Alabama's David Gespass proves that engaging in double talk makes him feel like a natural lawyer

David Gespass

Alabama attorney David Gespass told Peter B. Collins' radio audience in an October 29, 2013, interview that the preliminary injunction issued in the Rob Riley and Liberty Duke defamation lawsuit was "insane." In a letter to my wife, Carol, and me--dated two days later--Gespass said the judge's actions were "questionable."

On the Collins show, Gespass also questioned the actions of a Shelby County deputy who entered our home, beat me up, and doused me with pepper spray--all without showing a warrant, saying he had a warrant, or bothering to tell me why he was on our property. In his letter to Carol and me, Gespass made no mention of law-enforcement officers and their apparent misdeeds.

Why the remarkable difference in tones? I have my own theories about that, but we invite you to come to your own conclusions. Following are excerpts from the Collins interview, and the letter can be viewed at this link, plus it is embedded at the end of this post. The full Collins interview can be heard here.

The oddities start right up front in the Collins interview. Gespass says Circuit Judge Claud D. Neilson used the wrong standard in finding that my reporting was defamatory. Don't you think that might have been of interest to potential clients? Gespass never mentioned it to Carol and me.

Gespass actually talks on the Collins show like a legitimate lawyer, one who is alarmed about what has been done to a journalist in his community, and he raises a number of important legal issues. Here's the question: Why didn't he communicate in the same fashion with us? He spent much of his two jailhouse visits with me tossing a pencil up in the air and catching it, like a third grader. Given that, and the tone of the letter he sent between visits, is it any wonder I eventually told him to get the hell out and don't come back?

The Collins interview proves that Gespass isn't stupid; in my view, he just wasn't being forthright with us--and the obvious question is: Why? Here are highlights from the Gespass interview with Peter B. Collins:

The public-figure standard--"Rob Riley is a public figure, which means to prove defamation, you have to prove not only that the statement is false, but it was made with knowledge of its falsity. The idea of a preliminary injunction telling somebody they can’t publish defamatory statements in the future--and that's what this injunction does--is insane; it’s clearly unconstitutional."

The actual law that governs defamation cases--"If you say something that’s defamatory, you can be sued for it and get money damages. It's possible at the end--and this is a matter of some debate--that after a finding of defamation you conceivably could get an injunction from repeating the specific statements that were found to be false. In this case, if Riley and Duke are able to prove they never did have an affair, to the satisfaction of a jury, then I think it would be within the bounds of reasonableness to say to Roger, "You can’t make these allegations." Even then, if you get further information, even that may change. (Notice that Gespass references a jury trial; he never made such a reference to us. His emphasis was to get the matter "resolved as quickly as possible.")

An injunction pulled from thin air--"Riley got an injunction issued without Roger appearing in court to respond, and that is unheard of. There is no legal justification that I know of to get an injunction without a full hearing on the merits—and that’s never taken place here." (Why did Carol and I not appear in court? Gespass' letter explains it. He says, after reviewing the sealed record, that we never were served in the case, and no summons was issued until long after Neilson had granted the preliminary injunction. In other words, we didn't go to court because we weren't lawfully summoned to court.)

Why was the case sealed?--"I can’t even go online to get the documents. I understand they are pretty voluminous. I’ve been in touch with Riley’s lawyer, and he’s going to send them, but he said there is more than he can send by e-mail. Why the case is sealed is beyond me. It's quite unusual. In general, that happens when you have something that involves a juvenile. I had a case where a 13-year-old boy charged abuse against a police officer. All we had there was the boy's name was redacted. But sealing an entire file is extremely rare."

Why would plaintiffs want a defamation case sealed?--"By filing suit, it calls more attention to it than it otherwise would have. It seems odd, under those circumstances, that plaintiffs would want the case sealed. If they want to prove the allegations are false, you’d think they would want to do it publicly. If you file suit for defamation, as a public figure, you want to make it a public issue."

How was I supposed to get out of jail?--"This is really bizarre. There are two kinds of contempt—civil and criminal. Civil usually is if you have to pay child support. It's coercive, as opposed to punishment. Once you do what you are supposed to do, you get out of jail. Criminal contempt is punishment, and there are limits to how long you can be placed in jail. I have no idea which it is, and [Roger] has been given no indication of what he has to do to purge the contempt--and no idea how long he's going to be in there. . . . He's sitting there with no idea when he will get out and no idea what he has to do in order to get out. That doesn't make any sense."

Did I "ignore a court order"? No--"Roger actually filed a motion to quash, so he entered an appearance. I don’t know if he was ever served with the injunction; he might have been served with the temporary restraining order. (The sealed file, according to Gespass, shows we were served with neither.) Judges are supposed to give pro se litigants leeway because they are not trained in the law . . . and all of this was done when [Roger] didn't have a lawyer to represent him and without him ever having actually appeared in court."

What about cops entering our house with no reference to a warrant?--"My assumption is that there was a pickup order based on contempt. The question there is, they went into his house uninvited. If they have a pickup order, and they see him there, they probably have a right to be there. But I think they have some responsibility to tell him the reason they want him and why he’s being taken into custody."

What were our legal options?--"The first option probably would be a motion to set aside the temporary restraining order and preliminary injunction on the grounds that they are unconstitutional-- and get his immediate release based on that. The other possible course of action would be some sort of extraordinary writ to the [Alabama] Supreme Court . . . , asking them to order the lower court to set aside the injunction and release him. Unfortunately, that will take some time to figure out, which is the best and the quickest way to do it. . . . It's not inconceivable that this would go into federal court, but federal courts don't like to involve themselves in state-court issues, so you would want to get as full a record as possible before going there. I would hope that would not necessary."

Did Judge Neilson abuse his discretion?--"The standard for criminal contempt is five days in jail, and with two counts, that conceivably could be 10 days. The standard for civil contempt is that the order must set out specifically what you must do to purge yourself of contempt. Since no one has seen the order, I'm not sure there is anything that says that. You can ask a judge to reconsider something that is, on its face, so completely contrary to principles of free speech. This is, after all, the First Amendment."

Why did David Gespass say one thing on the Peter B. Collins Show and something very different to his would-be clients? The answer is clear to me: Collins is based in San Francisco, and his show has a solid national and international following among progressives, so Gespass wanted to sound to that audience like an intelligent, informed lawyer, one concerned about constitutional rights. But behind closed doors, his instinct was to protect the legal tribe--probably because he knows that's what the hopelessly corrupt Alabama State Bar expects its members to do.

David Gespass Letter by Roger Shuler