Tuesday, November 12, 2019

A verdict procured by perjured testimony and fraud on the court -- as happened in Carol's Missouri "assault" case -- cannot stand, under both state and national law


Jerry Harmison
Perjury by law-enforcement officers was at the heart of a recent $19-million jury verdict in an employment-discrimination case brought by a veteran, gay cop in St. Louis County, Missouri. In that instance, the target of false testimony -- Keith Wildhaber, who was told to "tone down your gayness -- came out on top, and cop witnesses are being investigated for perjury.

We have seen the flip side of such shenanigans in an up-close way. It came in the bogus "assault on a law-enforcement officer" case that Greene County Sheriff Jim Arnott and Prosecuting Attorney Dan Patterson brought against my wife, Carol, as a way of covering for cop thugs who broke Carol's arm during an eviction where they had no lawful grounds to even be on our rented property. Officer Scott Harrison clearly committed perjury, and three of his colleagues made statements under oath that were wildly at odds with their accounts of the incident in written reports.

The law is clear -- at both the state and national levels -- that a verdict based on perjury cannot stand. Missouri judge Jerry Harmison Jr. should know that, of course, but we learned a long time ago that you never can assume a judge knows the law. That prompted my wife, Carol, to file a post-trial Motion to Vacate Judgment That Was Procured by Fraud, Perjury, etc. after Harmison wrongfully had found her guilty of assault on a law enforcement officer.

Unfortunately, we also have learned that you never can assume a judge who has been informed of the law will apply it correctly. So, we were not remotely surprised when Harmison either failed to read Carol's motion or chose to ignore its contents -- upholding a verdict that was unlawful on multiple grounds, including the fact it was based largely on perjured testimony from Greene County deputy Scott Harrison.

How serious is this matter? Under Missouri law, perjury is a fraud on the court, and Deputy Harrison is subject to criminal prosecution for it.

At oral argument on Carol's six post-trial motions, Harmison did not even mention the perjury issue. Perhaps that's because he knew it could not be disputed that Harrison made at least one false statement under oath -- and it clearly was material, meaning it constituted perjury. Harmison's refusal to address the issue of fraudulent testimony -- and Carol's trial was riddled with it, from all four cop-witnesses the state called -- was a signal that the judge's main goal was to protect law-enforcement types who brought a bogus criminal case against Carol in an effort to cover up the excessive force that caused them to break her arm.

In fact, we've uncovered evidence that Harmison was trying to protect one of his family members, son-in-law Ryan Olson, who was a member of the prosecutorial team that brought charges against Carol without the slightest hint of probable cause. In other words, Harmison was trying to defend his own nest -- which means he was disqualified from hearing the case, and his rulings are due to be vacated.

As for perjury, Carol addressed it in item No. 6 of her post-trial Motion to Vacate . . . For Fraud, Perjury, etc. (Harmison's judgment, Carol's motion, and video evidence that Harrison committed perjury are embedded at the end of this post.) Here is relevant law at the state level:

In Missouri, perjury is considered a fraud on the court, and a trial court is not limited in its ability to set aside a judgment procured by fraud. From In Re Marriage of Clark, 813 S.W.2d 123 (1991): “Where there is fraud upon the court, Rule 74.06 does not limit the power or time of the court to entertain an independent action to relieve a party from a judgment. Rule 74.06(d); McKarnin v. McKarnin, 795 S.W.2d 436, 439 (Mo.App.1990). . . .

Although the rule makes no distinction between intrinsic and extrinsic fraud, see Rule 74.06(b)(2), intrinsic fraud is the use of perjured testimony or fabricated evidence. McKarnin, 795 S.W.2d at 439. "Extrinsic" fraud is fraud which induces a party to default or consent to the judgment. Id.

In other words, Harrison committed an intrinsic fraud upon the court, and there is no time limit for Carol to bring an independent action seeking relief.

Scott Harrison
The U.S. Supreme Court also has weighed in on the matter, as Carol points out in No. 9 of her motion (citations omitted):

The nation’s highest court long has held that the kind of perjured, false, and fabricated evidence present here requires a trial court to vacate a guilty verdict. From Napue v. Illinois, 360 US 264 (Supreme Court, 1959): “First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. . . . The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. . . . 

The nation's highest court held in Napue that false testimony does not just shatter the credibility of the witness in question; it taints the whole process:

The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. 
As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N. Y. 2d 554, 557; 136 N. E. 2d 853, 854-855; 154 N. Y. S. 2d 885, 887: "It is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter . . . what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. . . . That the district attorney's silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair."

Harrison was not the only cop-witness who made sketchy statements under oath in Carol's trial. The other three -- Jeremy Lynn, Debi Wade, and Christian Conrad -- also made such statements.

Is it any wonder Carol wrongfully was found guilty of a crime, even the so-called "victim" (Officer Jeremy Lynn) admitted she did not commit.

The Keith Wildhaber case teaches that certain cops have no qualms about making false statements under oath. The Wildhaber case was a civil matter, as opposed to the criminal case that faced Carol -- and Wildhaber was fortunate to come out on top, to the tune of $19 million, in his case. But Carol's experience shows lying cops can cause an innocent person to be convicted, and we see no sign that cops care in the least if that happens.












Thursday, November 7, 2019

Popeye's Pandemonium! The chicken sandwich from heaven leads to hellish scenes of violence, including a parking-lot stabbing death for cutting in line at a Maryland restaurant -- with lawsuits likely to follow




Authorities in Oxon Hill, MD, are searching for a suspect in the fatal stabbing of a man, who reportedly cut in on a line of customers waiting to order the wildly popular chicken sandwich at a Popeyes restaurant and wound up dead in the parking lot a few seconds later.

The "Death by Chicken Sandwich" story is one of those nutty postmodern news items that leave you not sure if you should laugh or cry. We predict the story will get even nuttier when creative lawyers start filing lawsuits for torts like premises liability, wrongful death, negligence,"failure to protect against hungry hordes," and "failure to provide security for customers seeking fast-food delicacy."

Some early reports had not-quite-accurate headlines like "Man stabbed to death after argument over Popeyes' chicken sandwich." The argument actually was over cutting in line -- but, of course, there would have been no line if the sandwich wasn't so damned good -- it has received rave reviews in Southern Living and The New Yorker, with the latter proclaiming it would "save America."

(Full disclosure: I've had the spicy version of the Popeyes sandwich on three occasions, and my verdict is that it is, in fact, a fine and tasty concoction. Is it worth all the fuss? Well, I wouldn't kill anybody over it . . . I don't think.)

This is only one of several reports about violence at Popeyes locations since the company started serving such a damned good sandwich back in the summer. TMZ has video of a drive-thru beat down and a scuffle among workers. Business Insider reports that restaurant employees have received threats from customers after running out of the sandwiches, and one customer even pulled a gun in such a situation. In another incident, armed robbers stormed a Popeyes in Houston and demanded employees make them chicken sandwiches.

What happened on Monday night at the Maryland establishment? Here's how The Washington Post describes it:

About three dozen people packed into the busy Popeyes in Oxon Hill, Md., on Monday night, with many of them waiting to order one of the fast-food restaurant’s popular chicken sandwiches.

One man entered the store before 7 p.m., and over 15 minutes “methodically” cut ahead of people in line until reaching the front counter, Prince George’s County Police Chief Hank Stawinski said Tuesday. But before he could buy the meal he intended to get, an argument broke out between him and a man who confronted him about skipping the line, Stawinski said.

Within 15 seconds after words were exchanged, police said, a fight spilled out into the parking lot of the restaurant, leaving the man who had been line-jumping fatally stabbed.

The killing of the man, who police identified Tuesday as Kevin Tyrell Davis, 28, of Oxon Hill, left authorities stunned over the “pointless” violence as they continued to search for the assailant.

