Alabama House Speaker Mike Hubbard (R-Auburn) seeks dismissal of the criminal charges against him, based almost entirely on the words of a former deputy attorney general who was forced to resign for leaking grand-jury information, according to court documents filed yesterday.
Hubbard's lawyers allege that prosecutorial misconduct, mainly by special prosecutor Matt Hart, has tainted the investigation to the point that a 23-count indictment against the speaker should be dismissed. To support his motion, Hubbard relies mainly on written evidence from Sonny Reagan, who was forced to step down from his post in the attorney general's office last December.
The motion and its exhibits do provide several comical moments, that is if you believe anything Sonny Reagan says or writes. The defense apparently will try to prop up Reagan's words during an evidentiary hearing set for April 15.
This is the same Sonny Reagan, by the way, who testified before the Lee County grand jury last year and wound up invoking the Fifth Amendment right not to answer questions for fear that he might incriminate himself. It's the same Sonny Reagan who was the recipient of a stinging letter from Attorney General Luther Strange, dated October 16, 2014, outlining examples of improper leaks and placing the deputy AG on administrative leave. (See exhibits attached to Hubbard's motion, from link at the end of this post.)
Finally, this is the same Sonny Reagan, who in documents that prosecutors released last week, is shown in e-mails as the source of leaks to key Republican political figures who are connected to targets (or are targets themselves) of the Lee County investigation. Involved in receiving leaks were Hubbard, former governor Bob Riley, Birmingham attorney Rob Riley (Bob Riley's son), and former Hubbard aide Josh Blades.
Hubbard's dismissal motion, in essence, relies on the word of a man whose "credibility" has been left in tatters. Does that mean the 123-page filing is a desperation move? It sure looks that way. Does it mean the motion has zero chance of being granted? Absolutely not. In the world of Alabama "justice," anything can happen.
The motion gets off to a farcical start by quoting Martin Luther King's Letter From the Birmingham Jail. The citation to MLK from a guy as white as Hubbard, who probably received .002 percent of the black vote in his district, is . . . well, it reads like something from a Saturday Night Live sketch.
Is the Hubbard defense team serious with this stuff? It's hard to tell, but things really get interesting when Reagan starts pointing out the myriad ways Matt Hart has been an ole meany to certain high-level Republicans. A few highlights, according (mostly) to the "word of Sonny":
* Reagan's own lawyer, Bill Baxley, clearly wants nothing to do with the evidentiary hearing on April 15. Writes Baxley: "If our attendance is necessary, naturally we will comply with the subpoena, but it would be nice to have as much notice as possible and even nicer not to have to go." That's the spirit, Bill. Sounds like you can't wait to do battle on behalf of your client.
Rob Riley
* Hart allegedly claims to be aware of a meeting where Rob Riley had encouraged a number of individuals to interfere with the Lee County investigation. Writes Reagan: "I would be shocked if Rob Riley was interfering with a criminal investigation, and it was more likely that he was trying to politically protect Mike Hubbard's role as House Speaker." Reagan seems to be making a "distinction without a difference"; either way, Rob Riley would be interfering with a criminal investigation, regardless of his motive. We now know, of course, that Reagan himself leaked grand-jury information to . . . Rob Riley.
* Hart allegedly referred to Rob Riley as a "mafia thug" and insinuated that former State Sen. Bryan Taylor was violating the ethics law by working as a contract lawyer for the Escambia County Commission in legal matters against the Poarch Creek Indians.
* Hart allegedly asked Reagan if he had heard that political consultant Dax Swatek "was a homosexual." Reagan said no and wrote, "I had met Dax's very attractive wife when they attended the AG's election party in 2011."
* Hart allegedly told Reagan that Rob Riley had motivated him to continue this grand jury investigation "like no other person has done before." Reagan wrote: "Matt said Rob Riley was a 'bad guy,' and he did not care who Rob's daddy was. Matt said the grand jury began with a definite ending point, but it would now 'continue indefinitely.'"
My wife and I continue to suffer the physical, emotional, and financial fallout from an arrest that has (best I can tell) universally been deemed unlawful. Legal analysts from both the left and the right have stated that the temporary restraining order (TRO) and preliminary injunction in my case were prior restraints that run afoul of more than 200 years of First Amendment law.
We are more determined than ever that Republican political figures Rob Riley and Liberty Duke, who sought the unconstitutional injunction, will be held accountable--along with the powerful figures who likely were pulling their strings from "behind the curtains."
It will not be an easy battle, given the grossly corrupt nature of Alabama courts, at both the state and federal levels. But we find inspiration in the words of Erwin Chemerinsky, the founding dean at the University of California Irvine law school and one of the nation's foremost constitutional scholars.
Chemerinsky has written both scholarly articles and legal briefs that show the TRO/preliminary injunction that sent me to jail was unconstitutional, as is the permanent injunction that I'm still under.
In 2007, Chemerinsky wrote "Injunctions In Defamation Cases" at Syracuse Law Review and shows that the Riley/Duke requests for prior restraints should have been dead on arrival--in a real court of law. But with Judge Claud Neilson handling the case, on assignment from the Alabama Supreme Court, this hardly was a real court of law. Neilson apparently ordered me arrested for "violating" a TRO/preliminary injunction that could not lawfully be in place to begin with. Writes Chemerinsky:
"The [U.S.] Supreme Court has declared that prior restraints on speech constitute "the most serious and least tolerable infringement on First Amendment rights. . . . " The strong presumption against prior restraints is evidenced by the fact that the Supreme Court has never upheld a prior restraint as a permissible remedy in a defamation action."
