Wednesday, May 31, 2017

Will the U.S. 11th Circuit become a place of integrity and light, now that Clinton and Obama appointees hold a heavy presence on the Atlanta-based court?

U.S. Eleventh Circuit Court of Appeals in Atlanta
"Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

-- Monroe H. Freedman, founder of legal ethics

Eight of the 11 filled seats on the U.S. Eleventh Circuit Court of Appeals now are occupied by Bill Clinton or Barack Obama appointees (with one seat vacant, to be filled by Donald Trump if he isn't indicted first). Does that mean the Atlanta-based court slowly is turning from a judicial sewer, which it has been for decades, to a place where the rule of law might actually make a comeback?

That should be a compelling question for anyone living in Alabama, Georgia, or Florida -- the three states that comprise the Eleventh Circuit. It is a profoundly important question in the Schnauzer household because we have two pending appeals before the Eleventh Circuit, and in theory, that should have us feeling pretty confident that justice will be done. After all, judges who sit on circuit courts are just one rung below the U.S. Supreme Court, so they should be more capable -- and have more integrity -- than district judges who act at the trial-court level, right?

In reality, the Eleventh Circuit consistently has churned out the kind of opinions that disgusted the late Monroe H. Freedman, who was a law professor at Hofstra University and is considered the founder of legal ethics as an academic field. Much of the Eleventh Circuit's chicanery has been shrouded in "Do No Publish" opinions, which do not become part of the official "reporter-based" body of law and can be used to hide the court's dishonest work.

But even in high-profile cases that produce published opinions, the Eleventh Circuit has proven adept at generating opinions that violate its own precedent.  A classic example is the case of former Alabama governor Don Siegelman. We presented the gory details in a five-part series titled "The Cheating of Don Siegelman," then we boiled it down to a one-part, easy-to-digest summary of the Eleventh Circuit's cheat job.

How does this happen? Well, for one, ample evidence suggests the court during the George W. Bush years was tainted by the unlawful influence of GOP strategist Karl Rove, the U.S. Chamber of Commerce, and other corporate interests. It has been reported in multiple news outlets that Birmingham-based Bill Pryor, he of the gay-porn photos, serves as a fixer on the Eleventh Circuit, at the direction of Rove and other moneyed interests.

On top of that, Siegelman had the misfortune of "drawing" a three-judge panel that consisted of all Republican appointees -- Gerald Bard Tjoflat, J.L. Edmondson, and James C. Hill. I put the word "drawing" in quotation marks because this panel likely was not the result of random selection, as required by law; political forces almost certainly made sure the Siegelman appeal landed before three GOP-appointed con artists.

I know from first-hand experience that Tjoflat and Edmondson are crooks. They were on the panel for the appeal of my unlawful termination at UAB. The Eleventh Circuit upheld the trial court's finding of summary judgment for the defendants, even though no discovery had been conducted in the case. That blatantly violated precedent from Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988), which held that summary judgment cannot even be considered (much less granted) until discovery has been completed.

Tjoflat and Edmondson hid their dirty work by issuing a "Do Not Publish" opinion, which means their bogus ruling, conflicting with black-letter law, will not be part of the official recorded body of law.

We know the Eleventh Circuit has an ugly past. But is it possible that brighter days are ahead? Well, Edmondson has gone on senior status, and Hill died earlier this year. We can hope that Tjoflat will retire, be indicted, or die in the not-too-distant future. Of the 11 judges on active status, five are Obama appointees and three were appointed by Clinton.

Does that mean the Eleventh Circuit is headed into an era of light and integrity? Not necessarily. For one, we know that Democrats can be just as crooked on the bench as Republicans. (See Vance, Robert Jr.) Two, five of the seven judges on senior status are Republican appointees, and they have mysterious ways of turning up on cases, even though they technically are retired. (In the real world or work, retiring usually means you are gone; in the judicial world, you can be retired and still come back -- sort of like a herpes sore.)

As for our pending appeals, let's focus on "The Jail Case," which involves my unlawful incarceration in Shelby County, Alabama, and was the first of our two appeals to be filed. (The other we call "The House Case" and involves the unlawful foreclosure on our home of 25 years in Birmingham.)

The Jail Case appeal never should have been necessary. The law is clear that the court is required to issue summonses and execute service for in forma pauperis (indigent) litigants, a status for which judges in both cases have found we qualify.

The law is a matter of simple common sense. If your resources are so limited that you can't afford to pay a filing fee (usually around $500) and can pay only a partial fee, then it figures you can't afford to pay for service, which can get quite expensive in a case involving a dozen or more defendants, such as ours.

As a matter of law, the Eleventh Circuit cannot rule against us. Our system of "justice" is built on precedent, which is supposed to guarantee consistency and clarity in application of the law. And the precedent in our case is clear: Courts, specifically clerks' offices, are required to execute service for indigent litigants. That already has been done in our other case, "The House Case," so it's not only a matter of getting it right, it's a matter of consistency.

If the Eleventh Circuit ruled contrary to precedent in our case, it would not just be an act of fundamental dishonesty toward us. It also would screw up the case law, ensuring that other litigants facing similar issues down the road will get the shaft also.

But that's where "Do Not Publish" opinions play their nasty role. They are not included in official reporters, so they do not wreak havoc with precedential law. And I'm not the only one who has noted that they often are used for perverse reasons. The late Monroe H. Freedman, who was professor and dean at the Hofstra University School of Law, noticed it almost 30 years ago, long before I ever dreamed of having legal problems.

Consider Freedman's words, from a 1989 speech, reproduced at the beginning of this post. They make me want to stand and shout "Bravo!" I, too, have had enough of bogus judicial opinions that abuse no-publication rules. Notice Freedman's use of the term "cover up." That term is apt, and it points to criminal intent, as in obstruction of justice, maybe more.

Will the heavy presence of Democratic appointees now on the Eleventh Circuit signal an end to the kinds of bogus opinions that infuriated Prof. Freedman? Perhaps the outcomes of our two appeals will provide a clue.

Like Prof. Freedman, I'm fed up with such judicial chicanery, and if we get another such opinion in our pending case before the Eleventh Circuit, I'm going to do everything in my power to make sure the responsible judges are unmasked and held accountable.

Tuesday, May 30, 2017

Former Bush speechwriter Michael Gerson correctly diagnoses the "diseased conservative mind," but he wrongly ties its origins to the rise of Donald Trump

Michael Gerson
A prominent Republican writer posited recently that "the conservative mind has become diseased." Michael Gerson then traced this alarming development to 2017 and the rise of the Donald Trump administration. Gerson is right about the first part, but he is way off target on the second part.

Gerson was the speechwriter for George W. Bush who came up with the phrase "axis of evil," referring to states that allegedly sponsored terrorism or sought weapons of mass destruction -- such as Iran, Iraq, and North Korea. Bush introduced that phrase to the world in his January 2002 State of the Union Address, a little more than four months after roughly 3,000 Americans lost their lives in the attacks on 9/11.

We now know that none of the countries that comprised the "axis of evil" had anything to do with 9/11. Maybe that's why Gerson wants to gloss over the "Dubya" years, not to mention other eras where conservative "thinking" was around the bend.

Gerson is correct to say that much of today's conservative thought has pathological origins. And he is right to suggest that Trump -- while in office barely four months -- has taken dishonesty, boorishness, and possible criminality to condensed and heightened levels we probably have not seen before. But Gerson is wrong to suggest a diseased conservative mind was not present long before Trump took center stage.

