interview below:
Editor's Note: This post is a joint reporting effort by Lori Alexander Moore and Roger Shuler.
Roughly 14 months have passed since the body of Alabama attorney Major Bashinsky was found floating in a golf-course water hazard. The official finding of suicide sounded suspect to our ears when it was announced on March 24, 2010--and it seems even more suspect now that we've fully examined the autopsy report in the case.
The mainstream press has ignored signs that the Bashinsky death was not a suicide, but the public should not ignore them. And it should demand an independent investigation, especially because the issue of mysterious "suicides" in Alabama does not end with Major Bashinsky.
We have reported on the suicides of four prominent Alabamians, all of whom had possible connections to financial matters involving former Governor Bob Riley, the Alabama Republican Party, the U.S. Chamber of Commerce--and perhaps GOP strategist Karl Rove and confessed felon Jack Abramoff. We have reported that the Bashinsky autopsy report presents no forensic evidence to support a finding of suicide; the finding is based on the non-scientific investigation of police officers. We also have reported that a gun linked to the Bashinsky death is from a model that dates to World War II and now is considered a collector's item--seemingly an odd choice for a man planning to shoot himself, especially since we've seen no reports that Major Bashinsky was a gun collector.
After reviewing the full Bashinsky autopsy report, we are convinced that Alabama law enforcement cannot be trusted to examine these deaths objectively. Why is that? During Bob Riley's last year in office, the Alabama Supreme Court overturned years of judicial precedent and essentially declared that Riley was the chief law-enforcement officer in the state. That means any police agency in Alabama had a conflict of interest investigating deaths that might have ties to the Riley administration.
Should Alabamians trust that conflicted agencies got it right on these four deaths--and possibly others? No, they should not. And the stakes grow higher as the death toll mounts.
Less than two months ago, Major Bashinsky's first cousin, Charles "Bubba" Major, died from an apparent self-inflicted gunshot wound to the head. In between those two deaths, Business Council of Alabama (BCA) executive Ralph Stacy died at work from a gunshot wound that was reportedly self inflicted. And Robert "Bob" Caviness, an investigator in the Alabama attorney general's office who reportedly knew Ralph Stacy, died from a self-inflicted gunshot wound.
How could these four deaths be tied to Republican Party politics? Major Bashinsky and Bubba Major were part of a family that was embroiled in a lawsuit with an investment firm that has ties to the Riley family. Here is how we reported it in a previous post:
Both Major Bashinsky and Bubba Major had roundabout ties to a lawsuit brought by the estate of Sloan Bashinsky Sr. against the Birmingham firm W and H Investments. The "H" stands for William Cobb "Chip" Hazelrig, an entrepreneur with ties to the Alabama gaming community. Hazelrig is a partner in Paragon Gaming, a company headed by Robert Sigler, of Tuscaloosa. Paragon is pursuing a major gambling resort in Canada, and Rob Riley, the son of former Alabama Republican Governor Bob Riley, used to be involved in Paragon.
Bubba Major was known as one of the finest golfers in Alabama and was a long-time member of the prestigious Country Club of Birmingham. And how is this for irony? An Internet search reveals that Bubba Major worked in sales at Southline Steel, a company based in Bessemer, Alabama. Who has a prominent interest in Southline Steel? None other than Chip Hazelrig.
Chip Hazelrig's ties to the Rileys get pretty darned close. And his actions since Major Bashinsky was reported missing have been, well, unusual:
People with ties to the lawsuit styled Estate of Sloan Bashinsky v. W and H Investments have a curious way of turning up as suicide victims. Is that because Chip Hazelrig has ties to Alabama's Republican machine, built largely by Karl Rove in the 1990s and run by the Riley family in the 2000s? And is this ugliness driven partly because of the GOP's under-the-table ties to the gambling industry?
We know for sure that Chip Hazelrig took some curious actions last March, while Major Bashinsky was missing. Why would he show up for a visit with Sloan Bashinsky Jr. in Key West, Florida?
What about Hazelrig's ties to the Alabama GOP? Rob Riley distanced himself from Paragon Gaming only after a contribution from Hazelrig to Bob Riley's gubernatorial campaign was revealed to have come from someone with ties to gambling. Bob Riley returned the contribution, claiming that he was staunchly anti-gambling, and he went on to launch a crusade against electronic bingo in the last year of his reign as governor.
