Wednesday, September 5, 2018

Kavanaugh hearings get off to raucous start, but Alabama judges Lynwood Smith and Karon Bowdre show U.S. courts are dysfunctional from the top down

Brett Kavanaugh, on the first day of his confirmation hearings,
as aide Zina Bash appears to make a white-power symbol,
near her left elbow, behind him.

The Senate Judiciary Committee began the Brett Kavanaugh hearings yesterday amid shouts from angry protesters and heated debate among committee members over the failure to receive more than 100,000 documents from the nominee's professional history. One member called the hearings a "charade," while another heavyweight politico said the process had "all the makings of a cover up."

It was hard to dispute that characterization. Heck, the festivities even included Web-fueled speculation that Kavanaugh aide Zina Bash made a white-power symbol in full view of a national-television audience. You might call all of this judiciary-related corruption at the "corporate office" level. Meanwhile, "retail level" corruption continues unabated in federal courts across the country -- and far greater legal minds than mine have spoken about it. Meanwhile, my wife, Carol, and I have witnessed it -- in up close and personal ways -- over and over again.

One of the most recent examples came from our efforts to have U.S. District Judge Virginia Emerson Hopkins disqualified from our pending "Jail Case" due to bias or prejudice. Presiding Judge Karon Bowdre referred the matter to Senior Judge Lynwood Smith, which caused me to do a face palm.

Why? Several news outlets have reported that Smith and former Gov. Bob Riley are cousins. It's hardly a secret. One of the defendants in our case is Rob Riley, the former governor's son. That means Smith was set to rule on an issue to which a family member was a party. The judges involved apparently thought we were too stupid to realize what was going on. But when we filed a motion pointing out Smith's conflict and seeking his recusal, Bowdre ruled the whole thing was perfectly fine. (Our motion and Bowdre's ruling are embedded at the end of this post.)

In the process, Bowdre butchered the relevant law -- proving that you, too, can become a presiding judge if you fulfill the apparent requirement that you be both crooked and incompetent. That's justice in the Northern District of Alabama. Talk about a charade.

To no one's surprise, Lynwood Smith ruled that Hopkins could stay on the case, allowing her to continue making unlawful rulings to benefit Rob Riley, members of his law firm, and his political allies -- including a female lobbyist with whom he has been reported to have a particularly "close relationship." (Smith's ruling is embedded at the end of this post.)

Smith essentially pulled out every excuse possible for Hopkins' actions, while largely ignoring the proper standards by which the motion was to be reviewed. The gist of his finding can be found on page 3 of his opinion:

Plaintiffs' allegations do not rise above the level of mere speculation. There is no indication that plaintiffs' criticism of political figures who have supported Judge Hopkins's political career actually caused her to harbor any bias against plaintiffs that has affected her decision-making in this case.  

Where does Smith go wrong? Here are two key grounds:

* Eleventh Circuit law holds that allegations in an affidavit must “convince a reasonable person that a bias exists.” United States v. Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987). In fact, a law-review article on the subject states: "Indeed, virtually every circuit has adopted some version of the 'convince a reasonable person' test." Further, courts have held that the standard must be that of a reasonable layperson, not a reasonable judge or lawyer. Judge Smith makes no mention of applying such a test.

* The Eleventh Circuit also has held "the benefit of the doubt is now to be resolved in favor of recusal." United States v. Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987). Judge Smith makes no mention of this requirement.

Lynwood Smith
Of course, the biggest problem with Judge Smith is that he has a familial relationship with Rob Riley, a party in the case. Even worse, Smith does not disclose this relationship in his ruling on Hopkins' disqualification. It was left to us to bring it up, which we did -- and it involves Ronnie Gilley, who developed Country Crossing in the Dothan area. From our motion:

One of the primary defendants in this matter is Rob Riley, son of former Gov. Bob Riley. Most of the other defendants are politically or professionally connected to Rob and Bob Riley.

According to published reports, Judge Lynwood Smith and Bob Riley are cousins. That means Judge Smith is related to Defendant Rob Riley.

