Thursday, August 30, 2012

Siegelman Is Allowed to Attend Democratic National Convention, Via a Smarmy Federal Court Order

Democratic National Convention

Former Alabama Governor Don Siegelman will be allowed to attend the Democratic National Convention in Charlotte, thanks to a federal-court order that only can be described as smarmy.

Not content to simply grant or deny Siegelman's request via the federal Probation Office, U.S. District Judge Mark Fuller tries to justify his own disgraceful handling of the case--and jury convictions that are at odds with the relevant facts and law.

Siegelman is due to report to federal custody on September 11 after the U.S. Supreme Court refused to hear his appeal. He asked to be allowed to travel to Charlotte from September 3-6; the Democratic National Convention (DNC) will take place in Charlotte on those dates. Fuller granted Siegelman's request, but he could not do it without providing editorial comment, including a mocking reference to Siegelman's stated reasons for the trip.

You can view the full order at the end of this post. The following segment provides a taste of Fuller's arrogant tone:

Don Siegelman has asked the Probation Office if he can travel to Charlotte, North Carolina, from September 3 to September 6, 2012, for a “family vacation.” During this time, he plans to lobby various power brokers for clemency during the Democratic National Convention. The Court takes no position on whether he should receive a pardon. The Court finds that Siegelman is neither a flight risk nor a danger to himself or to society, and thus, the Court approves his request to travel outside the Middle District of Alabama and the Northern District of Alabama for the purpose of attending the Democratic National Convention.

Notice that Fuller puts "family vacation" in quotation marks. Is this guy a smart ass or what? Then we are left with this question: Did Siegelman disclose in his request that he intends to "lobby various power brokers for clemency," or did Fuller simply make that assumption? For that matter, did Siegelman disclose that he is attending the DNC, or did Fuller assume that, too?

Fuller proceeds to show extraordinary sensitivity about this case, that Siegelman (or anyone else, for that matter) would dare question whether it was handled according to law:

While the Court takes no position on Siegelman’s quest for clemency, it must note that Siegelman continues to question the integrity of those prosecuting his case specifically and of the judicial system generally. Moreover, he still maintains that he merely accepted campaign contributions, and that he therefore never violated the law.

Gee, I can't imagine why Siegelman would question the integrity of prosecutors and the judicial system, considering what we know about his case:

* The case was styled U.S. v. Siegelman, and yet the trial judge (Fuller) has made massive amounts of money from contracts with one of the parties--the United States of America--via his stake in a company called Doss Aviation. The "judicial system" denies that presents a conflict;

* Powerful evidence indicates that chief government witness Nick Bailey was improperly coached and threatened--and that exculpatory evidence was withheld from the defense;

* Powerful evidence indicates jurors were unlawfully e-mailing each other during the case and communicating with members of the prosecution team;

* Fuller gave unlawful jury instructions that do not describe the relevant law for the charge of federal funds bribery. One of Fuller's judicial colleagues recently shined light on the problem of jury instructions in such cases;

* Fuller unlawfully denied a defense petition for a bill of particulars that would have provided critical specifics about the charges;

* The prosecution brought the case almost one full year past the statute of limitations, a fact that would have been proven by a bill of particulars. Defense lawyers properly raised the limitations defense, but Fuller denied it--and the U.S. Eleventh Circuit Court of Appeals violated its own precedent by letting the ruling stand.

* Bottom line: The prosecution was barred from the outset by the statute of limitations. Once it reached a conclusion, Siegelman and codefendant Richard Scrushy were convicted of a "crime" that doesn't exist under the actual law. Can't imagine why Siegelman would question the integrity of a system that produced such an outcome.

Fuller might be crooked, but he isn't stupid. He knows this case was a massive con job on Siegelman, Scrushy, the public, and the rule of law. That's why the judge is so squeamish about scrutiny that might come from Siegelman attending the DNC. Fuller goes on to cite what he calls the "uncontroverted facts" of the case and repeats the claim he made at resentencing--that he has "no doubt" the actions in the case constituted a bribe.

While saying that from one side of his mouth, Fuller recites "facts" from the other side of his mouth that never include evidence of an "explicit agreement," a quid pro quo that forms the essence of a federal-funds bribery charge. In Fuller's own words, he has no doubt about the existence of a bribe--but the central element of a bribe is missing. Get a load of this:

While the Court respects the Siegelman’s ability to exercise his constitutional rights, it cannot accept Siegelman’s misrepresentation of the facts of this case in an effort to discredit the prosecution, the trial, the jurors’ unanimous verdict, as well as the decisions of the Eleventh Circuit and the Supreme Court of the United States. For whatever other reason Siegelman wishes to pursue his application for clemency, the Court feels responsible to state the uncontroverted facts that the jury considered and unanimously agreed constituted the crimes of bribery, honest services fraud, and obstruction of justice.

Fuller seems to assume that if he repeats the "no doubt it constituted a bribe" mantra often enough, thinking citizens will eventually believe him.

I've got news for the judge: It ain't going to happen.

Siegelman DNC Order

Robert Vance Jr. Would Not Be An Improvement Over Roy Moore for Alabama Chief Justice

Robert Vance Jr.

Democrats generally seem heartened by recent news that Harry Lyon was disqualified as the party's candidate for chief justice of the Alabama Supreme Court. Democrats also seem to applaud news that Jefferson County Circuit Judge Robert Vance Jr. would replace Lyon on the ballot, taking on Republican Roy Moore in November's general election.

Lyon is seen as a perennial candidate who is prone to making outrageous public statements. Moore is seen as a religious whack job, noted mainly for his ouster as chief justice in 2003 because of his refusal to remove a Ten Commandments monument he had ordered placed in the Alabama Judicial Building.

To progressives, moderates, and probably quite a few conservatives, Vance seems like the only sane choice. But everyday folks of a progressive/moderate bent might want to be careful about making assumptions. I have appeared in Vance's court, and I know from first-hand experience that he is anything but a friend to the common man. More importantly, he is not a friend to the rule of law.

Vance comes with a fine pedigree, but that's about it--and genuine Democrats should not let that fool them. His father was the late U.S. Circuit Judge Robert S. Vance Sr., who was seen as a champion of civil rights. Vance Sr. was killed in December 1989 when he opened a mail bomb that had been sent to his Mountain Brook home. His death came as an appeal was pending on a case styled Avirgan v. Hull, which threatened to unveil secrets about drug and arms smuggling connected to the Bush family and the Iran-Contra Scandal.  As chief judge on the U.S. Eleventh Circuit Court of Appeals in Atlanta, Vance Sr. was seen as likely to push for a ruling that would overturn dismissal of the Avirgan case and bring Iran-Contra secrets to light.

Walter Leroy Moody, a white supremacist from south Alabama, was convicted in Vance Sr.'s murder and still resides on death row at the Holman Correctional Facility. But a number of investigative journalists have reported that Moody probably had little, if anything, to do with the mail bomb. Powerful evidence suggests  that Vance Sr. was killed in order to keep the Avirgan case under wraps, and indeed, a three-judge panel of the Eleventh Circuit went on to uphold the dismissal.

History tells us that Robert Vance Sr. was a man of convictions. His son, sadly, is anything but that. I know from personal experience that Vance Jr.'s main judicial philosophy, if you want to call it that, is to protect the interests of legal, corporate, and political elites. And he will twist the law beyond recognition in order to achieve his goals.

My take on Robert Vance Jr. is not necessarily welcome in progressive circles. A lot of folks seem to hear the name "Vance" and assume that he is one of them--a liberal who seeks to fight injustice. But this apple fell a long way from the tree--and there is a big difference between the two Vances.

How big is the gulf? I'm about as liberal as a white guy living in Alabama can be. And I've paid a steep price for speaking out about injustice; I was cheated out of my job at UAB because of the progressive tone of this blog, and my wife probably was cheated out of her job at Infinity Property and Casualty for the same reason.