How do Ralph Stacy and Bob Caviness fit into all of this? Stacy worked at the BCA with Bill Canary, a long-time Rove ally and the husband of Bush-era U.S. Attorney Leura Canary (famed for her role in the Don Siegelman prosecution). Caviness worked for former Alabama Attorney General Troy King, who went from being a Bob Riley ally to an enemy because of their opposing stances on gambling. Sources tell Legal Schnauzer that Stacy and Caviness knew each other well from their activities as lay ministers.
The Major Bashinsky autopsy report is a classic example of the incestuous nature of Alabama politics--of politics in all states, for that matter. The medical examiner who signed off on the report works at the University of Alabama at Birmingham (UAB), which is one of three campuses in the University of Alabama System. By virtue of his role as governor, Bob Riley served as ex oficio president of the University of Alabama Board of Trustees.
One does not have to wear a tin-foil hat to ask: In such a conflict-riddled environment, could pressure have been brought to make sure the Major Bashinsky death was neatly tied up with the label of "suicide''--even though there is precious little evidence to support that finding?
That thought truly resonates when you read the autopsy report and realize it raises far more questions than it answers. We will turn our attention to the full report soon.
The Obama administration seems to have done little to slow down the influence-buying, election-stealing, political-prosecuting arm of the Republican Party. But the Internal Revenue Service might be willing to apply the brakes to some big-money donors, on both sides of the political aisle.
The IRS has sent letters to five donors, stating that their contributions might be subject to gift taxes, according to a report in The New York Times. George Soros, a prominent backer of liberal causes, could be targeted. But it appears that the IRS action might be of more concern for donors on the right. In fact, a liberal watchdog group brought the issue to the forefront last fall.
As we reported in March, Louisiana Governor Bobby Jindal is one of several Republicans in the Deep South who has made ample use of nonprofit advocacy groups. Now the IRS is taking notice on a national scale.
Reports Stephanie Strom of The New York Times:
These advocacy groups have been drawing more scrutiny, from President Obama as well as others, as they have proliferated and funneled vast sums of money in support of campaigns and causes, without having to publicly disclose their donors.
During the midterm cycle, for example, groups like Crossroads GPS, which has ties to the Republican strategist Karl Rove, and Americans for Prosperity, backed by [David] Koch and his brother Charles, were heavily involved in politicking, spurring campaign finance watchdogs to complain that they were flouting election and nonprofit laws.
Campaign Accountability Watch (CAW) applauded the IRS' action, calling it "a good first step" toward reigning in the free flow of advocacy dollars. In a press release, CAW stated:
CAW sent a letter on October 25, 2010 to Attorney General Holder seeking a special prosecutor for the misuse of non-profit organizations to hide the source of electoral donations.
The letter specifically highlighted the provision in the law that the IRS is now addressing:
. . . press reports indicate that these same 501c(4) organizations are not advising their donors that their donations are taxable as a 'federal gift tax' at a rate of 35%, thereby both misleading the donors and depriving the federal government of potentially hundreds of millions in tax revenue.
"We are thrilled that the IRS is now addressing the concerns we raised by enforcing the gift tax against donors to these fraudulent non-profits," said Kevin Zeese who signed the letter to Attorney General Holder last October and is spokesperson for Campaign Accountability Watch.
"The IRS needs to continue to take action against these organizations by denying their non-profit tax status. They are misusing the tax laws to avoid disclosure required by federal campaign laws. The IRS should put a halt to this practice. These non-profits should be required to disclose the identities of all their donor."
A special prosecutor does not appear to be in the works, for now. But CAW's efforts to shine light on the subject seem to have generated action. What might this mean on the national stage? The New York Times helps spell it out:
Both major political parties and candidates have benefited from these types of organizations, but the Republican groups grew in force and size after the 2008 election, partly in recognition of Mr. Obama’s proficiency at fund-raising. For example, Mr. Rove’s group, one of the best known from the 2010 midterm cycle, raised $70 million. Americans for Prosperity, a libertarian group that is opposed to many of President Obama’s policies, has been generously financed by David Koch.
Our take? Republicans freak out whenever a Democrat wins the White House, and the rise of the Koch Brothers and Crossroads GPS signals that the GOP once again is in panic mode. Since Richard Nixon's victory in 1968, Republicans seem to feel they are entitled to the White House, save an oddity such as Jimmy Carter's post-Watergate win in 1976. When Bill Clinton won the presidency in 1992, GOPers had a psychological meltdown. Who can forget the "Don't Blame Me, I Voted for Bush" bumper stickers that seemed to appear within minutes after the election results were announced? When Barack Obama won in 2008, Republicans went berserk with their wallets, throwing money at a problem they vaguely defined as . . . "Dear God, there's a black man in the White House."