Let's let those words sink in for a moment. Rob Riley and Liberty Duke were seeking a remedy in their defamation claim that the highest court in the land never has approved. On top of that, they took away five months of my freedom, based on a remedy that the U.S. Supreme Court has rejected throughout its history.
Chemerinsky maintains that a permanent injunction, such as the one I'm under now, also is unconstitutional. To be clear, Chemerinsky is talking about permanent injunctions that have been reached after a finding at trial that certain material is, in fact, defamatory. One such case is Balboa Island Village Inn v. Lemen, 156 P. 3d 339 (Cal., 2007). My case, however, is an entirely different matter. Under "Judge" Neilson, my case never went to trial, never went before a jury. In fact, I am forbidden from publishing material about Rob Riley and Liberty Duke that never has been adjudicated as defamatory.
Lyrissa Barnett Lidsky
A Texas case styled Kinney v. Barnes (Texas Supreme Court, 2014) could be headed to the U.S. Supreme Court, and Chemerinsky has filed an amicus brief in the case, once again driving home the unlawfulness of injunctions in defamation cases. Joining him on the brief is Lyrissa Barnett Lidsky, from the University of Florida School of Law. Lidsky has written extensively on issues of Internet free speech, cyberbullying, and defamation and other privacy torts.
What are the issues in Kinney v. Barnes? The case involves executives at rival legal-recruiting firms, and this is how one court document describes the conflict:
BCG Attorney Search, Inc. employed Robert Kinney as a legal recruiter until 2004, when he left and started a competing firm. Several years later, BCG's President, Andrew Barnes, posted a statement on the websites JDJournal.com and Employmentcrossing.com implicating Kinney in a kickback scheme during his time with BCG. . . . The posted statements prompted Kinney to sue Barnes, BCG, and two other companies Barnes owned (Employment Crossing, Inc. and JD Journal, Inc.) for defamation in Travis County. Kinney did not seek damages in his petition, requesting only a permanent injunction following a trial on the merits. . . . Barnes filed a motion for summary judgment on the ground that the relief sought would constitute an impermissible prior restraint on speech under the Texas Constitution.
According to Chemerinsky and Lidsky, Barnes is on the right side of the law. From the professors' amicus brief:
Is a permanent injunction against defamatory speech ever permissible? Amici urge the court to hold that even where a statement has been adjudicated false and defamatory, the First
Amendment bars a permanent injunction against republication of the statement.
On what do Chemerinsky and Lidsky base their position? They turn to U.S. Supreme Court precedent--and two cases we have mentioned several times here:
Any injunction that restrains a defendant in a defamation case from making certain statements in the future is a prior restraint on speech. The U.S. Supreme Court has expressly declared that “permanent injunctions . . . that actually forbid speech activities — are classic examples of prior restraints” because they impose a “true restraint on future speech. . . .” Alexander v. United States, 509 U.S. 544 (1993).
The seminal case concerning prior restraints is Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). In Near, a newspaper appealed a permanent injunction issued after a case “came on for trial.” Id. at 705-06. The injunction in that case “perpetually” prevented the defendants from publishing again because, in the preceding trial, the lower court determined that the defendant's newspaper was
“chiefly devoted to malicious, scandalous and defamatory articles. . . .” Id. at 706 (quotations omitted). The Near Court held that such an injunction on future speech, even if preceded by the publication of defamatory material, was unconstitutional.
Like my case, Kinney involves Internet speech, and the case likely will raise this question: Does the Internet provide such a free-flowing communication platform that it requires changes in U.S. law that long has forbidden prior restraints. Chemerinsky and Lidsky answer in the negative:
The landscape of communication has been dramatically reshaped by the Internet. Americans rely on digital means of communication for nearly every conceivable purpose in their daily lives. The U.S. Supreme Court has recognized the Internet’s importance and made clear that it is entitled to the full protection of the First Amendment. Reno v. ACLU, 521 U.S. 844, 870 (1997). Indeed, the
Internet gives great power to the fundamental First Amendment axiom that “[t]he remedy for speech that is false is speech that is true.” United States v. Alvarez, 132
S. Ct. 2537 (2012). . . .
Ironically, however, it is the very characteristics of the Internet that the U.S. Supreme Court in Reno v. ACLU found justified its full First Amendment protection—speed, ease and efficiency of communication, and the ability of the Internet to make any person a global publisher—that often lead to calls for speech on the medium to receive diminished protection. . . . However, the U.S. Supreme Court has stated clearly that “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011).
Profs. Chemerinsky and Lidsky clearly are two of the nation's leading experts on First Amendment law, and we encourage readers to follow the Kinney case.
What happened in my case--the jailing of a journalist based on an unlawful preliminary injunction; a permanent injunction based on communication that never has been found to be defamatory at trial--might be beyond the imaginations of even our nation's finest constitutional scholars.
A little more than one year ago today, I was in jail because two Republican operatives and a seemingly incompetent judge essentially decided that the First Amendment does not apply to Alabama. My goal is to prove that it does--and that those who violate it will be held accountable.
A significant number of individuals who help govern the public University of Alabama System also have connections to a private bank where UA trustee Paul Bryant Jr. serves as chairman, according to a report this morning from al.com.