I very much want Alabama courts to take a turn back toward the left. But if the election were tomorrow, I  would hold my nose and vote for Roy Moore. That's how little I think of Robert Vance Jr.

Plus, Roy Moore--for all of his nuttiness on religion--is not part of the legal establishment. And it's possible that he would take on the entrenched con men who run the Alabama State Bar--and the bar, I believe, is the source (or the enabler) of the legal corruption that wracks our state. If Roy Moore would take on the Alabama State Bar, it might actually serve a useful purpose for regular Alabamians. Robert Vance Jr. would serve no useful purpose that I can see--other than to provide cover for corrupting forces in Alabama courtrooms.

Speaking the truth about Vance Jr. tends to generate blowback in progressive circles. The matter becomes particularly sensitive when you consider that his wife, Joyce White Vance, was the Obama administration's appointee as U.S. attorney for the Northern District of Alabama. I found out about blowback when I wrote about my experiences before Vance Jr. back in 2009. Here are links to those posts:

Is Joyce White Vance the Answer for Justice in North Alabama?

Here Is One Way a Corrupt Alabama Judge Will Cheat You

The comments on the second post provide a prime example of the protective cloak that has developed around the Vances. What is my beef with Robert Vance Jr.? Here is a brief summary from the second post above:

How did Vance Jr. cheat me? Let me explain: It involved a legal malpractice claim I filed against Jesse P. Evans III and Michael B. Odom, the lawyers who originally defended me in the lawsuit filed by my troublesome Shelby County neighbor, Mike McGarity. 
At the time, Evans and Odom were with the Birmingham firm of Adams and Reese/Lange Simpson. They since have moved to Haskell Slaughter. Evans is well known as a property lawyer and even has written a textbook on the subject. I sought him out because the lawsuit against me involved real-property issues, and a friend had told me that Evans was an expert in the field. Odom was Evans' assistant and handled most of the actual work on my case. 
To be blunt, Evans and Odom cheated me raw. In the Shelby County case, we filed two motions for summary judgment, which were properly executed and supported with affidavits regarding material facts. On the first, McGarity did not respond as required by law, meaning summary judgment had to be granted and the case dismissed. On the second, McGarity did not respond at all--and that's because he had no case and his corrupt lawyer, William E. Swatek, surely knew it. Again, summary judgment had to be granted. 
Judge J. Michael Joiner denied both summary judgment motions, contrary to clear, black-letter law. Evans and Odom had to know the judge was cheating me, but they did nothing about it. They even refused to file a counterclaim on my behalf, even though McGarity had built a fence on our property, enclosing about 400 square feet of our yard. It's hard to imagine a more egregious example of trespass. 
Evans and Odom, however, did nothing to protect my rights, ensuring that I was on the defensive throughout the proceeding. So I fired them--and then sued them. Acting pro se, I filed the legal-malpractice lawsuit in Jefferson County Circuit Court on September 4, 2003--case number CV03--5627 
My original complaint was 12 pages long and outlined four counts against Evans and Odom--legal malpractice, fraudulent misrepresentation, fraudulent suppression, and fraudulent deceit. The action was brought pursuant to the Alabama Legal Services Liability Act, sections 6-5-570, et. seq., Code of Alabama. That's the catch-all statute for actions against legal services providers, and my complaint was filed well inside the two-year statute of limitations. 
The Birmingham firm of Starnes and Atchison represented Evans and Odom and promptly filed a Motion to Dismiss under Rule 12(b)(6) of the Alabama Rules of Civil Procedure, claiming that I had failed to state a claim for which relief could be granted. 
In an order dated December 5, 2003, Vance granted the Motion to Dismiss. I filed a Motion to Alter, Amend, or Vacate under Rule 59(e), but it was denied on January 5, 2004. The Alabama Court of Civil Appeals affirmed Vance's ruling, without an opinion, and the Alabama Supreme Court denied certiorari to hear the case.

With that as background, here is the crux of the matter--and it is absolute proof that Robert Vance Jr. does not respect the rule of law:

Here's the key to understanding how Vance cheated me: When you read in the newspaper about a lawsuit being dismissed, it almost always means that summary judgment has been granted, under Rule 56. (Note: Summary judgment is handled under Rule 56 in federal cases, too.) 
Summary judgment means that both parties have had an opportunity to conduct discovery, and one party or the other has shown that, based on the facts and the law presented, there is no reason for the case to go to trial. 
That is very different from a Motion to Dismiss under Rule 12(b)(6). Such a motion, if granted, cuts off a case before it even gets started. It claims that the plaintiff's complaint, on its face, is insufficient--and the case should be dismissed without any discovery being conducted. 
Most honest Alabama lawyers will tell you that filing a Rule 12(b)(6) motion is a waste of their time--and their client's money--because the motion almost never can be granted under the law. 
Why? Federal courts and most state courts, including Alabama, operate under a "notice pleading" rule. What does that mean? Here is one definition: 
[The] Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." 
To overcome a Rule 12(b)(6) motion, I only needed to give Evans and Odom notice of what the claim was and the grounds for supporting it. I met that burden with this one sentence in my complaint, under "Count One--Legal Malpractice": 
13. The actions and inactions of Defendants, as set forth in paragraphs 1 through 11 above, fall below that level of such reasonable care, skill and diligence that other similarly situated legal services providers in the same general line of practice as Defendants and in the same general locality ordinarily have and exercise in like cases. 
That one sentence, noting that I had set forth 11 paragraphs of facts to support my claim, was sufficient to overcome Evans and Odom's Motion to Dismiss. In all, I provided 12 pages worth of facts and law--when only one sentence was sufficient. And Vance still could not get it right!

That's a lot of detail on a legal issue that is simple, and it boils down to this: The bar to overcome a motion to dismiss is extremely low; you only have to give notice of a valid legal claim, and it must not be barred by the applicable statute of limitations or immunity issues. (Neither of those was a factor in my case.)

I gave notice that Evans and Odom were being sued for legal malpractice, and that clearly is a valid and recognized claim. I provided 12 pages of detail about the claim, going way beyond the standard set by law for overcoming a motion to dismiss.

Robert Vance Jr. is not stupid; he knew he was cheating me. He did not make a single citation to law in dismissing my case. That's because there is no law that supported his desired outcome. So he simply went rogue, seemingly without a conscience, because he did not want his fellow members of the legal tribe to be subjected to depositions and other forms of discovery. What about the fact my wife and I had been cheated by lawyers we paid roughly $12,000--a lot of money for us? Vance Jr. didn't care; the interests of big downtown law firms were served, and that's all he cared about.

I haven't written about Robert Vance Jr. in quite a while; I've tried to "put him in the rear-view mirror." But now he is seeking the highest judicial office in our state, and I know for a fact that he is singularly unqualified for it. Before voters mark their ballots in November, I want them to know how Vance Jr. actually conducts business in his courtroom.

I will provide copies of several key documents from my legal-malpractice case, along with explanations of relevant law, and they will show that Robert Vance Jr. does not deserve your vote.

He definitely will not be getting mine.

(To be continued)

Wednesday, August 29, 2012

Why Did a Simple Interview Request Send CEO Ted Rollins' Former Stepson Into a Rage?

Zac Parrish

We established in a recent post that Zac Parrish can become angry when faced with the subject of his mother's divorce from Campus Crest Communities CEO Ted Rollins.

Parrish has reason to be angry about Ted Rollins, his former stepfather. After all, public records show that Rollins severely beat Parrish in 1995 and was convicted for assault in Franklin County, North Carolina. Parrish also has reason to be angry that his mother, Sherry Carroll Rollins, was horribly cheated in her divorce from Ted Rollins, largely because the case was unlawfully moved from South Carolina (where it was litigated for three years) to Alabama.

But Parrish does not seem upset about the injustice that has been heaped on his mother and his half sisters--Birmingham residents Sarah and Emma Rollins. Instead, he launched into a tirade against me for doing what journalists do--reporting on a story of public record, on a divorce case that was intentionally botched via the use of public facilities and resources.