On a personal level, I've witnessed diseased conservative thinking in my own family for roughly 25 years. My late father, to his credit, was a Republican before it was cool -- and I never understood why since he worked for the U.S. Post Office, in a job that offered the kind of union benefits and protections that Democrats support and Republicans abhor. In essence, he was able to support a family of six because of a union job that grew from liberal policies. Still, he consistently voted Republican, probably because of the anti-communist views that were passed down from my grandfather, Walter Shuler, of fashionable Aldrich, Missouri (which mostly now resides deep under the waters of Stockton Lake).

My mother, best I could tell, was a Roosevelt Democrat, largely because of actions FDR took during the Great Depression to save her impoverished portion of northwest Arkansas (which included Osage, Alpena, and the relatively large Harrison, not far from Fayetteville, home of the Razorbacks). She often extolled the virtues of Roosevelt and the public-spending policies that she felt put people back to work and pulled the country out of one of its darkest hours.

I long have considered myself more of an Arkansan than a Missourian because my hometown of Springfield is much closer to the Arkansas border than it is to the heart of Missouri (Kansas City, Jefferson City, Columbia, St. Louis -- along and near the I-85 corridor at the center of the state). Plus, my mother's parents, from a shack in the Ozark hills, produced a nurse, a social worker, an engineer, and an educator -- so, I always considered them the "thought leaders" of our clan. My dad's side of the family, I thought, produced good folks -- "Men From Earth" farming types -- but whatever thoughts they collected tended to stay internalized.

As the 1992 election approached, I was pretty stoked that a real Arkansan, Bill Clinton (as opposed to a watered-down Arkansan, such as myself) appeared to be in good shape to win the White House. When the subject came up at a family gathering, it was clear no one else shared my enthusiasm -- even my mother, who had regaled us for years with tales of comical and dramatic moments from the hard life on an isolated Arkansas farm.

I learned that my immediate family members were suddenly "pro life" on the issue of abortion rights. They were entitled, of course, to hold a wrong-headed opinion (and by "wrong-headed," I mean an opinion different from my own), but it produced a sense of foreboding in me because I had never heard the subject discussed when I was growing up. One of the tenets of the Shuler life, as I understood it, was to keep our noses out of other people's business -- and the pro-life stance, by definition, means you are sticking your nose into someone else's business.

When I noted that my wife, Carol, and I were pro choice, it drew the kind of ugly, race-tinged language that I had never heard in my family home growing up. I wasn't quite sure what was happening with my family -- and I'm still not -- but I suspected I didn't want to be a part of it. Carol and I started keeping a distance from the Missouri side of our family around 1992, and that became pretty much a total blackout (with a few exceptions) around 2000.

Speaking of 2000, that's roughly when "diseased conservative thinking" hit us smack in the face. Our troubled and troubling neighbor Mike McGarity, who somehow managed to get a job at Blue Cross and Blue Shield of Alabama despite his extensive criminal record, filed a lawsuit against me that grew from his efforts to steal our land -- and our efforts to resist. Shelby County judges J. Michael Joiner and Dan Reeves repeatedly ruled contrary to black-letter law, and this is a classic example of diseased thinking. In fact, it is un-American thinking, showing utter disregard for foundational concepts of due process and equal protection.

All of the bogus rulings from Joiner and Reeves benefited Bill Swatek, who was McGarity's attorney. Swatek has been disciplined at least three times by the Alabama State Bar, including a suspension of his license and a criminal trial for perjury, so he is among the lowest of the low in the state's legal community. But his son, Dax Swatek, is a noted GOP political consultant with ties to former governor Bob Riley, Business Council of Alabama chieftain Bill Canary, and (via Canary) to "Bush's Brain," Karl Rove. So that gives the senior Swatek a certain pull among judges in central Alabama, and we learned it is common for them to rule in his favor, no matter what the relevant facts and law say.

Swatek, Joiner, and Reeves represent what we called "The New Confederacy," in a post from July 2016. We submit that the New Confederacy has its roots in the Old Confederacy and the Dixiecrat movement of the Old South. But it has spread to other parts of the United States, especially to Great Plains states such as Oklahoma, Kansas, Missouri, Nebraska, Wyoming, Montana, and Idaho. From our earlier post, which focused on the trial of former Alabama House Speaker Mike Hubbard:

"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.

The McGarity lawsuit helped teach us that the Fourteenth Amendment, when butchered by corrupt "New Confederacy" judges, has no meaning in postmodern America.

That brings us back to Michael Gerson, and his flawed notion that Donald Trump has ushered in an era of "diseased conservative thinking." Trump certainly is doing his best to add to such "thinking," but he hardly invented it.

When did it start? I submit it started with the GOP's use of race-based fears as a political weapon. Richard Nixon rode his "Southern Strategy" into the White House in 1968 and 1972. Watergate slowed the GOP advance in the mid 1970s, but Ronald Reagan stoked the flames anew by using coded race-based language to kick off his 1980 general-election campaign in Philadelphia, Mississippi.

Once the white middle class was sufficiently distracted by race-based fears, the GOP turned to criminal enterprises, under Reagan and George H.W. Bush in the 1980s and early '90s. Those included the Savings and Loan Scandal, Iran-Contra, and CIA gun- and drug-running operations that likely led to the assassination of federal judge Robert Vance Sr., via a mail bomb sent to his home in the Birmingham suburb of Mountain Brook.

Michael Gerson goes off the tracks by ignoring these realities. From his opinion piece, which originated in The Washington Post and drew major attention late last week:

To many observers on the left, the initial embrace of Seth Rich conspiracy theories by conservative media figures was merely a confirmation of the right's deformed soul. But for those of us who remember that Rush Limbaugh and Sean Hannity were once relatively mainstream Reaganites, their extended vacation in the fever swamps is even more disturbing. If once you knew better, the indictment is deeper.

The cruel exploitation of the memory of Rich, a Democratic National Committee staffer who was murdered last summer, was horrifying and clarifying. The Hannity right, without evidence, accused Rich rather than the Russians of leaking damaging DNC emails. In doing so, it has proved its willingness to credit anything — no matter how obviously deceptive or toxic — to defend Donald Trump and harm his opponents. Even if it means becoming a megaphone for Russian influence.

The basic, human questions are simple. How could conservative media figures not have felt — felt in their hearts and bones — the God-awful ickiness of it? How did the genes of generosity and simple humanity get turned off? Is this insensibility the risk of prolonged exposure to our radioactive political culture? If so, all of us should stand back a moment and tend to the health of our revulsion.

Gerson is missing the big picture. The problem of diseased conservative thinking goes way beyond conspiracy theories about Seth Rich, or anyone else. It goes to very real and damaging actions, including those in the George W. Bush administration -- of which Gerson was part. Consider just a few of the "icky" events that happened on Bush's watch:

* Likely theft of the 2000 presidential election in Florida, ruled by Gov. Jeb Bush, with an infected U.S. Supreme Court sweeping out the apparent winner, Al Gore, and sweeping in the outrageously unqualified George W. Bush.

* The attacks of 9/11, of which the Bush administration had advanced warnings, but failed to take any actions to stop them.

* Use of political prosecutions to ruin Democratic foes, most famously being the Don Siegelman case in Alabama.