Did such an incestuous, conflict-riddled system allow Bryant Jr. to push for demolition of the UAB football program, without anyone raising an opposing view? Columnist John Archibald does not answer that question, but he suggests the university's governing board operates in "the smoke and shadows," discouraging members from conducting their business "in the light of day"--in part, because of loyalties to Bryant.
Birmingham attorney Donald Watkins, on his Facebook page, reacted to the Archibald column by calling the UA system a "modern day plantation." Watkins seemed particularly appalled that even Governor Robert Bentley is connected to the ugliness. His son, John Mark Bentley, is a vice president at Bryant Bank.
Watkins offers stinging insights on the UA board, but he's using the wrong metaphor, in my view. I would suggest Bryant has taken a public board and turned it into a private whorehouse. Why? As far as I know, the plantation system was legal in its day, but prostitution has long been the "oldest profession" that operates outside the law.
While Archibald provides important information about the UA board, he leaves out at least one major detail: Paul Bryant Jr. has documented ties to criminal activities, and our research indicates a prominent Birmingham lawyer helped him get away with it.
We've shown in a series of roughly 50 posts, beginning in October 2009, that Bryant and one of his companies (Alabama Reassurance) were implicated in a $15-million insurance fraud scheme that netted a 15-year federal prison sentence for a Philadelphia lawyer/entrepreneur named Allen W. Stewart.
Bloomberg Markets picked up on our reports and turned them into a national story for its January 2014 print issue. An early version of the story appeared at Bloomberg's Web site on November 25, 2013. Bloomberg did not credit Legal Schnauzer for providing the foundation to more than half of the story, but reporter Anthony Effinger consulted me multiple times while conducting research.
Why did Archibald not mention Bryant's connections to criminality? That's hard to figure because Bryant's shady background probably contributes to the secrecy that Archibald decries in the UA board.
Archibald notes that board members routinely refuse to give substantive answers to questions about public business, including the decision to cut UAB football. That should not be a surprise to anyone who has followed this blog.
Doug Jones
Our investigation shows that Birmingham lawyer Doug Jones, while serving as U.S. attorney for the Northern District of Alabama in the late 1990s, called off a planned investigation of Bryant in the wake of the Stewart conviction in Pennsylvania.
Jones: I'm trying to make sure you understand that I have read your stuff, I have seen your conspiracy theories, and I am not going to answer any of your questions because I don't trust what you will write, period.
LS: I'm taking it down word for word. . . . I'm asking you, who called off the investigation of Paul Bryant?
Jones: I am not going to respond to any of your questions . . .
LS: You were a public official then, Doug . . .
Jones: I am not going to respond to any of your questions. . . . I've seen the garbage you write and the way you spin and the way you slant. It's the most disingenuous stuff I've ever seen. . . . It just doesn't matter to me. You're a nothing to me."
Notice that Jones never denies having called off the Bryant investigation. And he refuses to answer important questions about public business--from Jones' time as a public official.
John Archibald, in so many words, takes the UA board to task for acting in an arrogant and condescending fashion toward the public. But that should be expected when you know about Doug Jones' history of doing legal work for Bryant, followed by Jones' refusal to answer questions about his apparent actions to protect Bryant.
Do people affiliated with Bryant tend to become smarmy, greasy sycophants? I invite you to listen to my interviews with Doug Jones, via the two videos below, and come to your own conclusions.
I contend that this is the kind of attitude UA board members now take--and they are doing it with your tax dollars.
Many of Scarbinsky's readers might be aghast that a university president would look into the lenses of television cameras--into the eyes of student-athletes, boosters, and community leaders--and speak words that he knew were not true. But documents presented with Scarbinsky's articles show that is exactly what happened.
None of this surprises me. I've known for a long time that UAB administrators--especially those who are too weak to stand up to the corrupt University of Alabama Board of Trustees--have no problem lying on a monumental scale. That is particularly true since Paul Bryant Jr., who has documented ties to a massive insurance-fraud scheme, became a member of the board in 2000.
Is it a coincidence that lying has become almost a varsity sport at UAB since 2000, a sport in which the university's two most recent presidents--Ray Watts and Carol Garrison--should earn all-conference honors? I don't think so. It's the natural fallout from allowing a scoundrel like Bryant to gain power, and I suspect the subterfuge will continue until UAB breaks from the UA board and is controlled by individuals who actually care about the Birmingham campus, its students, and supporters.
It has been widely reported that Bryant was behind the scheme to end UAB football, and I have zero doubt that is true. I also have no doubt that Bryant, or a like-minded member of the board, pushed for my unlawful termination in 2008, after almost 20 years of employment as an editor at UAB.
What was my sin? I was reporting accurately--on my own time, with my own equipment--about the unlawful actions of U.S. District Judge Mark Fuller in a prosecution that sent former governor Don Siegelman and former HealthSouth CEO Richard Scrushy to federal prison for crimes they did not commit--in fact, for "crimes" that do not even exist, under the law.
As a government employee, my communications on such matters of public concern were protected by the First Amendment. But the U.S. Constitution doesn't mean much to UAB managers, especially when they answer to a board that includes a deceitful thug like Bryant.
So what happened? UAB "leaders" claimed that I was writing my blog at work. When a one-month investigation by a member of their own IT staff showed that wasn't true, it created a slight problem. When their own grievance committee found that I should not have been fired--in fact, the grievance hearing showed there were no documents to support discipline of any kind--they had another problem.
