In my darkest hour of need, Alabama lawyer David Gespass brought a clown car to the Shelby County Jail

David Gespass

Several writers, especially attorney Ken White of the Popehat blog and reporter Campbell Robertson at The New York Times, have taken me to task for not hiring an attorney while I was unlawfully incarcerated because of a defamation lawsuit from Alabama GOP operative Rob Riley and lobbyist Liberty Duke.

What to make of this criticism? I'm going to file it under the "that's easy for you to say" category. I'm also going to show you what it's like to interact with an Alabama attorney while you are in jail.

Why are White and Robertson more or less full of it? First, I feel sure they have no idea what it's like to try to hire an attorney--an endeavor that is tough as a free person--when you are behind bars. You must meet with someone in a tiny room, for a limited time, while you are wearing an orange jump suit with attractive accessories--handcuffs and shackles. Second, White and Robertson neglect to mention that I met with two attorneys while in jail, so I clearly was open to hiring one. Despite that, Robertson erroneously reported that I refused to consider legal assistance. Third, my critics seem to assume that hiring a lawyer, any lawyer, always makes things better. My experience, and that of many people I've reported about at Legal Schnauzer, has been contrary to that assumption.

White and Robertson never seemed to consider how a bogus incarceration trampled my due-process rights. I was arrested because of a civil matter--alleged contempt of court for violation of a temporary restraining order and preliminary injunction--that involved zero allegations of criminal actions. As even White admits, my arrest runs contrary to First Amendment law that has been around in this country for more than 200 years. If we, in fact, have a right to hire an attorney of our choosing in a civil matter--and the due-process clause of the Fourteenth Amendment holds that we do--then we surely have a right to seek an attorney when we are not illegally behind bars. My choices were limited to lawyers who were willing and able to come to the Shelby County Jail, which probably ruled out 98 percent of the lawyers in Alabama--not to mention 100 percent of lawyers from other states.

Despite the obstacles, I met with two lawyers while in jail. One of them, Austin Burdick of Bessemer, I had communicated with previously via phone and e-mail. He seemed like a reasonable fellow with a solid approach to the case, but I was concerned about possibly being stuck with a major bill that I could not pay. The other, David Gespass of Birmingham, was like a character who fell off a train carrying the Ringling Bros. and Barnum & Bailey circus.

I had two meetings with Gespass, the first of which went OK and the second of which did not go well at all. That, in large part, is due to a letter Gespass sent me (with a copy to my wife, Carol, since Riley had made her a party to the case) between the meetings. I had a number of concerns with Gespass' letter, which you can read at the end of this post, mainly because I had researched much of the relevant law before I was arrested. (See here and here.) When Gespass failed to address my questions in an honest and straightforward fashion, I called an abrupt end to the meeting--essentially telling him to "get the hell out of here." I was left with the impression that David Gespass was not about representing my best interests; his mission seemed to involve protecting Rob Riley and the interests of the Alabama legal profession.

Let's take a look at a few key points from the Gespass letter. If you ever are involved in a legal matter--hopefully it won't involve an unlawful incarceration such as mine--you are likely to receive such a letter. When that day comes, I hope this analysis might help you determine whether you are dealing with a competent, caring lawyer--or one who is striking poses.

Before addressing the legal nuts and bolts, I must note Gespass' "professional demeanor." He spent much of his time, at least in our second meeting, twirling a pencil up in the air and catching it. I don't think I've seen anyone do that since third grade. Here I was, deprived of my freedom for the first time in my life--with a few serious issues on my mind--and Gespass looks like a grade-school kid killing time outside the principal's office. I thought, "This guy has ADD, Peter Pan Syndrome, or he just doesn't give a damn about my plight." I was tempted to grab the pencil out of the air and jam it down his throat--except I didn't have a free hand. Maybe that's why they make "prisoners" wear handcuffs during meetings with lawyers.

Now, on to the various issues raised in Gespass' letter:

* Were my wife and I lawfully summoned to court? -- In the third paragraph, Gespass provides critical legal information that was totally news to me. That, of course, is because Riley had asked for the case to be unlawfully sealed, which kept us in the dark about simple procedural matters. Gespass states that, according to his review of the court file, Carol and I faced rulings against us before we ever were served with the Riley/Duke complaint--and before a summons had even been issued. In fact, Gespass flat-out states that the temporary restraining order (TRO) and preliminary injunction, which caused me to be incarcerated, were "issued before service was effected." In other words, the court took extraordinarily unlawful actions against Carol and me before it ever had jurisdiction over us--just as I've argued all along.

Quoting Gespass: "The hearing on the preliminary injunction was on September 30, it [the injunction] was issued on October 4, and the summons was not issued until October 16." A summons is pretty important in a lawsuit; as the name implies, it's the document that "summons" a defendant to appear in court. You can get a more full picture about the importance of a summons by checking out Rule 4 of the Alabama Rules of Procedure. A summons is the document that generally begins the issuance of "process" on the defendants in a lawsuit. It's what really gets a case rolling; without it, a civil complaint is just a document sitting in a court file, with nothing happening--and the defendants have no reason to appear in court.

