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 lectlaw.com:

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.

David Gespass Letter by Roger Shuler on Scribd