Monday, July 11, 2016

The trial of former Alabama House Speaker Mike Hubbard suggests confederate principles, and distrust of U.S. Constitution, never have died in the Deep South

Mike Hubbard
The Mike Hubbard trial, on the surface, was about 23 charges of Alabama Ethics Law violations -- with a Lee County jury finding Hubbard guilty on 12 counts. But from a big-picture view, it was about the kind of mindset that has come to hold back many areas of the Deep South, not to mention other states where Southern thinking tends to hold sway. We are thinking of Great Plains or Midwest states, such as Missouri, Oklahoma, Kansas, Wyoming, Idaho, and Utah.

What is this mindset all about? We have broken it into two parts -- one called "The New Confederacy," and the other called "Conservative Tribalism." Both were on display in the Mike Hubbard trial.

"The New Confederacy" includes individuals who tend to self-identify as "patriots," even though they reject fundamental tenets of the U.S. Constitution. These modern-day confederates tend to especially reject the Fourteenth Amendment guarantees of due process and equal protection, which became part of America's constitutional landscape after the Civil War.

From 1866 to 1868, Southern states bitterly opposed ratification of the Fourteenth Amendment. The Hubbard trial showed that many Southerners, especially elites, still despise the principles of the Fourteenth Amendment.

Consider Hubbard's lawyer, Bill Baxley. He described several of the counts against his client as "mumbo-jumbo" or "gobbledygook." Baxley made little or no attempt to dispute the prosecution's version of the facts. Instead, he argued there was no crime -- essentially claiming the law does not apply to Mike Hubbard.

In the roughly 16 years my wife, Carol, and I have fought judicial corruption in Alabama, we've seen lawyers and judges repeatedly show utter disregard for the Fourteenth Amendment. Many times I've said to Carol something like, "These people just make up their own law. You can get an order, check the applicable law at a law library, and find it's 180 degrees from what the judge ruled. It's like they want to live in the United States, but they don't want to abide by the U.S. Constitution."

I probably could provide more than 100 examples where we've been on the front row to watch the trampling of the Fourteenth Amendment. But one example should suffice.

All of our legal problems flow from the date a criminally inclined individual named Mike McGarity moved next door to us. McGarity, his kids, and his guests started trespassing on our front yard with regularity, essentially turning it into the neighborhood playground, without asking what we thought about the use of our own yard. When I informed McGarity multiple times that we did not want him, or anyone connected to him, coming on our property, his response was, "I'm going to sue you for harassment."

Never mind that harassment is not a tort for which one can sue -- and it's hardly harassment to tell someone to stay off your property. This was McGarity's mindset; he either was ignorant of trespassing law or he thought it didn't apply to him. We're talking about a pretty dim bulb here, but the guy had owned property before, so he had every reason to understand the basic notion of property rights.

When my warnings only drew threats from McGarity, I consulted an attorney named Bill Lewis, and he made it clear that McGarity was violating both criminal and civil law -- trespassing by a person is a crime; an intrusion by a person, thing, or substance can be a tort. Lewis said a civil case might cost $10,000 or more, so it didn't make much sense to go that direction, especially since McGarity was committing a crime. Lewis said he would write a letter to McGarity, explaining the criminal statute, and stating that McGarity would receive no more warnings. Lewis said he hoped that would take care of it, but it would be up to us to swear out a criminal complaint with the sheriff if the trespassing continued, and we wanted it stopped.

Mike McGarity
McGarity continued to trespass, along with a cast of thousands, so we felt we had no choice but to swear out a complaint. We met with an attorney in the Shelby County DA's office, she filled out paperwork for the complaint, and we took it to the clerk's office to be sworn. (Note: The attorney we met with was Lara McCauley Alvis, who recently was elected as a circuit judge in Shelby County. At the time, I think she was fresh out of law school.)

McGarity pleaded not guilty and refused to discuss a settlement, which District Judge Ron Jackson had encouraged us to reach, so the case went to trial. McGarity was charged with criminal trespass (third degree), which is not even a misdemeanor under Alabama law; it's a violation.

The issues at hand are covered under Code of Alabama 13A-7-4, and the offense has two components:

(1) "A person commits the crime of trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises."

(2) "A person enters or remains unlawfully in or upon premises when he is not licensed, invited or privileged to do so."

Law doesn't get much simpler than this, and these two issues were easily resolved at trial. The trial transcript shows that McGarity admitted he had knowingly entered upon our premises. As for the second part, it helps to have some definitions. My research indicates that being "licensed" to enter premises refers to someone who has a professional reason to be there -- a fireman, meter reader, police officer,

Being "privileged" to enter premises refers to someone who tries to address an unexpected occurrence. For example, if your hat flies off your head and lands in my yard, you have a right to retrieve it. If your dog gets loose and winds up on my yard, you have a right to retrieve him. If you see someone on my property who appears to be in medical distress, you have a right to come and check on him.

