When twice meeting with me in the Shelby County Jail, Gespass sang from a different hymnal. He suggested to me that Neilson's actions were "questionable," at worst, never mind that they violated more than 200 years of First Amendment law. Gespass suggested that I needed to resolve the case with GOP operative Rob Riley and lobbyist Liberty Duke "as quickly as possible," even though it was their dubious defamation claim that caused me to be arrested in the first place. In fact, Riley and Duke specifically asked for the unlawful arrests of my wife, Carol, and me, but that didn't seem to bother Gespass in the least.
Why would Gespass say the actions against us were "insane" and "bizarre" to national audiences, but downplay them in his communications with us? I can think of only one answer: Gespass felt compelled to speak truthfully on the big stage, so he would not look like a fool to millions; but on the small stage, he wanted to protect Riley and the interests of the Alabama legal tribe,
We've already shown that, according to Gespass' review of sealed court records, we never were served with the Riley complaint and no summons was issued until after Neilson already had granted a preliminary injunction. In fact, the record shows that we never were served with a summons, meaning we never were lawfully called to court.
That's what we learned from page one of a letter that Gespass wrote to Carol and me, between his visits to the Shelby County Jail. Now, let's take a look at page two. (You can read the full letter at the end of this post.) By the way, you can compare the words of Gespass' letter to his statements in The New York Times and to San Francisco-based radio host Peter B. Collins:
* A trial, what trial? -- In the first paragraph on page two, Gespass writes: "I would think that, since there was no notice of the preliminary injunction hearing, we could ask for, and get, another. Alternatively, we could ask that the preliminary injunction and the final hearing be combined." Notice that Gespass is talking about a "hearing," before a solo judge, even though the law requires that a defamation case be heard at trial, before a jury. Gespass is drawing straight from the Riley/Duke playbook, ignoring First Amendment law and our right to a jury trial.
* Why such a rush? -- Gespass writes: "I do not think the petitioners are expecting money damages, as the complaint alleges you have no resources, but they are asking for costs and attorney fees for the injunctive relief and that can end up being tens of thousands of dollars. Thus, there is something to be said for having this case resolved as quickly as possible at the trial level and appealing the constitutional issues." Now, wait a minute. Riley and Duke could receive tens of thousands of dollars in costs for seeking injunctive relief to which they are not entitled? Gespass told Peter B. Collins' audience that the prior restraint Riley and Duke sought was "insane." But he's telling Carol and me that we could be forced to pay for their "insane" effort to circumvent the law.
And how are we supposed to resolve the case as quickly as possible at the trial level, while appealing the constitutional issues? The general rule is that an issue not raised at trial cannot be reviewed on appeal. Plus, if the case is resolved at the trial level, what is there to appeal? Was Gespass setting us up to get screwed on violations of our constitutional rights? A reasonable person certainly could reach that conclusion.
* Let's skip over discovery -- In the second paragraph, Gespass writes: "Another consideration is how much discovery do you want to engage in. If discovery is conducted, they will want you to identify your source, which I would assume you would not be willing to do unless they were willing to come forward on their own. Obviously, if you do not reveal them, that will weaken your ability to defend the case, and that, too, argues in favor of getting it done quickly, and making constitutional arguments, rather than defending on the grounds that the statements were all true."
Gespass seems to be leaving out a few considerations here:
(a) The burden of proof would be on Riley/Duke to prove my reporting is false, not the other way around.
(b) Gespass talks only of us "defending" the case. He never mentions that Carol and I have valid counterclaims for abuse of process, false arrest, false imprisonment, (all against Riley/Duke) excessive force, false arrest, false imprisonment (against Shelby County law enforcement), conspiracy, and maybe more.
(c) Gespass focuses on supposed threats I might feel from discovery, but how would Riley and Duke fare? How would they handle questions under oath during depositions about their relationship? How would they handle requests for production of documents, such as e-mails, text messages, letters, phone records? How would they handle depositions from third parties, such as Duke's former husband, who filed for divorce from her? Who really had the most to fear from discovery?
* The constitutional violations here are "highly questionable"? Oh, really? -- Gespass writes, in the third paragraph: "Whether a court can prohibit you from saying anything defamatory about Riley (which the preliminary injunction does), is a prior restraint and highly questionable constitutionally." It's "questionable," Mr. Gespass? You told Peter B. Collins audience that it was "insane"--and we know your characterization then was correct. So why did you chose to dance a soft shoe with me?
* No trial, no jury? -- In the fourth paragraph, Gespass more or less concludes by stating: "I do think that, before any appeal, it is probably necessary to file a motion in the trial court seeking another hearing, asking for the injunction to be lifted or narrowed and alleging that you have not had a fair opportunity to contest the findings. Otherwise, the appellate court may well just say that issues had not been properly raised."
Gespass contradicts himself--and confirms my concerns about not raising constitutional issues at trial. More importantly, he raises the issue of whether I'd had "a fair opportunity to contest the findings." Heck, I had no opportunity to contest the findings at trial. That can only be done in a defamation case via a jury trial, which Riley and Duke did their absolute best to avoid. Gespass does not mention that Neilson's "findings" amount to one-man censorship, which is specifically forbidden under years of First Amendment law.
What overall tone does Gespass set in his letter?
(1) He completely glosses over wrongdoing from law enforcement, including an unconstitutional traffic stop and the fact officers entered our home without a warrant, beat me up, doused me with mace, and threatened to break my arms--all without legal justification.
(2) We are supposed to "defend" the case, but seek no "offensive" strategy to compensate for our injuries.
(3) We are supposed to hurry through trial-court activities, including discovery--which likely would place Riley and Duke in the extremely difficult position of trying to prove my reporting was false, when it never has been proven false at trial.
(4) Actions taken by Neilson--and requested by Riley/Duke--are merely questionable, as opposed to "insane."
(5) Gespass makes no mention that my arrest and incarceration were grossly unlawful, that Riley and Duke sought remedies that are not authorized by law--in fact, they sought remedies that are specifically forbidden under the law.
(6) Gespass does not even offer a clear-cut way to get out of jail. It should have been simple, and appropriate, to say something like, "You are being held contrary to law, and I am going to file an emergency motion to seek your release, so you will have a fair opportunity to both defend yourself and seek damages for the wrongs committed against you and your wife. At this moment, you are a kidnap victim, and the court must release you immediately."
Was David Gespass trying to pull a con game on me, while I was under the duress of being incarcerated, wearing shackles and handcuffs during our meetings? I will allow readers to reach their own conclusions, but you probably can guess what conclusion I've reached.