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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
(From hofstra.edu)
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)

Thursday, May 18, 2017

Patricia Lillian Poe, a public defender we have never met and never agreed to her representation, now appears as Carol's attorney in Missouri criminal matter

Judge Margaret Holden Palmietto (left)
(From twitter.com)
An attorney from the Public Defender's Office in Greene County, Missouri, has been appointed to represent my wife, Carol, in the case where a deputy broke Carol's arm during an unlawful eviction -- and she wound up being charged with "assault" on a law enforcement officer and trespass. The attorney's name is Patricia Lillian Poe, according to court records. We had to get that information from court records because we've never met Ms. Poe, and Carol never has agreed to have Ms. Poe represent her.

So, imagine our surprise yesterday when we checked case.net (State v. Carol T. Shuler, Case No. 1631-CR07731) and found an attorney is representing Carol -- an attorney we've never met, whom we've never agreed to have represent us, who probably knows zero about our case, and even is filing documents on Carol's behalf without our consent or knowledge.

Yes, you heard that right: Patricia Lillian Poe filed a Motion for Discovery, dated 5/15/17, on behalf of Carol T. Shuler. It would have been nice if Carol T. Shuler had known about that. It also would have been nice if Carol T. Shuler knew the purpose behind the motion, given that Carol already has filed two such motions on her own.

Here is the most alarming part: We have no idea if Ms. Poe has a trial strategy that is palatable to us or not. We have no idea if she understands that this is not a case of Carol committing a crime; it's a case of Carol having a crime committed against her -- one that resulted in the bone in Carol's upper left arm being snapped in two, such a severe break that it required trauma surgery and the implantation of metal plates and screws.

A reasonable reader might raise this question: Well, how did Ms. Poe become aware of Carol's case, to the point she could be named an attorney in the matter? Answer: At our most recent court hearing, on 5/3/17, Judge Margaret Holden Palmietto asked if Carol waived her right to an attorney. Carol said no, that she was considering several options -- continuing to represent herself, hiring a regular attorney, etc.

At that point, Palmietto ordered Carol to fill out an application with the Public Defender's (PD) Office. In fact, Palmietto said Carol would not be allowed to leave the courtroom until the application was completed and turned in to her bailiff.

Palmietto also said (and I'm paraphrasing), "I'm not going to consider your motions until you have representation or you waive your right to an attorney." That's troubling because Carol already has filed multiple motions to dismiss, showing that the state had no probable cause to seek her arrest, much less to subject her to a trial. In other words, the case already should be dismissed, and Carol shouldn't have to worry about getting an attorney. But the judge doesn't seem to want to do her job.

Carol did as instructed and filled out the PD application -- and we figured that meant we would receive a call from the Public Defender's Office, be asked to come in and discuss the case, and the sides would agree or disagree to have the office represent Carol. That call never came, and we've never met with anybody -- which is a little unsettling when you consider that Carol's freedom is at stake. Under RSMo 565.083, assault of a law enforcement officer in the third degree is a Class A misdemeanor, which carries a possible punishment of up to one year in jail, plus a possible fine of up to $2,000.

It can be costly, in a variety of ways, to have a law enforcement officer break your arm in Missouri.

Back in serious mode, it's critical that any lawyer understand that this is a case about grotesque police misconduct, which almost certainly rises to a criminal level (18 U.S.C. 242 -- Deprivation of rights under color of law.) Does Patricia Lillian Poe grasp that and does she have a plan for dealing with that reality? We have no idea; we've never spoken with her.

Carol does not necessarily object to representation from a public defender, but right now, it feels like she's having a lawyer forced down her throat. I don't pretend to be an expert on due process, but I presume it includes the right to consent to representation by a certain lawyer -- to have some say-so in the matter.

Right now, Carol hasn't consented to anything, and she's had no voice in selection of her attorney. It doesn't help that local newspapers recently have been filled with reports that Missouri's Public Defender System is one of the most poorly funded in the nation, with lawyers wildly understaffed and overworked. It is the subject of an ACLU lawsuit, and The Atlantic has referred to the situation as a "constitutional crisis."

Is the system so dysfunctional that it skips small steps -- like letting a defendant know she has representation and maybe, you know, meeting with her? If you check case.net under Carol's case number and click on docket entries, you will see the following at the top:

05/15/2017 Motion for Discovery
Request for Discovery. Electronic Filing Certificate of Service. /sel
Entry of Appearance Filed
Entry of Appearance. Electronic Filing Certificate of Service. /sel

That Ms. Poe took action "on behalf of" Carol T. Shuler sort of implies that Carol T. Shuler has met with Ms. Poe, discussed her case, and agreed upon a plan of action, doesn't it? Well, none of that has happened.

That leaves us to ask a question that we've raised many times related to court actions over the past 17 years: What in the hell is going on?

The next court appearance in Carol's case is 9 a.m. on June 7.

Wednesday, May 17, 2017

David Deusner, lawyer and forensics expert at Control Risks, admits to activity at Ashley Madison and struggles with sex addiction -- but still issues threats

David Deusner and family
The subject of a recent Ashley Madison post has admitted to engaging in activities at the extramarital-affairs Web site. He even acknowledged that he has struggled with sex addiction. Still, he is threatening to take legal action against me and this blog.

I'm not making this up -- and we're not talking here about a stupid guy.

David Deusner is managing director of compliance forensics intelligence for Control Risks, working out of Birmingham and Washington, D.C. Before that, he worked for roughly six years at Birmingham's Bradley Arant law firm, first as director of litigation support and eDiscovery Services and then as senior eDiscovery counsel in the litigation and construction group.

Deusner earned a bachelor's degree in business administration/music business and artist management at Belmont University in Nashville and a law degree at DePaul University in Chicago. This is a bright guy, so why the bizarre -- even stupid -- response to our Ashley Madison post, which was published on April 26? Let's address that question by examining our communications with Deusner, which began the next day via e-mail:

Mr. Shuler

Please take down the post about me and my family. I was diagnosed with sex addiction several years ago. It nearly destroyed my family. I went through counseling and continue to work on my addiction, almost daily. My wife and I went through years of counseling as well due to this, and our marriage is still not where it should be as a result of my addiction. My wife and family have suffered enough from my horrendous mistakes and poor choices. They do not need to suffer any further because of this posting now. I can't stress enough how painful this has been to my wife, and your bringing this up again will only cause more pain and grief. I realize the point of your blog is to report on attorneys and their conduct, but this is a VERY personal matter, a very private matter, and your publicizing it only will cause more pain and suffering to my family.

PS. I now see your emails to my work email account; they were sitting in my junk folder. I would have responded sooner. But I implore you - please remove this posting immediately.