No wonder Judge Smith denied the Shulers’ motion to disqualify Judge Virginia Emerson Hopkins for obvious bias and prejudice. He obviously is biased and prejudiced toward defendants who either are members of his family and connected to members of his family.

A 2009 article from the Enterprise Southeast Sun states: “[Bob]Riley released a statement Monday praising U.S. District Judge Lynwood Smith's ruling in favor of a Madison County sheriff who seized 200 machines from a bingo hall in Triana. He called the action a definitive ruling on the illegality of electronic bingo machines as a whole throughout the state. . . . A press release from [Ronnie] Gilley's office countered Riley's assessment of the ruling, stating the ruling "is not representative of the legality of other charitable electronic bingo operations in Alabama." "Gov. Riley's comment calling his cousin's ruling 'definitive' is a misrepresentation of the ruling," the release further states. "Smith's decision in favor of the sheriff's accusations that the bingo operation in question was operating illegally was warranted based on facts surrounding the allocation of revenue received from the bingo operation and failure to comply with Amendment 387. Smith's ruling was not in reference to the legality of the machines, but rather the legality of how the Department of Texas Veterans of Foreign Wars was operating its business." In reference to allegations that Riley and Smith are cousins, Jeff Emmerson with Riley's press office confirmed the men are "distant cousins."

What does this mean for our case? Well, it shows Lynwood Smith has a history of ruling in favor of his family members, the Rileys -- and Ronnie Gilley called him out on it. History repeated itself in our case, with Smith again favoring the Riley family and failing to disclose his conflict of interest. From our Motion to Disqualify Lynwood Smith:

So, it’s undisputed that Lynwood Smith and Bob Riley are cousins, meaning Smith is related to defendant Rob Riley. Smith also has a history of cheating on behalf of the Rileys, taking cases where they are involved and he is disqualified. That Smith ruled on the Shulers’ motion without disclosing this blatant conflict of interest shocks the conscience – assuming any of the judges in the Northern District of Alabama has a conscience. Smith unmasks himself as a glorified con man, which is on par with the bias and prejudice Hopkins has shown from the outset of this case.

Summary: Judge Smith is disqualified, and his judgment is due to be vacated as void, per Liljeberg v. Health Services Acquisition Corp, 486 US 847 - Supreme Court 1988. Judge Hopkins remains disqualified, and her judgments are due to be vacated as void, per Liljeberg.

How did Presiding Judge Karon Bowdre handle the matter? She found that it's perfectly fine for Judge Smith to rule on a matter where one of his family members is involved. No kidding. Of course, Bowdre had to butcher the law to get there. From her ruling:

In response to the plaintiffs’ present motion, Judge Smith submitted an affidavit describing his genealogical relationship to Rob Riley, and demonstrating that the degree of their kinship, “calculated according to the civil law system,” is seven degrees — far more than the three degrees of relationship proscribed by 28 U.S.C. § 455(b)(5). Accordingly, the provisions of 28 U.S.C. §§ 455 do not support plaintiffs’ motion and Judge Smith was not disqualified from ruling on the motion referred to him.

Notice that Bowdre cites law from 28 U.S.C. 455, which is one of two statutes related to judicial disqualification. But Bowdre acknowledges in the first paragraph of her ruling that we filed our motion under 28 U.S.C. 144, the other federal disqualification statute. In short, Bowdre knew our motion was filed under one statute, but she decided the motion based on another statute.

Even if Sec. 455 applied to our motion, Bowdre still butchered the law. She acknowledges that the overriding standard is as follows:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Lynwood Smith is related to an opposing party in our case -- and that is undisputed. Might his impartiality "reasonably be questioned"? The answer obviously is yes. Only in a federal courthouse might someone come up with a different answer.

Bottom line: Sen. Richard Blumenthal nailed it yesterday when he called the Brett Kavanaugh confirmation hearings a charade. But the dubious nature of our federal courts is not breaking news. They have been a sewer long before Kavanaugh was nominated for the U.S. Supreme Court.

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