Wednesday, January 25, 2017

Why did Birmingham lawyer David Gespass never raise the possibility of a habeas corpus petition to get me released from jail in Shelby County, Alabama?

David Gespass
The Dr. Mark Hayden case has much in common with my own five-month incarceration, "for blogging" in Shelby County, Alabama. But there is one major difference in the two cases: Hayden, with the help of his wife Angela, was able to file a petition for a writ of habeas corpus; that resulted in a hearing before U.S. Magistrate John England, and Hayden was released (after 25 days in the Jefferson County Jail) that same day.

There was no habeas corpus petition in my case. There are several reasons for that: (1) I had heard of habeas corpus -- fellow inmates mentioned it often -- and I had a general idea of what it meant, but I wasn't sure it would apply to a totally civil matter, such as mine; (2) Carol would have had to file it at the federal courthouse in Birmingham, and she was fearful of going near any court facility for concern she would be arrested; her name was on the Rob Riley/Liberty Duke lawsuit that resulted in my arrest, and I heard deputies talking about trying to get her on the same night they "kidnapped" me (took me into custody without a warrant); (3) I agreed with Carol that she should go nowhere near a courthouse or law-enforcement facility; (4) Maybe I was just stupid about habeas corpus and how to proceed on that issue; Dr. Hayden probably was smarter than me about using that legal instrument. He might have had an advantage because I think he knew a writ of arrest had been issued on him for about a year. I had no idea an arrest was coming for me; I had filed a Motion to Quash Service and was waiting for a ruling on that when deputies burst into our garage, beat me up, doused me with pepper spray, and hauled me to jail.

Here's where the story takes a curious legal turn. Birmingham attorney David Gespass met with me twice in jail, and between the two visits, sent me a letter dated October 31, 2013. (That was eight days after my arrest, and the letter is embedded at the end of this post.) Why did Gespass visit me in jail? I've never known for sure because he never told me who sent him. I have some memory that the Committee to Protect Journalists (CPJ) sent him, after Carol managed to escape capture and get word about my arrest out in the press.

If the CPJ sent Gespass, he certainly did nothing to protect this journalist. As the Hayden case shows, seeking a writ of habeas corpus seems to be a reasonable first step in a case of wrongful arrest. As an individual with a law degree and a bar card, Gespass should have known that. But he never mentioned habeas corpus in our conversations, and you can see there is no mention of it in the letter below. He should have at least raised the issue, and if he felt it was inappropriate for me, he should have explained why. He did none of that.

What exactly is habeas corpus? Here is an explanation from

A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

Habeas corpus, it appears, would have been appropriate in my case: (1) We easily could have shown that Judge Claud Neilson made a factual error in ordering my arrest. Every legal analyst who has addressed the case -- and quite a few have, from both the left and the right -- has concluded that Neilson violated longstanding First Amendment principles; (2) Habeas is appropriate in the contempt-of-court context, such as my case and Mark Hayden.

If David Gespass had taken the appropriate action, I might have been out of jail in 10 days or less. And I could have challenged the constitutional issues, either with Gespass' help, with the help of another lawyer, or on my own.

So why didn't Gespass seek a writ of habeas corpus? I have only one answer -- he did not want me out of jail. CPJ might have sent him, but my guess is that he was working for someone contrary to my best interests, perhaps Rob Riley himself. In fact, I told Gespass that to his face as I ended our second meeting by telling him, in so many words, "to get the hell out." Could Doug Jones, a supposed Democrat with solid ties to Riley, have put a bug in Gespass' ear about screwing me over? Would not surprise me one bit.

Anyone who has met David Gespass knows he's a peculiar guy; he comes across as an aging hippie with the attention span of a second grader on speed. As you can see from his letter below, he offered no strategy for getting me out of jail, other than removing posts that never had been lawfully determined to be false or defamatory. (My reporting on Riley and Duke, as a matter of law, never has been proven to be false or defamatory, mainly because there was no trial and certainly no jury trial, as required under First Amendment law.)

Here's the tone of Gespass letter to me: I must hurry along, remain in a defensive position, remain incarcerated, and not do anything to seek justice for my wrongful arrest. In an interview at the time on the Peter B. Collins Show, Gespass' tone was wildly different -- sounding like a lawyer who actually wanted to help his client. Perhaps he was afraid to sound stupid by talking to the nation the way he talked to me.