After cursing and hanging up on me in the first segment of our conversation, Parrish did not become any more pleasant in the second segment. He claims that events related to the misuse of taxpayer-funded courts is "none of (my) business." He hints that his original offer to meet me in person was done only for purposes of a physical threat.

This becomes even more peculiar when you consider that Zac Parrish initiated communication with me, not the other way around. I first heard from him in an e-mail dated September 16, 2011. You might say he came across as a smart ass on that occasion. Here is an unedited version of what he wrote:

Your reporting of events seem to be missing any verification of facts and only consist of opinions of people with no professional expertise on the topics you choose to report. 
Exactly what is it that you contribute to society? 
Your occupation is listed as editor. What is it you are the "editor" of? Do you actually give back in any way to society or simply blog what you interpret to be the truth? Maybe someone needs a more productive hobby? What exactly is your list of accomplishments in life, other than being a burden to others? 
A degree in journalism? Wow! I'm shocked you haven't had legal action against you, yet.

In an e-mail dated Sept. 20, 2011, Parrish cited his experience as a building professional and used it to blame the victims for a balcony collapse at a Campus Crest Communities site near the University of North Texas. You will notice that Parrish performs all sorts of verbal gymnastics in an effort to protect Ted Rollins. I wonder why. Here are Parrish's words, again with no editing from me (and no paragraphs from Parrish):

In regards to your "coverage" of campus crest communities' and the balcony incident, a fair reporter would have noted the balcony only had a overall depth of 6". The pictures that are available online show that these are simply for aesthetics. The story, available on CBS' local site, proves that this incident was caused by a group of young college kids acting inappropriately at 3am. The size of the landing area of the balcony is less than the size of the so called victims' shoes. This aesthetic architecture/design has been utilized for centuries. At what point are people held liable for their own actions? I guess there is always someone to blame? If that is the case, where does liability of the local governing agencies (inspections dept) ever kick in. That is never mentioned in your "coverage"! Selective reporting with a political agenda? Seems like it to me, and others. Fair and balanced reporting can never be contested. You should really let the last sentence sink in. Fair and balanced! By the way, yes I have studied, sitting at the Shelby county courthouse in columbiana and sitting through trials and the witness stand for days while taking away time from my work and children. I, and my attorney, are more intimate with the details of that divorce than you can ever wish to be. Your "hours" of study can not compare to my lifetime. I am a licensed professional in the building industry, so I know what I am talking about in regards to the balcony incident. You should attempt to be fair and accurate and present all facts to a story when reporting so that the masses will listen and not so obviously recognize your personal beliefs to be one sided. I am 32 years old with 4 children and challenge you to any debate or social contribution efforts that you have ever given back to society. You appear to me, and the masses, as an opportunist individual that is looking for another handout. The problem with our country today, folks that don't want to contribute to our society, but point out the preconceived notions of others. My above statements are not influenced/approved/endorsed by Camus crest or Ted Rollins, or any of my, zac parrish, companies. You should look up the definition of "journalist".

In a postscript, Parrish took on a slightly threatening tone:

P.S.- I am not as forgiving, legally, as my mother or stepfather. So tread lightly in your blogs, comments, opinions.

Parrish continued with that tone in an e-mail dated September 28, 2011. It came after I had run a photo of Ted Rollins and other Campus Crest executives playing foosball. The photo appeared in a publication touting Campus Crest facilities, so I'm not sure why Parrish took offense. But he did, and here is an unedited version of an e-mail he sent to me:

Foosball, really! What a fool the schnauzer is! Maybe one day we can all be on unemployment and bankrupt. I don't pick on those in that are in need and fall on hard times beyond their control, only those that put themselves there. I hope you enjoy the checks that you are cashing that I work hard to fund. FYI...I was informed that your wife wants to come and find me for voicing my opinion. Tread lightly, threats come with very serious legal consequences. Especially when those threatened have the endless legal resources to defend themselves and their family, e.g. 4 small children and wife. My family and I certainly wouldn't tolerate any further verbal or physical threats. Sometimes things are just as they appear and you can't always trust the ones that you think you can. It is scary how effective your time could be if applied in the proper direction with the support of true evidence and fact. Who knows, you may be able to profit and/or support your family without government assistance if you did so.

Parrish consistently presents himself in a mocking, condescending, arrogant, threatening tone. Notice his reference to having "endless legal resources." Where could that come from, other than the Rollins family? This seems to confirm that the Rollins clan is a prime financial backer of Zac Parrish's building company--even though Mr. Parrish likes to portray himself as a "rugged individualist."

Why would the Rollinses support a former stepson, someone who essentially has no claim to the family mantle? Is this part of a deal that was struck to ensure that Zac Parrish would stay quiet about what Ted Rollins did to him as a child?

Is this a case of a young man who was bullied as a child by his stepfather . . . and now he has become a bully himself? 

Keep in mind that Zac Parrish initiated this communication; it wasn't prompted on my end. But when I did request an interview--assuming he would say yes, since he had sought me out to express his opinions via e-mail--Parrish exploded with rage. I've written extensively about the Rollins v. Rollins divorce and called it the worst courtroom cheat job I've ever encountered on the civil side. Court cases are famous for producing lots of paper, and my reporting has tended to focus on the documents that show clear misconduct in the handling of the Rollins case.

The interview request with Zac Parrish, however, gets to the human side of the equation and provides an example of the emotion that probably accompanies many divorce cases.

The public record shows that Zac Parrish was a central figure in the Rollins family drama; that's why I called him. The experience of being Ted Rollins' stepson clearly left scars--and a reservoir of rage.

Child abuse has become a front-page topic in recent months, thanks to the Jerry Sandusky scandal at Penn State. Zac Parrish's story never made headlines, but he clearly was the victim of child abuse--at the hands of Ted Rollins.

I can understand Zac Parrish's desire to keep that chapter in his life under wraps. But the Sandusky case has shined a spotlight on an issue that too often has remained in the shadows. And it has taught us that these issues, when they come to light via the court process, are very much the public's business.

Karl Rove Gets Testy in Tampa--Plus More Bits and Pieces From the Intersection of Law and Politics

Karl Rove at RNC breakfast

Updates on Karl Rove, Don Siegelman, Whataburger, and more . . .

Karl Rove went loopy at a Republican National Convention (RNC) breakfast yesterday, ranting about Alabama-related issues--even though he was not asked about them.

Craig Unger, of Vanity Fair, was on hand for a Tampa event that featured Rove as guest of honor. Unger, author of the newly released Boss Rove: Inside Karl Rove's Secret Kingdom of Power, participated in a question-answer session--and that seemed to set Rove off. Unger describes the scene:

Finally, Rove chose to comment on me, my new book, Boss Rove, and my Vanity Fair piece of the same title, when I rose to ask him if he had taken shots on Fox News at so many of Romney’s rivals—Sarah Palin, Rick Perry, Herman Cain, Rick Santorum, Newt Gingrich, and others—in consultation with Fox News chairman Roger Ailes. When I identified myself as being with Vanity Fair, Rove interrupted, “Yes, of course you are. . . . This is where Unger’s gonna flack his book. Go ahead, Unger. Launch away!” 
Calling my book “an entertaining work of fiction,” he said, “Unger’s got an interesting book: I’m responsible for the murder of Mike Connell,” Rove’s computer guru who died in a 2008 plane crash and was said to be knowledgeable about allegations of electoral fraud in Ohio in 2004.

Unger took issue with Rove's characterization of the book, and that seemed to turn Rove's attention to Alabama--for some unknown reason. Rove fired back about Connell and took a clear shot at Jill Simpson, the Rainsville attorney and former GOP operative who was a key whistleblower in the Siegelman case:

“It’s very artfully close to saying that,” Rove said (about Connell). “He also depends upon a nut . . . who claims that I personally got her to investigate Governor Siegelman of Alabama,” Rove continued, referring to Democrat Don Siegelman, who was convicted of campaign violations in a prosecution that many Democrats believe was politically motivated.