How will the GOP react if the IRS decides to jump on the money train and slow it down just a tad? We're not sure, but it should be fun to watch.
The press often portrays the South as a place where white voters hold rock-solid conservative values that often carry the day for the Republican Party. But a new analysis from the Pew Research Center shows that politics in the Deep South are more complicated than that.
Chris Kromm, of the Facing South blog at the Institute for Southern Studies, reports that Pew has identified at least nine political "types" in the United States, with none accounting for more than 14 percent of the public. The Pew study, titled "Beyond Red and Blue: The Political Typology," finds that two groups are disproportionately large in the South: "Hard Pressed Dems" and "Disaffecteds."
Writes Kromm:
Pew's findings are especially interesting for the South. It's often assumed that Southern states -- especially Southern white voters -- are inherently conservative, and the region is only dipping into blue state territory thanks to transplants and immigrants.
There's an element of truth to that, but Pew's surveys have consistently shown that the Southern electorate is much more conflicted and complicated than many realize.
For example, Pew's survey identifies two groups that are disproportionately large in the South: "Hard-Pressed Dems" and "Disaffecteds." While Southerners made up 37 percent of Pew's survey respondents, those two groups were over-represented in Southern states,
What are "Hard Pressed Dems"? Pew says they are largely blue-collar workers who are "struggling financially" and are "generally cynical about government." Writes Pew: "Nearly half (47%) expect that they will not earn enough to lead the kind of life they want. Socially conservative and very religious."
Sounds like a lost cause for progressives, right? Well, maybe not. In fact, "Hard Pressed Dems" are disproportionately female and African-American. Writes Kromm:
One of the most striking findings: Only 16 percent of this group agree with the statement that "most corporations make a fair and reasonable profit" -- a view that would seem to make them amenable to consumer and labor reform if those don't get trumped by the "socially conservative" issues on Election Day.
What about "Disaffecteds"? Pew says they are "very critical of both business and government." They are sympathetic to the poor and supportive of social welfare programs, but they are pessimistic about their own financial futures. Writes Pew: "A majority believe that the government is wasteful and inefficient and that regulation does more harm than good. But nearly all say too much power is concentrated in a few companies."
"Disaffecteds" are largely white and are unlikely to see Democrats, or any political party, as the answer to their problems.
On the surface, the South sounds like a jumbled mess. But Kromm says progressives should not be too quick to write off the region:
My guess is that this points to the conflicted views Southern whites hold about government. But, as with everything else, that issue isn't cut-and-dry, either: Notice that Southerners actually rank low on the "libertarian" category, the group with the most animosity to government involvement in public life.
The upshot: Despite what the Tea Party or libertarian think tanks might say, many Southerners still see a role for government in resolving the problems they and their communities face.
After more than 10 years of investigations, prosecutions, and appeals, the convictions in the Don Siegelman case essentially stand on the definition of one word.
The U.S. Eleventh Circuit Court of Appeals issued a 65-page opinion earlier this week that upheld most of the convictions against Siegelman and codefendant Richard Scrushy. Despite all of that verbiage, the case pretty much boils down to one question: What is the meaning of the word "explicit"?
Does it alarm you that federal prison sentences for two American citizens could boil down to the meaning of one word? It should, especially when a federal appeals court in the Siegelman case accepts a definition of that word that runs contrary to U.S. Supreme Court precedent.
The Siegelman case mainly involves charges on bribery, honest-service fraud, conspiracy, and obstruction of justice. But the whole case hinges on the bribery counts. And those counts hang on a debate about the meaning of the words "explicit" and "express."
All sides seem to agree that the binding precedent in a bribery case involving campaign contributions is McCormick v. U.S., 500 U.S. 257, (1991) which holds:
. . . only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.”
The Siegelman case involved a campaign contribution, and everyone involved agrees McCormick is the binding case. But the record clearly shows that trial judge Mark Fuller did not give a jury instruction in keeping with McCormick. Here is what Fuller told the Siegelman jury:
A Defendant does not commit a crime by giving something of value to a government official unless the Defendant and official agree that the official will take specific action in exchange for the thing of value.
Anyone with minimal reading skills can see that is not the same as the McCormick finding. Bribery law historically has focused on an agreement rather than an action, and McCormick reflects that. Politicians take "actions" all the time--and they can only become unlawful if there is a corrupt "explicit" agreement involved.