Gespass actually was lucid and on point in the Collins interview. Here are some examples:

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."

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.) 
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 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."

So, you have Gespass telling a national radio audience that: (1) The court's actions are "insane" and "clearly unconstitutional"; (2) "There is no legal justification that I know of to get an injunction without a full hearing on the merits; (3) The court's actions "make no sense" because I had no idea how long I would be in jail and no idea what I had to do to get out.; (4) Neilson's actions were "completely contrary to principles of free speech."

Gespass never said any of that to me, as you can see from his letter below. I can only guess that he knew a fair number of lawyers would be listening to Collins' show, and he could not throw the same bulls--t at them that he threw at me -- while I was incarcerated and shackled.

Consider this from the Collins show interview:

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 be necessary."

The "extraordinary writ" that Gespass references here probably was a writ of mandamus or a writ of habeas corpus. My understanding is that it doesn't take all that long to seek habeas corpus because it specifically is about someone's freedom. But again, Gespass made no mention of such a course of action to me.

Why? As long as I was in jail, Rob Riley had the upper hand. And someone likely instructed Gespass that's the way things were supposed to stay for a while.


Anonymous said...

Once they went to the trouble of having you arrested, it only makes sense they would keep you locked up for a while.

Anonymous said...

It's been clear to me for a long time that the Riley-Duke lawsuit was not about having any "defamatory" articles removed from your blog. One, they didn't even try to prove the articles were false and defamatory--and I assume that's because they knew they weren't, or they didn't care whether they were or not.

I'm convinced they were trying to teach you a lesson, and maybe a lesson for other journalists who might think of looking into certain activities.

If their goal was to get the articles removed, it was stupid to put you in jail. You obviously couldn't take down the articles from there. Something else was going on.

Anonymous said...

Gespass was taking directions from Rob Riley or the State Bar, or both. You can count on that.

Anonymous said...

Did you ever have a contract with David Gespass outlining the scope of any potential representation?

legalschnauzer said...

No, I never hired Gespass. I told him to get lost before we ever got to that point. I wouldn't hire him if he was the last lawyer in the solar system.

Anonymous said...

11:57: Are you suggesting a lawyer does not have an obligation to engage truthfully and thoroughly with a potential client? Are you saying it's OK to lie, or ignore clear options, as long as no contract has been signed?

Anonymous said...

It's clear from the letter that Mr. Gespass took action -- reviewing the sealed file, etc. -- on Mr. Shuler's behalf. Since the file was sealed, I'm guessing he had to visit the Riley Jackson law firm to view it. That alone is highly fishy.

legalschnauzer said...

@2:33 --

I never was clear on how Gespass came to view the sealed files. But it seemed to me he went to the Riley firm, or they went to his office.

I wasn't clear on this either, but my impression is that Gespass was sent by the CPJ or a similar organization that prides itself on protecting the rights of journalist. My impression was that Gespass was the Alabama representative for this organization, and it's possible he had a contract with them. I thought they represented journalists pro bono, but I don't think Gespass ever made mention of that.

If he was supposed to be visiting me on behalf of an organization that purports to protect the First Amendment, he did a horrible job. If he took their money, and proceeded to collude with Rob Riley or someone else, then he really screwed them over. It's pretty embarrassing that our country has several organizations to protect journalists and yet a journalist winds up in jail for five months. That's largely because David Gespass did just a lousy job.

Gespass was not forthcoming with a whole lot of things, including who sent him and who he was representing.

legalschnauzer said...

The final straw with Gespass, for me, was when he told me the Shelby County traffic stop, which clearly was bogus and was designed only to "serve" me with court papers, was perfectly fine. I've read enough Fourth Amendment law to know that is BS.

legalschnauzer said...

One other note I almost forgot: I've seen evidence that Gespass trashed me to at least one other First Amendment lawyer, saying I was hard to work with, etc. I will address that issue in an upcoming post.

Last time I checked, even a potential client is due attorney-client confidentiality, and I've seen signs that Gespass violated that, big time.