I was in the midst of preparing court documents that had a tight deadline, so I was slow responding. Deusner sent me another e-mail, on April 28:

Mr. Shuler -

Please take down this post immediately. I have caused enough damage to my family, and this is only opening old wounds. Please respond to let me know you will be taking this down immediately.

I was concerned about his tone, but I was willing to talk with him, so I responded later that day:


I apologize for being slow responding. I'm in the midst of preparing court documents that have a deadline, and it probably will take me through the weekend to finish them up. Perhaps we can talk via phone early next week? Let me know if you would be OK with that.

My concern about Deusner's tone only increased with his response:

I will talk to you, but you have to take this post down. I am happy to explain whatever you feel you need, and will make myself available early next week, but I need you to take this down now. 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. Please take this down immediately, and I will talk to you all you need next week.

I doubt there is a journalist in the world who would not be taken aback by this kind of language. And I was stunned that it came from a lawyer, who should know better. A journalist (or anyone else, for that matter) has an absolute right to publish accurate information. For any citizen, especially one with a law degree, to tell a journalist "you have to take this post down" is . . . well, it's nonsense. And to suggest that I was the source of any embarrassment for his wife -- rather than his own behavior -- was pure rubbish.

David Deusner
(From linkedin.com)
Also, that last highlighted sentence suggested Deusner has the market cornered on dealing with pain -- that he knows the subject in a way I can't possibly understand. Funny, but that kind of arrogance doesn't sit well with me. I was prepared to let him know, in no uncertain terms, that I know a thing or two about dealing with pain.

My responses made it clear I was willing to communicate with Deusner. But his pushy tone and ill-informed statements made me think nothing much would come from any discourse. I would be proven right about that, but not before Deusner went down a path that perhaps was even more ill-advised than his adventures with Ashley Madison.

(To be continued)

Tuesday, May 16, 2017

Public Citizen lawyer Paul Alan Levy, a massive asshole, lied that organization founded by Ralph Nader does not handle defamation cases at trial-court level

Paul Alan Levy
(From al.com)
Paul Alan Levy, the asshole of epic proportions who works for Ralph Nader's Public Citizen, twice told me his organization could not help because it did not work on defamation cases at the trial-court level. Well, guess what. Levy is a lawyer, and he lied.

I'm sure you did not see that one coming.

Let's look at a few cases where Public Citizen did, in fact, represent a defamation defendant at the trial-court level:

(1) Houlihan Smith and Company, Inc., et al v. Julia Forte, et al

Public Citizen's own Web site makes it clear the organization represented defendant Julia Forte at the trial level in this defamation case. Here is a description of the case:

Houlihan Smith and Company, an investment bank based in Chicago, filed suit against Julia Forte over two message boards -- 800Notes.com and whocallsme.com -- where members of the public had posted statements criticizing Houlihan's telemarketing practices as well as other aspects of Houlihan's business. On less than 90 minutes notice to Forte, a North Carolina resident, Houlihan went to state court in Illinois and got a temporary restraining order compelling Forte to remove "all statements of a factual nature" about Houlihan and to prevent future postings by those who had posted such statements. Representing Forte, Public Citizen removed the case to federal court and opposes continuation of the TRO. We argue that the TRO is an impermissible prior restraint, especially in Illinois which does not allow injunctions against libel, and that in any event Forte, as the host of a message board, is immune from liability under 47 U.S.C. § 230. Although Houlihan has tried to evade section 230 immunity by relabeling its defamation claims under the trademark laws as well as the right of publicity, such relabeling does not defeat Forte's statutory immunity. Forte moved for an award of attorney fees. In response to the motion, Houlihan Smith claimed that it had been driven out of business by their failure to obtain a preliminary injunction, that the plaintiffs were no longer operating companies, and that they lacked assets to pay any fee award. The fee motion was settled for a payment of $35,000 in attorney fees.

This case involved several issues that were present in my case at the trial level -- an unlawful TRO and an impermissible prior restraint. It also indicates Public Citizen made $35,000 in attorney fees, while Levy claimed I was looking for "free legal help." The Houlihan case suggests Levy lied to me about the reasons for not taking my case -- and it suggests Public Citizen does not do "free legal help," and I never asked for such help, in the first place.

(2) Matul Patel v. Matthew Chan

Public Citizen's own blog, in a piece written by Levy himself. indicates Levy lied to me about the organization's policy regarding defamation cases at trial level:

At a time when the California Supreme Court is deciding whether to grant discretionary review of the decision of the California Court of Appeal in Hassell v. Bird, which held that Yelp could be required to comply with a default judgment holding that a posted review of a California lawyer was false and defamatory, along comes a situation that crystallizes concerns about judicial willingness to impose such orders on sites that host consumer content.

Matthew Chan, a resident of Columbus, Georgia, posted a series of reviews (for example, on Yelp) complaining that Mitul Patel, a dentist in Suwanee, Georgia, had induced Chan to visit his office by advertising an inexpensive dental cleaning deal. However, Chan reported that he was confronted with a hard pitch for additional, more expensive services, and Patel allegedly lost interest in providing the cleaning when Chan was not agreeable to buying additional services. I am in no position to say whether Chan’s criticisms of Patel are fair or accurate, but Patel’s sneaky response to the criticism, instead of just suing his detractor in the Georgia courts, tends to suggest that Chan might well have reason to complain.

This clearly was a defamation case, at the trial level -- the kind Levy told me Public Citizen could not handle. But he represented Defendant Chan. Levy lied about why he could not represent me.

(3) Vision Media v. Forte

Again, Public Citizen's own Web site makes clear that it represents defamation defendants at the trial stage. A description of the case:

Vision Media, a company that produces television promotions for non-profit groups, sued Julia Forte, the proprietor of the web site www.800notes.com, after she refused to identify the authors of postings that cited published reports accusing Vision Media of deceptive advertising, and told Vision Media it could respond on the message board but refused to remove the postings. Public Citizen argued that a web host like Forte is immune from suit for the content that others have posted on her site, and that Vision Media's creative efforts to plead around her immunity so that she has to bear litigation expenses (creating pressure to settle) are not successful. The trial court eventually dismissed the case for lack of personal jurisdiction.

Again, Public Citizen successfully represented a defamation defendant at trial stage. Why did Paul Alan Levy spew b.s. in my direction? I can come to only one conclusion: Levy is a lying lawyer who lies.

Now, I can imagine one defense Levy might try to cite for himself. Here is exactly the language he used, via e-mail, on this issue: "We don’t handle defamation cases on the merits at the trial court level."