Friends and family members describe Davis as . . . well, just an impossibly swell guy. From The Post:

Outside of Davis’s home Tuesday evening, family members gathered in mourning. They declined to give their names or speak to the specifics of what occurred Monday night but said they did not think the altercation was over a sandwich.

“He was awesome,” a cousin said. “It surely wasn’t over no chicken sandwich. It was senseless.”

“He was a great young guy trying to get his life together like all young people,” said a woman who identified herself as an aunt. “He was a great kid.”

My thoughts? If Davis was so "great" and "awesome," why did he think it was a good idea to cut in line ... anywhere, much less at Popeyes, where they serve damned fine sandwiches? Having been the victim of line-cutters a time or two in life, I consider them to be among the most thoughtless and boorish cretins on the planet. If Davis had anything besides chickpeas between his ears, he should have known that in any public situation --  in the era of Trump, the NRA, and "Moscow Mitch" -- several somebodies are likely to be armed with military-grade weaponry. That almost makes cutting in line an act of suicide.

Would I kill somebody for cutting in line? Well, I haven't yet. In the future, it probably will depend on how good a sandwich I'm waiting for.

Suspect in the Popeyes stabbing
Maryland authorities have released a clear photo of the alleged assailant, so the criminal side of the Popeyes story should be resolved fairly quickly. As for the civil side, I can envision attorneys batting out complaints that allege Popeyes should have seen this coming and provided security for customers daring to order a chicken sandwich. I also can foresee lawyers breaking out that old legal chestnut, premises liability, which essentially holds that a property owner can be held accountable for injuries sustained on his property -- even if he had nothing to do with hurting anyone.

My wife, Carol, and I know firsthand about the challenges of premises liability. It's the No. 1 reason we resisted when our criminally inclined neighbor (and Blue Cross/Blue Shield of Alabama employee) Mike McGarity -- and a revolving cast of dozens of kids, most unknown to us -- sought to turn our yard into their playground. It didn't help that McGarity had placed his fence on our yard, essentially stealing roughly 400 square feet of our property, and he showed no sign initially of giving it back -- and he never has paid us for the expenses we incurred because of his "mistake." Here's what I wrote in a previous post on the subject:

Why did such issues confront us? We had the misfortune of having a man named Mike McGarity move in next door to us in late 1998. McGarity has the trappings of a standard-issue suburban dad -- a wife, two kids, a job at Blue Cross and Blue Shield of Alabama. But his belligerent and threatening tone, which we encountered regularly, hinted that something dark was going on. We eventually learned that McGarity, in fact, has at least eight criminal convictions in his background.

And yet, this menacing fellow decided he, his kids, his kids' friends, other adults, and a veritable cast of thousands (other neighborhood kids, many of whom we didn't know, didn't know their parents) should be able to turn our yard into a playground -- without bothering to ask for our permission. When I instructed McGarity to keep himself and his minions off our property, I was greeted with "I'm going to sue you for harassment" and "We're going to keep on coming."

Why was that a concern, aside from the fact McGarity had proven he's an ass, the kind of person we didn't want to deal with? (When asked to control the ear-splitting barking of his coonhound dog, McGarity's reply: "You just need to get ear plugs."). Well, it involved . . . legal issues . . .

One such issue is called "premises liability." Here is how findlaw.com defines it:

When someone enters your property, they have a reasonable expectation of not getting injured. This means that you, as a property owner (or non-owner resident), are responsible for maintaining a relatively safe environment. This is known as "premises liability." For example, a courier delivering a package may sue you for injuries if he slips and falls on an oil slick in the driveway.

Is this a legitimate legal concern? One could argue that it shouldn't be because it seems patently unfair, but yes, it is real. And it sure as hell was a concern to us:

What if McGarity, or another adult or child from his yard, had slipped and fallen on our property? The injured party likely would have sued us, even if we had maintained a safe environment. (Note: McGarity had already hinted that he was a litigious sort, threatening to sue us for harassment because we tried to exercise our right to keep him off our yard. This just added to the mountain of reasons we did not want him, or anyone affiliated with him, coming on our yard.)

What if a child had fallen on our concrete driveway and sustained serious head trauma? Our insurance rates likely would have skyrocketed, and we might have been dropped as an insured altogether.

Premises liability cases, under Alabama law, involve numerous variables, so its hard to predict the outcome of a particular case. But even if the homeowner prevails in court, the defense of such a lawsuit is likely to be expensive and might still count as a mark against you with an insurance company. The best idea is to try to prevent injuries on your property, and that's exactly what we tried to do.

A Popeyes spokesperson already seems to be thinking of lawsuits, as seen from this reporting at TMZ, which indicates the company has no plans to remove the famed chicken sandwich from its menu -- at least until a few more homicides occur on its premises:

Popeyes' wildly popular chicken sandwich will remain on menus nationwide, despite the chaos it's causing at several locations ... including a fatal stabbing.

A rep for the fried chicken fast-food chain tells TMZ the sandwich is still available ... meaning it's not being pulled in the wake of scattered mayhem erupting across the country since its return to the menu this week. . . .

The chicken chain says the safety of its employees and customers is always a priority, and franchisees have worked to boost staffing during this craze to be ready to serve guests quickly and safely.

It adds that most Popeyes restaurants are franchised and "additional onsite security matters are handled by the franchisees."

Ah, so franchisees are the responsible parties? I'm sure they will be delighted the company shared this information with . . . oh, everybody on the Web. As for Popeyes itself, that defense is known -- in the trade -- as "Dear God, please sue the other guy!"

We will strive to keep track of how well that works. If I were working for Popeyes' insurance company, I would prepare to start writing out checks.

That reminds me . . . all of this journalism stuff is making me hungry. Think I need a spicy chicken sandwich -- and nobody had better get in my way.

Check out this video of people fighting at Popeyes:



Wednesday, November 6, 2019

Jeffrey Epstein's death most likely was due to homicidal strangulation rather than suicide by hanging, according to independent patholgoist, who says official findings were riddled with irregularities




Jeffrey Epstein's fatal injuries looked more like homicidal strangulation than the official finding of suicidal hanging, according to an independent pathologist that Epstein's brother hired. In an interview with the Miami Herald, Dr. Michael Baden pointed to a number of irregularities in the official investigation.

Perhaps most striking, according to Baden, the pathologist who actually conducted the autopsy struggled to reach a conclusion and initially ruled the manner of death as "pending" -- only to have the chief medical examiner change it to "suicide."

From the Herald article by Julie K. Brown, who generally has led the way in reporting on the Epstein case:
Since his brother Jeffrey Epstein was found dead in a New York federal jail in August, Mark Epstein has been worried that his own life, and the lives of other people, may be in danger because federal authorities, believing it a suicide, have not fully investigated the circumstances of the sex trafficker’s death.

Now a private forensic pathologist hired by Mark Epstein to monitor his brother’s autopsy has offered an opinion that bolsters what conspiracy theorists have suggested for months: that the available evidence does not support the finding that Jeffrey Epstein killed himself.

Dr. Michael Baden, one of the world’s leading forensic pathologists, viewed Jeffrey Epstein’s body and was present at the autopsy — held Aug. 11, the day after Epstein was found dead at the notorious Metropolitan Correctional Center in downtown Manhattan.

In an interview with the Miami Herald, Baden described Epstein’s jail cell, the ligature he allegedly used to hang himself, and his own suspicions that federal authorities have not conducted a thorough probe into Epstein’s cause and manner of death.

Perhaps the No. 1 sign that Epstein was murdered involve the number of fractures found in his neck. Writes Brown:

“They rushed the body out of the jail, which they shouldn’t do because that destroys the evidence,’’ Baden told the Herald.