* The firings of U.S. attorneys, who refused to carry out prosecutions for political reasons.

* The instigation of a war in Iraq, based on flawed intelligence information.

* The outing of CIA operative Valerie Plame.

If we still have a semi-functional justice apparatus, Trump and dozens of his comrades should be indicted in the next year or so. If that happens, it will be the ultimate illustration of diseased conservative thinking. But that sort of thinking hardly began with Donald Trump.

It's been going on for roughly 50 years, at least.

Thursday, May 25, 2017

GOP candidate sparks disbelief for assaulting journalist in Montana, but it shouldn't be a shock; we've been the victims of such brutality in two states

Greg Gianforte
(From Washington Examiner)
A Republican Congressional candidate from Montana was arrested yesterday for misdemeanor assault after allegedly body slamming a reporter from a British newspaper. Our response, on the reporter's behalf? Welcome to the club, pal.

Greg Gianforte, a tech millionaire, is running in a special election for Montana's seat in the U.S. House of Representative. During a press session yesterday, Gianforte apparently took exception to questions from The Guardian reporter Ben Jacobs and slammed Jacobs to the ground. Jacobs was transported via ambulance to a nearby hospital, but his primary injury apparently was winding up with broken glasses. Journalists from multiple news outlets, including Fox News and BuzzFeed, witnessed the incident and confirmed Jacobs' account of what happened.

The election, with Gianforte running against Democrat Rob Quist, is today, so it won't take long to determine if an assault charge hurts a Republican's chances in Montana. Our guess is that it won't hurt Gianforte one bit, and he will wind up winning the seat left vacant when Ryan Zinke resigned to join Donald Trump’s Cabinet as secretary of the Interior Department.

Normally, I would be outraged at such brutality used against a journalist, or anyone, for that matter. But I've seen this kind of thuggery in an up close and personal way. It has been used in both Alabama and Missouri against my wife and me, and compared to our experiences, Jacobs got off lucky. The Montana incident has been portrayed as "unprecedented" or sparked by Donald Trump's attacks on the press. But neither of those characterizations is true, and I know from firsthand experience.

I was thrown three times to the concrete floor of my own garage, doused with pepper spray, and hauled to the Shelby County Jail in Alabama for a five-month stay. That was in October 2013, and it made me the first U.S. journalist since 2006 to be incarcerated -- and apparently the only one in U.S. history to be jailed because of an unlawful preliminary injunction in a defamation case. What was my crime? Reporting accurately about an extramarital affair involving a GOP political figure and a lobbyist.

More recently, in September 2015, a Missouri deputy body slammed my wife to the ground during an unlawful eviction and yanked so viciously on her limbs that he snapped the bone in her upper left arm, just above the elbow. The break was so severe that it required trauma surgery for repair; doctors determined that regular orthopedic surgery would not get the job done.

And get this: Carol was arrested on January 30, 2017, and charged with assaulting a law enforcement officer. You heard that correctly: The victim of an assault by cops now stands charged with assaulting a cop. We've received a number of documents related to discovery in the case, and the falsehoods told by Missouri deputies will shock anyone who has a conscience. (A number of posts about those bogus documents will be coming soon.)

Perhaps most shocking is this: The Probable Cause Statement and Misdemeanor Information in the case show that, on their faces there were no grounds to arrest and incarcerate Carol, much less make her stand trial. So far, Judge Margaret Holden Palmietto has refused to consider Motions to Dismiss until Carol has a lawyer, and Carol wound up with a public defender (PD), whom we've never met, after the judge forced her to fill out a PD application. What was Carol's real "crime"? Being married to me, a journalist.

Republican brutality against a journalist is not as new as some experts might think. A professor at Carroll College in Montana yesterday called the Gianforte incident "unprecedented." From a report about Prof. Jeremy Johnson's take on the assault:

Johnson said he couldn’t think of any precedent for what happened Wednesday night a little over 24 hours before voting ends in the first U.S. House special election Montana has held since the 1960s. The 85-day campaign has been unlike any seen in the state, drawing more spending during a very compressed cycle than the November race for the seat.

Huffington Post portrayed the Gianforte incident as spillover from Donald Trump's attacks on the press. From the HuffPo piece, by Michael Calderone, titled "GOP Candidate’s Attack On Reporter Shows Peril Of Asking Questions In Trump’s America":

On Wednesday evening, Montana Republican congressional candidate Greg Gianforte slammed Guardian reporter Ben Jacobs to the floor as Jacobs tried to ask his view on GOP health care legislation.

As Jacobs and a Fox News crew told it, it was a shocking assault on a reporter just one day before a special election to fill the state’s lone House seat.

But it was hardly an isolated occurrence. In the past three weeks, political reporters have described being arrested, pinned against a wall, slapped, and now body slammed ― all this in a nation where freedom of the press is enshrined in the Constitution.

Alaska Dispatch News reporter Nathaniel Herz told police earlier this month that Republican state Sen. David Wilson slapped him during an encounter over a recent story.

West Virginia reporter Dan Heyman was arrested on May 10 while trying to ask a question of Health and Human Services Secretary Tom Price, who later praised police for their handling of the situation.

And last week, CQ Roll Call reporter John M. Donnelly said he was pinned against a wall by security guards after trying to ask a Federal Communications Commission member a question in Washington.

The Johnson and Calderone takes are intriguing, but they are more than a little off target. Johnson claims the Montana incident is "unprecedented" -- but it isn't. I was assaulted for being a journalist more than three years ago, and Carol was beaten for being married to a journalist roughly 20 months ago -- and we both were injured much more severely than was The Guardian's Jacobs.

Calderone suggests the Montana incident is peculiar to the Trump era -- except that it isn't. Carol and I both were brutalized while Barack Obama was president -- and my case received international news coverage. But we never saw any sign that the Obama justice department would look into terrorism against journalists and their family members.

About the only difference between what happened last evening in Montana and our experiences is this: In Alabama and Missouri, corrupt GOP political figures get law enforcement to do their dirty work for them; in Montana, Gianforte took matters into his own hands.

Here is another major difference: Gianforte, who is not a "state actor," is facing a misdemeanor under Montana law. The cop/thugs in our cases committed federal crimes -- 18 U.S. Code 242, Deprivation of Rights Under Color Law -- and we soon will be filing criminal complaints with the U.S. attorneys in the appropriate federal districts.

Why was Gianforte so sensitive about questions from a Guardian reporter? Perhaps it's because the newspaper had reported previously on his investments in Russian index funds.

It's hard to see how Gianforte is going to get off on an assault charge, and he's likely to cough up a bundle in a civil case. When that happens, don't be surprised if GOP politicos take a page from the Alabama/Missouri playbook -- they will start getting cops to rough up journalists for them. Carol and I know exactly how that works.

Here is a video that includes audio of the body slamming incident in Montana:

Jeff Sessions' failure to disclose Russian meetings on security-clearance forms add to his history of dishonesty and cover ups in Alabama and beyond

Jeff Sessions
Reports yesterday that Trump Attorney General Jeff Sessions failed to disclose meetings with Russian officials on security-clearance forms brought to mind four little words -- "We told you so."

Many voices, including ours, tried to tell the American public, before Sessions was confirmed, that he has a history of being fundamentally dishonest and corrupt -- not to mention racist. Our take on Sessions came largely from living in Alabama for 36 years, where Sessions served as state attorney general or U.S. senator for most of that time. We reported months ago on multiple examples of Sessions' dishonesty -- one involving him directly and another involving his best-known protege.