Perhaps Levy is saying his organization can handle defamation cases, such as the ones noted above, that can be handled on procedural issues, without having to dive into the merits of the case. Well, my case could have been handled on procedural matters, too. As in Houlihan above, my case involved a TRO (and preliminary injunction) that was an impermissible prior restraint. The issues are virtually identical, but Public Citizen took one and passed on the other, which involved far more egregious behavior by plaintiffs -- and damages to the defendant (my wife, Carol, and me).

On top of that, by the time I contacted Levy, Judge Claud Neilson had issued a bogus final order, so the case was ripe for appeal -- and Levy seemed to be saying that his outfit could handle such matters. (Come to think of it, what is the justification for supposedly not being able to handle a defamation case on the merits at the trial level? I assume Public Citizen gets a percentage of any recovery, or seeks awards of attorney fees, so I'm not sure why it would avoid trial-level cases on the merits.)

Bottom line: I'm cutting Levy more slack than he deserves. He did lie to me, and as to why, I think I nailed it with this, via e-mail:

Here's the truth: You jump on easy cases involving Yelp and such, but if lawyers are behind abuse of free speech, you have no interest in the case and essentially engage in a cover up. Corrupt lawyers like Rob Riley and Christina Crow caused me to be incarcerated, and you are their protector -- screw the First Amendment. You and Public Citizen are dishonest to the core -- and I see you still are a rude, thoughtless twit.

James Comey firing was an "assault on constitutional values," and Jeff Sessions, with his long history of abusive tactics in Alabama, was in the middle of it

James Comey
If Trump attorney general Jeff Sessions goes down in the widening KremlinGate scandal, it will be ironic because Sessions has played a major role in fostering an environment that allows corruption to take hold, according to a new report out of Washington, D.C.

Andrew Kreig, an attorney and journalist who directs the Justice-Integrity Project (JIP), writes that Sessions long has been a "master of the dark arts of political intrigue," which include blackmail, prosecution of political enemies, and gross abuse of the justice system.

Kreig's piece focuses on Sessions' role in last week's firing of FBI director James Comey and shows that Sessions, as state attorney general and U.S. senator from Alabama, has a history of ties to such skulduggery. Title of the article is "Comey firing stems from DOJ, Sessions hidden scandals." From the article:

The Justice Department's top two officials (Sessions and Rod Rosenstein) have helped enable longstanding, deeply hidden Justice Department deceit and obstruction of justice in major cases, thereby paving the way for President Trump’s shocking firing of FBI Director James Comey on May 9.

Many Americans reacted with outrage at President Trump's suggestion on May 12 that he may have secretly taped Comey while Comey sought retention as the FBI probed potential criminal Russian influence over Trump's team and the 2016 elections.

But relatively few people even in government or the media know the vast abuses that U.S. Attorney General Jeff Sessions has long enabled as a U.S. senator in Alabama beginning in 1996 and previously as a U.S. Attorney and attorney general in that state since 1981.

That's because he's a master of the dark arts of political intrigue, including dark money, political prosecutions of enemies, blackmail and other repeated abuses of the justice system — each of them tactics that are most effective when obscured by rhetoric about conservative principles, national security, family values and "rule of law." Sessions . . . was Trump's first major supporter among elected officials during the 2016 presidential campaign.

Kreig points to a March Guardian article, titled "Gun for hire: How Sessions used his prosecuting powers to target Democrats." From the The Guardian article, by reporters Jon Swaine and Oliver Laughland:

Opponents concluded that Sessions used his federal prosecutor’s office, and the FBI agents who worked for him, as political weapons, according to more than half a dozen veterans of Mobile’s 1980s legal and political circles. Some alleged in court filings that the ambitious young Republican actually worked from a “hit list” of Democratic targets. . . .

The decades-old concerns have been revived by Donald Trump’s appointment of Sessions as US attorney general, and the mounting anxiety over his ability to remain even-handed as the nation’s most senior law enforcement official given his record of vigorous partisanship.

How partisan is Sessions? Dana Jill Simpson -- a retired lawyer, one-time GOP opposition researcher, and major figure in the Don Siegelman case -- told Kreig that Sessions is an extremist, even among some of Alabama's most "out there" conservatives. From the Kreig article:

"Jeff Sessions is a racist," Alabama opposition researcher and political activist Dana Jill Simpson told the Justice Integrity Project in an exclusive interview on May 12. "He has been on the far, far, far right even by the standards of Alabama conservatives."
Simpson is an Alabama attorney and former GOP political operative who courageously stepped forward in 2007 to describe the DOJ's frame-up on corruption charges of former Alabama Gov. Don Siegelman, her state's leading Democrat. . . .
She has also helped this editor and other investigative reporters document many scandals. These include involvement by Sessions and his cronies in mind-boggling national and international intrigues. Among them have been secret dealings with Russia, suspicious awards of defense contracts involving tens of billions of dollars in one instance, and a sinister role in the 2007 U.S. attorney firing scandal that Simpson helped expose and document.

For almost 10 years, Legal Schnauzer has chronicled corruption in state and federal courts, in Alabama and beyond. Simpson says our courts are a wreck, in part, because of Jeff Sessions. From the JIP article:

Simpson describes Sessions as "the national ringleader of partisan abuses of the legal system, first in Alabama and then via his leadership of the U.S. Senate Judiciary Committee, where he was in a position to help appoint prosecutors, judges and other officials to accuse some people unfairly and let others off, and otherwise reward his patrons and confederates."

Just yesterday, we wrote about such a confederate, U.S. District Judge R. David Proctor, who repeatedly has ruled contrary to law in two pending federal lawsuits, regarding my unlawful arrest and incarceration in 2013-14 and the wrongful foreclosure of our home of 25 years in Birmingham.

Dana Jill Simpson
(From donsiegelman.net)
The record strongly suggests Proctor, who took underhanded steps to help Sessions get a black federal judge (U.W. Clemon) off a high-profile case in the 1990s, has made bogus rulings to protect Sessions' associates who are defendants in our cases. Our experience, plus Sessions' evolving role in KremlinGate, suggest his crooked tendencies are not in the rear-view mirror. They are right up to the moment.

Sessions' involvement in the Comey firing, after the AG had vowed to recuse himself from all matters related to the Trump-Russia scandal, might have led him into a morass from which he cannot escape. Writes Kreig:

In sum, Comey's firing is an assault on the nation's core constitutional and other democratic values comparable if not worse than President Nixon's Watergate. However, no one can truly understand the situation, much less reform it, without appreciating the full history of the perpetrators and their institutions.

Monday, May 15, 2017

How can a crooked judge cheat you in federal court? Take a ride on Judge R. David Proctor's "magical mystery tour," and we'll show you exactly how it's done

Crooked federal judge David Proctor and his
Briarwood-based family
(From facebook.com)
Judge R. David Proctor's unlawful dismissal of our "House Case" is like a bad three-act play; he cheats my wife, Carol, and me in the beginning, the middle, and the end of his memorandum opinion. We've already shown how Proctor cheated us in "Act 1" and "Act 3," so now let's turn our attention to "Act 2."