Anonymous said...

It sounds to me like that organization probably asked him to check out what was going on and determine whether they should intervene. If there was a contract, it would outline the scope of representation. But by publishing this article, you've waived attorney client privilege to the extent that he needs to defend himself. I mean this in a kind and concerned way - not being able to find an attorney to represent you may not be the fault of people trying to damage you. The way you speak of people who have tried to help you has probably made other people wary.

legalschnauzer said...

A few points, @8:19 --

(1) What makes you think Gespass was trying to help me? I invite you to read his letter closely and point out anything about a strategy for getting me out of jail or helping me to achieve justice for being wrongfully arrested and incarcerated.

(2) I published this article today, and the first sign of Gespass violating my attorney-client confidentiality came the day after I was released from jail, on March 27, 2014. The second sign came several weeks ago, long before this article was published. How does that waive anything?

(3) Why would any lawyer, visiting a client who obviously was wrongfully incarcerated, not bring up the most direct way to get release, which appears to be habeas corpus? I ask in all seriousness because maybe there was a reason not to go that route, but Gespass never brought it up.

(4) Why would any lawyer say it's OK for a cop to conduct a bogus traffic stop to serve court papers? If that's legal, then why can't a cop stop you in traffic and tell you to go get him a burger at the drive-thru?

(5) One other attorney, Austin Burdick, visited me in jail, and I've never said an unkind thing about him. That's because he acted like a professional and made reasonable and accurate statements to me. I didn't hire him purely for financial reasons.

(6) You don't know me or how I treat people, so your comment is more than a little presumptuous. Anyone who is halfway respectful or truthful with me is likely to be treated very well. Gespass was neither.

(7) Why did Gespass tell me one thing, both verbally and in the letter published with the post, and tell Peter B. Collins' audience something else entirely? I can think of only one answer: He thought he could get away with lying to me, but he knew lying to a national/international radio audience was not a good idea.

(8) If the organization in question wasn't sure it should intervene in a case like mine, then it should "give up the ghost." If an organization purporting to protect journalists and the First Amendment isn't sure about intervention in my case, then they have no purpose. Even Gespass said what was done to me was "insane" and "way out of bounds." My research indicates it's never been done to another journalist in U.S. history. Do you understand how egregious this all was or did you file your comment because of some agenda you have, with no concern for law or justice? Why don't you contact Rob Riley and question the way he treats people? I guess you approve of thuggery, but telling the truth about David Gespass hurts your sensitivities?

Anonymous said...

Your comment, 8:19, blows my mind. This is a case about a citizen -- it was Mr. Schnauzer, but it could have been anyone -- beaten and arrested inside his home, with no sign of a warrant or lawful grounds of any kind. And yet, you seem most concerned about the feelings of a lawyer who did nothing to help gain the victim's release. See how you come across as just a tad shallow here?

S C said...

#3 and #4 points made my LS @9:47 p.m seem especially important and inexplicable, too.

I hope people read the points one by one and reflect that this isn't a movie...this really happened...unreal.

e.a.f. said...

if a lawyer comes to visit some one in jail but does nothing and an issue concerning the Constitution is at stake, I'd suggest they are there on a fact finding mission which has little or nothing to do with getting a person out of jail.

Many people don't know how a writ of h.c. works and given you were in jail when not expecting to be and most likely having a case of PTSD, you are "forgiven" for not being up on the legal process.

You were in jail because people wanted you out of the way and to scare you. I think that lawyer was just there to "check up" on how you were doing.

ah, 8:19 p.m. wary, hell the guy was in jail and it was a violation of his Constitutional Rights. You'd have thought some lawyer might be interested in getting him out, regardless of how they may have perceived the actions of L.S. As to your allegation regarding L.S's actions regarding people "trying to help him", what exactly do you mean by that???? its a bit like blaming the victim and no one wants to help the victim because they aren't cute and cuddly. O.K. L.S. I'm sure Mrs. L.S. may have a different opinion..............

My sense of the whole situation was lawyers were simply afraid to deal with L.S.'s case while he was in jail. It is most unusual to have charter/constitutional issues simply ignored when they come to light. The legal profession in Alabama seems a tad unusual to me.