“The brother, Mark, doesn’t think it was suicide — he is concerned it might be murder. It’s 80 days now and if, in fact, it is a homicide, other people might be in jeopardy,’’ Baden said.

Baden’s observations . . . include that Epstein suffered multiple fractures in his neck — injuries he said are more consistent with strangulation than suicide by hanging. Epstein, who was found dead Aug. 10, had three fractures on the left and right sides of his larynx, Baden said.

He told the Herald that it is rare for any bones to be broken in a hanging, let alone for multiple bones to be fractured.

“Those fractures are extremely unusual in suicidal hangings and could occur much more commonly in homicidal strangulation,” said Baden, who added that there were hemorrhages in Epstein’s eyes that are also more common in strangulation than in hangings.

His findings will likely fuel online conspiracy theories that have suggested, with no evidence, that Epstein was killed to keep him from incriminating other wealthy and powerful men involved in his sex trafficking crimes.

Brown notes in her reporting the curious timing surrounding Epstein's death:

On the day before his body was discovered, more than 2,000 pages of court documents were unsealed, revealing that one of Epstein’s young victims, Virginia Roberts Giuffre, had provided sworn testimony in a 2016 court case that Epstein directed her to have sex with a number of men who were prominent figures in politics, finance, science, academics and philanthropy.

Those men have all denied her allegations. But the timing of Epstein’s death, coming just weeks after federal authorities claimed he had previously tried to kill himself at the jail, raised further questions as to why Epstein — one of the most high-profile inmates imaginable — wasn’t being monitored more closely.

New York City Chief Medical Examiner Barbara Sampson, who made the official finding of suicide, fired back at Baden's conclusions:

Baden’s opinion contradicted New York City Chief Medical Examiner Barbara Sampson, who ruled Epstein’s cause of death to be a suicide by hanging.

Sampson, in a statement . . . , said she is confident in her conclusion that Epstein hanged himself.

“Our investigation concluded that the cause of Mr. Epstein’s death was hanging and the manner of death was suicide. We stand by that determination. We continue to share information around the medical investigation with Mr. Epstein’s family, their representatives, and their pathology consultant. The original medical investigation was thorough and complete. There is no reason for a second medical investigation by our office.”

Baden does not share Sampson's certainty. From the Herald report:

Baden told the Herald that the pathologist who actually conducted the autopsy, Dr. Kristin Roman, also had trouble determining that Epstein hanged himself, and initially determined that the manner of death was “pending.’’

“The autopsy did not support suicide,’’ Baden said. “That’s what she put down. Then Dr. Sampson changed it a week later, manner of death to suicide. The brother has been trying to find out why that changed. … What was the evidence?”

Sampson has not released the full autopsy report.

It's possible Sampson has access to evidence she has not shared with Baden, but years of experience have taught Baden that prison death scenes can easily be manipulated:

Baden acknowledged that there could be additional evidence that led to Sampson’s conclusion that she has not shared with him or Epstein’s brother.

Baden, 85, who once led the New York City Medical Examiner’s office, has participated in some of the country’s most infamous death investigations, including the congressional inquiry into the assassination of President John F. Kennedy.

For nearly five decades, Baden has also been a member of a New York state commission that reviews deaths in the state’s prisons, and knows how crime scenes within the isolation of prisons can be tainted and even staged.

“There’s always concern that if the only reporting you are getting is from those involved in the care of that inmate that it may be biased,’’ Baden said.

What about other possible irregularities in the Epstein investigation? Writes Brown:

In this case, Baden said he saw a photograph of Epstein’s cell after his body was removed. It showed a ligature fashioned from an orange bed sheet on the floor of the cell. Baden said he was told — but shown no written report — that a corrections officer found Epstein’s body, on his knees, with the orange ligature around his neck, tied to the top bunk in his cell.

He pointed out that authorities have only the word of the people in the jail as to what happened, and his impression is that the officers were not forthcoming.

“He was stone-cold dead when they found him,’’ Baden said. “He had been dead for three hours. Rigor mortis set in, and it was apparent he was dead, yet they called EMS and didn’t photograph how the body was found.’’

Baden said Sampson’s conclusion sends a message that there is no need to look further into how Epstein died.

Mark Epstein, Epstein’s only sibling and his next of kin, has been frustrated that he has not been able to obtain the EMS report or the hospital report, Baden said.

“I’d like additional information. Whose DNA is on the ligature? Was the FBI able to get any information from the jail cell’s video and hall video? Did they find it shows him hanging himself up or someone unauthorized went into the cell from the hallway? Did the FBI interview any of the inmates? Did they interview any of the guards who were allegedly asleep?’’

Baden said that these are all questions that should be answered before concluding that Epstein committed suicide. And he said questions about the federal facility’s apparent security lapses should also be a factor to explore.

Following the autopsy, it was revealed that the two prison officers who were assigned to monitor Epstein at 30-minute intervals fell asleep and that at least some of the security cameras in the wing were not operating.

Baden, who has conducted more than 20,000 autopsies, said that in 50 years he has never had a prison death where two corrections officers fell asleep, nor has he ever had a case where three bones were broken in an alleged suicide by hanging.

He said that in hangings most deaths occur as a result of compression or obstruction of the carotid arteries in the neck, which would restrict blood flow to the brain, causing death. The fact that Epstein suffered fractures suggests that force was used, he said.

Tuesday, November 5, 2019

Money trail from Balch Bingham to Jeffco Judge Carole Smitherman raises alarms that "justice" can be bought for certain elites in Alabama's "Magic City"


Judge Carole Smitherman

Have an Alabama judge and her legislator husband been caught red-handed accepting cash payments in exchange for court rulings that benefit individuals and entities tied to one of the state's largest, most ethically challenged law firms? The answer appears to be yes, according to a document recently filed with the Alabama Supreme Court in a case styled Burt W. Newsome and Newsome Law, LLC v. Clark A. Cooper and Balch Bingham, et al.

At the heart of the Newsome case are allegations that Cooper, a former partner at the downtown-Birmingham office of Balch Bingham, engineered a conspiracy to frame Newsome for a crime (menacing) in Shelby County, which was to put Newsome's law license at risk, allowing Cooper and associates to pilfer chunks of Newsome's lucrative collections business with several banks.

Burt Newsome
That sounds ugly enough, but things really get seamy when you examine a chart Newsome filed with his appellants' reply brief, dated Oct. 10, 2019. The chart lays out in stark details payments from Balch affiliates -- yes, that's the same Balch Bingham that is tied at the hip to Alabama Power and was embroiled in the North Birmingham Superfund Bribery Scandal -- to Jefferson County Circuit Judge Carole Smitherman and her husband, Rodger Smitherman, which were shortly followed by rulings that favored Balch and affiliates in the Newsome lawsuit.

Judge Smitherman's handling of the Newsome lawsuit involves numerous foul-smelling oddities, but these two stand out:

(1) Before retiring in January 2019, Shelby County Presiding Judge Hewitt L. "Sonny" Conwill issued an order reversing an expungement of Newsome's record in the menacing case. Conwill, however, never entered the order in the State Judicial Information System (SJIS), and Newsome contends that makes the ruling void, a "non-order," as a matter of law. Judge Smitherman proceeded to rely on the Conwill "counterfeit order" to grant summary judgment in favor of the Balch defendants and impose more than $190,000 in sanctions against Newsome under the Alabama Litigation Accountability Act (ALAA). Newsome argues that Smitherman's rulings should be vacated and she should be recused from the case.

(2) Smitherman's rulings, favoring Balch and trashing Newsome, are grossly unsupported by facts, as banbalch.com noted in a January 2019 post:

Smitherman approved over $192,000 in redacted attorney fees against Burt Newsome. In other words, Newsome and his legal team were given bills that were blacked-out, they couldn’t read, and then told to pay up. . . .