Fuller's instruction, however, turned the law on its head, focusing on an action and not an agreement. The Eleventh Circuit has said Fuller's instruction was OK because it was in line with another case, Evans v. U.S., 504 U.S. 255 (1992). But Evans did not involve a campaign contribution, so it is not applicable to the Siegelman case; the alleged facts and legal issues in the two cases are radically different.
The Eleventh Circuit muddies the water further by stating that Siegelman's lawyers claim an agreement must be "express" (memorialized in writing, etc.) rather than "explicit." This appears to be a classic red herring because Siegelman's lawyers do not make that claim. They state, correctly, that McCormick is the guiding law for a bribery charge involving campaign contributions.
The oddities in the Eleventh Circuit's findings do not end there. In fact, there are so many that we can't begin to cover them all. But consider this: The three-judge panel, on one hand, extols the work of the Siegelman jury:
This is an extraordinary case. It involves allegations of corruption at the highest levels of Alabama state government. Its resolution has strained the resources of both Alabama and the federal government.
But it has arrived in this court with the “sword and buckler” of a jury verdict. The yeoman’s work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama were asked to sit through long days of often tedious and obscure testimony and pour over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. Often at great personal sacrifice. Though the popular culture sometimes asserts otherwise, the virtue of our jury system is that it most often gets it right. This is the great achievement of our system of justice. The jury’s verdict commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
Sounds like the jury was pretty smashing, doesn't it? (And what, by the way, is a sword and buckler?) But later, in the same opinion, the Eleventh Circuit reverses two honest-services fraud counts against Siegelman and says, in essence, the jury was a bunch of clods:
In view of this absolute lack of any evidence whatsoever from which the jury could infer that Siegelman knowingly agreed to or participated in a broader scheme that included Scrushy’s alleged subsequent self-dealing while on the Board, we shall reverse Siegelman’s convictions on Counts 8 and 9.
Was the jury made up of enlightened citizens or a bunch of dimwits? The Eleventh Circuit can't seem to make up its mind.
Even more strange, the Eleventh Circuit already had reversed Counts 8 and 9 against Siegelman in its previous ruling from 2009. Did the three-judge panel bother to review its own work before writing its most recent ruling?
The work of the Eleventh Circuit on the Siegelman case can only be described as a "fiasco." And there is no doubt about what that word means.
A federal appeals court might have unwittingly provided insight yesterday about its muddled handling of appeals in the Don Siegelman case.
The ruling from the U.S. Eleventh Circuit Court of Appeals had been widely anticipated for several reasons: (1) Following a U.S. Supreme Court ruling in a case involving former Enron executive Jeffrey Skilling, federal law on both honest-services mail fraud and bribery--the two key issues in the Siegelman case--has been shifting; (2) The Eleventh Circuit's ruling was expected to provide some clarity on important criminal issues in a changing landscape; (3) Siegelman is the most high-profile victim of a Bush-era political prosecution, and the former governor of Alabama figured to receive at least some relief from convictions reached in a Montgomery, Alabama, trial court.
Alas, yesterday's ruling from a three-judge panel of the Eleventh Circuit accomplished almost nothing. The judges provided no insight on Skilling or its impact on bribery convictions. And they provided zero relief for Siegelman. The only relief came for codefendant Richard Scrushy, who had two of his convictions on honest-services fraud reversed.
That means the defendants likely will turn to the U.S. Supreme Court, wasting more public resources--not to mention their own personal resources--on a case where the convictions, by law, cannot stand. We have known for a long time that the three-judge panel in the Siegelman case--J.L. Edmondson, James C. Hill, and Gerald Bard Tjoflat--is corrupt. We spelled that out in a multi-post series, which concluded with the following summary:
Yesterday's ruling reveals that the three judges also are lazy. Huge portions of the ruling are lifted word-for-word from their previous order, which was issued on March 6, 2009. And we're not talking about just the section dealing with factual aspects of the case. Large segments of the legal analysis have not changed at all. It's as if all of the new briefs, and the oral argument conducted in Jacksonville, Florida, never took place.
A comparison of the two rulings--the one from yesterday and the one from March 2009--strongly suggests that the three judges had a predetermined outcome on the Siegelman/Scrushy case, and nothing was going to change their minds, not even directives from the U.S. Supreme Court.