As for "invited," that's pretty obvious: It applies to someone who knows he is on friendly terms with the owner/occupants of the premises and has reason to believe he is welcome.

McGarity never claimed he had been invited to enter our property, and he never claimed to be licensed or privileged. In essence, he confessed to the crime, but Judge Jackson still acquitted him. (Bet you didn't know that could happen in an American court; well, it can, and it has.)

For some reason, the court focused on only one instance of McGarity trespassing, even though our complaint said we had witnessed him trespass on multiple occasions. McGarity admitted he had received Bill Lewis' warning letter via certified mail, but he said he wasn't sure of the date it arrived -- that it might have come after the one trespassing incident the court considered.

Here is what Jackson said to Carol and me: "I'm going to find that you had to give written warning, and there is reasonable doubt about whether the warning was received prior to the trespass. Therefore, I am going to acquit. But Mr. McGarity, you certainly are on notice now, and if you return here on these issues, the result might be different."

Jackson said this as if he was trying to be a thoughtful, even-handed judge. But the acquittal allowed McGarity to sue us for malicious prosecution, which is a tort that essentially means a case was brought without probable cause. Heck, testimony showed that we had not only probable cause, we had actual cause -- McGarity admitted to breaking the law as charged.

So was Jackson's ruling legally sound? Not even close. Jackson held that we had to give McGarity written warning. In fact, Alabama case law holds that we had no responsibility to give McGarity a warning at all. (This makes sense under the concept of private property, one of our most cherished American ideals. If a homeowner or occupant had to give a warning to keep unwanted individuals off his premises, we essentially would have no private-property rights. Someone could place a massive tent on your front yard and host a party for thousands, and when confronted, say, "Hey, you didn't warn me not to do this, so I lawfully can use your land for whatever I want.")

What is the real law, which Judge Jackson ignored? This is from a case styled Chambers v. City of Opelika, 698 So. 2d 792 (Ala. Crim. App., 1996):

The appellant has cited no authority for his position that to be guilty of criminal trespass the intruder must be aware that he or she had no license or privilege to enter or to remain on the premises. There is authority, however, that states that when those premises are private and not open to the public, there is no requirement that the prosecution prove that a prior written or verbal warning was given to the intruder.

Under the Fourteenth Amendment, we were entitled to due process, which means (in part) having an impartial arbiter. That Jackson could not get this simple law right indicates he was somehow compromised. We also were entitled to equal protection, to have Alabama law applied to us as it would be to anyone else. That obviously did not happen.

The bottom line? Under the law, we had no obligation to warn McGarity, either verbally or in writing. And he admitted under oath that we had warned him multiple times verbally. In other words, we went over and beyond what the law calls for in an effort to resolve this problem, and we still got screwed because Jackson found we had to provide written warning -- which we did, but McGarity claimed he had not received it prior to the one trespassing incident the court considered. (The truth? McGarity almost certainly received the written warning from Bill Lewis that day, and McGarity got pissed and went on our yard to try to figure out a way to run a fence up to the street, between the properties. That was a problem, of course, because McGarity had built his fence on our property, taking up about 400 square feet of our back yard -- and extending the fence, in a straight line, meant it would cross our driveway. Ooops. For some reason, Bill Lewis' office could not find the returned certified-mail receipt, so we (the prosecution) could not prove when McGarity received the warning.)

Bill Swatek: Would you want this guy for your lawyer?
One moment from the McGarity trial reminds me of the Hubbard case. Just as Bill Baxley made the nutty claims that the charges against Hubbard were "mumbo-jumbo" and "gobbledygook," McGarity's lawyer, Bill Swatek, claimed our property (our private residence) was "open to the public."

That, of course, is pure rubbish. But Swatek could not win the case by citing actual law, so he decided to make stuff up -- as any "new confederate" would. Swatek, McGarity, and Jackson are perfect examples of new confederates. They want the advantages of living in the United States, but they do not want to follow U.S. law; they want to make up law to favor themselves. Essentially, they want to live in a shadow country, without any "rule of law" to follow. They want any law to be flexible, favoring white, conservative elites -- even though McGarity hardly is an elite; he's one of the dumbest people I've ever met, and Swatek isn't much better.

How's this for irony? Swatek's son, political consultant Dax Swatek, and Hubbard have been compadres for years. So there you have it . . . connections between our court travails and the recent Hubbard case.

What about our concept of "conservative tribalism"? We will address that in an upcoming post.


Unknown said...