Carol Garrison, UAB's president at the time, decided to solve the problems by going against her own committee to uphold my termination. This was the same Carol Garrison who, during her first year on the job, brought copious amounts of embarrassment to UAB by carrying on an unseemly affair with John Shoemaker (the former president of the University of Tennessee), which involved misuse of public resources.
How did UAB administrators lie under oath? As my federal lawsuit unfolded, six of them submitted sworn affidavits, stating in part, that the termination had nothing to do with my speech via this blog. The perjurious six included Garrison, former human resources director Cheryl E.H. Locke, former associate vice president Dale Turnbough, former publications manager Pam Powell, employee relations director Anita Bonasera, and vice president for advancement Shirley Salloway Kahn.
All six of them stated under oath, in various ways, that speech issues had nothing to do with my termination. (See Motion to Strike Affidavits at the end of this post.) That, however, was not true--and like Kevin Scarbinsky, I have the evidence to prove it.
While on administrative leave, I contacted Bonasera to ask a question about my response to the university's accusations. During the course of the conversation, Bonasera admitted that I was targeted because of blog posts about the Siegelman case, that Pam Powell (my immediate supervisor) went to the IT department to seek digital evidence against me regarding any Siegelman posts. In fact, Bonasera mentioned Siegelman's name twice, and while she tried to backtrack, her overall tone was that my termination was based almost 100 percent on journalism at Legal Schnauzer.
Here is a partial transcript of that conversation: (The whole thing can be heard on the video at the end of this post.)
RS: I told Dale Turnbough about this two weeks ago, and she never said a word about any of this. In fact, she said she was going to take care of it, she assured me absolutely that this had nothing to do with my blog—and then two weeks later I find out it’s all about my blog.
AB: It’s not all about your blog. Your blog was an insignificant piece. . . . The blog . . . was a very small part of the bigger picture. . . . again, related to other non-work related things. I didn’t see those non-work related things. Pam (Powell) sat down with the computer people—and I don’t know who else was there—and they reviewed what was work related and what was non-work related.
RS: And she’s the determiner of that, even though she has told us . . .
AB: She was able to determine what you were working on and whether it was related to your blog . . .
RS: Well, you just said it, it’s all about my blog. You just said that.
AB: That was a piece of it. Some of it was research related to your blog, from my understanding. I understand there were some things about Siegelman, screens up about Don Siegelman, things that they saw you doing that they consider to be research for your blog because then that was topics that you wrote about on your blog.
RS: Those are also news articles that we are supposed to keep up with, about Alabama, stuff in the news.
As you can see, Bonasera commits enough verbal twists and turns to be an Olympic gymnast. She starts by admitting my blog "was a very small part of the bigger picture." (News flash: Firing a government employee for protected speech, even if it's a small part of a "bigger picture," violates the First Amendment.) Bonasera betrays her previous words by stating that Pam Powell checked with computer people to see what I was working on and "whether it was related to your blog." In other words, Powell's trip to the digital experts was all about my blog--and a techie later testified at my grievance hearing that I had never touched a keystroke on my blog while at work.
When I catch Bonasera in her lie--as Kevin Scarbinsky did with Ray Watts--she started to back pedal, claiming the blog was "a piece of it." She then digs her hole even deeper by admitting that Powell was specifically looking for information regarding my reporting on the Siegelman case--and Judge Mark Fuller.
UAB football at Legion Field
Despite this, Bonasera actually had the mangoes to write in her sworn affidavit that she was "not aware that any of Shuler's speech on his blog or elsewhere was related to the decision to terminate Shuler's employment." She even denied telling me I was terminated because of my speech, even though the words above show that is exactly what she said. (See Anita Bonasera affidavit at the end of this post.)
If there is a positive for UAB football fans, I've found that lying university administrators tend to be cowards. In my employment lawsuit, U.S. District Judge William M. Acker Jr., granted the university summary judgment, even though there had been no discovery in the case. In fact, there wasn't even a discovery schedule, as required by Rule 16(b) of the Federal Rules of Civil Procedure.
This is mind-bogglingly unlawful, the equivalent of baseball umpires letting one team bat while the other team never gets a chance at the plate. Case law, as cited in Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Circ., 1988), shows that Acker was acting way outside the law. From Snook:
This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.
Heck, I wasn't even allowed to make discovery requests. That's likely because Acker knew a significant e-mail trail, if produced in discovery, would show that UAB did, in fact, discriminate against me and violate my First Amendment rights--that I was fired, 100 percent, because of my blog. The cheat job extended all the way to the Eleventh Circuit, which upheld Acker's ruling with a "Do Not Publish" opinion. That is a nasty trick that appellate judges use to cheat a litigant while not sullying the record with a ruling that is contrary to years of legal precedent. (More on that in an upcoming post.)
Ethics rules of the legal profession require a lawyer to report the misconduct of another lawyer or judge. Did chief university counsel Lisa Huggins object to Acker's violation of "black letter" law? Heck, no--she stayed quiet because Acker was cheating on her behalf.
That might provide comfort for UAB football fans. In a pathological environment created by neanderthals like Paul Bryant Jr., individuals become cowards--and their ethics become so warped that they eventually make glaring mistakes.
I suspect that eventually will happen to Ray Watts. He's going to become such a drag on the Board of Trustees, they eventually will cut him loose.