This is more than a miscarriage of justice against Newsome.

This is a horn, a loud horn exposing to the world what unconscionable and unsavory depths to which Balch and Bingham and its stooges will allegedly go to destroy the rule of law and to carry on an arrogant march of defiance with impunity.

How did Judge Smitherman, and her husband, become such stooges for Balch? A chart that Newsome includes in his reply brief provides the likely answer. (The chart is embedded at the end of this post, and it can be found on page 19 of the reply brief, which also is embedded at the end of this post.). Let's break down the chart and see just how unsavory activities can get in the "Alabama Justice System":

I. Date: 7/26/17

A. Payments to Smithermans: Judge Smitherman's husband receives $2,500 from Alabama Power PAC -- then run by former Balch partner Alexia Bolden.

B. Act, Oder, or Context: Smitherman grants Balch's Motion to Dismiss Plaintiff's complaint 29 days before the scheduled hearing on the motion.


II. Date: 8/31/17

A. Payments to Smithermans: Judge Smitherman's husband receives $2,500 from Hare, Wynn, Newell Newton -- the attorneys for, and employer of, a witness adverse to Newsome. First money ever from Hare Wynn to Rodger Smitherman.

B. Act, Order, or Context: Judge Smitherman orders the entire case file be sealed at Balch's request. Judge Smitherman's husband starts attending closed-door, sealed hearings on this case, inside his wife's courtroom.


III. Date:  11/1/17

A. Payments to Smithermans: NEWPAC, run by former Balch attorney Clark Fine, provides its first ever $5,000 to Judge Smitherman's husband.

B. Act, Order, or Context: Balch files Motion for Attorney Fee Award against Newsome.


IV. Date: 11/16/17

A. Payments to Smithermans: BIPAC, also run by former Balch attorney Clark Fine, provides $5,000 to Judge Smitherman's husband.

B. Act, Order, or Context: Judge Smitherman denies Plaintiff's Motion to Stay Case Pending a Ruling by the Alabama Supreme Court on the "Order" that was Never Entered into the SJIS.


V. Date: 12/4/17

A. Payments to Smithermans: NEWPAC, run by former Balch attorney Clark Fine, provides a second $5,000 to Judge Smitherman's husband. He does not report the contribution until 4/4/18 on his campaign-finance report.

B. Act. Order, or Context: Balch files Motion to Disallow the Testimony of (Robert) Serrett and (John) Manning, showing a single phone number that appears to tie the Balch conspirators together was from a pre-paid "burner" cell phone. The number is (205) 410-1494.


VI. Date: 2/6/18

A. Payments to Smithermans: Andrew Campbell enters the case as counsel for Balch and gives his first ever $2,000 to Judge Smitherman.

B: Act, Order or Context: Balch files its objection to Newsome's Renewed Motion to Stay Case Pending a Ruling by the Alabama Supreme Court on the "Order" that was Never Entered Into the SJIS.

The Balch defendants present a convenient argument for this money trail that appears tied to favorable judicial orders. But Newsome's reply brief suggests the Balch contentions should not fly very far: From the brief:

The [Balch] assertions that Judge Smitherman needed campaign contributions, as judges are forced to run in "partisan elections" is inpplicable to the case at bar as neither Judge Smitherman nor her husband had any opposition in their respective races, the contributions were made while motions were pending and at critical times in the case, they were made by numerous entities who had never contributed to the Smithermans before this case, and the contributions were substantial. Also, the appearance of State Senator Rodger Smitherman at multiple sealed hearings in the case after he had received substantial sums from entities associated with the Appellees/Defendants creates an even further impression of bias and improprieties. 






Monday, November 4, 2019

Newly released memos from Robert Mueller probe point to Donald Trump and Jeff Sessions being part of a conspiracy to obtain stolen Democratic emails


Jeff Sessions and Donald Trump

This past Saturday might prove to be one of the most historic days in many of our lifetimes. It started with a lot of folks, including yours truly, figuring that keeping track of the Georgia vs. Florida college-football game would be the big news item of the day. It ended with revelations -- seemingly coming out of the blue -- that could bring down a president.

Many of us had forgotten, or perhaps never knew, that BuzzFeed News and CNN had filed lawsuits to force release of background materials from Robert Mueller's Trump-Russia investigation. The U.S. Department of Justice chose Saturday to make the first release, with BuzzFeed filing its first dispatch at 11:08 CT. The memos point to officials with the 2016 Trump campaign -- including Donald Trump himself and former U.S. Sen. Jeff Sessions (R-AL) -- seeking to conspire with WikiLeaks and Russia to obtain emails stolen from the Democratic National Committee. From CNN's report:

President Donald Trump and other top 2016 Trump campaign officials repeatedly privately discussed how the campaign could get access to stolen Democratic emails WikiLeaks had in 2016, according to newly released interview notes from Robert Mueller's special counsel investigation.

CNN sued the Justice Department for access to Mueller's witness interview notes, and this weekend's release marks the first publicly available behind-the-scenes look at Mueller's investigative work outside of court proceedings and the report itself. Per a judge's order, the Justice Department will continue to release new tranches of the Mueller investigative notes monthly to CNN and Buzzfeed News, which also sued for them.

A retelling of events from former Trump deputy campaign chairman Rick Gates, who served alongside campaign chairman Paul Manafort, is the fullest detail revealed by the Justice Department yet on discussions within the Trump campaign as it pursued damaging information about its Democratic opponent Hillary Clinton. The documents were stolen by the Russians, the American intelligence community has found.

"Flynn had the most Russia contacts of anyone on the campaign and was in the best position to ask for the emails if they were out there," the investigators also wrote about Gates' interview.

Gates described in an interview with Mueller investigators last year how several close advisers to Trump, Trump's family members and Trump himself considered how to get the stolen documents and pushed the effort, according to investigators' summary. "Gates said Donald Trump Jr. would ask where the emails were in family meetings. Michael Flynn, [Jared] Kushner, [Paul] Manafort, [Redacted] [Corey] Lewandowski, Jeff Sessions, and Sam Clovis expressed interest in obtaining the emails as well. Gates said the priority focuses of the Trump campaign opposition research team were Clinton's emails and contributions to the Clinton Foundation. Flynn, [Redacted] [Jeff] Sessions, Kushner, and [Donald] Trump Jr. were all focused on opposition topics," Gates told investigators, according to the interview summary.

Here are key takeaways from the BuzzFeed team, headed by senior investigative reporter Jason Leopold:

Paul Manafort was pushing the unfounded conspiracy theory — now part of the impeachment inquiry into President Donald Trump — that Ukraine hacked the Democratic National Committee's emails as early as 2016.

The president’s former personal lawyer, Michael Cohen, "had to keep Trump out of the messaging related to Russia” in preparation for his testimony to Congress under oath and that the false testimony was "not his idea."

Top Trump campaign aide Rick Gates said the campaign was “very happy” when a foreign government helped release the hacked DNC emails.

These are some of the revelations that BuzzFeed News pried loose after pursuing five separate Freedom of Information Act lawsuits for all the subpoenas and search warrants that then–special counsel Robert Mueller’s team executed, as well as all the emails, memos, letters, talking points, legal opinions, and interview transcripts it generated.

In response to a court order, the Justice Department released the first installment of documents: hundreds of pages of summaries of FBI interviews with witnesses, available here for the first time. Another installment will be released every month for at least the next eight years.

The documents revealed Saturday, known as “302 reports,” are summaries of interviews with former White House official and Trump campaign manager Stephen Bannon, Cohen, Gates, and more. They are some of the most important and highly sought-after documents from Mueller’s investigation. They reveal what key players in the campaign told FBI agents about Russia, Trump, the email hack during the 2016 presidential campaign, and Trump's associates’ handling of the special counsel’s investigation.