Without uttering her name, Rove refers to Simpson as a "nut." But he fails to mention that she testified under oath before Congress--something Rove did not do--regarding her participation in a conference call that included discussions about setting up Siegelman for a political prosecution. And we have yet to see anyone successfully shoot holes in Simpson's testimony--although a number of folks have tried.

Don Siegelman Will Be Sent to Oakdale, Louisiana
Former governor Don Siegelman has received noticed that he will be sent to a prison in Oakdale, Louisiana, upon reporting to federal custody on September 11. Pam Miles, who operates a political listserv from Huntsville, Alabama, issued a press release yesterday about Siegelman's assignment. Miles' release was titled "This Is Pure Meanness," and she states:

On August 3rd at resentencing Judge Fuller granted a motion for Don to self-report and said that he would request that the BOP place Don at a facility “as near Alabama as he can be designated.” 
While Talladega is only 49 miles away and Maxwell Air Force base only 97 miles Judge Fuller must have thought that Don’s enthusiastic supporters like me would be viewed as way too much of a distraction if Don were in Alabama. 
Pensacola, however, is only 251 miles away, about a 4 and ½ hour drive for Don’s wife, Lori. 
But oh no, apparently even Pensacola is too near Alabama for the Judge, because Don just received notice that he is assigned to Oakdale, Louisiana, a 17-18 hour, 900+ mile round trip.

What kind of hardship is this on Siegelman's family? Miles provides insight, and she also touches on the unlawful outcome in the Siegelman prosecution:

As you may remember Lori, Don’s wife, lost an eye in a horrific automobile accident with a drunk driver in 1984. She would have difficulty driving the 17-18 hour, 900+ mile round trip to Oakdale and back. It would be very dangerous and nearly impossible for her to drive it alone. 
This is nothing but punitive. It is outrageous that the Judge is sending Don to prison at all for something that wasn’t a crime. It’s never been a crime to appoint a contributor to something. Where do Ambassadors come from? From people who raise money for whomever is elected president!
If it was not for Richard Scrushy being the contributor and for the government pressuring Nick Bailey who was facing 40 to 100 years in prison to lie there would not have been a conviction. 
The conviction makes me sick, the extreme sentence makes me sick, and putting Don as far from his family and friends AS POSSIBLE . . . MAKES ME ANGRY.

Texas Monthly Shines Light on Whataburger's Battle With Debt Collector 
Long recognized as one of the best magazines in the country, Texas Monthly (TM) has weighed in on Whataburger's efforts to stand up for an employee who was the target of unlawful harassment from a debt collector.

We reported on the Whataburger story over the weekend, and I was pleased to learn that Texas Monthly cited our work in its blog post yesterday. That puts Legal Schnauzer in some mighty fine journalistic company. From "What An Employer!" a piece by TM reporter Jason Cohen:

At Open Salon, Roger Shuler, who also writes the Legal Schnauzer blog, openly applauded Whataburger’s actions: 
If you are an everyday American consumer and get a hankering for fast food, you might want to consider a run to your local Whataburger. The Texas-based company deserves your support for its willingness to stand up to one of the biggest bullies in the debt-collection industry. In fact, this debt collector is even bigger than most Americans realize because, unbeknownst to many, it is owned by a banking behemoth. 
Shuler, who had his own personal experience with NCO, goes on to explain NCO’s ties to JP Morgan Chase. He concluded, “That means Whataburger, on behalf of an employee, is taking on the largest private corporation in the world. I know who I will be rooting for in that fight.”

Let's hope TM continues to follow this story. Legal Schnauzer definitely will be on it.

Honesty Will Not Be Tolerated In the U.S. Department of Justice
Jesselyn Radack apparently was naive when she graduated from Yale School of Law and took a job with the U.S. Department of Justice (DOJ) in 1995. How naive was Radack? She actually thought her superiors at DOJ would take it seriously when she raised questions regarding abuses of due process.

How did her superiors react to her concerns? They tried to ruin her career, and Radack lays it out in a new book titled Traitor: The Whistleblower and the "American Taliban." Radack will discuss her experiences when she appears on Andrew Kreig's My Technology Lawyer (MTL) Washington Update radio show at noon (EDT) Thursday, August 30. You can listen to the interview live at the MTL Web site.

To what depths has the DOJ fallen since George W. Bush became president in 2000. Kreig provides disturbing insights in an article about the Radack book:

In 1995, a brilliant, newly minted Yale Law School graduate named Jesselyn Radack began work at the U.S. Justice Department to fulfill her dream of public service. Six years after becoming an ethics adviser in the headquarters of the 100,000-employee department, she found herself a pariah after suggesting that government attorneys should not provide false information to the courts in a federal terrorism prosecution. . . . 
"The Justice Department forced me out of my job" she writes, "placed me under criminal investigation, got me fired from my next job in the private sector, reported me to the state bars in which I'm licensed as an attorney, and put me on the 'no fly list.'" 
Her offense? She believed, erroneously as it turned out, that the Department would not want to use illegally obtained evidence in its prosecution of John Walker Lindh, an American convert to Islam. He had been imprisoned by Afghan warlords in November 2001 soon after the U.S.-led NATO invasion of the country after 9/11.

Yes, the Bush DOJ viciously attacked a government lawyer for suggesting that the department might want to abide by the rule of law. Writes Kreig:

Radack advised against further federal interrogation of Lindh without a lawyer present because his parents had retained counsel. Later, she blew the whistle when she learned that the department destroyed evidence of her advice, and then withheld the evidence from a Virginia federal court, where Lindh faced charges of murder and treason in a high-profile prosecution helping inflame the public in the earliest stages of the war. 
Radack's gripping tale describes a culture clash at the Justice Department between due process advocates and conviction-hungry zealots. The story has implications far beyond the Lindh case or indeed any of the terror cases. Readers of the Justice Integrity Project's site know of documented prosecution misconduct in criminal and civil cases in other cases, including the federal frame-up of former Alabama Gov. Don Siegelman in Alabama.

Mississippi Judge Tosses Convictions In a Case That Sounds Familiar
A federal judge in Mississippi has overturned several convictions in a corruption prosecution that sounds an awful lot like the Don Siegelman case in Alabama.

U.S. District Judge Neal Biggers threw out convictions against Lee Garner and Ray Shoemaker, who had been convicted on a kickback-bribery scheme involving a medical center in Batesville, Mississippi. The key government witness was a man named David Chandler. Reports Patsy Brumfield, of the Northeast Mississippi Daily Journal:

Thursday, Senior U.S. District Judge Neal B. Biggers Jr. threw out all four guilty verdicts against Garner and two against Shoemaker alleging a conspiracy to profit from beefed-up business for Garner. 
Garner was accused of an illegal agreement for Chandler to receive $5 per nursing hour Garner was billed in exchange for Chandler's influence to ensure it was paid in a timely manner. 
Garner's side insisted it was nothing more than a business deal, while the government claimed it was a bribe that padded Garner's fees to the hospital.

In his ruling last week, Judge Biggers ruled against the prosecution on that issue. And he didn't stop there, going on to scrutinize Chandler's testimony:

The government also claimed Garner offered Shoemaker $25,000 to influence additional nursing services, and the jury agreed. 
But Biggers threw that verdict out, saying Chandler never heard any such conversation between the men and no other evidence was introduced to prove it.

In the Siegelman case, chief prosecution witness Nick Bailey hinted at an illegal quid pro quo in his testimony, but evidence showed that he never heard any such conversation between Siegelman and codefendant Richard Scrushy.

Do federal judges have one standard for bribery in Mississippi and another one in Alabama? It sure looks that way.

Tuesday, August 28, 2012

Tape Recordings Provide Proof of the Scams That Debt Collectors Try to Pull on Consumers

The joy of hearing from
debt collectors

(First of multiple parts)

Since the financial crisis of 2007-08, Americans have been living in what might be called "The Age of Sleazy Bankers." No one exemplifies the financial scam quite like JPMorgan Chase and its CEO Jamie Dimon, the folks who brought us the infamous bad trade that resulted in a loss of at least $5.8 billion.