UAB, for its long-term health, still needs to cut itself loose from the Tuscaloosa board. But getting rid of Ray Watts will be a step in the right direction.
To add some levity to this subject, here is a video of Ray Watts (as Hitler) learning that his skybox privileges in Tuscaloosa have been rescinded because of his failure to kill the entire UAB athletics program.
Alabama House Speaker Mike Hubbard; former Governor Bob Riley; and Riley's son, Birmingham attorney Rob Riley, received leaked information related to the Lee County grand jury beginning in at least December 2012, according to court documents released yesterday.
Documents also show that the grand jury filed a subpoena seeking to question Rob Riley. His lawyer, William Athanas of the Birmingham firm Waller Landsen Dortch & Davis, threatened to file a motion to quash the subpoena, and Rob Riley apparently has managed to escape testifying so far.
Our ongoing investigation indicates I probably was beaten and maced in my own garage, arrested without an apparent warrant, and jailed for five months--the only journalist in the western hemisphere to be incarcerated in 2013--for more than one reason. My reports on U.S. Circuit Judge Bill Pryor and his connections to 1990s gay pornography almost certainly played a role. But we now know Rob Riley was concerned enough about the Lee County probe to trample his profession's ethical provisions, and perhaps commit state and federal crimes, in order to get inside information.
The first sign of leaks are tied to former ALGOP chairman Bill Armistead and his announcement on December 12, 2012, that Hubbard was under investigation, according to a report yesterday from Bill Britt at Alabama Political Reporter. An e-mail exchange between Hubbard and Bob Riley, dated the next day (December 13, 2012), shows they already had inside information about the grand jury--as did Rob Riley.
Talk with Rob when you can. Armistead and Luther
have now teamed up to try and ruin me politically.
Not sure what Luther'a end game is others than he
views me as a potential threat down the road. Rob
knows details.
This response came from Bob Riley:
On Dec 13, 2012, at 9:06 AM, "Bob Riley"
wrote:
I was with him during the conversations with you and Sonny
last night - ..... Have a couple of people trying to understand
what's happening.
Bob Riley
What does this tell us? Bill Britt provides a summary:
Here Riley acknowledged a conversation with Reagan and Hubbard and also indicates that Rob Riley was involved in receiving information about the Lee County Grand Jury as early as December, 2012.
The dirt gets even deeper with Exhibit K, which involves a January 18, 2013, e-mail from Hubbard to Bob Riley, referencing former Hubbard aide Josh Blades:
Confidentially, I received word just now from Josh [Blades] that a mutual friend in the AG’s office (he used to work for you) called to tell him that the prosecutor told him this afternoon that the accusations against me have been thoroughly investigated and totally dismissed by the Grand Jury.”
What does this mean? Here is Britt's brief summary:
The emails show that Riley and Hubbard, along with Rob Riley and Josh Blades, then Hubbard's Chief of Staff, were involved in leaked secrets from the Grand Jury. It also reinforces that Reagan was the leaker because he is the only person in the Attorney General’s Office who had worked in the Riley Administration.
This is the most powerful evidence yet of the deep sleaze in which Hubbard and the Rileys have engaged. This raises all kinds of questions, but for now, we will focus on these:
* Rob Riley and Sonny Reagan are lawyers, and they clearly engaged in efforts to undermine the justice process. Will they face disbarment proceedings?
* The actions of Rob Riley, Bob Riley, Hubbard, and Reagan involve attempts to obstruct the Lee County grand jury. Could this lead to criminal charges--perhaps under the state statute for obstructing governmental operations? Since the federal wires were involved via e-mails, could that lead to federal obstruction of justice charges?
Please trust me when I say there is nothing fun about being roughed up by Alabama sheriff deputies--inside your own home, on a civil matter--and hauled off to jail for five months. But a reader did manage to find something amusing about that scenario the other day--and it helps drive home an important point of law that we've never addressed.
We wrote on March 9 about the tendency of cops, in a world where cameras and microphones catch many of their actions, to use certain magic phrases that make it seem a suspect is resisting. With that in mind, I noted that Shelby County Deputy Chris Blevins can be heard on a video of my arrest repeatedly saying, "Don't fight me, don't fight me"--even though his own incident report indicates I wasn't fighting him.
A reader noticed the disparity between the words Blevins spoke and the words he wrote on his report, which we ran at the bottom of our post, and responded with this comment:
I know this was unpleasant for you, LS, but it's kind of funny to see that Officer Blevins was shouting "Don't fight me!" while he states on his report that he was throwing you through boxes multiple times. Who was fighting whom here?
Even I had to chuckle at that. But it raises a serious question: What acts tend to constitute a real case of resisting arrest?
As we noted in our March 9 post, Blevins states multiple times in his report that I was resisting, but he never says what I did that amounted to resisting. He admits that he initiated physical contact with me, that I never turned away from him as if to escape, that my only physical act was to raise my arms in front of my face for protection.
So how on earth did I get hit with resisting arrest--and convicted, resulting in a fine of $845? The only answer to that question, in my case, is that we are talking about Shelby County, Alabama, a place where corruption has reigned for so long that law-enforcement and legal types probably have forgotten what it's like to conduct their affairs in an honest fashion.
But what about a jurisdiction that at least puts on a reasonable show of trying to dispense justice? Even a lot of lawyers find many resisting-arrest cases to be dubious. Ken White, a California lawyer who writes at the Popehat blog, says they often are referred to as "contempt of cop."