I probably could write a New Yorker style magazine piece of considerable length about the myriad ways Proctor screwed us in the middle section of his opinion. But we will limit our attention to four key issues -- constitutional claims, wrongful foreclosure, tortious interference, and defamation. (Proctor's opinion and our Rule 59 response to it are embedded at the end of this post.)

If you care about justice and integrity, this stuff might be hard to stomach. But we operate under the theory that the first step to cleaning up corruption is to expose it. Please keep in mind that we're talking about a judge who claims to be a devout "Christian," who attends Briarwood Presbyterian Church (PCA) and sends his kids to Briarwood Christian School, supposedly because of the fine moral training they receive there. If so, it's good they go to Briarwood because they apparently will get no moral underpinnings at home -- based on the cheat job "Judge" Proctor administered in our "House Case."

(1) Constitutional claims (First, Fourth, and Fourteenth Amendments)

Proctor rejects these claims because he finds that certain defendants -- Jessica Medeiros Garrison, Bill Baxley, Rob Riley, Liberty Duke -- are not "state actors" for purposes of claims under Sec. 1983. But the law is clear: We don't have to show such defendants are "state actors"; we have to allege that they worked in conjunction with state actors. That is simple, long-established law, and Proctor has to know it. His ruling to the contrary is a glaring sign that he is a cheater. From our Rule 59 motion:

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. In Lugar v. Edmondson. 457 U.S. 922 (1982), our nation's highest court found: "We have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the Fourteenth Amendment. The rule in these cases is the same as that articulated in Adickes v. S.ll. Kress and Co., supra, at 152, in the context of an equal protection deprivation: "Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not :require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," quoting United States v. Price. 383 U.S.., at 794." As Proctor acknowledges, the Shulers allege repeatedly that defendants acted "in conjunction with state actors." Thus, the Shulers have alleged facts that defendants were state actors and liable for suit under Section 1983. This court's erroneous finding must be reversed.

Is there any doubt that Proctor ruled contrary to law on this issue? None, zero. He rules contrary to three U.S. Supreme Court cases, so it's hard for a corrupt judge to get more wretched than that.

(2) Wrongful foreclosure

Proctor rejects this claim because he finds it can only be asserted against the "mortgagee" (Chase Mortgage, in this case). But -- surprise, surprise -- that's not what Alabama law says. We address that in the Rule 59 motion:

In In re Sharpe, 391 B.R. 117 (Bankr., N.D.Ala,, 2008), the federal bankruptcy court proposed the following as factors to consider as elements of a wrongful foreclosure claim under Alabama law: whether (I) the actions of the mortgagee were either outside the boundaries of the foreclosure or taken for some purpose other than to secure the debt owed by the mortgagor; (2) the actions of the mortgagee were for some ulterior motive; (3) the power of sale was perverted or used for the mortgagee's or someone else's purpose; or (4) the mortgagee had an ill motive. 391 B.R, at 152 -153. Under Alabama law, the ulterior motive can apply to the mortgagee or "someone else," and the Shulers have properly cited multiple parties who had an ulterior purpose. This is clear error and must be reversed.

As you can see from the highlighted section above, the ulterior motive does not have to rest just with the mortgagee (Chase Mortgage). It can rest with "someone else," and that's a pretty broad term, which could apply to any number of defendants in our "House Case."

Is there any doubt Proctor ruled contrary to law on this issue? None, zero.

(3) Tortious interference

Proctor rejects this claim, stating we had "pled no facts which in any way suggest that any Defendant except Defendant Chase instituted the foreclosure action against them, or was responsible for the decision to foreclose on their home."

That, however, is not the standard, as we show in our Rule 59 motion:

The Shulers must only allege that the defendants interfered with their business relationship with Chase, and the complaint does just that - especially when viewed under the proper standard of review and the requirements of Watts (which holds that the complaint must be viewed in a light most favorable to the party not moving for dismissal -- and that would be Carol and me). The court admits the Shulers have pled facts sufficient to suggest lawsuits brought by Defendants Riley, Duke, and Garrison affected their ability to pay the mortgage - and this confirms tortious interference because the Shulers' relationship with Chase was based on payment of a mortgage. Finally, Proctor violates the holdings of Watts, assuming Riley, Duke, and Garrison did not intentionally interfere with the Shulers' business relationship with Chase. But no one disputes that Riley, Duke, and Garrison intentionally filed lawsuits, and the Shulers' have alleged that the lawsuits were groundless and interfered with the key component oftheir relationship with Chase ­paying the mortgage. When viewed in a light most favorable to the Shulers, and the court is required to view facts in such light, it points to intentional interference.

This is simple stuff: We had a contract with Chase that required us to pay the mortgage, and individuals who caused me to be unlawfully incarcerated for five months, interfered with that business relationship by making it impossible for us to hold up our end of the deal.

Is there any doubt Proctor ruled contrary to law on this issue? None, zero.

(4) Defamation

This might represent Proctor's nuttiest ruling of all. Proctor rejects the defamation claim largely on a finding that GOP operative Jessica Medeiros Garrison statements in an article at the women's fashion magazine Marie Claire were privileged as part of civil judicial proceedings. In essence, that means the statements were exempt from defamation law because they were drawn from official court documents. But there is no evidence that Garrison or Marie Claire writer Liz Welch consulted any legal documents.

In fact, the article is listed as "by Jessica Garrison, as told to Liz Welch." That plainly states Garrison was the author of the article, with Welch serving as more or less a stenographer. A case of truly privileged journalism would involve a third-party reporter, who attended a trial, checked court documents, and attempted to write a somewhat objective article.

But the Marie Claire article has none of that. It was written by a party to the case and shows no sign that it involved objective journalism at all. Jessica Garrison made false statements about me in court documents, and again, during testimony in her default-judgment hearing. And Proctor correctly (gasp!) finds those statements to be privileged as part of court proceedings. Any third-party reporter would be free to write about them, without being subject to a defamation finding.

But a third-party reporter did not write the Marie Claire article; Jessica Garrison wrote it -- the byline clearly states as much. Garrison essentially is trying to get away with defaming me twice -- once in court proceedings (which, technically, is not defamation) and once in the Marie Claire article (which is not privileged and absolutely is defamation.)