We supposedly were "served" via an unconstitutional traffic stop on September 29, less than 24 hours before the injunction hearing. But Gespass states in his letter that the file showed no service on that date--or any other date. Gespass indicates the material we received that day did not include a summons--and that's because no summons was issued until October 16. If that's the case--and Gespass said in our first meeting that he was going to contact Riley's law firm in order to review the sealed file--we had no reason to appear because the court had not ordered us to appear.

* A lawyer contradicts himself -- In the same paragraph, Gespass proceeds to admonish us, stating: "One could argue that you are entitled to a new hearing, since you were not able to defend at the first one, but that still does not excuse failure to comply with a court order or to seek reconsideration." This is pure nonsense. How are we supposed to comply with a court order when we--in Gespass' own words--had never been served in the case, when we'd never received a summons to go to court? Gespass admits there was no lawful reason for us to appear in court, but then he slaps our hands for not going.

* A lawyer protects a corrupt judge and deputy -- At the end of the third paragraph, Gespass addresses a Motion to Quash I had filed because Deputy Mike DeHart conducted an unconstitutional traffic stop in a bogus attempt to "serve" us court papers. Saith Gespass: "Incidentally, the motion to quash was also denied, and, I believe, correctly so." When I asked Gespass to explain this sentence, he fumbled for an answer, and that's when I told him to get the hell out of my sight.

This sentence from Gespass' letter is utter BS, on multiple levels. First, a Motion to Quash cannot be summarily dismissed. Under Alabama law, a motion challenging service puts the burden on the plaintiffs to prove service was properly completed, and that requires a hearing. (Again, I had researched this before I ever was arrested; in fact, I posted about this very issue on the morning of my arrest.) No such hearing was held--and I know because we never received notice of one--so the motion could not have been denied, "correctly so." In Gespass' own words, we had not been served and had not received a summons, so the court had no authority to even address our motion to quash--in fact, under the facts and the law, we had no reason to file anything with the court, no reason to even acknowledge the court's existence. The record shows, according to Gespass, that legitimate service had not even been attempted, much less "effected."

* A lawyer turns into a schoolmarm -- In the fourth paragraph, Gespass addresses a hearing on a Motion for Contempt and notes that court records show we were sent notice by both certified mail and first-class mail. Gespass then proceeds to lecture us thusly: "You should understand that you are not free to ignore court orders, even if they violate constitutional rights. Your remedy is to seek to have them set aside through the court process. If you do not do so, you have to accept the consequences of your failure, as well as the consequences of being found wrong on the constitutional questions." Now, let's examine Gespass' words in the context of what he's already stated in his letter:

(1) He says that court records show the TRO and preliminary injunction were issued before service was completed. That meant the court had no jurisdiction over us--that is from Gespass' words, not mine--so how could the TRO and preliminary injunction be lawful? They can't be--they are void, probably a nullity.

(2) Gespass says a summons was not issued until October 16. He doesn't say that it was served on us, just that it was issued on October 16. Judge Claud Neilson's Order on Petitions for Contempt says the hearing in question was heard on October 17. That's one day after a summons was issued, but not served. How we can be forced to appear at a hearing when we have not been served with a summons for the case? We can't.

(3) By Gespass' own words, service could not possibly have been completed until October 16--and given that the summons was not issued until that date, it's extremely unlikely that service could be completed that quickly. The chances of us being served prior to the October 17 hearing were virtually zero.

(4) Here are the facts: October 16 was one week before my arrest, on October 23. Carol and I know that during that week, we picked up nothing via certified mail, we were served with noting via a sheriff's deputy, a process server, or anyone else. According to Gespass' letter--which is based largely on court records that he had seen, but we had not--we never were lawfully served. Deputy Mike DeHart's bogus traffic stop was on Sept. 29--and aside from the Fourth Amendment issues raised by the stop--Gespass says a summons was not issued in the case until October 16. That means the material DeHart gave us did not include a summons, the very document that calls a defendant to court. Even giving DeHart way more leeway than he deserves, we had no legal reason to go to court--because we were not lawfully summoned to court, either on September 30 or October 17

How to summarize what we've learned so far?  Numerous Web reports--from right-leaning sites to supposedly objective mainstream sites--have claimed I "ignored a court order" and deserved to be held in contempt. In fact, we never were lawfully summoned to court, and the record (combined with the facts as we know them) show we never were served at all. Again, those are from David Gespass' words, not mine.

And yet, I was brutalized inside my own home, doused with pepper spray, and hauled to jail for a five-month stay--based on the orders of a court that had no jurisdiction over me--and had not even lawfully summoned me to appear.

In an upcoming post, we will address the second page of David Gespass' letter, along with some curious public comments he made about our case.


(To be continued)

David Gespass Letter by Roger Shuler