Now, we learn that Sessions has not changed, with Trump (and a Republican Congress) giving us a chief law-enforcement officer who has not lawfully received security clearance. Worst of all, the justice department that Sessions "leads," was put in the position of making excuses for an AG whose history of failure to disclose and cover up are well known. From CNN, which broke yesterday's security-clearance story:

Attorney General Jeff Sessions did not disclose meetings he had last year with Russian officials when he applied for his security clearance, the Justice Department told CNN Wednesday.

Sessions, who met with Russian Ambassador Sergey Kislyak at least two times last year, didn't note those interactions on the form, which requires him to list "any contact" he or his family had with a "foreign government" or its "representatives" over the past seven years, officials said.

The new information from the Justice Department is the latest example of Sessions failing to disclose contacts he had with Russian officials. He has come under withering criticism from Democrats following revelations that he did not disclose the same contacts with Kislyak during his Senate confirmation hearings earlier this year.

To no one's surprise, the DOJ promptly went into excuse mode. From CNN:

Sessions initially listed a year's worth of meetings with foreign officials on the security clearance form, according to Justice Department spokeswoman Sarah Isgur Flores. But she says he and his staff were then told by an FBI employee who assisted in filling out the form, known as the SF-86, that he didn't need to list dozens of meetings with foreign ambassadors that happened in his capacity as a senator.

Is that, to put it bluntly, bullshit? Should the public believe anything that comes from Sessions' propaganda apparatus? The answers are a resounding "yes" and "no."

Let's consider just two of many dubious incidents from Sessions' time in Alabama:

(1) An Alabama judge accuses Sessions' office of the worst prosecutorial misconduct he'd ever seen

While serving as Alabama's AG in the 1990s, Sessions became entangled in a case styled USX v. Tieco, which dragged on for roughly 10 years and involved both criminal and civil proceedings. Here is the gist of the matter: Officials and lawyers for United States Steel (USX) prompted the AG's office to bring criminal charges against Tieco officials over alleged fraudulent billing. USX also brought civil claims, and Tieco responded with counterclaims.

As the cases moved forward, it became clear that Sessions and the AG's office were acting with blatant favoritism toward USX and its lawyers from the long-established Birmingham firm of Burr Forman, which had represented the steel company for roughly 100 years.

James S. Garrett, then a Jefferson County circuit judge, dismissed the criminal case against Tieco and blasted Sessions' office in an order and opinion. From our December 2016 post on the matter:

As Sen. Jeff Sessions awaits a confirmation hearing in hopes of becoming the next US attorney general, a blistering legal opinion on a case he oversaw as Alabama's top prosecutor two decades ago could emerge as an issue for the nominee. . . .

"The court finds that even having been given every benefit of the doubt, the misconduct of the Attorney General in this case far surpasses in both extensiveness and measure the totality of any prosecutorial misconduct ever previously presented to or witnessed by this court," wrote James S. Garrett, a Jefferson County Circuit Court judge.

The misconduct was "so pronounced and persistent," Garrett wrote, that "it permeates the entire atmosphere of this prosecution."

Was Garrett finished showing his disgust for Sessions and his office? Absolutely not. Here's more:

A year after the high-profile indictments, Garrett found that the case was rife with prosecutorial misconduct, including failures to turn over exculpatory evidence, deceptive testimony by assistants or agents of the Attorney General and "flagrant disregard of the constitutional rights of those accused."

"This court can only conclude it is dealing with either intentional and deliberate misconduct or conduct so reckless and improper as to constitute conscious disregard for the lawful duties of the Attorney General and the integrity and dignity of this court and this Judge."

Notice key words in the highlighted section above -- "failure to turn over exculpatory evidence," "deceptive testimony," "disregard for constitutional rights." Sounds a lot like Sessions' actions in the Trump-Russia scandal, doesn't it? So does this.

(2) Federal judge Bill Pryor, a devoted Sessions protege, apparently fails to disclose information to Congress 

We have reported extensively on Pryor, a fiercely anti-LGBT judge, who has a history of posing nude for gay magazines and Web sites, dating to his college days in Louisiana in the 1980s. Pryor served under Sessions in the Alabama AG's office and has seen his career boosted at every opportunity when Sessions served on the Senate Judiciary Committee. Pryor was a finalist to replace Antonin Scalia on the U.S. Supreme Court but lost out to Neil Gorsuch, of Colorado, when even the Trump administration apparently could not stomach the thought that the Pryor gay-porn brush fire might turn into a conflagration.

Robed and disrobed Bill Pryor
It's possible Team Trump's queasiness went beyond the "G word" (gay) and the "H word" (hypocrisy) to the "C word" (criminal). That's because evidence points to the likelihood that Pryor committed a crime, lying to Congress, during his confirmation hearings for a spot on the U.S. Eleventh Circuit Court of Appeals. And Sessions, who pushed mightily for Pryor's appointment, probably knew about the crime. Here's how we reported it in a March 2015 post:

That brings us to Pryor's Senate confirmation hearing. It is standard for a federal nominee to be asked, under oath, if there is anything in his background that might embarrass him or the president who nominated him. Pryor has known the nude photos were public since at least September 1997, and our sources say he likely did not disclose their existence to FBI and Senate investigators.

What are the possible implications of that? Here is how we answered that question in an earlier post:

"Could Pryor face serious consequences if it is shown he made false statements to officials looking into his background? Based on the impeachment and removal of Louisiana federal judge Thomas Porteous in 2010, the answer might be yes.

"One of the articles of impeachment against Porteous involved his failure to disclose information to investigators--and his false statements during pre-confirmation regarding any background information that might prove embarrassing to him and the president who nominated him, Bill Clinton.

"Did Pryor withhold information that would embarrass him and George W. Bush? We don't have a certain answer at the moment, but it appears likely."

Yesterday's security-clearance report probably will not be the last one to show that Jeff Sessions has engaged in underhanded behavior. He's had that tendency for decades.

A Republican Congress knew all about Sessions' lack of integrity, but they chose to ignore it. Those Americans who have a few functioning brain cells -- and who lack a tendency to reflexively vote GOP for race-based reasons -- should remember that the next time they go to the polls.

Meanwhile, our best hope is that Jeff Sessions can only do limited damage to our justice system.

Wednesday, May 24, 2017

Take a ride on a rocky tour of our experiences with the U.S. Eleventh Circuit, where justice often goes to die under a load of crap called "Do Not Publish" opinions

"Do Not Publish" appellate opinions
 often provide cover for corrupt
trial judges like William M. Acker Jr. 
"Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

-- Monroe Freedman, founder of legal ethics

Join me on a brief tour of our experience with "Do Not Publish" opinions in the Eleventh Circuit Court of Appeals. We've shown that the late law professor Monroe H. Freedman found such opinions often are a sham, designed to cover up findings that bear no resemblance to the facts and law governing the case.

My wife, Carol, and I know, from unpleasant, firsthand experience that Freedman was right. In fact, we have two pending matters before the Eleventh Circuit, related to our "Jail Case" and "House Case," and our No. 1 concern is that the ruling will come with "Do Not Publish" stamped in the upper right-hand corner. Without even reading the opinion, that will tell me we've been screwed.