Translation: It was incredibly dumb for Garrison to write the article, and it was even dumber for Marie Claire to publish it. Here's how we addressed some of these issues in the Rule 59 motion:

Regarding Garrison's false statement that Roger Shuler reported Luther Strange was the biological father of her child, Proctor cites an Alabama statutory privilege that protects "fair and impartial" reports of civil judicial proceedings. Proctor concludes, apparently out of thin air, that the Marie Claire article (and those largely republished from it at al.com and Yellowhammer News) is a fair and impartial report of court proceedings. This would be laughable ift he matter were not so serious. First, the Marie Claire article is listed as "by Jessica Garrison." In other words, it is written by one party to a civil case - the plaintiff, the one who brought it - without input from the other party. The court considers that "fair and impartial"? The first words of the article -- by Jessica Garrison -- make clear it is not impartial. Second, the byline says the story is "by Jessica Garrison, as told to Liz Welch." It clearly states the story is based on Jessica Garrison's words, as imparted to Liz Welch, with no reference to any court filings. The article is all about Jessica Garrison's words and emotions, and that's why it was published in a women's fashion magazine. The notion that Marie Claire runs articles about court proceedings is absurd. The article is by Garrison, and thus cannot seriously be called impartial or fair.

There you have it -- four clear-cut examples of how a federal judge can cheat you at the trial-court level. And that has serious repercussions for the public. One, it denies justice at the time and place where it should be achieved. And it forces the cheated party to file for an appeal, which can be expensive and time consuming -- and as we have shown in numerous post, it might not result in justice either. Appellate courts have a disturbing tendency to side with their trial-court brethren, no matter how wrong they are. It's easy to do this by use of "Do Not Publish" opinions.

Our "House Case" currently is under appeal to the U.S. Eleventh Circuit, based in Atlanta. We will keep you posted on that process, and we will address the fraudulent use of "Do Not Publish" opinions in upcoming posts.

(To be continued)

Thursday, May 11, 2017

Missouri's Castle Doctrine Law shines new light on bogus allegations that I threatened to shoot any deputies who might barge into our home for eviction

(From ammoland.com)
I've never yearned to own a firearm, so "Castle Doctrine" laws -- which allow for the use of force to protect the home -- never have held much fascination for me. But that has changed since I learned that the Castle Doctrine Law in Missouri, where we now reside, has an impact on false allegations that have been made against me.

We recently showed that my wife, Carol: (A) Did not assault a law enforcement officer, a misdemeanor charge that she still faces; and (B) Even if she had used force, it would have been lawful under Missouri's Castle Doctrine Law. Of course, it would have been impossible for Carol to apply much force, given that a deputy broke her arm so severely that it required trauma surgery for repair. But the public is supposed to believe she was the assaulter, not the victim of an assault?

Now, we've learned that the same law shines new light on the myth that, roughly one week before our unlawful eviction on Sept. 9, 2015, I placed a 911 call and threatened to shoot any cop who attempted to evict us. I never made such a threat, or placed such a call, and discovery in our upcoming federal lawsuit will prove that. Research on Missouri's Castle Doctrine Law, however, indicates such a threat -- under the circumstances -- would have been lawful.

I've never been quite sure how the 911-call myth came to fruition. I first heard about it in an e-mail from my brother-lawyer, David Shuler, who lives here in Springfield, Missouri. He wrote that a deputy named Scott Harrison had informed him that a dispatcher reported such a call from me. I responded to David, in no uncertain terms, that I had never called 911 in my life -- and I certainly had not issued a threat to anyone, much less cops, via 911.

The 911 myth might have its genesis with a one-time "friend," who shall remain nameless, for now. About the same time of David's e-mail, this "friend" visited our duplex apartment, uninvited, and tried to convince us to leave because the landlord had sent us a notice to vacate. I informed Mr. "Friend" that the landlord was violating the terms of our lease, and we intended to fight the attempted eviction.

Mr. "Friend" began to berate Carol and me, saying we had made all sorts of "bad decisions" that led to my unlawful incarceration in Alabama and foreclosure on our Birmingham home. As he stood up and started to stomp out, I said, "Why don't you sit down and tell us what 'bad decisions' we've made."

I don't remember the conversation from there word for word, but I believe the only "bad decision" he could come up with was my refusal to accept the offer of an unspecified "other" job after my termination as an editor at UAB.

Of course, he failed to mention a few things: (1) I never had an offer in writing; (2) I never was told where at UAB I would be working; (3) I never was told who my boss would be; (4) I never was told why I was being forced to leave my position when a UAB grievance committee had found that I should not have been fired; (5) I never was told why I was being forced to leave my position when the HR director admitted my supervisor had butchered the situation and "would be dealt with." (The supervisor, I've been told, was forced to retire.); (6) When I asked to see a copy of the grievance hearing's written report, the request was denied; (7) Along with the job shuffle, I would have to accept two written warnings in my file, and UAB policy calls for automatic termination after three written warnings; (8) When I asked what the two written warnings were for, the HR director said the committee decided they were in "lieu of termination"; (9) When I asked what UAB policy allowed a grievance committee to find an employee had been wrongfully terminated but still should receive two written warnings, the HR director was stumped. When I again asked to see the committee's written report, the request was denied; (10) When I told the HR director, "It sounds like you are trying to set me up to be fired all over again," she didn't deny it. When I said, "If I wore the wrong color of socks to work one day, I could be fired," she didn't deny that either. In fact, she said, "That would be up to your new supervisor."

I firmly informed Mr. "Friend" that he did not know squat about what had happened at UAB. I also told him he didn't know squat about Missouri eviction law -- that the eviction unlawfully had been scheduled inside a 10-day window when no such action could be taken, and we intended to file a notice of appeal, which would put a stay of execution on the eviction.

As I recall, he said that we were going to be evicted anyway, and I informed him that anyone who unlawfully attempted to break into our home would be wise to think twice about that. Is that a radical thought? I imagine 99 percent of homeowners and renters in the US of A would say the same thing, although many probably would say it in much stronger terms than I did.

Mr. "Friend" has admitted that he passed along this "threat" to someone, probably my brother and possibly my health-care provider. As a result, Mr. "Friend" might soon have at least a couple of legal issues to deal with: (1) The conversation in question took place in our home, where Carol and I had an "expectation of privacy." The "friend's" actions might constitute invasion of privacy, and to the extent that his words to others were false, that might constitute defamation; (2) A person's relationship with a health-care provider, and his medical records, are protected by several layers of privacy laws. If Mr. "Friend" stepped into that minefield, he was most unwise.

But here is the key point: If I had used physical force -- even deadly force -- against those I reasonably believed were unlawfully entering my home, that would have been legal under Missouri's Castle Doctrine. And it makes no exception for invading cops.

Under Mr. "Friend's" apparent scenario, which likely is filled with falsehoods, I made a "threat" to do something that is 100 percent legal, even encouraged, under Missouri law. I pledged, in so many words, to protect my "castle" from unlawful intruders. Does that make me a criminal? Nope, it makes me a good Missourian.

