Friday, September 29, 2017

Three more indictments come in Superfund scandal, putting Balch and Drummond "mules" on the run and producing absurdist comments from defense counsel

U.S. Attorney Jay Town announces indictments
Yesterday's announcement of federal indictments against two Balch Bingham lawyers and one Drummond Co. executive is a rare sign that members of Alabama's white ruling elites (also known as "Big Mules") might be held accountable for their underhanded acts. It also brought a quote that might represent one of the most damning statements ever about the legal profession. The quote came from a member of a Birmingham law firm that has a recent history of making ludicrous arguments in court. We've seen that firsthand -- and our experience suggests defense attorneys will be making quite a few nonsensical arguments as they try to keep Big Mules out of federal prison.

A six-count indictment filed in U.S. District Court charges Joel Iverson Gilbert and Steven George McKinney, both partners in the Birmingham law firm Balch Bingham, and David Lynn Roberson, vice president of government and regulatory affairs for Drummond Co., with conspiracy, bribery, wire fraud, and money laundering. The indictment alleges they conspired to provide former state Rep. Oliver L. Robinson Jr. with a valuable and confidential consulting contract in exchange for his taking official action favorable to Balch and its client, Drummond, regarding a Superfund cleanup site in north Birmingham.

A press release from the U.S. attorney for the Northern District of Alabama provides no clues if additional indictments are coming. But according to one recent press report, U.S. Sen. Luther Strange (R-AL) was present when a Drummond representative offered State Rep. John Rogers a bribe. Jessica Medeiros Garrison, Strange's one-time campaign manager and mistress, served in an "of counsel" role at Balch until exiting the firm in May -- and her social-media presence mostly vanished in the weeks after Strange's name was raised in connection to the Superfund case. For good measure, Trump attorney general Jeff Sessions, who already is at the center of the RussiaGate scandal, is closely aligned with Balch.

We highly recommend a relatively new local Web site, Its report on yesterday's indictments is titled "Will Balch Bingham Partner Turn Federal Witness?" From that post:

Looks likes Balch has seen the writing on the wall and appears to have thrown the indicted partners under the bus. (Putting them on administrative leave and deleting their Web pages.)

We note the silence from Steve McKinney. Will McKinney turn federal witness? Will he, too, start singing like a canary?

On his web page at Balch (since taken down), McKinney wrote, “I 'get the call’ when an environmental problem has developed and legal or strategic help is needed fast.”

So who called McKinney when Drummond needed help in suppressing the African-Americans in North Birmingham? Who did he report to about the Robinson Bribery scheme? Did any other partners or Balch lobbyists know about this scheme?

The post ends with this, which offers sound advice and sobering thoughts:

On that same now defunct web page, McKinney noted, “I come from a blue-collar home where education and a serious work ethic came in daily doses.”

Maybe its time to use blue-collar smarts to shorten one’s possible prison sentence, a potential death sentence.

At 62 years of age, even a 15 year federal prison term would mean McKinney could die in prison. Now that’s a bitter dose of reality.

As for the extraordinary comment we mentioned at the beginning of this post, it came from Gilbert's defense attorney -- Jack Sharman, a partner at Lightfoot Franklin and White. Before the indictments were announced, Sharman said, as stated at Alabama Political Reporter:

“Joel Gilbert is innocent of these charges,” Sharman said. “He did not bribe anyone. This is a case that never should have been brought. Joel represented a client in a legal dispute with the EPA, a powerful and, in this case, over-reaching federal agency. Everything he did while representing that client was lawful and ethical. He is a longtime partner at a leading law firm. A lawyer with a reputation for honesty and integrity, he did what is routine for good counselors to do for corporate and individual clients every day – he engaged a consultant through a written contract to perform real and lawful services.

The way I read that, Sharman is saying: "The line between bribing someone and providing routine legal work is so thin that reasonable minds hardly can tell them apart." Gee, the Alabama State Bar should be delighted to learn that.

It's not unusual for members of the Lightfoot firm to make off-the-charts legal arguments. We've seen it in what we call "The House Case," a federal lawsuit that is on appeal before the Eleventh Circuit in Atlanta. The Lightfoot firm represents multiple defendants -- Marie Claire, Hearst Corp.,, and Yellowhammer News -- in "The House Case."

One of Lightfoot's arguments is that demonstrably false and defamatory statements are "substantially true." No kidding. They also argue that the Marie Claire fashion magazine is a "well-respected news source." Again, no kidding. You can check out a Marie Claire cover (left) and decide for yourself if it appears to be a serious news source. Here is how we reported it in a January 2017 post:

Lawyers for Hearst Corporation take a demonstrably false claim from their Marie Claire fashion magazine -- that there was a trial in Jessica Medeiros Garrison's lawsuit against me -- and argue that it was "substantially true," and, thus, not defamatory. The same lawyers -- from Birmingham's Lightfoot Franklin and White firm -- represent the right-wing propaganda site Yellowhammer News (YH) and argue that its reporting on the Garrison case is not defamatory because it came from a "well-respected news source."

Anyone can check the public docket in Garrison's underlying defamation case -- the one where she was awarded $3.5 million in a default judgment that, by law, is void for failure to notice the opposing party -- and see there was no trial. From our January report:

As noted in an earlier post, Hearst can't keep its story straight. It claims the Marie Claire article was based in part on court records from Garrison's lawsuit. But the article repeatedly misstates facts that easily could be found from a check of the court records. For example, the article states there was a trial when there clearly was no trial. There wasn't even any discovery or summary-judgment proceedings that generally must precede a trial.

Still, Hearst wants the court, and the public, to believe that the article's false statement regarding a trial is "substantially true" -- that a hearing and a trial are more or less the same thing. I'm sure that would be news to anyone who has the slightest knowledge of our justice system. I guess it means that a rhinoceros and a rabbit are substantially the same thing, given that both words begin with "r"

Here is part of our argument in response to the Lightfoot nonsense:

Hearst’s false claim that there was a trial in the Garrison matter: 
. . . Hearst claims the statement is “substantially true” and “not capable of defamatory meaning.” Hearst claims “a trial is synonymous with an evidentiary hearing,” but it provides zero citations to law to support that statement. In fact, Hearst cites Alabama law holding, “A communication is considered defamatory ‘if it tends so to harm the reputation of another as to lower him in the estimation of the community . . . “ The statement in the Marie Claire article does exactly that to Roger Shuler. It claims that Mr. Shuler was hit with a $3.5-million judgment after a trial (supposedly a jury trial, as required by First Amendment law), after discovery and a trial on the merits. But none of that happened; there was no discovery, there was no trial, there was no jury, and there was no valid judgment. The report of a trial is false, and it clearly harms Roger Shuler’s reputation as a journalist and as a human being. It suggests Roger Shuler was found liable for a huge award by a jury of his peers; in fact, that did not happen at all. Finally, Hearst claims this ruling is a question for the court. If that is so, the court is required to make all findings while viewing matters in “a light most favorable to the nonmoving party (the Shulers).” On multiple grounds, the court is required to find for the Shulers on this issue.

As you can see, Lightfoot lawyers can't keep their stories straight, often can't support their arguments with citations to law, and they even tend to wind up admitting that their own statements are horse manure.

Look for more of that kind of thing as the Superfund scandal unfolds. We've seen it up close.

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