But what acts should give rise to a real resisting arrest case? Most statutes, including the one in Alabama, are vague on that question. But it appears that case law provides some guidance. The best information I've found comes from an article titled "Possible defenses to resisting arrest charges" at attorneys.com. From the article:
Resisting arrest is usually defined as intentionally preventing a police officer from lawfully arresting or handcuffing you or taking you to jail. Here are some things that can be considered resisting arrest:
* Physical acts, such as running away, hiding, or struggling with the officer
* Giving false identification, either verbally or by presenting a fake ID
* Trying to help another person avoid arrest
* Threatening the officer
Being slow to comply with an order or swearing at an officer is not, by itself, usually enough to warrant resisting arrest charges. Neither is questioning an officer's actions or authority before ultimately complying with requests.
The article goes on to state that, as we showed in a post last week, you can't be charged with resisting an arrest that was unlawful in the first place. And mine was unlawful on multiple grounds--starting with the fact that it was based on a preliminary injunction in a defamation lawsuit, which has constituted an unlawful prior restraint under First Amendment law for more than 200 years.
Chris Blevins was in my garage only because Alabama GOP political figures Rob Riley and Liberty Duke sought a preliminary injunction that is wildly contrary to law--and Claud Neilson, a corrupt hack of a judge, let them get away with it.
Rob Riley
Were the acts noted above present in my resisting arrest case? A quick look at Officer Blevins incident report (which can be read at the end of this post) shows the answer is no.
I didn't run away or hide or struggle with him (unless being thrown through two stacks of boxes counts as struggling); I didn't give false ID; I didn't threaten or curse him; and I wasn't slow about complying with any orders because I wasn't given any orders--Blevins didn't state why he was there until after I had been knocked to the concrete floor of my basement three times and maced in the face.
Perhaps my only defiant act came when Blevins asked me to step outside, and I refused, telling him to get out of my garage. He had not shown me a warrant or even said he had a warrant, so I saw no sign that he had grounds to be directing me to do anything.
Yes, there are comical elements to this story, but in the end, it is a serious matter. It's left me with a criminal record for a "crime" I didn't commit. I had lived 56 years on this planet without ever coming close to being arrested for anything.
My record was crystal clean, but now it isn't--all because a rogue cop, who had no lawful grounds to be on my property, concocted a bogus case of "don't fight me."
I intend to do everything in my power to make sure my record gets back to the clean state it once was in. And one way or another, I'm going to hold Chris Blevins, Rob Riley, Liberty Duke, Claud Neilson, and others accountable.
An Alabama sheriff's deputy used an unconstitutional traffic stop to initiate my October 2013 arrest, adding to the growing number of grounds by which my five-month incarceration was unlawful. Did the deputy have reason to know he was acting outside the law? Well, he violated a U.S. Supreme Court decision that has been in place for 30 years.
I raised the traffic-stop issue at my resisting-arrest trial in January 2014, trying to show that I could not resist an arrest that was unlawful, on multiple grounds, in the first place. But District Judge Ron Jackson claimed Blevins was making a "pick-up stop," based on a warrant for my arrest, and therefore was not subject to Fourth Amendment provisions. Jackson, as seems customary for Shelby County judges, cited no law to support this notion--and my research indicates there is nothing in the law to support it.
Do citizens pay a price for that kind of judicial arrogance and incompetence? The answer is yes, both literally and figuratively. Jackson found me guilty of resisting arrest and imposed an $845 fine. My picture was on the Shelby County "Most Wanted" list for months, long after the fine had been paid in April.
Where does one go to have his reputation restored when it has been trampled by rogue officers, prosecutors, and judges. We've already shown that Circuit Judge Claud Neilson issued a preliminary injunction in a defamation case against me (brought by Republican political figures Rob Riley and Liberty Duke), violating roughly 230 years of First Amendment law. We've shown that prosecutor Tonya Willingham brought a resisting-arrest charge against me even though Jackson ordered her to produce any warrants for my arrest, and she responded, "Your Honor, we have no warrants."
As it stands now, the public record indicates Blevins entered the garage underneath our house, knocked me to a concrete floor three times, maced me in the face, dragged me to the driveway, handcuffed me and tossed me in the back of a police cruiser--all without having a warrant. (This apparently violates a U.S. Supreme Court precedent styled Payton v. New York, 445 U.S. 573, 1979; more on that case coming in future posts.) The record also indicates officers were trying to arrest my wife, but apparently were unwilling to knock down our front door to get at her in an upstairs bedroom.
This is unlawful enough to boggle the mind, but the problems really started when Blevins honked his horn in the driveway and forced me to stop our car.
How do we know that Blevins acted in an unconstitutional matter? Well, it isn't easy to make such a determination because traffic-stop law is murky; it's mostly enforced at the state level, but it is grounded in federal law--especially the Fourth Amendment, under which a traffic stop is considered a "seizure."
In general, an officer can stop a vehicle under two circumstances: (1) He witnesses a violation of traffic laws, which can include moving violations or issues related to a vehicle's condition; (2) He has reasonable suspicion to believe an occupant in the vehicle is involved in criminal activity.