Did Mr. "Friend" have grounds to report me to anyone for threatening to engage in lawful activity? No, he did not. And that is one of several reasons he might be needing to "lawyer up" in the near future.

Wednesday, May 10, 2017

No one should be surprised at Jeff Sessions' role in Trump's firing of James Comey; Sessions has a history of using such underhanded tactics in Alabama

James Comey
(From businessinsider.com)
Many Americans were stunned yesterday at news that President Donald Trump had fired FBI Director James Comey. Many were further stunned upon learning that Attorney General Jeff Sessions had recommended the firing to Trump.

The disbelief likely was driven by two overriding factors: (1) Trump's firing of Comey smacks of Richard Nixon's Watergate-era firing of special prosecutor Archibald Cox. That became known as "The Saturday Night Massacre," led to the release of White House tapes, and hastened Nixon's exit from the presidency. History tells us this might be the strongest indicator yet that Trump is headed for a fall; (2) Sessions had announced his recusal on all matters connected to the Trump-Russian investigation, which Comey was heading. (Note: Sessions also had recused himself from any matters related to the Hillary Clinton e-mail investigation, and Comey's clumsy handling of that matter is the reason a Sessions deputy gave for the firing.) So how did Sessions think it was his duty to recommend Comey be fired?

This kind of behavior is not new for Jeff Sessions, and it dates to his time as U.S. attorney and attorney general in Alabama. Sessions has a history of taking underhanded steps to remove people he sees as threats. Knowing that history might help the public better understand how yesterday's drama came to unfold.

Perhaps the best example of Sessions' back-stabbing tendencies came in a mid-1990s case styled USX v. Tieco. The case started with USX (United States Steel) alleging that Tieco had engaged in a fraudulent billing scheme, with Tieco allegedly providing kickbacks to compromised USX employees. Tieco responded with a counterclaim, alleging civil-rights violations, conspiracy, and other wrongs. From an opinion in the matter:

[Tieco has] also filed a counterclaim against the plaintiffs, the Attorney General of the State of Alabama, and two others in the Office of the Attorney General ("AG"). In their counterclaim, the defendants allege civil rights violations and conspiracy . . . , violations of § 36-25-8 of the Code of Alabama of 1975 (regarding non-disclosure of confidential information by a public official) . . . , intentional interference with business relationships, negligence, wantonness, conversion, and conspiracy.

The attorney general in question was Jeff Sessions. The gist of Tieco's allegations against Sessions and others in his office involve a search warrant for the company's business records. From the court opinion:

The seizure by the AG's office included virtually all of the business records of these two defendants, as well as some of the records of another corporation, House of Threads, Inc.

Some of the records seized by the AG's office were later turned over to USX. After USX received these records, it filed this lawsuit in December 1995.

If that smells funny to you, Tieco executives had the same reaction. Here was the state's AG seizing the company's business records and then turning them over to USX so that firm could sue Tieco. No wonder Tieco included Sessions and others from the AG's office in its counterclaim.

The opinion referenced above was written by U.W. Clemon, the first black federal judge in Alabama history and a noted civil-rights lawyer before President Jimmy Carter nominated him to the federal bench. Sessions must have sensed he was in serious trouble because he took underhanded steps to get Clemon removed from the case. Here's how we explained it in a previous post:

At the time, a relatively new law firm had formed in Birmingham called Lehr Middlebrooks Price and Proctor. The last name in that lineup stood for R. David Proctor, now a federal judge handling our cases. The third name stood for Terry Price, who just happened to be Judge Clemon's nephew (the middle son of the judge's oldest sister).

Did Sessions and his chief investigator, Edward F. McFadden, hire Lehr Middlebrooks to defend them to create a conflict that would force Clemon off the case?

The answer to that question almost certainly is yes. In fact, hiring Terry Price and his firm to get Judge Clemon off cases -- supposedly to be replaced by a white, conservative, business-friendly judge -- became almost a sport in the Birmingham legal community. In fact, it became so blatant that The Wall Street Journal reported on the subject. From that article:

Court rulings say it's a breach of ethics to hire a lawyer "solely or primarily for the purpose of disqualifying the judge." Though deciphering motive is usually difficult, lawyers found to have engaged in such practices could face professional disciplinary proceedings.

So, courts found that hiring a certain lawyer to force Judge Clemon off cases was grossly unethical. And Jeff Sessions helped pioneer the use of that tactic -- as did current U.S. Judge R. David Proctor. Is it any surprise that Sessions now finds himself at the heart of the KremlinGate scandal?

At the heart of Sessions' actions in the Comey firing -- and in USX v. Tieco -- is stunning dishonesty and disregard for the rule of law. Consider that a letter from the Department of Justice, pushing for Comey's firing, cited his mishandling of the Clinton e-mail investigation. Trump and Sessions previously had praised Comey's conduct of that matter, so we are supposed to believe they now are using it to justify firing Comey.

It's hard to see how anyone with three functioning brain cells would fall for that one. The New York Times certainly isn't. From its editorial page yesterday:

The explanation for this shocking move — that Mr. Comey’s bungling of the investigation into Hillary Clinton’s private email server violated longstanding Justice Department policy and profoundly damaged public trust in the agency — is impossible to take at face value. Certainly Mr. Comey deserves all the criticism heaped upon him for his repeated missteps in that case, but just as certainly, that’s not the reason Mr. Trump fired him.

Mr. Trump had nothing but praise for Mr. Comey when, in the final days of the presidential campaign, he informed Congress that the bureau was reopening the investigation into Mrs. Clinton’s emails. “He brought back his reputation,” Mr. Trump said at the time. “It took a lot of guts.”

Of course, if Mr. Trump truly believed, as he said in his letter of dismissal, that Mr. Comey had undermined “public trust and confidence” in the agency, he could just as well have fired him on his first day in office.

The Times then gets to the heart of the matter:

Mr. Comey was fired because he was leading an active investigation that could bring down a president. Though compromised by his own poor judgment, Mr. Comey’s agency has been pursuing ties between the Russian government and Mr. Trump and his associates, with potentially ruinous consequences for the administration.

With congressional Republicans continuing to resist any serious investigation, Mr. Comey’s inquiry was the only aggressive effort to get to the bottom of Russia’s ties to the Trump campaign. So far, the scandal has engulfed Paul Manafort, one of Mr. Trump’s campaign managers; Roger Stone, a longtime confidant; Carter Page, one of the campaign’s early foreign-policy advisers; Michael Flynn, who was forced out as national security adviser; and Attorney General Jeff Sessions, who recused himself in March from the Russia inquiry after failing to disclose during his confirmation hearings that he had met twice during the campaign with the Russian ambassador to the United States.