"Mumbo Jumbo!":The last time I heard that "line" was Frank Langella in " The Ninth Gate", starring Johnny Depp. The film was about"Devil Worship". Appropriate because this whole trial is about"Devil Worship"

Anonymous said...

Good grief! If a person can't even protect their property, I can now see why the courts are so screwed up over harder issues. Great reporting LS. I found myself constantly saying WTF? as I read this. Unreal!

Anonymous said...

Swatek. The face of Alabama politics

Anonymous said...

No wonder the same area is the base of support for the Teabaggers. Confederate sympathizers are racist? GTFO!

Anonymous said...

The Deep South is no place to transfer a family and/or bring children. If you get caught up in the court system there everything you ever lived for may well be destroyed. There are often closed groups, often family connected cliques, who run the towns, counties and courts. If you're not "IN" you're OUT, and if you're not born there, you're definitely out. You and Carol are NOT the only ones. Corporations should take second and third looks before moving their businesses and employee families to these areas.

Anonymous said...

Why did the New Confederacy devour one of their own and how could a three year grand jury not indict a single co-conspirator?

legalschnauzer said...

Good questions, @5:48. Here are my best guesses at answers: (1) Corrupt organizations tend to eat their own. Snakes do that (some of them, I think), so perhaps that reptilian behavior applies to new confederates; (2) No co-conspirators were indicted, maybe, because the whole thing was controlled behind the curtains by a member of the NC (Luther Strange) -- and he just wanted to get Hubbard out of the governor's race; he didn't care about co-conspirators. Just guesses on my part. Would welcome ideas/theories from others.

legalschnauzer said...

Thanks for a funny comment, @12:57. My wife and I have been saying WTF for about 16 years, but our whole slide down the legal abyss started from trying to keep a criminal and his bastard spawn off our yard. You would think that'd be easy to do -- particularly when you consider that we and our insurer (State Farm) could have gotten sued if someone had been hurt on our property. Obviously, it turned out to be not so easy.

Anonymous said...

Every time I see Big Luther's name, I think of the lady from my hometown of Chipley,GA who drove all the way to Jacksonville,FLA before she found out that a 14in. Admiral was a color tv. Brought it home though. We would go to her house and watch Bonanza in color. That gal could really put away Flastaff beer.

Robby Scott Hill said...

Un-indicted, but probably guilty co-conspirators & lenient sentences for the convicted, while the head of the snake escapes the chopping off of it's tail: these are all indicators of your court system on Capitalism! As I commented on the previous post, some groups which seek world peace get a bad rap, whether they are the fictional SPECTRE or real world Socialist groups. Saddam's Arab Socialist Ba'ath party kicked the Red Shield Bankers out of Iraq & the ordinary Iraqi who obeyed Saddam's commands lived in relative peace. After the initial purge, Saddam mostly killed those who challenged his power; not much different than the coalition between Southern Democrats & Neocon Republicans that killed JFK in 1963 & would hold the keys to the White House for the next 45 years, until the election of Barack Obama in 2008. Since the 2003 invasion, the average Iraqi has lived in squalor during a bloody civil war. The People of Iraq have much in common with the People of Alabama. Our governments have been hijacked by parasitic Capitalists who don't give a shit about the ordinary citizen. Then, you have the so-called "terrorists." In Alabama, it's called the Ku Klux Klan & in Iraq, it's called ISIS, but both organizations are secretly backed by the Capitalists to justify austerity or the reduction of social services like Medicare & Social Security in the name of expensive arms purchases to enrich the arms dealers who are usually the children of the Capitalist Class. It wouldn't hurt the average American or the average Iraqi if a few Socialists got elected to office, a few nuclear weapons were destroyed & a few wealthy families' factories & banks were destroyed or seized by a Socialist Government.

Anonymous said...

"It is mainly the women who are stirred up, women who in turn communicate all their frenzy, to the men, heating them up with their seditious propositions and stimulating the most violent effervescence." A French Police inspector in 1793 before the fall of the French Monarchy. Just wait and watch what happens to the Riley Monarchy when McGregor's BINGO suit beecomes public.

Anonymous said...

@10:19 am -- lolol

"Would welcome ideas/theories from others." --LS

LS, wish I had something more definitive to add. I do kind of like the ongoing "Eliza Battle" tale wherein Fred Yancey purportedly sold his house to Mike McGarity to draw you into reporting on the scheme of things. The fabulist's latest installment (an amusing little twist on Poe's "Casque of Amontillado") seems to indicate much jockeying and mutual threatening is going on out of the public eye (even though these folks are and were all so-called public servants and running their scams on the public dime) with Hubbard and Riley.

Anonymous said...

Seems like this fits right in with some of the comments.

Gubmint with duncles and mants and cousins and the GOB style of bidness. This has it all.