Mueller’s 448-page report last March was the most hotly anticipated prosecutorial document in a generation, laying out the evidence of Russia's interference in the 2016 election and the Trump administration’s efforts to obstruct the inquiry. The report, however, reflected only a small fraction of the billions of primary-source documents that the government claims Mueller’s team may have amassed over the course of its two-year investigation.

Those documents are a crucial national legacy, a key to understanding this important chapter in American history. But the public has not been allowed to see any of them. Until now.

It appears no news outlet has been able to fully analyze the voluminous documents, and they are heavily redacted, so the full story of what they reveal still is in the making. But one of the first summaries came from Bill Palmer, of the Palmer Report, with the headline: "Proof emerges that Donald Trump criminally conspired to try to obtain stolen DNC emails from Russia." From Palmer:

It turns out BuzzFeed isn’t the only one who’s managed to get its hands on memos from the Robert Mueller investigation today. Even as BuzzFeed is exposing that the Republican National Committee was at least indirectly conspiring with WikiLeaks on the release of stolen DNC emails, CNN is revealing that Donald Trump himself was directly in on the plot to illegally obtain the stolen emails.

Trump 2016 Deputy Campaign Chairman Rick Gates testified to Mueller that he heard Donald Trump say “get the emails” to his team. Michael Flynn responded that he could try to obtain the emails from his Russian intel sources, and Trump did nothing to discourage this offer. Knowingly receiving stolen goods is a felony, so this proves that Donald Trump criminally conspired to obtain the stolen DNC emails. Worse, Trump entered into a criminal conspiracy to obtain the emails from Russia.

We all saw Trump stand there on the debate stage and publicly ask Russia to obtain and release Hillary Clinton’s emails – but he’s since tried to play this off as a joke. Now it turns out Trump really was trying to criminally conspire with Russia behind the scenes to obtain stolen emails during the 2016 election cycle.
This FOIA treasure trove of Mueller memos comes even as House Democrats are fighting in court to obtain the full unredacted Mueller report so it can be used in the impeachment process against Donald Trump. While it’s shocking and outrageous that Mueller uncovered proof of Trump’s guilt and it never saw the light of day until now, the timing nonetheless works well for the impeachment process.

Palmer notes that the newly released documents raise questions about Mueller's handling of the investigation. From a post titled "What was Robert Mueller DOING?"

Thanks to newly granted FOIA requests on the part of CNN and BuzzFeed, we’re getting a look . . . at the first batch of internal memos from the Robert Mueller probe. These stunning memos reveal that Donald Trump, his campaign, and the Republican National Committee were conspiring with Russia and WikiLeaks on a level far deeper than anyone knew.

For instance, it turns out Donald Trump instructed his team to obtain the stolen DNC emails, and Michael Flynn then told Trump that he would use his Russian intel contacts to try to obtain them. The Republican National Committee also had advance knowledge of when WikiLeaks was going to release new batches of stolen DNC emails.

These are the kinds of felonies that send people to prison for a very long time. Robert Mueller had all of this information dating back to when Rick Gates cut his plea deal in February of 2018 – and yet nothing came of it. This was long before Bill Barr came on the scene. We don’t know if Mueller put prosecutions in motion that were later shut down by Barr, or if those prosecutions are still underway, or if Mueller just didn’t do anything.

We do know that Robert Mueller apparently ended up including all of this damning evidence in his final report, which he expected would make its way to Congress. By that time Barr was in charge, and he redacted the most incriminating parts of the report. Now it’s finally starting to come out, and it should play a key role in impeachment. But now more than ever, we deserve answers on why Mueller was sitting on a goldmine of information that could have sent Donald Trump and dozens of other people to prison forever, and nothing came of it. Did Mueller simply fail us, or was Mueller’s work sabotaged on a criminal level?

Will Bunch, of the Philadelphia Inquirer, had questions similar to the one Bill Palmer raised. From Bunch's column published yesterday:


There is no doubt that the knobs of gaslighting were switched to “high” when new Attorney General William Barr — also known as Trump’s Roy Cohn — arrived at the Justice Department in February. Under Barr’s thumb, Mueller appeared newly pressed to quickly wrap things up. The end of his investigation came with a weeks-long delay before his actual report — a vacuum that was filled with Barr’s Trump-serving four-page memo with his own conclusions that there was no obstruction of justice and no collusion with Russia. Barr even staged a press conference hours ahead of the actual report with misleading spin on what was in it.

In the end — as the memos dropped on Saturday reveal — the Mueller report was not the definitive word on what happened with Trump, Russia and the tainted 2016 election. Rather, it was a series of not-always-great prosecutorial decisions about what to leave in and what to leave out, and what conclusions to make of it all — reached by an iconic-but-fading prosecutor no longer on top of his game, under relentless pressure from a justice apparatus that has been politicized and warped by the president and his Cohn-like hatchet man.

What’s telling is that Mueller’s impotent testimony before Congress came just one day before Trump’s extortionist phone call with Ukraine’s Zelensky — suggesting the presidential beatdown on the Mueller probe had inspired the delusion that he was now untouchable. The next few months on Capitol Hill will prove whether Trump was actually right — and if he was right, you can kiss goodbye to the United States of America.

Interestingly, the new Mueller info came just a day after an interview in which House Speaker Nancy Pelosi seemed to confound expectations that she plans to limit the Trump impeachment probe to Ukraine and nothing more.

“What we’re talking about now is taking us into a whole other class of objection to what the president has done. And there may be other — there were 11 obstruction of justice provisions in the Mueller report. Perhaps some of them will be part of this,” Pelosi told Bloomberg Television. “But again, that will be part of the inquiry, to see where we go.”

This is a tough call, because every day that Donald Trump remains in the Oval Office is a danger to America and the world. But it’s increasingly clear that the speediest narrow impeachment — one confined solely to his Ukraine dealings while ignoring the naked corruption of obstructing the Mueller probe and his efforts to become president through lawbreaking, either through stolen emails or hush money, and then use his office to line his own pockets — would be a terrible mistake.

That’s because — as noted earlier — the real scandal of Trump’s presidency is his amoral and narcissistic willingness to do any and all things that are terrible for the country but are good for his own personal power and ambition. The symptoms of that corrupt disease played out on a global canvas from Kyiv to Trump’s golf resort in Scotland to the corridors of the Justice Department. If we don’t make it clear that no president is above the law — all of the laws, including obstruction of justice and the Emoluments Clause — then we will only be setting the stage for a future president who will be even more dangerous than Donald Trump.

Here is a link to the full DOJ document, obtained via the U.S. Freedom of Information Act (FOIA).

Thursday, October 31, 2019

U.S. Judge Gerald Bard Tjoflat, from his base in Jacksonville, FL, appears to be in the pocket of Deutsche Bank, which is awash in probes of money laundering and other possible financial crimes


Deutsche Bank in Jacksonville, FL

A federal judge, who has a financial stake in JPMorgan Chase (JPMC) and Bank of America (BOA) and a perfect record of ruling in their favor in court matters (see here and here), also has a .1000 batting average in favoring Deutsche Bank, the shady German-based outfit that is under investigation for reported money laundering involving Donald Trump, Jared Kushner, Russia and the late accused sex trafficker Jeffrey Epstein.

We have found no public record that indicates U.S. Circuit Judge Gerald Bard Tjoflat holds stock or other financial interests in Deutsche Bank. But he is based in Jacksonville, FL, where the bank has a major operations center. Our research indicates Tjoflat is five-for-five in favoring Deutsche Bank when sitting on a three-judge panel in cases involving the bank.