There is that name again -- Jeff Sessions. His actions in the firing of James Comey probably will go down as one of the most corrupt acts in U.S. history. If so, it won't be a surprise to those of us in Alabama, who have seen him get away with underhanded actions for decades. Perhaps he's finally gone a "bridge too far."

Mika and "Morning Joe" are getting married, but photo surfaces of Lori Klausutis and draws reminders to a dark moment in Joe Scarborough's history

Lori Klausutis
(From reddit.com)
The engagement of Joe Scarborough and Mika Brzezinski is the hot celebrity-media story of the moment. But a related story -- the unearthing of a photograph of Lori Klausutis -- might prove to be of much greater significance.

Who is Lori Klausutis, and how does she connect to the co-stars of MSNBC's Morning Joe?  Klausutis was the 28-year-old staff member who was found dead in Scarborough's office in summer 2001, when he was a Republican Congressman from Florida. Klausutis' death was classified as accidental, the result of an undiagnosed heart defect that caused her to fall and hit her head on a desk. But we have researched a number of articles that have been written, and evidence strongly suggests that Lori Klausutis' death was not an accident.

The story largely was ignored by the national press -- "covered up" might be a better term -- and that is a major reason no photograph of Klausutis could be found on the Web, until recently.

It's not clear how the photograph surfaced, but it appears to have come from a post at reddit.com, possibly via a yearbook at the University of Georgia, where Klausuitis (then Lori Bolterstein) went to college. The reddit post is titled "My name is Lori Klausutis -- I was an Intern for Joe Scarborough but I was found dead in his office and nobody remembers."

Ironically, the post is based largely on a piece we published in September 2012 -- "Autopsy in Joe Scarborough Country Leaves Out Key Detail About the Mysterious Death of Lori Klausutis." From our post:

The autopsy of Lori Klausutis makes no reference to a time of death. That raises new questions about an investigation that started when the 28-year-old woman's body was found in the office of then U.S. Representative Joe Scarborough in summer 2001.

Accidental death was the official finding in the Klausutis case, with a cardiac arrhythmia causing her to fall and hit her head on a desk. But the recent discovery of human remains at a storage unit in Pensacola, Florida, casts doubt on that ruling. That's because the storage unit was rented by Dr. Michael Berkland, the man who conducted the Klausutis autopsy 11 years earlier.

Berkland now faces a felony charge of improper storage of hazardous waste, and the grisly nature of the discovery calls his competence--and perhaps his sanity--into question.

Was the Lori Klausutis autopsy conducted in a professional manner? Was foul play prematurely ruled out? Should the investigation be reopened, perhaps with renewed scrutiny for Scarborough and others who might have had access to his office at the time?

Why does time of death matter in a case like this? From our post:

Many Morning Joe viewers probably have forgotten, or never knew, that the body of a female aide once was found in Scarborough's Congressional office. Investigators quickly saw that a blow to the head, delivered accidentally or intentionally, was involved in Lori Klausutis' death. So it's hard to figure why the autopsy makes no reference to time of death. . . .

Why is that a key omission? Consider this from an online document titled "Determining Time of Death (TOD)":

Why is it important to know the time of death?

•TOD can set the time of murder

•Eliminate or suggest suspects

•Confirm or disprove alibis

Why did Berkland not include this critical detail? It's not as if his report does not provide plenty of other details. He tells us that Klausutis was wearing a white thong on the day of her death. (Page 7.) He tells us that she had a "shaved genital region." (Page 8.) But no time of death?

Mika Brzezinski is a big girl, and she does not need our advice. But I would not want to be in her shoes. Is she about to marry a murderer? We don't know that, but we do know that Lori Klausutis' death almost certainly was not an accident -- and there is no sign that anyone with the slightest bit of competence has investigated her death.

Joe and Mika
(From salon.com)
If Joe Scarborough did not kill Klausutis, the odds are strong that he knows who did. That would make "Morning Joe" an accomplice. Also, we know this about Scarborough:

* He's from the southeast Alabama/northwest Florida area, which we have called America's "Corridor of Corruption";

* He went to the University of Alabama, which might be the sleaziest campus in the country, driven by its infamous "Machine" politics;

* He is best buds with Rob "Uday" Riley, who might be the nastiest political snake ever created. And if Rob doesn't hold that title, his father, Bob Riley, almost certainly does;

* Alabama was a beset with a series of peculiar political deaths during Bob Riley's time as governor. There is much evidence to suggest the Rileys see murder as a possible solution to a political problem. And Joe Scarborough once pushed Bob Riley as a presidential candidate?

Makes you wonder.

Tuesday, May 9, 2017

Having insulted me and lied to me, Public Citizen's Paul Alan Levy tried to use my blog to tout his own work against the sleazy Web site Public Defender

Paul Alan Levy
(From rcfp.org)
How did I cross paths again with Paul Alan Levy after the Public Citizen lawyer had proven he was a detestable, disrespectful, lying asshole? Well, Levy actually had the gall to use Legal Schnauzer to promote his work in a case involving an outfit called Public Defender. After Levy earlier had insulted me repeatedly, and shown he did not remotely care that I had spent five months in jail "for blogging" in Alabama, I was none too please to realize he was trying to use my blog to promote himself.

Public Defender is a "reputation management" company that claims it can have unflattering posts about CEOs and the like removed from the Web -- even if the posts are 100 percent accurate and never have been found in court to be false or defamatory. On its Web site, Public Defender cited Legal Schnauzer as a big, bad blog against whom it could protect helpless elites. I wrote a post about Public Defender, including evidence that suggests the company is a sham.

That apparently is something upon which Paul Alan Levy and I can agree. At 4 p.m. on October 11, 2016, Levy sent a comment to Legal Schnauzer, touting his work against Public Defender. One day earlier, I had heard from Eugene Volokh, a UCLA law professor who had co-authored a Washington Post article with Levy about their work related to Public Defender. Volokh is author of The Volokh Conspiracy, which once was one of the nations' most widely read legal blogs before moving to a new platform at The Washington Post in 2014.

Volokh was touting his recent article with Levy, apparently welcoming any coverage I might provide at Legal Schnauzer. Best I can tell, Volokh is a highly regarded scholar and probably a dandy fellow; I don't mean to diss him by putting him in the same boat with Paul Alan Levy. I think Levy is in a boat all his own when it comes to being a prick and a jackass. And did I mention he's a liar?

Here's how I responded to Levy regarding his blatant effort to use my blog to feather his own nest -- after treating me with utter disdain. This is from an e-mail I sent on October 11, 2016:

Mr. Levy:

I have heard from both you and Mr. Volokh, in various forms, over the past two days re: Profile Defenders (PD) and Richart Ruddie. I gather you are responding to my recent report about Public Defenders essentially using my blog, Legal Schnauzer, to help advertise their "services."