The case was back before the Eleventh Circuit only because the nation's highest court had ordered a review in light of the Skilling ruling. Edmondson, Hill, and Tjoflat apparently could not be bothered by Skilling and the U.S. Supreme Court. They swatted the issue away with barely a mention. From yesterday's opinion:
In Skilling v. United States, 561 U.S. ___, 130 S. Ct. 2896 (2010), the Court held that Congress intended these statutes to reach only those schemes to defraud the public that are based upon allegations of bribery and/or kickbacks. After Skilling, therefore, prosecutions based upon any other theory--for example, self-dealing--are not permitted. The defendants contend that Skilling, and other errors, require that their honest services convictions be overturned. . . . Counts 6 and 7 charge that Scrushy’s bribery of Siegelman deprived the public of the right to the defendant’s honest services. Thus, there is no Skilling error here--a bribery (or kickback) scheme is required under Skilling and one was alleged.
Skilling, of course, is not just about what the government alleges. It also is about what the government must prove. From the Skilling opinion, written by Justice Ruth Bader Ginsburg:
The "vast majority" of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes.
It's not enough for the government to allege that Siegelman and Scrushy engaged in a bribery or kickback scheme. The government must also prove it.
And the government only received a conviction on bribery because of a flawed jury instruction from trial judge Mark Fuller. Without getting into too much legalese, this involves an analysis of the McCormick and Evans cases, which we examined previously. In fact, we clearly showed that, based on the actual law, the jury instruction was unlawful, and you can check it out at the following link:
In yesterday's ruling, the Eleventh Circuit stuck by its earlier contention that the jury instruction was "sufficient." In essence, the three-judge panel found that the jury instruction was "in the ballpark," and that's close enough for a criminal conviction. Any American who does not find that appalling, should be checked for signs of a functioning conscience.
What is the three-judge panel really up to? We suspect a major clue comes from page 38 of yesterday's opinion, where the judges heap praise on the Siegelman/Scrushy jury:
This sort of split verdict is itself evidence that the jury considered the charges carefully and individually, addressed the strength of the evidence on each charge, and reached a reasoned conclusion. See United States v. Dominguez, 226 F.3d 1235, 1248 (11 Cir. 2000) (making these comments in the context of allegations of premature jury deliberations)
The judges make this point at least twice in the ruling, that a split verdict is a sign of careful consideration on the part of the jury. That is curious because the judges themselves are rendering all kinds of split verdicts, as if they are trying to tell the public, "Hey, look, we examined this case closely."
Split verdicts, of course, do not necessarily mean that a jury or judicial panel gave careful consideration to the matters at hand. They can simply mean that the jury or judges were incompetent, lazy, confused--or some combination of all that.
The judicial panel's regurgitation of huge chunks from its earlier ruling indicate it did not give careful consideration to the matters at hand. And by blowing off Skilling, they essentially are saying to Ruth Bader Ginsburg, "Hey, up yours, lady!"
Did we mention that Americans should be appalled by these three judges on the Eleventh Circuit panel?
Here is all you probably need to know about these three "jurists." It tells you that Siegelman and Scrushy never had a chance with this panel. We spelled it out in a post at the following link:
Muriel Kane has written an excellent overview of the three judges on the Siegelman panel. She notes that Gerald Bard Tjoflat and James C. Hill both originally were appointed to the federal bench by Richard Nixon and to the appellate court by Gerald Ford. The third, J.L. Edmondson, was appointed first by Ronald Reagan and named chief judge of the 11th Circuit by George W. Bush in 2002.
Let me repeat: One of the Siegelman panelists owes his title as chief judge to George W. Bush--and it's reasonable to assume that Karl Rove played a hand in making that appointment!
Gee, I can't imagine why anyone would raise concerns about the impartiality of this panel.
We specifically noted Judge Tjoflat's ties to Republican strategist Karl Rove:
Perhaps most alarming is the role Tjoflat played in Karl Rove's ascendancy to political prominence. Tjoflat was part of a three-judge panel that weighed in on the 1994 election contest for Alabama Supreme Court chief justice between Republican Perry Hooper Sr. and Democrat Sonny Hornsby.
The panel upheld a lower-court ruling that threw out 1,700 unwitnessed absentee ballots, making Hooper the winner.
Karl Rove was intimately involved in the Hooper/Hornsby race, and his efforts to get Hooper elected under controversial circumstances signaled a sea change in Alabama courts, which once were all Democratic and now lean way to the right.
Rove used his success in the Hooper/Hornsby race as a springboard to national political prominence.
The only way the deck could have been stacked more against Siegelman would have been for the panel to include William Pryor, the former Alabama attorney general who initiated the state investigation of Siegelman. Pryor did that, of course, after winning a campaign that was managed by . . . Karl Rove.
The bottom line? The three-judge panel on the Siegelman/Scrushy appeal has been hopelessly tainted from the outset. In their laziness, the judges show that they gave little consideration to matters of profound importance to the American public.