If the bank is found to have been involved in international money laundering -- and Tjoflat serves as its protector on the U.S. 11th Circuit Court of Appeals (covering Florida, Georgia, and Alabama) -- could that mean Tjoflat is involved in a criminal conspiracy, with ties to the Trump-Russia scandal and Epstein's grotesque crimes? Our answer is yes.

Gerald Bard Tjoflat
How ugly could the Deutsche Bank-money laundering story get? Consider this from a June 2019 report by Lisette Voytko at Forbes:

Jeffrey Epstein used Deutsche Bank since 2013 to move millions of dollars through dozens of accounts, according to the Wall Street Journal, and while the embattled German bank is cooperating with federal investigators, it took months for the bank to close Epstein’s accounts and flag suspicious activity. . . .

The Epstein fallout is the latest gut punch for Deutsche Bank. In addition to laying off 18,000 employees by 2022, the bank is cooperating with two federal investigations: one on Trump’s financial ties to Russia and the other for money laundering.

Deutsche Banks headquarters were raided last November as part of a wide-ranging money laundering investigation. From a report at Wall Street Journal:

Around 170 police officers and other officials seized documents during searches through six different properties Thursday, including one employee’s home, according to authorities.

The raid was a visible sign of mounting legal problems for the German lender, which has faced a string of allegations and costly legal settlements tied to failures to prevent money laundering and other banking violations.

Thursday morning, police vehicles lined up outside Deutsche Bank’s central Frankfurt headquarters, and German federal police and other officers crowded into the lobby of the high-rise towers. Officers soon filtered upstairs onto other floors of the bank to search records, a person inside the bank said. . . .

The probe includes two unidentified Deutsche Bank employees aged 50 and 46 and other unidentified employees suspected of helping clients create offshore entities in tax havens, the prosecutor’s office said in a statement. The person who works in the financial crime-fighting division remained an employee Thursday, the people familiar with the matter said.

Deutsche Bank confirmed the investigation. Both the bank and prosecutors said it is related to the Panama Papers, a trove of records revealed by a consortium of journalists in 2016 tied to a Panamanian law firm that specialized in offshore holding companies.

Since early this year, Deutsche Bank has been in the cross hairs of Congressional investigators. From a report at CNN:

House Democrats gearing up for fresh investigations into President Donald Trump's businesses and money laundering involving Russia are setting their sights on the German lender Deutsche Bank.

House Intelligence Chairman Adam Schiff said his committee would be working alongside House Financial Services Chairwoman Maxine Waters to probe the bank, a major lender to the Trump Organization. Both chairs had previously signaled interest in Deutsche Bank while they were still in the House minority. . . .

Deutsche Bank has been of interest to lawmakers because it is one of the few big banks that has been willing to lend to the Trump Organization. Trump businesses have borrowed over $300 million for a Florida golf course and hotels in Chicago and Washington, according to financial disclosures and public filings from 2012 to 2015.

Trump's senior adviser and son-in-law Jared Kushner has also disclosed an unsecured line of credit from the bank ranging between $5 million to $25 million that he's shared with his mother since 2015.

As for federal judge Tjoflat, he seems to think Deutsche Bank can do no wrong -- much as he appears to view JPMC and BOA. Here are five cases, all in the past six years, in which Tjoflat has been part of three-judge panels that ruled in favor of Deutsche Bank. We can find no cases where he ruled against the bank:

(1) Zelaya/Capital v. John Zelaya, 769 F.3d 1296 (11th Cir., 2014) Court approves award of $70,644.56 in costs and attorney fees to Deutsche Bank;

(2) Avenue CLO Fund v. Bank of America, 709 F. 3d 1072 (11th Cir., 2013) Court sides with Deutsche and other "revoling lenders in a complex dispute involving the ambitious Fontainebleau development in Las Vegas;

(3) Westley v. Albert (11th Cir., 2017). Court sided with Deutsche and other entities in a case of alleged fraudulent eviction;

(4) Quinn v. Ocwen Loan Serviging (11th Cir., 2017) Court sided with Deutsche in case alleging improper loan servicing and initiation of foreclosure;

(5) Smedley v. Deutsche Bank (11th Cir., 2017). Court sided with Deutsche in a case alleging improper loan servicing and default.

Wednesday, October 30, 2019

Hints of violence and retaliation fill the air after Vindman deposition in Trump inquiry, but as targets of right-wing attacks for years, that is no surprise to us


Alexander Vindman

Leading Democrats in the Trump impeachment inquiry said after yesterday's testimony from a top Ukraine expert that they feared Republicans were seeking to reveal a whistleblower's identity so they could "punish" him and perhaps even jeopardize his safety.

The statements might be shocking to many Americans, like something you might expect to hear in a third-world country. But they hold little shock value here at Legal Schnauzer because my wife, Carol, and I have been under attack from right-wingers for at least 12 years -- all because I've dared to report on judicial and political corruption in Alabama and beyond. We've been targeted with loss of our jobs, theft of our home (via a wrongful foreclosure), financial devastation, use of law enforcement for physical violence, and much more.

Roger Shuler mugshot after "arrest for blogging"
In October 2013, deputies beat me up inside our Birmingham home, doused me with pepper spray (with an officer threatening to break my arm), and dragged me to the Shelby County Jail for a five-month stay -- apparently the only journalist in U.S. history to be incarcerated because of a temporary restraining order/preliminary injunction that has been unlawful under more than 230 years of First Amendment law, without even the slightest hint of criminal allegations on my part. Nope, I reported accurately on the relationship between GOP thug Rob Riley and lobbyist Liberty Duke -- my journalism, as a matter of law, never has been proven in court to be false or defamatory -- and that's enough to earn you the brown-shirt treatment in the Alabama that produced a racist U.S. senator like Jeff Sessions, who is aligned with many of our attackers.

In September 2015, after we were forced to move to my home state of Missouri, deputies conducted an unlawful eviction on our apartment, pointed an assault rifle at my head, and manhandled Carol so viciously that they broke her left arm (shattered it, really, above the elbow), leaving her with a comminuted fracture (a break into three or more fragments) that required roughly eight hours of trauma surgery and involved complications that could have put her life at risk.

As you can see, the use of government force to "punish" someone is not new to us. We have been on the front line for that -- all because of my role and history as a journalist, which is much like that of a whistleblower. This is from an NBC News report about yesterday's 10-hour testimony of Lt. Col. Alexander Vindman:

Top Democrats at the deposition of Lt. Col. Alexander Vindman, the top Ukraine expert on the National Security Council, said his testimony Tuesday was “extremely disturbing” and praised him for appearing despite attacks from the White House.

The closed-door deposition before House impeachment investigators lasted more than 10 hours.

Once it concluded, House Intelligence Committee Chairman Adam Schiff, D-Calif., told reporters that he hopes Vindman's example of patriotism "will be emulated by others."

Schiff said that he was "deeply appalled" by attacks made against Vindman on Fox News Tuesday night.

"The suggestion that because he's of Ukrainian origin, that he has some dual royalty...this purple heart recipient deserved better than that scandalous attack," Schiff said.

Schiff should not be surprised that conservatives, when they feel threatened, are prone to attack honest Americans in a vicious manner. Our legal woes started in a December 1999 when a Blue Cross/Blue Shield of Alabama employee named Mike McGarity -- with an extensive criminal record -- moved in next door to us and promptly tried to take over our yard.That grew into attacks from legal and political elites -- probably because Dax Swatek, son of McGarity lawyer Bill Swatek, has ties to political luminaries such as Bill Canary (former head of the Business Council of Alabama, with connections to the U.S. Chamber of Commerce) and Karl Rove. The first sign of such an attack probably came in 2008 (after I had started this blog in July 2007) when I was cheated out of my job at UAB -- where I had worked for 20 years -- because of my reporting on the political prosecution of former Democratic Governor Don Siegelman. I don't have to guess that I was fired because of my reporting (on my own time, with my own resources) on the Siegelman matter. A UAB HR employee named Anita Bonasera told me that's why I was targeted, and I recorded the conversation. (See video at the end of this post.)