While I share your concerns about Profile Defenders, a previous encounter with you gives me pause. Alabama deputies beat me up inside my own home (with no apparent warrant), doused me with pepper spray, and threw me in jail for five months over the very issue present in the PD story -- the use of unlawful preliminary injunctions to silence free speech and a free press.

Here is what I wrote to you on 3/27/14, the day after I was released from jail: For some reason, I was under the impression that Public Citizen actually cared about the sort of abuse I had suffered.

"Mr. Levy:
I am a journalist/blogger in Alabama, and I was released from jail yesterday after being incarcerated for five months because of a preliminary injunction in a defamation case. It's all very similar to Dietz v. Perez, and I thought it might be of interest to you. I need legal representation and wanted to see if we could talk. My case has been widely covered in the NY Times, Al Jazeera, Huffington Post and many other news outlets, and even right-wing commenters seem to acknowledge that the injunction without a trial (in fact, without any discovery at all) is wildly unconstitutional. I would appreciate any insights or guidance you can offer.

Best regards,

Roger Shuler"

Don't know how I could have been any more courteous to you, but this is the response I received later that day: 

"From what you say, you must be the guy who was enjoined and simply refused to comply with the injunction, and, from what I have heard from others, you were also too pigheaded to accept sound advice. Not a very attractive client for pro bono work!"

At the time, I was amazed that someone in your position could be so rude and thoughtless to someone who had just been released from a wrongful incarceration over First Amendment issues that you claim to champion. In fact, it made me wonder what Public Citizen really is all about -- if it is mostly for show, not attacking injustice.

Imagine my surprise to discover today that you had left a comment at my blog to more or less promote the recent article Mr. Volokh and you wrote on the PD case at The Washington Post.

That takes some audacity on your part, given the way you've treated me in the past, showing that you don't really give a flip about victims of injustice related to the First Amendment -- especially if they have been victimized by members of America's "legal tribe." I guess if I had gotten blow back from a review at Yelp, you would have jumped right on it. But a journalist beaten and incarcerated, on behalf of corrupt lawyers, because of an unlawful injunction in a defamation case? Nah, we don't care about that.

In your communication to me in 2014, you came across as one of the biggest jerks I've ever encountered, almost making light or sport of what had been done to me.

You are welcome to respond or explain yourself in any way that you care to, but I'm having a hard time figuring why I should want to have anything to do with you or your organization.

In a case of "a tiger does not change his stripes," here is how Levy responded:

I stand by what I said to you two and a half years ago.

You came to me on March 27, 2014, seeking free legal representation after having defied an injunction because you thought it was wrongfully issued, which you are simply not entitled to do. As it happened, I had previously been in touch with another First Amendment litigator who thought you difficult to work with and impervious to sound legal advice. Wholly apart from the fact that the legal representation you were seeking fell outside the normal limits of what sort of case we take on (as I explained to you in a part of my email that you have omitted here) I also concluded that it would not be a sound use of Public Citizen’s very scarce resources to represent you. I gave you a direct response that was not sugar coated. Perhaps you are not used to that.

Well, by golly, we learn that in LevyWorld, being an asshole is just another form of "being direct." What a convenient excuse that is. And notice in the highlighted section that Levy provides more evidence that he and some other lawyer (David Gespass, of Birmingham?) had trampled my right to attorney-client confidentiality.

Realizing that Levy was an even larger steaming pile of feces than I thought possible, I responded thusly:

No, I'm fine with directness. My problem is with jerks and phonies like you. I am, however, used to liars, which you seem to be since I have seen cases where you and Public Citizen represented individuals prior to appellate stage. Your Web site says, "Our attorneys litigate cases at all levels of the federal and state court systems." Is that a lie? That doesn't apply to cases of alleged defamation?

For sure, you are lying about me. I didn't "defy" an injunction, I challenged service on it and was waiting on a ruling when brown shirts entered our home and hauled me to jail. (I suppose you think it's fine for a cop to serve court papers during a bogus traffic stop, and such chicanery should not be challenged?) An Alabama lawyer who reviewed the file said we never were summoned to court in the first place, and that a preliminary injunction was issued before we even were served. (See letter at link below.)

Here's the truth: You jump on easy cases involving Yelp and such, but if lawyers are behind abuse of free speech, you have no interest in the case and essentially engage in a cover up. Corrupt lawyers like Rob Riley and Christina Crow caused me to be incarcerated, and you are their protector -- screw the First Amendment. You and Public Citizen are dishonest to the core -- and I see you still are a rude, thoughtless twit.

Here are a few questions for you:

(1) Who was the First Amendment litigator who told you I was difficult to work with? What specific examples did he give? Did he tell you this via phone, email? If by email, would you please send me a copy of the communication? Did you make any effort to get my side of the story, or you just take one lawyer's word for it.

(2) To what sound legal advice was I supposedly impervious? Please share some examples?
David Gespass letter (Also embedded at end of post)

No wonder so many people despise lawyers.

First, I corrected Levy on a few key points, noting that a lawyer who reviewed the file (Gespass) acknowledged we never had been summoned to court or lawfully served. I then challenged Levy to identify the "First Amendment litigator" who had trashed me and to describe the supposedly sound advice to which I was "impervious." Boxed into a corner, Levy apparently decided he didn't want to sass me anymore. His reply:

I have no interest in engaging in further dialogue with you about this.

I saw that as an opportunity to have the last word, so I let him have it again:

No, I'm sure you don't. But you want to use my blog to help promote your worthless activities at Public Citizen, and you strongly suggest that a First Amendment lawyer defamed me. If I were in your shoes, I wouldn't want to "further the dialogue" either. But you and PC may be hearing from me again real soon. Insulting victims of injustice and helping corrupt lawyers cover up their crimes, that's what Public Citizen is all about. Ralph Nader must be very proud. Should be fun to pull the mask off his bogus "advocacy group."

By the way, I thought of another lie from you. I never asked you for "free legal representation." I had no idea how PC conducted its fee arrangements.

This should be your motto: "Public Citizen: We might advocate for you if your case is easy and doesn't involve much effort on our part. But if your First Amendment rights have been abused by a pack of thieving lawyers and a hideously corrupt judge . . . well you are on your own, Bub. Our No. 1 goal is to protect the legal tribe at all costs. If they caused your problems, we will lie about you, insult you, help defame you, and blame you Our strategy in such cases is to 'blame the victim.' That's what Naderism has come to mean."

Did I mention that Levy is a lying sack of shit? Well, we have more evidence of that in an upcoming post.

(To be continued)