Not content to engage in reckless and scandalous trades, JPMorgan Chase has dived head first into the seediest end of the financial sector. We're talking about debt collection, the place where true bottom feeders reside.

And we are about to provide you with tape recordings that provide indisputable evidence that Chase and its acolytes are con artists, practicing a particularly virulent form of fraud. As we reported over the weekend, a Chase-owned company was so over-the-top in its pursuit of an alleged debt from a Whataburger employee that the Texas-based chain is suing to stop the unlawful harassment.

If you buy anything on credit--and who in postmodern America doesn't--you are likely to hear someday from a debt collector. When it happens, you probably will experience violations of the Fair Debt Collections Practices Act (FDCPA), the notoriously weak federal law that miserably fails to police the rogue-infested waters of the debt-collection world.

You might think that Chase, the largest bank in the United States and the largest private corporation in the world (with $2 trillion in assets), would find debt collection to be beneath it. But you would be wrong.

One Equity Partners, the investment arm of Chase, purchased one of the nation's largest debt-collection companies in November 2006. That would be Pennsylvania-based NCO, and Mrs. Schnauzer and I know from first-hand experience that it is one unscrupulous company. (NCO is the target of the Whataburger lawsuit.)

In fact, we have the audiotapes to prove how low NCO will go. And we soon will be sharing them with you in a series of posts that promises to pull the mask off what little dignity debt collectors have left.

We started hearing from NCO in spring 2007 over a debt I allegedly owed on an American Express card. By June of that year, NCO had shipped the alleged account to the Birmingham law firm of Ingram &  Associates, and we started hearing from them.

Unbeknownst to us at the time, both NCO and Ingram were working under the banner of JPMorgan Chase. Just a few months before we started hearing from them, NCO had been purchased by Chase--and as a member of the NCO Attorney Network, Ingram also was vicariously representing Chase.

Do JPMorgan Chase and its surrogates respect the federal law that governs debt collection? Do they respect the rights of consumers and treat them in an honest and courteous fashion?

The answer to those questions is a resounding no. You can ask the folks about Whataburger about that.

You also can ask my wife and me. Like many consumers, Mrs. Schnauzer and I were ignorant at first about the wily ways of debt-collection "professionals." In fact, we had never heard from a debt collector before.

We were sharp enough, however, to tape record several conversations we had with collectors. And we hope the tapes will prove highly educational for Legal Schnauzer readers.

The tapes show just how far collectors will go to collect a debt you might not even owe--and you can be virtually certain the collector cannot prove you owe the debt. And that's because the industry is notorious for sloppy record keeping.

With no records to prove a specific debt is owed, collectors often cannot possibly win in court if the alleged debtor shows up to fight it. That's why collectors lie, threaten, cheat, and harass consumers over the phone. If they can scare you into agreeing to pay something that way, they won't have to go to court and pray you don't show up.

Collectors thrive on their ability to strike fear into the hearts of consumers. And our tape recordings will show you exactly how they do it.

What do the tapes sound like? Well, you might find part of them to be sad, part of them to be funny. They definitely will make you angry.

This much is certain: If you buy anything on credit, you won't want to miss it.

The series begins shortly here on Legal Schnauzer.

An Overpowering Stench of Corruption Emanates From U.S. Eleventh Circuit On Siegelman Appeal

U.S. Eleventh Circuit in Atlanta

Reports on corruption in the handling of the Don Siegelman case have tended to focus on the trial court, especially Judge Mark Fuller and prosecutors in the Middle District of Alabama.

But our review of one critical issue in the Siegelman case shows that the U.S. Eleventh Circuit Court of Appeals in Atlanta botched its ruling in such an outrageous fashion that it almost had to be intentional. The Eleventh Circuit includes 17 judges (seven on senior status) and covers three states--Alabama, Georgia, and Florida. The circuit's decision to uphold bribery convictions against Siegelman and codefendant Richard Scrushy--contrary to well-settled law--hints at the kind of dark conspiracy that probably meets the definition of organized crime.

How serious is this? The Siegelman case, by law, could not go to a jury--much less result in convictions. And yet, Scrushy already has served a six-year federal prison sentence, and Siegelman is due back in federal custody by September 11.

What is the one issue that should have doomed the prosecution's case before it ever reached a jury? It was the statute of limitations, and the facts and the law, show the case against Siegelman and Scrushy was brought almost one full year too late. So regardless of what one thinks about the testimony of key government witness Nick Bailey, the shaky jury instructions, the questionable juror behavior, the weak evidence on a quid pro quo ("something for something") agreement, and the myriad conflicts involving the judge and U.S. attorney . . . none of that should have been a factor.

Evidence at trial showed that the alleged acts constituting bribery took place in summer 1999, and the original indictment was issued in May 2005. That's almost six full years, even though the statute of limitations is five years. Failure to initiate the case within the applicable statute of limitations, under the law, is an absolute bar to a successful prosecution.

But Fuller denied a defense request for a bill or particulars that would have shown the statute of limitations problem before testimony even started--and the judge allowed the case to go to a jury when the facts established at trial, plus black-letter law, showed that could not happen. Gee, I can't imagine why Siegelman supporters--not to mention more than 100 former state attorneys general--have contended the former governor got a raw deal.

The Eleventh Circuit compounded the problem by claiming defense lawyers had waived the statute-of-limitations defense because they failed to raise it in a proper manner. But Eleventh Circuit precedent shows this ruling was incorrect--and every judge in the Atlanta-based circuit has to know it. My guess is that pretty much all criminal-defense lawyers in the Deep South, and around the country, also know the ruling is incorrect. But they are sitting quietly as Siegelman prepares to return to prison for being railroaded in a prosecution that was barred by the statute of limitations.

All of this might sound complicated, but it boils down to one relatively simple case. It is styled Phillips v. U.S. 843 F. 2d 438 (11th Cir., 1988), and it shows the Siegelman defense team properly raised the statute of limitations defense and did not waive it. This is case law that has been in place for almost a quarter of a century, so it's hard to imagine how the Eleventh Circuit could "accidentally" get it wrong.

This also raises questions about the U.S. Supreme Court's motives in failing to hear the Siegelman case. It hints that the nation's highest court was in on a scheme to ensure that at least a thread of the Siegelman convictions were left hanging. Imagine the embarrassment for the nation's judiciary if it was shown that appellate judges, who hold lifetime positions, could not even rule correctly on the simplest procedural matters.

What do we learn from Phillips v. U.S.? Here are the basics of the case:

A Florida man named Paul M. Phillips was convicted in November 1986 of failing to file tax returns for the years 1979 and 1980. Phillips argued to the Eleventh Circuit that the trial court had erred in failing to grant his motion for a judgment of acquittal on one count because the six-year statute of limitations had lapsed at the time of his initial indictment on May 6, 1986. Here's how the Eleventh Circuit described the issue:

Nine days after Phillips' trial concluded, he filed a motion for judgment of acquittal as to count I of the complaint. Phillips asked the trial court to dismiss count I of the indictment due to the government's failure to comply with the applicable six-year statute of limitations period. 26 U.S.C. Sec. 6531(4). The trial court denied Phillips' motion for acquittal.

The ruling in Phillips goes on to describe a number of complicating issues-- including the fact Phillips had filed for an automatic extension, which the IRS had denied, raising questions about when the statute of limitations kicked in. But those issues are not relevant to the Siegelman case. The section we highlighted in bold, however, is extremely relevant; it says that Phillips raised the limitations defense in a motion nine days after the trial. And the Eleventh Circuit found that was proper. From Phillips:

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.

Court records show that Siegelman defense attorneys raised the limitations defense via Rule 29 of the Federal Rules of Criminal Procedure ("Motion for a Judgment of Acquittal"), and that's the same rule used in Phillips. The key provision is found in Rule 29(c):

(c) After Jury Verdict or Discharge. (1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later. (2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal. (3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.