We've had three similar experiences already, and it disgusts us to think taxpayer dollars are being wasted on opinions that "bear no relationship whatsoever to the cases that have been filed and argued before the judges." Those aren't my words. They come from Monroe H. Freedom, who is considered the father of modern legal ethics as a academic subject.

I won't address everything the court got wrong in our cases, focusing only on the primary unlawful findings that forced the court to put the "Do Not Publish" stamp on them. Given that 82 percent of the circuit's cases wind up with unpublished opinions, you are likely to have a similar experience if you live in Alabama, Georgia, or Florida and ever have a federal issue go to appeal:

(1) Shuler v. Board of Trustees of the University of Alabama, et al., 11th Cir., 2012 (Do Not Publish)

Issues at stake -- Allegations of discrimination, and First Amendment violations, related to my termination as an editor at the University of Alabama in Birmingham (UAB), where I had worked for almost 20 years.

Primary unlawful finding in trial court -- Rule 56 of the Federal Rules of Civil Procedure (FRCP) and binding Eleventh Circuit law (see Snook v. Trust Company of Georgia, 859 F.2d 865, 11th Cir., 1988) hold that a court cannot consider summary judgment until the parties have had an opportunity to conduct discovery. Federal rules require a court to order a discovery conference and set a schedule to govern the completion of interrogatories, depositions, requests for production of documents, and the like.

Trial judge William M. Acker Jr. did none of those things. He granted summary judgment to the university, without the first bit of discovery being conducted. He did it, even though I filed three documents informing the court that discovery not only was outstanding, it hadn't been conducted at all. That cannot happen under the law, as outlined in Snook: "This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests."

I cited Snook over and over in trial-court documents. Did that have any impact on Acker, a Reagan appointee who now is 89 years old? Nope. After telling me in open court that he was going to cheat me, Acker did just that.

What the appellate court did about it -- A three-judge panel simply lied about its own holding in Snook--and it lied about my actions in the trial court. Snook holds that a party simply needs to notify the court that discovery has not been completed -- in this case, discovery had not even started -- and that invokes the protection of Rule 56(d). I filed proper notification in three separate documents, but Acker ignored each one. And the appellate panel covered for the trial court by writing the following: "Shuler never filed a motion under Rule 56(d) and did not identify any discovery relevant to the grounds for summary judgment."

How gross is this con job? You can read my Rule 56(d) motion here, and I filed two other documents alerting the court that discovery had not begun, had not even been scheduled. You can read my petition for an en banc hearing here, and it outlines everything the appellate panel got wrong. Naturally, my en banc petition was denied.

Why this opinion had to be stamped "Do Not Publish" -- Nothing is profound about Snook. I'm sure every federal circuit has similar case law because it's a matter of common sense: You can't determine that a case should be summarily dismissed, or allowed to go to trial, until both parties have been allowed to gather facts that support one outcome or another. In Bill Acker's world, at least in my case, court is a "fact-free zone." My case was decided without a single fact being entered into the record. And the 11th Circuit essentially said, "That's perfectly OK, even though we know it conflicts with Snook. Big deal. Due process and equal protection of the law mean nothing to us."

A quick check of Google Scholar shows that Snook has been cited as recently as Dec. 2, 2015. That means it still is binding precedent, and it probably will be binding precedent as long as federal courts exist in the Southeast. It's that fundamental, so essential to any notion of fair play and justice in our courts. The Eleventh Circuit's ruling in Shuler overturns Snook -- and if put into the official record, that would throw the circuit into chaos. That's why the opinion in my case had to be marked "Do Not Publish."

(2) Roger and Carol Shuler v. Swatek, et al., 11th Cir., 2012 (Do Not Publish)

Issues at stake -- Allegations that a sheriff's sale related to our house was unlawful, violating our rights to due process and equal protection.

Primary unlawful finding in trial court -- Judge Abdul Kallon, citing the Rooker-Feldman doctrine, found that he did not have subject-matter jurisdiction to decide the case. Rooker-Feldman holds that lower federal courts, other than the U.S. Supreme Court, generally should not sit in direct review of state-court decisions. The doctrine involves a number of exceptions, and several of them applied to our case. Perhaps most importantly, Rooker-Feldman applies only to "final state-court judgments." (See Nicholson v. Shafe, 558 F.3d 1266, 11th Cir., 2009.) We weren't seeking review of a final state-court judgment; we were seeking review of a sheriff's sale. In fact, the record showed there was no state-court judgment related to the sheriff's sale.

Federal courts have found that federal claims can be barred if they are "inextricably intertwined" with a state-court judgment. (See Casale v. Tillman, 558 F.3d 1258, 11th Cir., 2009.) Casale held that "A claim is inextricably intertwined if it would effectively nullify the state court judgment . . . or it succeeds only to the extent that the state court wrongly decided the issues." Our claim did not seek to nullify a state-court judgment, and it did not claim that a state court wrongly decided any issue. It claimed that the Shelby County Sheriff's Department unlawfully conducted a sale that caused us to lose full rights to our house.

The trial court ruled incorrectly on numerous issues, and I will mention briefly only two others: (1) Rooker-Feldman does not apply to anyone who was not a party to any underlying state-court action. (See Lance v. Dennis, 546 U.S. 459, 2006.) Mike McGarity, our troublesome and criminally inclined neighbor, sued only me in an underlying state matter; he did not sue my wife, Carol, who jointly owned the house subject to a sheriff's sale. That means Rooker-Feldman did not block her claim, but Kallon blocked it anyway; (2) Kallon dismissed our claims against McGarity and his attorney, William E. Swatek, on the grounds that they were not state actors for the purposes of a civil-rights claim. But the U.S. Supreme Court has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. (See Lugar v. Edmondson Oil Co., 457 U.S. 922, 1982.) Our complaint alleged that Swatek and McGarity conspired with state officials to deprive us of our property rights, so that element of our claim could not lawfully be dismissed.

What the appellate court did about it -- The three-judge panel ignored the 11th Circuit's finding in Nicholson that Rooker-Feldman applies only to final state-court judgments. Made no mention of it.
The panel did admit that, under Lance, Rooker-Feldman did not block Carol's claimsBit it dismissed her claims on other dubious grounds, mainly involving immunity. The panel ignored the U.S. Supreme Court finding in Lugar, which if applied properly based on allegations in our complaint, would have treated Swatek and McGarity as acting under color of state law. My appellate brief on the various issues can be read here.

Why this opinion had to be stamped "Do Not Publish" -- The panel's ruling in Shuler essentially overruled Nicholson, Lance, and Lugar -- and butchered the long-held findings related to Rooker-Feldman. In terms of Lugar, the Eleventh Circuit effectively overruled the U.S. Supreme Court. That's something circuit courts are not allowed to do -- the U.S. Supreme Court is called "the highest court in the land" for a reason; Lower courts have an obligation to uphold its findings. Again, had Shuler been published it would have thrown the Eleventh Circuit into chaos -- certifying findings that run contrary to precedents that have governed important legal questions for years.

(3) Roger and Carol Shuler v. Ingram and Associates, et al., 11th Cir., 2011 (Do Not Publish)

Issues at stake -- Allegations that certain entities violated the Fair Debt Collection Practices Act (FDCPA) in trying to collect a debt we allegedly owed to American Express.