X-ray of Carol Shuler's broken arm.
Roughly one year later, Carol was cheated out of her job at Infinity Insurance, and that greased the skids for our downhill slide on the economic ladder. That was in 2009, and little did we imagine the amount of violence that lay in our future.

Comments after yesterday's Vindman deposition, strongly hinted at potential violence and retaliation. From NBC News:

Regarding reported attempts by GOP lawmakers to get Vindman to reveal the whistleblower's identity, Schiff said that Trump would love to "punish" the whistleblower. He also said the president's comments and actions have "jeopardized the whistleblower's safety."

"The President's allies would like nothing better than to help the president out this whistleblower. Our committee will not be a part of that. We will not stand for that," he said. "They have the right to remain anonymous. They certainly should not be subject to these kind of vicious attacks and other words and actions that threaten their safety for doing their patriotic duty," he said about whistleblowers.

U.S. Rep. Debbie Wasserman Schultz (D-FL) added to those concerns:

Wasserman Schutlz said the Republicans present for the deposition were trying to get Vindman to reveal the identity of the whistleblower.

"What the Republicans are trying to do very clearly in their questioning is try to front door or back door Lt. Col. Vindman into revealing who the whistleblower is, even though in his testimony he says he doesn't he didn't know," she said.

"They've been unsuccessful," she added.

Press reports described a "tense moment" between one Democrat and one Republican. From NBC News:
Leaving the deposition, Rep. Eric Swalwell, D-Calif., said that he was concerned that Republicans in the room were trying to out the identity of the whistleblower, which caused a tense moment between Swalwell and Rep. Mark Meadows, R-N.C.

"My concern inside the room is that you know there, there’s an intent to out the whistleblower, and you know risk that person's life which is why we're trying to protect them," he said. "And that's what the quote, unquote tense moment was about."

Americans should not be surprised at anything Trump allies might pull in the near future. We know, from firsthand experience, that there is no level to which Republican thugs will not stoop when they feel threatened.






Tuesday, October 29, 2019

Have we ever prevailed in a court case, and has a judge ever ruled correctly in one of our legal matters? The answer to both, despite what trolls might think, is yes




For several years, we have received anonymous statements from trolls that go along these lines -- "You've never won a court case" or "You always think the judge is out to get you."

I generally have ignored such statements because they came from individuals who obviously were ill-informed and did not have the courage to use their names. I reconsidered that policy when an intelligent and loyal reader, someone we know long distance, recently asked, "Has a judge ever ruled correctly in one of your cases?"

This person, I know, has a serious interest in justice issues and asked the question because he genuinely wanted to know. That convinced me to think about the issue, conduct some limited research, and try my best to answer in this post.

First, I take the question to come in two parts: (1) Has a judge ever ruled correctly in a final order or a non-final order that was central to the case? (2) Have you and your wife, Carol, ever prevailed in a court case? Second, since we now live in Missouri and much of our court experience has been in Alabama, I don't have access to all relevant records at the moment. That means I'm having to work largely from memory, so my answer might not be all-inclusive, but it is pretty accurate. As to the two-part question raised above, the answer to both is yes.

Let's look at No. 1 -- Has a judge ever ruled correctly in a final order or a non-final order that was central to the case?

(A) The best example of this came in what we call "The Jail Case" (involving my unlawful arrest and incarceration in Shelby County), where U.S. District Judge R. David Proctor found that, as in forma pauperis (IFP) litigants, we were not entitled to have the clerk's office in the Norther District of Alabama, conduct service. Proctor's ruling clearly was contrary to black-letter law that applies across the country, but his incompetence forced us to waste roughly a year's time to appeal to the U.S. Eleventh Circuit Court of Appeals. To our amazement, the appellate court got it right, with these words:

We review a district court’s sua sponte dismissal for failure to effect service under Fed. R. Civ. P. 4(m) for an abuse of discretion. Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per curiam). “We affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Id. (internal quotation marks omitted).

Without addressing the merits of the appeal, we reverse the district court’s dismissal because it should have effectuated service for the Shulers, who had IFP status. Under Fed. R. Civ. P. 4(c)(3), the district court must order that service be made by either a United States marshal, a deputy marshal, or by any person specially appointed by the court when the litigant is proceeding under IFP status.

REVERSED.

This was not a final order, settling the case, but it was on a critical matter, and a three-judge panel (Charles R. Wilson, Clinton appointee; Julie E. Carnes, Obama appointee; Jill A. Pryor, Obama appointee) got it right.


 (B) When GOP operative Jessica Medeiros Garrison sued me for defamation, it was no surprise the case got off to an underhanded start -- considering Bill Baxley was her attorney. Baxley hired some lowlife to conduct "personal service," and he did it by throwing court papers on our driveway. You don't have to be a Harvard Law grad to know such a lame act does not qualify as service, and I argued as such in a motion before Jefferson County Circuit Judge Don Blankenship. In another shocker, Blankenship ruled correctly that service was improper. A Baxley thug solved the problem by "serving" me while I was in the Shelby County Jail. That also probably was unlawful, and the server likely lied to jail personnel that she was an attorney or minister to pull it off. I wasn't in a position to challenge the issue further, so the case moved forward.

Blankenship went on to show his true colors by awarding Garrison a $3.5-million default judgment, even though the docket shows I never was notified of the default application or the default hearing. Because of that, the award is void as a matter of law -- and it can be attacked as such at any time.

Did something fishy happen between Blankenship's correct ruling on service and his wildly incorrect ruling on the default judgment? In the interim, did he receive a favor or payment that caused him to shift from appearing to be a judge with a hint of integrity to being a crook of the worst kind? You probably can guess my answer to that question. We soon will have a post where a recently filed court document presents evidence that shows a Jefferson County judge issuing favorable rulings for a certain party soon after receiving campaign donations that appear to be in the form of bribes.

Now, let's look at question No. 2 -- Have you and your wife, Carol, ever prevailed in a court case? We separate it from question No. 1 because it's possible to prevail in court, even though the judge does not necessarily issue a correct ruling. Sometimes, the judge has no choice but to find in your favor, whether he has any integrity or not:

(A) This is the kind of case to which almost every American can relate. Somewhere around 2010 (I'm not sure of the date), a Shelby County deputy pulled me over and wrote a ticket for speeding in a school zone -- I think the allegation was that I drove 5 mph over the limit, which I think was 30 mph. The ticket, however, gave the location of the alleged offense as a place where there was no school zone, and the speed limit was 40 or 45 mph.

I challenged the ticket in court, pleaded not guilty, and the deputy failed to appear. District Judge Ron Jackson, who we know from personal experience is an absolute train wreck on the bench, had no choice but to find me not guilty and dismiss the ticket. But get this: Jackson had the audacity to ask me if I wanted to pay court costs. I already hated the SOB because of his crooked rulings in our case involving Mike McGarity, our former trespassing, criminally inclined neighbor. My response to Jackson? "I pleaded not guilty because I am not guilty. The wording on the ticket shows I'm not guilty, and that would be the case whether the deputy appeared or not. In other words, I'm not about to pay your damned court costs." Notice I did not call him "Your Honor."

(B) In late 2008, we received notice from a debt-collection outfit called CACH LLC that we owed money on what I believe was a GE VISA card. It was a relatively small sum that we allegedly owed, but Alabama legal and political thugs had just cheated me out of my job (of 20 years) at UAB, so we were in a crunch. Before long, we received notice from a Birmingham law firm called Halcomb and Wertheim that the alleged debt had been placed with them, and they intended to collect. We contacted the firm and asked them to validate the debt -- as was our right under the Fair Debt Collection  Practices Act (FDCPA). By asking for validation of the debt, we were asking Halcomb and Wertheim to provide documentation to prove they held the debt, and we owed it.