What do we learn from this? It is proper for the defense to move for a judgment of acquittal after a jury verdict--and the defense is not required to raise such a motion before the case goes to jury. Translation: The Siegelman/Scrushy defense properly raised the limitations defense after the jury verdict, and court records indicate they did it within the time frame set by law. For good measure, the Phillips case of 24 years ago shows the defense raised the issue properly.

So why did Richard Scrushy recently complete a prison sentence--and Don Siegelman is about to head back to prison? We can think of only one explanation: The entire Eleventh Circuit is corrupt.

Consider this grim irony: The three-judge panel in Phillips included Robert S. Vance Sr., who had been Don Siegelman's law partner and professional mentor. A little more than one year after the Phillips ruling was issued, Vance was killed when he opened a mail bomb that had been sent to his home in Mountain Brook, Alabama.

Are my allegations about a conspiracy involving the Eleventh Circuit extreme or "out there." Not when you consider how the appellate court is supposed to run.

After a three-judge paneled upheld the bribery convictions, the Siegelman defendants filed a petition seeking review by the entire Eleventh Circuit, called an en banc rehearing. The circuit's internal procedures under Rule 35 of the Federal Rules of Appellate Procedure ("En Banc Determination") states as follows:

(1) A copy of a petition for rehearing en banc is distributed to each active judge in the circuit;

(2) Any active judge may request that a poll be taken regarding en banc consideration, in the event the panel declines to grant rehearing;

(3) Any active judge may request that a poll be taken regarding en banc consideration, even if a party has not filed a petition.

What does this tell us? All 17 active judges on the Eleventh Circuit had an opportunity to get it right on the statute of limitations issue in the Siegelman case. All of them had to be familiar with the court's holding in Phillips, and they all had to know that the panel's finding in Siegelman was in conflict with settled law.

The whole purpose of en banc rehearing, according to court rules, is "to secure and maintain uniformity of court decisions."

So why did 17 judges, both Republican and Democratic appointees, not raise a peep about a panel finding in Siegelman that clearly conflicts with settled Eleventh Circuit law?

Corruption of a dark and conspiratorial nature is the No. 1 answer that comes to mind. The only other possibility is systemic incompetence of an almost unbelievable scope.

Either way, it's way past time for the public to realize our courts are failing us at all levels. And loud, persistent citizen action is the only way the problem will be addressed.

Monday, August 27, 2012

Here Is How Alabama Attorney Bill Swatek Screws Over His Own Female Clients In Divorce Cases

Bill Swatek

What do you get when you spend more than $10,000 to have Pelham, Alabama, attorney William E. Swatek represent you in a divorce case? Not much of anything, according to one of Swatek's former clients who contacted us.

In fact, Swatek can turn you into your own worst witness, our source says. And our source is a woman with a degree in a technical field and a very good job. If Swatek could con her, imagine what he could do to regular folks.

This woman's story hit home to me for multiple reasons. For one, I've written extensively about the headaches my wife and I have experienced from dealing with a bogus lawsuit that Swatek filed on behalf of Mike McGarity, our criminally inclined neighbor. I've written about Swatek's 30-year history of ethical violations with the Alabama State Bar. And I've shown how former Shelby County Circuit Judge J. Michael Joiner, who now has a seat on the Alabama Court of Criminal Appeals, played a huge role in our cheat job.

For good measure, recent events indicate Swatek is a crappy parent. His youngest son, Chace Swatek, was so messed up that he was found dead a few months back near a Pelham, Alabama, roadway, reportedly the victim of a practice called "huffing," which is the abuse of inhalants, such as glue, paint thinner, and Dust Off.

Our source had Swatek as a lawyer and Joiner as a judge in her divorce case. The two must have conspired to put up a weak case and ensure that her ex husband and his attorney got the clean end of the stick on this case.

I promised to protect my source's identity, but I want to tell her story because I've heard from numerous former clients, especially women in divorce cases, who have been taken for a ride by Bill Swatek. Here are the source's first words to me via e-mail:

Hello, We haven’t met but I ran across your blog stating that Judge Joiner and Bill Swatek were neighbors and golf buds. . . . Bill Swatek was my attorney in my divorce and Judge Joiner was our judge. From the beginning I felt that my attorney didn’t care about my case. He did not call any of my witnesses, did not prep me before the hearing, did not return my phone calls etc.
To me I felt I had an open/shut case, but my attorney did some things I thought odd, and did not do some things I felt he should. The ruling wasn’t in my favor, and I am just wondering if perhaps there was something else going on. Any information you have would be very much appreciated. Thanks.

As often is the case, this woman was trying to find an attorney for her divorce case while under stress and facing a deadline. That's how I came up with Jesse P. Evans III and Michael Odom, the horrendous Lange Simpson lawyers (now with Haskell Slaughter) who sold me down the river while "defending" the lawsuit filed against me in Shelby County. That's how my source came up with Bill Swatek in her divorce case. From her e-mail:

I have been reading more of your blogs over my lunch period and am becoming more and more nauseous because I am starting to believe more and more that perhaps I was cheated also. Here is my story:
Swatek was my attorney. I had done very little research on my own before filing for divorce. The one thing that I remembered reading was that the first to file had some advantages. At this time I had not talked to any attorneys because I did not know if divorce was what I wanted. I found out that my husband had already seen 3 and was prepared to file the next day so I panicked and found an attorney in the phone book. Oh how I wish I would have done more research before writing him that first check.

Were the facts on her side? It sure sounds like it. But her attorney didn't show much interest in facts:

To me, I saw it as an open and shut case. I was previously a stay at home mother, didn’t drink, do drugs, or abuse my children in any way. [My ex] admitted to being a porn addict, to yelling and calling the children names, to having horrible fits of road rage, and most importantly he admitted that he did very little if any of the child rearing.
I asked Swatek repeatedly what I needed to be doing in regards to the case (i.e. gathering evidence, taking photos, etc) and every time he just said let’s just wait and see what happens. I called him several times with questions, etc and he was never available, and rarely did he return my phone calls. When we finally got a court date (6 months later) I had still only met with him the one time. I called his office and insisted I meet with him before going to court, and they told me he had a full schedule and I could meet with him the day before. I said that was not good enough that I felt very unprepared so they finally bumped it up to 5 days before the court date.
I showed up 30 minutes early and waited. At 15 minutes after the appointment time his paralegal took me back and explained that he was running late, that she would just go ahead and get things started.
He showed up 45 minutes later and said he would just look over his paralegal’s notes. I asked him if I needed witnesses and he said, "Who do you have?" I said my mother, my sister, and a friend. He said sure bring them. I asked if I needed anyone else, and what did I need a witness to bring, etc. He said just bring them and we will see how it goes.

How did it go? We will look at that in an upcoming post.

Sunday, August 26, 2012

Whataburger Has a Serious Beef With the Bullying Tactics of a Big Debt Collector

If you are an everyday American consumer and get a hankering for  fast food, you might want to consider a run to your local Whataburger.

The Texas-based company deserves your support for its willingness to stand up to one of the biggest bullies in the debt-collection industry. In fact, this debt collector is even bigger than most Americans realize because, unbeknownst to many, it is owned by a banking behemoth.

We are talking about NCO, a company that is based in Horsham, Pennsylvania, and owned (in a roundabout way) by JPMorgan Chase.

As we noted in a recent post, Chase is the largest private corporation in the world, and it made a quiet entrance into the disreputable debt-collection business by purchasing NCO in 2006. It's almost as if Chase is embarrassed by its association with NCO--and it should be. Chase bought the company in a backdoor sort of way, and a couple of byzantine transactions since then seem designed to hide who really resides behind the curtain at NCO.