Primary unlawful finding in trial court -- This case was a mess from the outset. Four different judges were assigned to it, with Kallon finally getting it. By the time it wound up in his lap, I don't think he had a clue what was going on. We had multiple attorneys representing us, included the deceptive duo of Darrell Cartwright and Allan Armstrong, who essentially cost us the case by admitting to "facts" that the record shows were not facts. Consider this from our appellate brief, which I wrote after we fired Cartwright and Armstrong:

Any admissions in the record were not made by the Shulers; they were made by Darrell Cartwright and Allan Armstrong, two attorneys who no longer represent the Shulers. It was Cartwright and Armstrong who, without consulting the Shulers, admitted to “undisputed facts” Nos. 9, 12, 13, and 18 in Ingram’s motion for summary judgment. The Shulers’ own attorneys repeatedly made blatant mistakes that undermined their clients’ case, admitting to “facts” that are not facts. Federal law makes it clear that a party is not to suffer because of the incompetence of counsel. Consider Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,843 F. 2d 808 (4th Circuit, 1988) : “When the party is blameless and the attorney is at fault, the former interests control . . .”

So many errors of fact and law were made in this case, it's hard to know where to begin. Cartwright and Armstrong wrote our response to Ingram's Motion for Summary Judgment, and they did a fairly good job on the argument -- despite wrongfully admitting near the beginning to at least four non-facts that helped cost us the case. Perhaps the most important error by the court is this: 15 U.S.C 1692e holds that "a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt."

Representatives of Ingram and Associates lied to us over and over -- and we captured it all on tape. Perhaps the most important lie, in our view, was their claim that American Express hired them, even though their own sworn testimony showed that the debt-collection firm NCO hired them. Obviously, American Express is a powerful, well-known consumer brand, and claiming they hired you, makes it more likely you will collect a debt (whether you can prove it is owed or not) with relatively little effort.

What the appellate court did about it -- A three-judge panel did nothing to correct Kallon's numerous mistakes. Contrary to clear law, the panel found that we were to suffer for our attorney's mistakes, upholding as "facts" information that the record showed clearly was not factual. The panel also misapplied the standard for summary judgment review, which holds that all matters must be viewed in a light most favorable to the non-moving party (us). Instead, the panel upheld Kallon's rulings that gave Ingram the benefit of the doubt at every turn.

Why this opinion had to be stamped "Do Not Publish" -- We probably could point to more than a dozen reasons that this case could not be recorded in the actual law. But here's the No. 1 reason: The appellate court, more or less, overturned key provisions of the FDCPA, holding that it's OK for debt collectors to resort to deceptive statements, misrepresentations, threats, and out-and-out lies in efforts to collect a debt. Of course, that's not what the law says, so the ruling had to be kicked into the nether world of unpublished opinions.

That's the place where, all too often, truth, facts, law, and justice go to die.

Tuesday, May 23, 2017

Sex addict David Deusner, an attorney and forensics expert for Control Risks, threatens legal action over Ashley Madison report that he admits is accurate

David Deusner
When we left our story about attorney/forensics expert David Deusner, he was suggesting that he understood dealing with pain in a way I could not possibly grasp. I was quick to let him know, via e-mail, that he was wrong about that.

The following is part of an e-mail he sent to me on April 28. It came after he had admitted my reporting on his activities at Ashley Madison was accurate, and he had struggled for some time with sex addiction:

The embarrassment you're causing my wife is something I don't think you fully grasp, and the pain of not only opening these old wounds but opening it to the public for her ridicule is outrageous.

Regular readers of this blog know that my wife, Carol, and I have earned graduate degrees in "pain management," so I had a ready answer for Mr. Deusner:

I know all about pain, and so does my wife. I was thrown in jail for five months in Alabama for writing an accurate blog post that displeased Judge Bill Pryor and the Bob Riley gang. I've come to learn that Rob Riley is one of the most corrupt "humans" on the face of the earth.

We lost our home of 25 years in Birmingham to a wrongful foreclosure driven by associates of Bob Riley and Luther Strange and Jeff Sessions. We now live in Missouri, and cops here conducted an unlawful eviction and broke my wife's arm -- snapped the bone in two, just above the elbow. I saw the whole thing happen. They then turned around and brought bogus criminal charges against her. All of our possessions have been stolen; I have one pair of pants and one pair of shoes to my name.

All of that is neither here nor there regarding this post. But I'm just trying to let you know that I'm not a neophyte when it comes to pain. We live in a society where people literally can be beaten up inside their own home, kidnapped by cops without a warrant, and thrown in jail for practicing journalism.

I can't take down the post now; it's accurate, and I know of no journalist who would remove a story that is accurate. I've worked in the field for 35 years and have a degree in journalism. I would be glad to talk with you early next week, but I will leave that up to you. Just let me know your thoughts.

Deusner's reply was revealing on a number of fronts:

I am not contesting the accuracy, but accuracy is not the point. I am a private citizen, and you are posting outrageous, hurtful, scandalous information about me, with links to my wife's Facebook and photos of my children. You're causing undo pain and suffering - that's not journalism - and nothing about this is in the public's interest. I made mistakes and owned up to them, and paid the price and continue to pay the price. I will ask you to reconsider your position. I understand you are busy filing court papers right now, but please take time to reconsider. The last thing I need right now are legal fees - and I am sure its the last thing you need as well. I really hope we can resolve this without going that route.

Let's note a few peculiarities here:

(1) Deusner claims accuracy is not the point. But as a lawyer, Deusner should know accuracy is THE point in any journalistic endeavor; it's an absolute defense against claims of defamation. And Deusner admits he's not contesting the accuracy of my report. So, what's his beef? He doesn't have a legitimate one -- just sound and fury, driven perhaps by guilt over the mistakes that, to his credit, he admits to.

David Deusner
(2) Deusner makes another reference to pain and suffering -- but it's HIS pain and suffering. Notice that he makes zero acknowledgement of MY pain and suffering, which had just been laid out for him (in Reader's Digest form) in my previous response. He shows no sign of recognizing my humanity, that I can feel pain, just as he can. No wonder he went into the law. That kind of self-centeredness plays well in that "profession."

(3) Deusner concludes by really going off the deep end -- threatening legal action over an article he admits is accurate. Upon what grounds does he plan to base a possible lawsuit? I have no idea. But he should know there is a tort called abuse of process that can be a counterclaim to a lawsuit that has no basis in fact or law. Also, most jurisdictions have some sort of "litigation accountability act" that can have serious consequences to those who use the courts to file groundless claims.

Here is how I left things with Deusner:

I've said I would be glad to speak with you via phone, and I should be available early next week. If you want to get in touch with me then, that's fine. If not, that's fine, too.

Not sure how I could have been any more courteous, considering the ugly tone and pure garbage he was throwing at me. I've heard no further word from him.

Monday, May 22, 2017

Federal judge Virginia Emerson Hopkins enters the "cavalcade of corruption" that spews forth like raw sewage from the Northern District of Alabama

Virginia Emerson Hopkins
Just when it appears you have encountered all the ethically challenged judges the Northern District of Alabama (ND AL) can throw at you, along comes another to join the crowd. Where do they reproduce these nasty critters, in a filthy chicken coop somewhere?

We've written extensively about our interactions with ND AL federal judges William M. Acker Jr. (a Reagan appointee), Abdul Kallon (Obama), and R. David Proctor (Bush II). We've shown that these three amigos are, as my mother used to say when I was a wee sprout, "crooked as a dog's hind leg."