We even went to the law firm in person, seeking to get the alleged debt validated, but we never received any such documentation. It probably was a surprise to the fine lawyers at Halcomb and Wertheim, but we weren't anxious to pay a debt that maybe we did not owe.

In a brazen act of "legal ethics," Halcomb and Wertheim sued us, even though they repeatedly failed to prove we owed the debt. On the appointed date, we appeared at the Shelby County Courthouse and -- surprise, surprise -- no one from the debt-collection law firm appeared. I don't remember the judge on that one, but he had no choice but to dismiss the case.

Bottom line: Yes, we have prevailed in court, and yes, we've witnessed a judge or two rule correctly in our cases. More importantly, here is today's take-home lesson: Whether you are dealing with a traffic cop or a debt collector, it pays to fight back -- especially when you have legitimate grounds for doing so.

Monday, October 28, 2019

Missouri jury awards $19 million to police veteran Keith Wildhaber in employment-discrimination lawsuit where he was told to "tone down your gayness," in a case marred by blatant perjury from cop witnesses


Keith Wildhaber

A Missouri jury has awarded $19 million to a 24-year police-force veteran in an employment discrimination case where the plaintiff repeatedly was passed over for promotion and told to "tone down your gayness." Based on our research, that is an extraordinarily high award in an employment case, and according to new reports, jurors based it, in part, on what appeared to be flagrantly false statements under oath by police witnesses for the defense. St. Louis County Prosecuting Attorney Wesley Bell has vowed to review transcripts as part of a perjury investigation.

In many states, discrimination cases are heard in federal court, but Missouri has a Human Rights Commission that opens a path for such cases to be heard in state court.

As for possible perjury by police witnesses, that is an issue that hits close to home here at Legal Schnauzer. We saw multiple Greene County deputies lie under oath in the trial of bogus "assault on a law enforcement officer" charges brought against my wife, Carol, after they conducted an unlawful eviction on our home that ended with an unidentified officer slamming Carol to the ground and yanking so violently on her limbs he broke her left arm -- a comminuted fracture, which means the bone was broken in more than two places.

Audio evidence shows that Officer Scott Harrison clearly committed perjury in Carol's case. At least three other cop witnesses (Debi Wade, Jeremy Lynn, Christian Conrad) made statements under oath that were so wildly inconsistent from their written reports that they might also amount to perjury.

Scott Harrison
Keith Wildhaber, the plaintiff in the St. Louis County case, said he was passed over for promotion 23 times and called "fruity" and other derogatory terms by co-workers. From a report at KMOV in St. Louis:
[Last] Friday, a St. Louis County jury awarded $19 million dollars to a St. Louis County police sergeant who said the department repeatedly passed him over for promotions because he is gay.

Sgt. Keith Wildhaber filed a lawsuit against the St. Louis County Police Department in 2017 in which he claims he was told he should “tone down [his] gayness” if he ever wanted to be promoted to lieutenant.

Wildhaber has worked for the police department since 1994. The lawsuit details dozens of times where Wildhaber was passed over for a promotion despite positive feedback about his work performance.

The lawsuit details an incident in 2014 when Sgt. Wildhaber spoke to John Saracino, a member of the St. Louis County Board of Police Commissioners at the time, about his application for a promotion.

“The command staff has a problem with your sexuality. If you ever want to see a white shirt [i.e. get a promotion], you should tone down your gayness,” the lawsuit reads.

The discrimination lawsuit went to trial [last] week and on Friday, a jury awarded Wildhaber nearly $20 million. Multiple officers and Chief John Belmar took the stand in the trial. Now there are calls for changes in leadership in the police department.

Wildhaber, after filing his complaint, was transferred to a less desirable precinct, on a later shift, tripling his commute time. From the New York Daily News:

The week-long trial, which ended Friday, included testimony about several times Sgt. Keith Wildhaber was denied a promotion, about the use of demeaning, homophobic terms to refer to him, as well as the retaliation he faced, after filing a complaint.

Additionally, accounts from fellow department employees, who were witnesses to the discrimination he faced, made for a lively and dramatic Hollywood-like trial.

In about three hours of deliberation, the jury sided with Wildhaber on both the discrimination and retaliation counts. It awarded him $1.9 million in actual damages, and $10 million in punitive damages on the discrimination allegation; as well as $999,000 in actual damages and $7 million in punitive damages for the retaliation allegations.

“We wanted to send a message,” juror No. 4 said of the verdict, according to St. Louis Post-Dispatch “If you discriminate you are going to pay a big price. … You can’t defend the indefensible.”

What did the New York Daily News mean by a "dramatic Hollywood-like trial"? That apparently is a reference to one or more officers who got caught providing perjured testimony. From the Daily News account:

Wildhaber said he was passed over a promotion 23 times. After he filed an EEOC complaint, he alleges he was retaliated against and transferred to another, less desirable precinct.

“Defendant believes plaintiff’s behavior, mannerisms, and/or appearance do not fit the stereotypical norms of what a ‘male’ should be,” the lawsuit read.

In the trial, Dana Woodland, the girlfriend of an St. Louis police officer, corroborated his story, saying that he was referred to as “fruity” by police Capt. Guy Means in 2015, and added that Means told her that Wildhaber would never get a promotion because he was “way too out there with his gayness and he needed to tone it down if he wanted a white shirt.,” a term that refers to a higher position in the force.

Means testified Thursday claiming he didn’t even know Woodland, and said that he didn’t recall attending the 2015 event, when he had supposedly used the derogatory term to refer to Wildhaber.

The following day, in a scene that could’ve been written to a clich├ęd court drama, Woodland produced a set of three pictures showing Means and Woodland posing for a photo booth shoot, taken at a St. Louis County Police Welfare fund-raiser, where the two can be seen smiling and hugging.

Russ Riggan, Wildhaber's attorney, said Means' testimony destroyed any credibility police witnesses might have had. From a report at lgbtqnation.com:

Riggan told the jurors, “[Means] blatantly perjured himself.… How credible are the rest of their witnesses? You don’t think they sent other people in here to lie? They will stop at nothing to bury this case.”

Means' testimony shows that some cops will testify falsely under oath with stunning casualness. We already have seen that, thanks to Greene County deputy Scott Harrison in Carol's trial. From a September 2019 post:

Harrison's false statement under oath is one of several such statements cop-witnesses for the state made in Carol's trial. But Harrison's is the one we can prove -- right this minute, with no additional investigation or discovery -- is perjurious. Other deputies' sketchy statements generally were inconsistent -- their trial testimony differed from written statements in incident reports -- so it would take some research to determine what might rise to the level of perjury. Either way, they apparently committed perjury or filed false police reports, both of which are crimes. 
At least one statement from Harrison -- the deputy who burst into our apartment and pointed an assault rifle at my head during an unlawful eviction in September 2015 -- leaves no doubt. This is from page 3 of Judge Jerry Harmison Jr.'s judgment in Carol's case: (The judgment and Carol's Motion to Vacate Judgment That Was Procured by Fraud, Perjury, etc. are embedded at the end of this post.)

Harrison stated he initially focused on Roger Shuler once the front door was open because Roger Shuler had called and expressed threats to law enforcement on August 12, 2015.

We have recorded evidence that Harrison's statement is false, and we presented that evidence in a recent post, with more relevant posts to come. (The video/audio is embedded at the end of this post.)

Could one or more cop witnesses wind up behind bars for committing perjury in the Keith Wildhaber case? The answer appears to be yes. The same could hold true for Scott Harrison and at least three of his Greene County colleagues who made false or inconsistent statements in Carol's case.