Mrs. Schnauzer and I have firsthand experience with battling NCO and its corrupt minions, so we were delighted to learn that Whataburger wasn't going to sit back and take abuse. What happened? Here is how reporter Patrick Danner describes it in an article titled "Court Case Not the Way Whataburger Likes It" for The Houston Chronicle:

Everyone hates harassing calls from unrelenting debt collectors, even the folks at Whataburger Restaurants. 
Exasperated officials at the San Antonio-based burger chain have gone to court in an attempt to stop persistent collections calls made to its corporate headquarters to get an unidentified employee to pay up on a debt allegedly owed. 
Whataburger last week sued NCO Financial Systems, saying the collection efforts of one of the nation's largest debt collectors "amount to a campaign of harassment against Whataburger that is unreasonable . . . and reckless."

Imagine that. A company not only stands up to a harassing debt collector, it also stands up for one of its employees. Who saw that one coming in postmodern America?

I hope the fine folks at Whataburger, and their lawyers, know who has the deep pockets behind NCO. It's JPMorgan Chase, and this might be a fine time to out Jamie Dimon's underlings as the backers of a major sleazoid in the debt-collection game.

How do you figure out who's pulling the strings at NCO--and who has vicarious liability in the Whataburger case? Well, it isn't easy, but we will try to explain:

In November 2006, a company called One Equity Partners completed the acquisition of NCO. One Equity Partners is the private investment arm of JPMorgan Chase, so that seems to make the connection clear cut. But things got murky earlier this year, and here is how: In April, NCO merged with APAC Customer Services, and both now operate under an umbrella company called Expert Global Solutions (EGS).

What in the heck just happened? Who's on first? Well, this clears it up: One Equity Partners owns EGS, and that completes the circle back to JPMorgan Chase.

If you need a scorecard to keep track of this shell game, here's how it would look: NCO merged with APAC; they both are neatly tucked under EGS, which is owned by One Equity Partners, which is owned by JPMorgan Chase.

That means Whataburger, on behalf of an employee, is taking on the largest private corporation in the world. I know who I will be rooting for in that fight.

The writers and readers at The Consumerist also seem to be pulling for Whataburger. A report by Mary Beth Quirk explains one of the many ugly secrets behind the debt-collection business:

Debt collectors know where you work, so companies will go after people there in an effort to tick off employers enough that the individual will pay up to make the calls stop. But Whataburger isn't sitting for that. It's seeking unspecified actual damages to cover the toll charges for the long-distance calls, and punitive damages as well 
Whataburger claims that since at least 27 calls were made after the cease-and-desist, NCO is in violation of the federal Fair Debt Collection Practices Act. It wants up to $1,000 for each call. 
Whatanemployer, that Whataburger.

What Does Postmodern Alabama Have in Common with Paris and Berlin of Yesteryear?


A reader from Headland, Alabama, sent me an e-mail last week, and I think it deserves to be seen by more than just my eyes.

The reader asked to remain anonymous, and I will respect that request. He makes several profound points about life in postmodern America, especially here in the Deep South.

I will highlight a couple of passages that jump out at me. But other than that, no comment from me. Here is a Legal Schnauzer letter to the editor that says a lot on its own:

I am an avid reader of your blog, and I think that both you and I can easily see the decay in the Alabama political arena that will ultimately be the downfall of the state. To prove my point, all I really have to cite is the rumor that Bob Riley intends to run for Governor yet again and voice my opinion that he would be re-elected. He shouldn't have too much of a problem, with the funds already in place in the "Governor's Circle PAC," controlled by his daughter, Minda; Mike Hubbard and Del Marsh; reinforced with the sound backing of the likes of Mo Brooks. 
I consider myself to be more of a middle of the road person, leaning somewhat, perhaps, toward fiscal responsibility in government. But conversely, I also am proud to live in a country that will give a helping hand to those in need with the realization that, in many instances, those funds will never be recouped.
I live in Headland, which I thought to be a simple little town with good people who enjoyed going to the park in the center of town to listen to locals play music at the bandstand. Then I found out that this little burg is essentially the headquarters for the KKK (per the Southern Poverty Law Center website) in this area of the state, and probably North Florida and Southwestern Georgia. 
I guess what I am trying to say is that I, like you, have been condemned by acquaintances and others for my views that the Constitution remains the law of the land, and that there is more to it than just the Second Amendment. The First and Fourth Amendments are being assailed (or simply taken away) on a daily basis in Alabama, and yet, most of the residents continue with their Nero-like fiddling, never realizing that they may be next. I liken the current political atmosphere in Alabama to Berlin in 1938, or Paris in approximately 1782. 
All three have taken ultra conservative paths to create new "democracies" under which conformity with the regime was and is paramount. Berlin and Paris blamed the Jews; Alabama blames Hispanics. Everything in Alabama, Berlin and Paris is/was being done to "improve" the state, and assure that everyone works/worked toward the stated goal of "equality." And that equality seems to be a willingness to work for minimum wage. It is just that some people are more equal than others (such as the current crop of legislators) and those according to our current governor, who are members of the Baptist Church. 
The current attorney general can enter private businesses and seize property without a valid warrant; it was improperly issued by a judge who lives approximately 150 miles distant. The news media only reports "approved" dispatches, while failing to take note of violations of law. And, as I am sure you are aware, most persons in this state are ready and willing to do what I call a "Presentencing Report for God" on everyone but themselves as a part of their daily ritual. 
I too, deplore how so many persons in Alabama want the 14th Amendment to apply only to themselves and no one else. I can only wince at the number of persons who believe that citizenship should not automatically attach to any newborn whose parents are not current U. S. citizens. All I can say is that using that criteria would disenfranchise many of the founders of this country, including, but not limited to, Alexander Hamilton, Ben Franklin, Patrick Henry and Thomas Paine. And with regard to the virtuous theory of equal protection under the law guaranteed by the 14th Amendment, well, all I can really say is that one must remember that this is Alabama. The 13th, 14th and 15th Amendments are generally termed the "Reconstruction Amendments," and hence their inherent and historical unpopularity in this particular region of the United States. Again, this just proves that some people actually believe that they are "more" equal than others. 
As personal freedoms are usurped by the the state, those not affected continue to blindly cheer the new laws and trains of thought. About the only bright spot on the horizon is the realization that the regimes of both Hitler and Robespierre (along with their respective lackeys) ended in 10 to 15 years.

Friday, August 24, 2012

Alabama Lawyer Allan Armstrong Belongs On A List of America's Dumbest Criminals

Jeff Scruggs

Few things in life are more amusing than a good dumb-criminal story. One of my recent favorites involves a burglar who left his cell phone at the scene of the crime. Needless to say, cops had an easy time tracking him down.

That guy didn't have anything on a Birmingham lawyer named Allan L. Armstrong. Our legal hero's first mistake was cheating with the wife of another man--a man who, according to court documents, is a rather large individual, at 6-5, 250 pounds.

But then Armstrong decided it would be a good idea to threaten the big man--and he did it . . . by leaving death threats on the man's answering machine. That constitutes the crime of harassing communications under Alabama law, and let's just say the evidence against Armstrong was overwhelming.

The recipient of the threat, Johnny J. "Jeff" Scruggs, did not press criminal charges because he figured the information would be put to best use in his divorce case.

And that is where Armstrong's actions are on glorious display, in a case styled Johnny Jefferson Scruggs III v. Michelle Ann Scruggs in Jefferson County Domestic Relations Court. In an affidavit dated March 28, 2008 (see below), Scruggs states as follows:

My Wife's paramour, Alan (sic) Armstrong has threatened to perpetuate acts of violence against me 
On March 8, 2008, Mr. Armstrong left three messages on my cell phone wherein he threatened to kill me and said that was what my wife wanted. 
I am in fear for my safety and that of the minor children's. Mr. Armstrong does not seem to be able to control his anger and I am afraid he may cause harm to me and the minor children and that he will cause damage to my property. I am fearful for my safety and that of the minor children's safety and believe Court intervention is warranted.

Don't you love that? Armstrong didn't just leave one threatening message on Scruggs' voice mail; he left three of them.