(Note: My mother grew up in Osage, Arkansas, not far from where several episodes of The Beverly Hillbillies were filmed back in the day. It's also not far from Harrison, Arkansas, which once was home to Dogpatch USA, a now-abandoned theme park based on the characters of Al Capp's Li'l Abner. My mother grew up in what might charitably be called a "shack," with no running water or electricity, but she came from learned stock. The union of her mother and father produced a nurse, a social worker, an engineer, and a school teacher/principal. It's nice to know that I come from a line of pretty smart folks, but I can't deny there's a heavy dose of hillbilly blood coursing through these veins. All of this is to say my mother came by her corny sayings honestly, and so does her oldest son.)

Now, along comes U.S. District Judge Virginia Emerson Hopkins to show that she might be just as crooked as all the rest. Hopkins entered the scene when Proctor acknowledged that he had a conflict of interest requiring recusal in our "House Case," and the matter wound up in Hopkins' lap. In true ND AL fashion, Proctor made the laughable claim that his conflict had arisen only after he had dismissed our case. The case is on appeal to the Eleventh Circuit, but for now, Proctor's unlawful rulings stand -- even though publicly available information shows his conflicts date back way before our complaint was filed. In other words, he was disqualified from the outset but failed to abide by his duty to recuse when his impartiality might "reasonably be questioned."  Like I said, these folks are crooked -- and they don't try real hard to hide it.

We have evidence, already, that Hopkins fits the mold. Since Proctor's exit, our Rule 59 Motion to Alter or Amend Judgment fell to Hopkins. She issued an order, denying the motion, that suggests she never even glanced at the case file -- and maybe did not read the motion. (Our Rule 59 motion, and Hopkins ruling on it, are embedded at the end of this post.)

How nutty was Hopkins' ruling? Let's take a look:

(1) Manifest errors of law? Gee, I don't see any.

Hopkins acknowledges that manifest errors of fact or law are grounds for reversal via a Rule 59 motion. We present 11 or 12 (depending on how you count) manifest errors of fact or law that Proctor made in his 45-page memorandum opinion dismissing our case. But Hopkins can't see one of them. Here is what she writes:

Importantly, Plaintiffs’ disagreement with the court’s reasons for dismissing their case does not, in any manner, demonstrate that the 45-page memorandum opinion thoroughly supporting the with-prejudice dismissal contained manifest errors of law or fact.

Oh, really? Let's see if we can help the scales fall from Judge Hopkins eyes.

(2) A "heightened pleading standard" no longer exists in the Eleventh Circuit 

Proctor dismissed a number of our claims based on the "heightened pleading standard" of a U.S. Supreme Court (SCOTUS) case styled Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007). But that presents a slight problem: The Eleventh Circuit, in at least two cases, has flatly rejected the Twombly standard and even SCOTUS, in at least one case, has rejected it. From our Rule 59 motion:

Proctor uses the wrong standard of review throughout. The U.S. 11th Circuit, which provides binding law for this case, has held no heightened pleading standard, of the sort raised in Twombly and Iqbal, exists in the circuit (covering Alabama, Georgia, and Florida.) The 11th Circuit held in Randall v. Scott, 610 F.3d 701, 710 (11th Cir., 2010) as follows: "We conclude that the district court erred in applying a heightened pleading standard to Randall's complaint. After Iqbal it is clear that there is no "heightened pleading standard" as it relates to cases governed by Rule 8(a)(2), including civil rights complaints. The 11th Circuit reaffirmed Randall in Saunders v. Duke, 766 F. 3d 1262 (11th Cir., 2014).

Here is the key point: The 11th Circuit found in Randall that most pleading standards are governed, as they have been for decades, by Federal Rules of Civil Procedure (FRCP) 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."

Even SCOTUS is moving away from heightened pleading standards. Our Rule 59 motion cites its most recent finding on the matter:

Like the Eleventh Circuit, the U.S. Supreme Court is moving away from the language of Twombly and Iqbal. In Johnson v. City of Shelby, 135 S. Ct. 346 (2014), the nation's highest court held: "We summarily reverse. Federal pleading rules call for "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.

Our complaint easily clears "the short and plain statement" hurdle, and neither Proctor, nor Hopkins, nor any defendant even attempts to argue that isn't the correct pleading standard. Proctor, through all 45 pages of his opinion, ignores the proper pleading standard -- but Hopkins can find no manifest errors of law or fact? The woman either is blind, preposterously lazy, or both.

(3) Virginia Emerson Hopkins: A Portrait of Judicial Laziness

Hopkins makes no effort to address any of our substantive arguments. She does, however, try to deny us the right to file an amended complaint -- and she can't get that right.

An amended complaint would not be necessary in our case if we could find a district judge who knew how to follow Eleventh Circuit precedent. That seems impossible, but it can't be seriously argued that we are entitled to amend our complaint.

Hopkins tries it anyway, citing a case styled Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, (11th Cir. 2010) for its proposition that "Post-judgment, the plaintiff may seek leave to amend if he is granted relief under Rule 59(e) or Rule 60(b)(6)." In other words, Hopkins claims, Proctor denied our Rule 59 motion, so we can't seek leave to amend our complaint.

(Interestingly, I can find no Eleventh Circuit case where Jacobs is cited. Also District Judge Kenneth Ryskamp, sitting by designation in Jacobs, issued a blistering dissent that charges his colleagues with gross misapplication of the law. We plan to make the Ryskamp dissent the subject of a future Legal Schnauzer post.)

Hopkins ignores an inconvenient truth: We are pro se litigants, and the law allows us at least one opportunity to amend our complaint. From the Rule 59 motion:

Here is a key holding on this issue in the Eleventh Circuit: A pro se plaintiff, however, "must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice," at least where a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir., 1991).

Another key holding from the Eleventh Circuit: "As to the second exception, where the issue of futility is close, we err on the side of generosity to the plaintiff." O'Halloran v. First Union Nat'l Bank of Fla., 350 F.3d 1197 (11th Cir. 2003)."

Did Proctor and Hopkins have an obligation, under the law, to allow amendment of our complaint (even though it should not have been needed)? Yes. Is this a case of judges cheating everyday parties who are challenging powerful corporate, political, and institutional entities? Absolutely. Does this happen often in the Eleventh Circuit? It sure as heck does.

In fact, we have more evidence of Hopkins' cheat job, and that will be unmasked shortly.

(To be continued)

Lawyer David J. Harrison, whose sketchy background includes a dubious plea deal for Ronnie Gilley, is arrested and charged with making false report to police

David J. Harrison
(From Dothan Eagle)
An attorney who played a major role in the Alabama Bingo Case recently was arrested in Dothan and charged with false reporting to a police officer. David J. Harrison, of Geneva, already had a sketchy history, and the latest run-in with the law just adds to it.

Harrison perhaps is best known as the attorney who filed paperwork for a guilty plea from Country Crossings developer Ronnie Gilley in the bingo case. Jarrod Massey and Jennifer Pouncy, lobbyists for Gilley, also pleaded guilty. Without those three guilty pleas, the case would have been a total wipe-out for the government. Every defendant who went to trial was found not guilty, a result that was described as "one of the most remarkable setbacks nationally" for federal prosecutors in decades.