We've already established that Blevins' actions constitute a traffic stop under the law. He drove his police cruiser down our driveway as I was coming home and trying to pull our car into the garage. He activated his horn/siren and emergency lights to get my attention, forcing me to stop. Blevins' own words from his incident report (see report at the end of this post) show that he was conducting a traffic stop:
I observed Mr. Shuler traveling toward his home at 5204 Logan Drive. Mr. Shuler pulled into his driveway, and I drove in behind him. I used my vehicle's air horn to get Mr. Shuler's attention, and he stopped his vehicle in front of his garage.
Blevins' own words describe a "show of force" that caused me to stop and be detained--meaning this was a traffic stop, as described in "The Law of Traffic Stops (Keyed to Alabama Law)," by Montgomery attorney Patrick Mahaney.
An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
Could Blevins stop my car because he had probable cause to believe I had committed a traffic violation? The answer is no. Blevins' never stated to me that I had violated any traffic law and never made any mention of writing a ticket or warning. His own words in the incident report make no mention of an alleged traffic violation.
Where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation but might also enable the suspect to flee and remain at large. The law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes. When police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.
Hensley grew from an armed robbery in the Cincinnati area, where police issued a "wanted flyer" for the driver of the getaway car. Based on the wanted flyer, police eventually stopped a vehicle, and the U.S. Supreme Court found the stop lawful because officers had "reasonable suspicion" that the person was "wanted in connection with a completed felony."
As noted above, traffic-stop law can be tricky. For example, four federal circuits have extended Hensley to apply to cases of suspected misdemeanors. But I wasn't suspected of a misdemeanor, not even jaywalking.
Every state-law case that I've seen acknowledges that traffic-stop law, by definition, is grounded in the U.S. constitution--specifically, the Fourth Amendment. And I've yet to see a case that cites federal law to say it's OK to conduct a traffic stop on an individual who allegedly has an arrest warrant in a civil case that involves no allegations of criminal activity.
The word "allegedly" is important here because, the public record at the moment, indicates Blevins entered our home without an arrest warrant--and I've neither seen nor heard anything from him or prosecutor Willingham to show that a warrant existed at all.
Reporter Andrew Meyer notes that my case raises troubling issues about the First Amendment (right to a free press), Fourth Amendment (right to be free from unreasonable search/seizure), Fifth Amendment (right not to be deprived of liberty without due process of law), Sixth Amendment (right to a trial by jury), and Fourteenth Amendment (right to due process and equal protection).
Concludes PINAC's Meyer:
Shuler’s story might set the record for amount of constitutional rights casually broken in one case.
Perhaps more than any other journalist I'm aware of, Meyer understands that my case goes way beyond the First Amendment violations--as important as those are. These are violations that should trouble every American, even those who have no interest in ever practicing journalism or writing a blog.
Have you ever driven, or ridden in, a vehicle? If so, these issues should matter to you.
Police misconduct might be the biggest news story of the past six months or so. Disturbing incidents in Ferguson, Missouri; New York City, and Madison, Alabama, have made international news and caused even some conservative, "pro police" citizens to ask, "What's going on with our cops?" I've certainly had cause to ask that question after watching Shelby County, Alabama, officers repeatedly abuse their right to "show authority"--a process that ended with me being assaulted in my own garage and hauled off to jail, with mace dripping all over me.
Perhaps I'm best known as the only U.S. journalist to be arrested in 2013, and I suspect most citizens quickly understand that involves matters of a free press under the First Amendment. The Fourth Amendment violations might be harder to grasp, but in many ways, they are even more disturbing--maybe because they bring you face to face with officers who are violating the law they are entrusted to uphold.
Why is that so unsettling? Not everyone is a journalist or a blogger, but almost all of us drive or ride in automobiles at some point. Law enforcement has frightening power to abuse citizens in what is supposed to be the relative security of their vehicles. Such abuse is present all over my case--both while my wife and I were driving to a nearby library and while I was trying to drive down our driveway and into our garage about three weeks later.
In both instances, we were subjected to traffic stops that violate the Fourth Amendment--and that means the stops and all actions flowing from them, including my arrest and incarceration, were unconstitutional.
What is the applicable law? It starts with a U.S. Supreme Court case styled Terry v. Ohio, 392 U.S. 1 (1968), which set the framework for traffic-stop law at the federal and state level. From that grew a case styled Whren v. United States, 517 U.S. 806 (1996), which held that a traffic stop is a "seizure" under the Fourth Amendment--and that puts a significant burden on any law-enforcement officer who is thinking about stopping a vehicle. From the Whren opinion:
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures." Temporary detention of individuals during the stop of an automobile detained by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. [Citations omitted].
An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
That brings us to the first of two unlawful traffic stops to which the Shelby County Sheriff's Office subjected my wife and me. It came on September 29, 2013, and we already have presented powerful evidence that Officer Mike DeHart concocted a bogus violation (rolling through a stop sign) in order to serve me with court papers in a lawsuit brought by Republican political figures Rob Riley and Liberty Duke. Even if the traffic stop had been legitimate at the outset, and it almost certainly was not, DeHart violated the Fourth Amendment by extending the stop for an improper purpose, violating long-established law that is outlined in a case styled United States v. Simms, 385 F. 3d 1347 (11th Cir., 2004).
As for the second unlawful traffic stop, it came on the evening of October 23, 2013. Thankfully, it directly involved only me, not my wife; she was taking a nap in an upstairs bedroom, unaware her husband essentially was being kidnapped in the garage two stories below.
