How Can Luther Strange Win VictoryLand Case Without An Expert Witness on E-Bingo Machines?

Joe Espy and Milton McGregor

We already have outlined two reasons Attorney General Luther Strange cannot win, under the law, at the VictoryLand forfeiture trial this week in Montgomery. (See here and here.) The trial itself has given us a third reason, with the state announcing it will not call its gambling-machine expert.

That means any testimony presented by gambling experts for VictoryLand owner Milton McGregor will go uncontroverted. McGregor has a powerful legal team, led by Joe Espy and Charlanna Spencer, and they are expected to present expert witnesses to show that the electronic-bingo machines at VictoryLand casino are legal under Macon County's 2003 constitutional amendment.

If VictoryLand's experts show Montgomery County Circuit Judge William Shashy that the machines are legal, and the AG's office presents no expert to counter that, the controversy should be settled. Law, it seems, doesn't get much simpler than that.

Montgomery Advertiser reporter Josh Moon picked up on that point in this blog post from the courtroom, referring to the testimony of a VictoryLand expert:

Josh Moon @Josh_Moon Here's what I don't get: if this guy w/his background says these games are bingo and state has no expert saying otherwise, isn't that a wrap?

That's an excellent question from Mr. Moon, and the answer is, "Yes, that should be a wrap"--not even counting the points we raised in our two previous posts that also should have made the case a wrap.

We're not sure what the AG's office is up to with its trial "plan," but its decision to pull expert witness William Holmes (age 81) did provide some comic relief. From the Montgomery Advertiser:

The state also told the court that it wouldn’t be calling its expert witness, William Holmes, to testify. The AG’s office entered into a two-year, $15,000-per-year contract with Holmes after its previous expert, Bob Sertell, died in May.

Lawyers for VictoryLand and owner Milton McGregor had filed a motion to exclude Holmes as an expert, because the 81-year-old former FBI agent, who retired 26 years ago, had never examined or played an electronic bingo machine.

The AG's trial strategy seems to be farcical. It replaced a dead expert witness with one who is 81 years old, has been retired for 26 years, and admittedly (it seems) has never examined an electronic-bingo machine.

Deputy AG Sonny Reagan bragged in court that his office has twice won favorable rulings in bingo trials without calling an expert gaming witness. That can only lead one to conclude that Reagan must have been facing incompetent opposing counsel (Espy, Spencer & Co. could hardly be described as incompetent) or he was the beneficiary of a crooked/incompetent judge.

Is this all a joke to Luther Strange? Is he unconcerned about Shashy's ruling because he knows the Alabama Supreme Court consistently has ruled in his favor, contrary to all kinds of law? Was Strange's goal simply to damage McGregor financially, and that's been accomplished, so the AG doesn't care about the outcome of this forfeiture trial. According to several reports, Strange's agents so badly damaged VictoryLand's machines that they might now be worthless anyway. Perhaps that's why "Big Luther" doesn't seem to be putting much effort into this trial.

That leaves us with this question: Does VictoryLand have grounds to seek civil remedies for the huge damages it has suffered from being closed some 19 months, especially if the AG's raid is proven to have been unlawful? Our guess is that such damages probably range in the hundreds of millions of dollars--at least.

Strange likely is protected by prosecutorial immunity, and it often is difficult to sue the state under Eleventh Amendment immunity. Perhaps Espy and Spencer have a plan for seeking monetary justice on their client's behalf--from somewhere--but our guess is that any legal avenues will be slim and narrow.

Will the Alabama Supreme Court once again, in spite of all evidence and law to the contrary, give Strange a favorable ruling on his inevitable appeal? If that happens, it will be time for the U.S. Justice Department to enter the picture and start measuring all nine justices for orange jumpsuits.

That's the kind of action it might ultimately take to restore any sense of justice in perhaps the nation's most corrupt state court system.