As for Harrison's most recent misadventure, he was arrested on April 25. From a report at the Dothan Eagle:

According to Dothan police reports, Harrison was selling a vehicle at a car lot in Dothan and he alleged that forgery occurred in the paperwork. After an investigation, police determined no items had been forged, leading to the charge against him.

Harrison’s arraignment is scheduled for June 6. According to Harrison’s attorney, Shaun McGhee, they look forward to their day in court. McGhee believes his client will be found innocent of all charges.

Here is a rundown of colorful events in Harrison's past:

(1) Conviction on meth-trafficking charges

You might think having a conviction for meth-trafficking would put an end to your legal career. After all, lawyers are supposed to uphold the law and stuff. But you would be wrong. Harrison was convicted of conspiracy to distribute methamphetamine in March 1997, but bingo, he still has his bar card. How does a lawyer with such a background wind up representing Ronnie Gilley in a case that drew national attention? Hmmm . . . that has never been made clear.

(2) And now appearing at Ashley Madison

Harrison is one of numerous Alabama lawyers who appear at the notorious extramarital-affairs Web site. (More on that in an upcoming post.)

(3) Representing man in a bestiality case

In 2015, Harrison represented a Geneva man in a bestiality case. From a news report on the case, which became a social-media phenomenon:

The man charged with having sex with his estranged wife's dog was in a Geneva courtroom today. Jonathan Medley's trial was continued to the December Circuit Court docket. Last June, the 39-year-old reportedly told police he had sexual contact with the shih-tzu named Buster because his wife paid more attention to the dog (than to him). Medley's attorney's, David Harrison, tells News 4 his client is innocent of the charge. The case has generated worldwide attention through social media.

Medley wound up pleading guilty to a misdemeanor and was sentenced to a 12-month sentence to be served for 15 consecutive weekends at the Geneva County Jail.

(4) Allegations of ineffective assistance of counsel

Gilley filed a document in October 2013, alleging that Harrison provided ineffective assistance of counsel in the bingo case. The document includes portions of a transcript from jailhouse phone calls in which Gilley makes clear to Harrison that he does not want to plead guilty and he does not believe he is guilty. (More on that in an upcoming post.)

Gilley was released in 2016 after serving four years in federal prison. Gilley now is working in construction and property development and hopes to return to the entertainment business.

(5) A peculiar relationship with current U.S. Senate candidate Doug Jones

Before Harrison joined the defense team, Gilley's representation came from Doug Jones and two other attorneys from the former Birmingham firm Haskell Slaughter. Court documents indicate that Harrison and Jones were on the case together for almost a month. When asked about his actions on Gilley's behalf, and about Harrison's criminal background, Jones refused to comment.

Jones, a Democrat who once served as U.S. attorney under the Bill Clinton administration, now is running for the U.S. Senate seat vacated by Trump attorney general Jeff Sessions. What about Jones' ties to David Harrison and the dubious Gilley guilty plea? Is Jones someone Alabamians seriously should consider to represent them in the U.S. Senate? (More on that in upcoming posts.)

Friday, May 19, 2017

Founder of legal ethics knew unpublished opinions were dubious, saying they often cover up opinions that falsify facts or make "disingenuous use" of case law

Monroe H. Freedman
How bad are "Do Not Publish" opinions, which is what many litigants receive when they receive a bad result at the trial-court level (district court) and seek an appeal in a federal circuit court? I believe they are a conduit for unlawful opinions that must be covered up, lest they be included in official reporters and wreak havoc with actual precedential law. It turns out I was in some mighty fine company when I voiced that opinion here at Legal Schnauzer; a giant in the field of legal ethics agreed with me.

Hofstra University law professor Monroe H. Freedman, who died in January 2015 at age 86, was considered the founder of legal ethics as an academic field. "He invented legal ethics as a serious academic subject,” famed Harvard Law professor Alan M. Dershowitz told The New York Times. “Prior to Freedman, legal ethics was usually a lecture given by the dean of the law school, which resembled chapel: ‘Thou shalt not steal. Thou shalt not be lazy.’ But Monroe brought to the academy the realistic complexity of what lawyers actually face. . . .

"He was on my speed dial for everything I ever did involving legal ethics. And I brought him to my classes every single year: A legal education without Monroe Freedman was incomplete.”

Now, we will use Freedman to help educate the public at large. That's because the death last year of U.S. Supreme Court Justice Antonin Scalia raises ethical questions about unpublished opinions -- such as the favorable one Scalia friend John B. Poindexter received in an employment discrimination case.

Freedman was a brassy, provocative type, and he didn't mind taking on the legal establishment. Unpublished opinions in federal courts bothered him -- and that means he likely would have been appalled by my experience in the U.S. Eleventh Circuit Court of Appeals (which covers Alabama, Georgia, and Florida). He also probably would have known that unpublished opinions short-change many litigants, across the country. Freedman's words from a 1989 speech indicate he knew that too many court rulings amounted to fraud -- with unpublished opinions providing cover:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.

I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

How refreshing to see an eminent scholar admit that "Do Not Publish" opinions are a pox on our justice system. It's likely the situation only has gotten worse in the 28 years since Freedman spoke those words. I know from first-hand experience that unpublished opinions, indeed, are a fraud -- a mechanism to favor certain parties by producing unlawful rulings that do not foul the body of actual law that is recorded in various reporters.

I've had three cases on appeal before the Eleventh Circuit, and each time the trial court's unlawful findings were upheld -- and the opinion was stamped "Do Not Publish" in the upper right-hand corner. (See Shuler v. Ingram & Associates, Shuler v. Swatek, and Shuler v. Board of Trustees.) Why was that stamp there? It's because the opinions were so contrary to black-letter law that reporting them would have created havoc in a field that supposedly is grounded in the consistency of legal precedent.

As for the case involving Scalia's pal, John B. Poindexter, this is from a March 2016 Legal Schnauzer post:

Multiple news outlets have reported that John B. Poindexter, owner of Cibolo Creek Ranch and the Houston-based manufacturing firm J.B. Poindexter and Co., received a favorable outcome when the U.S. Supreme Court refused to hear an appeal on an employment-discrimination case involving one of his subsidiaries. According to news reports, Scalia's expenses-paid hunting trip to Poindexter's ranch was a "gift."

Was it a possible kickback for court-related favors the justice had provided? The answer to that question is not clear, but it is clear that Poindexter's favorable treatment in the discrimination case (James Hinga v. MIC Group) started long before SCOTUS refused to hear the case.

How? The U.S. Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) upheld a trial court's dismissal of Hinga's discrimination claim on summary judgment. Here is the alarming part: The Fifth Circuit issued an unpublished opinion in Hinga. Based on our experience and research, that can be a sign a ruling is suspect.

We aren't the only ones who hold that opinion of unpublished opinions. A scholar who was considered the "father of modern legal ethics" also had a low opinion of unpublished opinions.

That scholar, of course, was Monroe Freedman. If I had gone to law school, he's the kind of professor I would hope to have. If I were a law professor, he's the kind I would hope to be.

We will provide details about our experiences with "Do Not Publish" opinions in an upcoming post. The subject hits close to home at the moment because we have two pending appeals in the Eleventh Circuit now -- one in our "Jail Case" and one in our "House Case."

If you ever have a case go before a federal appellate court -- in the Southeast or anywhere else -- you could wind up getting a "Do Not Publish" opinion. You likely will not find it pleasant, I assure you.

(To be continued)