Scruggs also filed a Motion for Ex Parte Temporary Restraining Order (see below), which states, in part:

On March 6, 2008, the Defendant's paramour, Allan Armstrong, left three messages on the Plaintiff's cell phone wherein he threatened to kill the Plaintiff and said that that was what the Defendant wanted. A police incident report was made and the tape recordings were turned over to the Vestavia Police Department.  
The Plaintiff is concerned that without a restraining order restraining both Defendant and her paramour, Allan Armstrong, that both the Plaintiff and the two minor children will be harmed.

What happened next? We will let you know when this episode of America's Dumbest Criminals (and Lawyers) continues in an upcoming post.

  Armstrong Scruggs Affidavit
Armstrong--Motion for Restraining Order

Thursday, August 23, 2012

Did Moral Bankruptcy Finally Catch Up to Carol Garrison In Her Role as President of UAB

Carol Garrison

What prompted Carol Garrison to abruptly announce her resignation as president of UAB on the second day of fall classes? That seems to be the No. 1 mystery in Birmingham at the moment.

One theory has it that Garrison did not get along with Robert Witt, who was named chancellor of the University of Alabama System back in March. That might be a key component to it, but I suspect there is more to the story. Higher-ed elites often extend courtesies to each other--and one of those is an opportunity for a graceful departure. That either was not offered to Garrison, or she was in such a snit that she chose not to accept it.

Either way, she leaves in embarrassing fashion. Richard Marchase already has been named interim president, and my sources say Garrison was officially out the door and nowhere to be found by Monday of this week, just two working days after her announcement. Departures in higher ed don't come much more graceless than that.

I don't know the full story behind Garrison's hasty exit--yet. But I do know that UAB was experiencing a severe case of ethical rot on her watch. And I'm guessing that Garrison's failure to handle simple matters of right and wrong contributed to her downfall.

Two documents from my own unlawful termination speak volumes about Garrison's lack of integrity and courage.

The first is my written statement to a UAB employee committee that was chosen to hear a grievance regarding my termination. (You can view the document at the end of this post.) I submitted the written statement prior to a hearing, which lasted roughly four hours. It included oral statements from, and numerous questions to, both me and my supervisor, Pam Powell. Three other individuals--associate vice president Dale Turnbough, departmental HR officer Janice Ward, and IT analyst Sean Maher--testified at the hearing.

Probably the key issue in my written statement, and in the hearing itself, can be found near the bottom of page 3 and the top of page 4, under the heading "Insubordination." Here is what I wrote before the hearing ever took place:

I can only assume that this charge (insubordination) is based on the accusation that I have worked on my blog using UAB resources. A simple check of UAB IT records would show the facts: I've never touched the first keystroke on my blog using UAB resources. How do I know? I cannot access my blog without getting into a certain password-protected e-mail account. Without getting into that account, neither I nor anyone else can do a thing to my blog. And I have never opened that e-mail account at work. Dale Turnbough's letter of termination doesn't even allege that I've blogged at work.

What happened at the hearing? Sean Maher stated that he had been asked to monitor my computer usage for roughly a month, and he confirmed exactly what I had said--that I had never typed the first keystroke on my blog while on university time or equipment. How could I be insubordinate about something I wasn't doing in the first place?

The second document is Garrison's letter upholding my termination. You heard that right . . . the central charge against me was that I was blogging at work, UAB's own expert testified that I was not blogging at work, but I still was terminated. How can that happen? It's easy in GarrisonWorld.

A day or two after the grievance hearing, HR director Cheryl E.H. Locke summoned me to a meeting in which she said the committee had found I should not have been terminated. Under UAB policy, the HR director can accept or reject a committee's finding, and Locke said I could only return to work under three conditions: (1) I had to accept two written warnings in my file; (2) I had to accept an unspecified position in an unspecified department other than the one in which I had been working; (3) I had to quit blogging.

When I confronted Locke in writing about provision No. 3, she said it meant that I no longer could blog at work. I reminded her that the committee had found, and evidence had shown, that I never was blogging at work. Cheryl Locke was lying on this point; she told me, in the presence of two other HR types, that I would have to quit blogging in order to return to work. That is overwhelming evidence that the real reason I was fired rests with the content of this blog.

I refused to accept Locke's conditions, mainly because of the provision about two written warnings. Under university policy, an employee who gets three written warnings is automatically fired. I knew this provision was a thinly disguised attempt to get me back to work, sign away my rights on the discrimination I already had suffered, and then fire me all over again. To her credit, Locke did not deny it when I said that's what it looked like to me.

Interestingly, Locke said the two written warnings were the committee's idea. But only one issue was presented to the committee: Was my termination proper or not? And the committee found it was not. Nothing else was on the table, and nothing in university policy says a committee can impose or recommend alternative discipline.

Again, I suspect Cheryl Locke was lying; the two written warnings almost certainly were her idea--probably at Carol Garrison's insistence. When I asked to see a copy of the committee's report, Locke refused to allow it. In fact, I still haven't seen it--and I suspect that's because the committee found my firing was an utter sham, probably the worst abuse of an employee in UAB history.

Once I refused Locke's conditions, she went against her own committee and upheld my termination. That left only one option for me, within the boundaries of UAB--and that was an appeal to Garrison.

This was in summer 2008, and I held the president in high regard at that time. I genuinely thought she would do the right thing. Shows you how naive I was. Garrison summarily dismissed my appeal, and you can view her letter to me below.

Upon reading this letter, I knew the whole charade had come down on Garrison's orders, probably at the insistence of someone outside of UAB, with ties to legal and political conservatives. Not only did the president reveal herself to be ethically challenged, she also proved to be a coward.

I responded to her letter with the following e-mail, raising pointed questions about the process I had been through. Did she have the spine to address my concerns? Did she show that she cared at all about the abusive treatment of an employee on her watch? No, she didn't.

Maybe that kind of arrogance and cowardice finally caught up with her and led to her disgraceful exit from UAB. Here is the e-mail that Carol Garrison conveniently ignored:

From: Roger Shuler  
Date: Fri, Aug 22, 2008 at 1:10 PM 
Subject: UAB termination letter 
Dr. Garrison: 
I am in receipt of your letter dated August 19, 2008, in which you inform me that you are upholding my termination. I would like to ask several questions: 
* You state that you have reviewed the recommendations of the Problem Resolution Committee. I request that I be allowed to see the committee's recommendations. I find it curious that you and Cheryl Locke evidently have seen the report, but I have not--even though I am the one who filed the grievance. 
* You state that you reviewed the facts upon which my complaint was based. I assume that means you reviewed the audiotapes of the grievance hearing, the one where my supervisor, Pam Powell, repeatedly answered "no" when asked if she could provide documentation to support my termination. I request that I be allowed to review these tapes. I was present for the entire hearing, and I know that no evidence was presented to support any discipline against me, much less termination. But since you and Ms. Locke evidently have had access to the tapes, it seems only fair that I be allowed to review them also. 
* Were you aware, in your review, that I had filed a grievance against my supervisor roughly two weeks before I was placed on administrative leave and less than a month before I was fired? Are you aware that UAB policy clearly states that an employee is to use the grievance process without fear of penalty or reprisal? I filed a grievance and almost immediately faced rather serious reprisal--I was fired. And even your own grievance committee found that I should not have been fired. Do you or anyone else at UAB pay the slightest bit of attention to the policy that is outlined in the You & UAB Handbook? If so, how do you justify this statement in your letter: "I believe the decision to terminate your employment was correct"? 
In the end, are UAB employees governed by what you and Ms. Locke "believe" or by what is outlined in the official university handbook? 
One final thing: Several weeks ago, in response to citizens who had e-mailed you about my termination, you said that I was fired based "solely on work performance." You made this statement even though your own grievance committee had ruled that I shouldn't have been fired at all. Given this public statement you made some time ago, why should I (or anyone else) believe that you approached your decision in my case with any objectivity? 
I look forward to your reply. 
Thank you, 
Roger Shuler 

Following are my written statement to the grievance committee, and Dr. Garrison's letter stating that she was upholding my termination:

  UAB Grievance
UAB--Garrison Appeal