I had spent most of the afternoon at a library and was on my way home after grabbing a quick bite for dinner. Unbeknownst to me, Deputy Chris Blevins was waiting for me. He was sitting in a marked police vehicle, parked on a street (MacIan Lane) that runs perpendicular to ours (Logan Drive)--about 100 yards from our house.
As I turned left onto our street and prepared to pull into the driveway at 5204 Logan Drive, Blevins started to follow me. I was waiting for the door to fully rise before pulling into our garage, when Blevins drove down our driveway and activated a siren/horn and his emergency lights.
I was in my vehicle and had just come off the roadway; he was in a vehicle and had just come off the roadway. This was a traffic stop, a seizure under the Fourth Amendment, as outlined in a case styled United States v. Purcell, 236 F. 3d 1274 (11th Cir., 2001).
A traffic stop, commonly called being pulled over, is a temporary detention of a driver of a vehicle by police to investigate a possible crime or minor violation of law. . . .
A stop is usually accomplished through a process known as "pulling over" the suspect's vehicle. Police vehicles (except those used by undercover personnel) traditionally have sirens, loudspeakers, and light bars that rotate and/or flash. These devices are used by the officer to get the attention of the suspect and to signal that they are expected to move over to the shoulder and stop.
The regulation of movement of vehicles on the highway by law enforcement is continually scrutinized under Fourth Amendment standards. The police use of emergency lights, police siren, or other indicia of authority to direct a motorist to pull over and come to a stop, which may include simply pointing to a motorist and giving direction by hand signal for the motorist to stop, reviewing courts have consistently held such police actions squarely falling within the concept of "show of force." . . .
Consistent with prior opinions of the Supreme Court, any show of force by a law enforcement officer, to include the use of police equipment to indicate to a motorist to stop, even a law enforcement officer's hand gesture to a motorist to pull over, places the burden of Constitutional reasonableness on the government. Such actions are customarily termed a "seizure" under the Fourth Amendment.
Did Blevins meet his burden of "Constitutional reasonableness" when he stopped my vehicle? In other words, did he "have probable cause to believe that a traffic violation had occurred"?
The answer to both questions is no. And that has profound meaning for my arrest and the five months I spent in jail--all of which was unconstitutional under the First Amendment AND the Fourth Amendment.
We showed yesterday that e-mail exchanges between House Speaker Mike Hubbard and former Governor Bob Riley present troubling evidence that two of Alabama's most powerful political figures possess attributes found in narcissism and sociopathy.
That becomes particularly disturbing when you research personality disorders and discover that the narcissistic and antisocial (more commonly known as sociopathy) disorders have much in common, especially their tendency to produce "victimizers."
The most important point is that people who are either antisocial or narcissistic are victimizers. Most likely, every reader of this column has unfortunately known a man or woman who is incredibly self-centered and self-aggrandizing, who is untruthful and cannot be trusted, who fails to see things from any point of view other than his own, and who is able to eliminate fear (and conscience) long enough to pursue any means to an end. Invariably, others are betrayed, deceived, and emotionally (perhaps financially) injured.
How else are narcissists and sociopaths similar? Both tend to lead chaotic lives, or create chaos for others, Samenow writes:
The narcissist, for example, "is uncomfortable in situations in which he or she is not the center of attention." The same is true of the antisocial person. The narcissist evidences "self-dramatization."
People who are antisocial can also be quite dramatic. In fact, some count on drama to distract others from their real intentions. And some appear dramatic as they play out their perception that they are the center of the universe around which all else should revolve.
How do these traits present themselves in the Hubbard/Riley e-mails? The most obvious example comes when Hubbard states that he needs to fire four or five people "to really set the tone that new sheriffs are in town and in control." Hubbard, it seems, had picked out his victims, and the grounds for their dismissals apparently were . . . well, nonexistent. Hubbard's victims simply had parts to play in a twisted game that revolved around Mr. Speaker.
As for Riley, he didn't seem to have any qualms with Hubbard's plans. In fact, one gets the impression that Riley had taught Hubbard such tactics and was taking a certain pride in hearing about them.
What is the main difference between a narcissist and a sociopath? Samenow provides an intriguing answer:
Criteria in the (American Psychiatric Association's) DSMIV for Antisocial Personality Disorder (30l.70), include "failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest." Arrestability is not a criterion for diagnosing a Narcissistic Personality Disorder (30l.81). However, if you omitted the diagnostic labels and reviewed the other criteria for each of these "personality disorders," you might not be able to distinguish one from the other.
In simple terms, a sociopath is more likely than a narcissist to have a criminal record. That's ironic because Hubbard currently faces a 23-count corruption indictment--and Bob Riley and his daughter, Minda Riley Campbell, are named in the indictment.
Could Hubbard, the Rileys, and some of their cohorts all go down together in a steaming pile of criminality? It's possible, but we suspect the Rileys will save themselves by throwing Hubbard (and perhaps others) under the proverbial bus.
Stanton Samenow probably would not be surprised by such an outcome. Some warped individuals are better than others at getting away with criminal behavior:
The narcissist may not commit an act that is illegal, but the damage he does may be devastating. In fact, because the narcissist appears to be law-abiding, others may not be suspicious of him, leaving him freer to pursue his objectives, no matter at whose expense.
I have found that the main difference between the narcissist and antisocial individual, in most instances, is that the former has been shrewd or slick enough not to get caught for breaking the law.
