Monday, June 24, 2019

Defense counsel in "The Jail Case" make absurdist arguments that have no basis in law or reality, bringing a certain courtroom comedy to the proceedings

Christina Crow
Why do some people bother going to law school? Is it to obtain a license that will allow them to file fraudulent court documents, which have little or no  basis in fact or law? Does the thought of engaging in such con games give them a thrill, perhaps the kind a house flipper gets from pulling off the perfect swindle. Based on our experience with the appeal of "The Jail Case" in the U.S. Eleventh Circuit, the answer seems to be yes, some people go into law with no intention of being good enough to win cases on the merits; they are happy to resort to scams.

Consider defendant lawyers Rob Riley and Christina Crow, who claim our constitutional arguments must fail because the lawyers are private, not state, actors. But a U.S. Supreme Court ruling that is closing in on being 40 years old, blows a hole in the Riley-Crow contentions. From our reply brief (which is embedded, along with our appellants' brief at the end of this post):

But this argument fails because Riley simply cannot get around the U.S. Supreme Court’s finding in Lugar v. Edmondson, 457 U.S. 922 (1982): “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.” This is exactly the kind of unlawful collaboration that led to Roger Shuler’s arrest and incarceration, making Riley and Co. state actors.

Crow tries a similar approach, but it also fails. From our reply brief:

Crow’s private-actor argument fails for the same reason the Riley argument fails above, at No. 10, per the U.S. Supreme Court finding in Lugar. Crow’s legal argument on the “state actor” issue fails on other grounds. For example, she cites Willis v. University Health Services, Inc., 993 F. 2d 837 (11th Cir., 1993). But that case was decided at summary judgment, after extensive discovery, and provides no support for Crow’s claim that the Shulers’ complaint should be subject to a motion to dismiss. The same is true of Rayburn v. Hogue. In short, Crow provides zero legal basis for her “state actor” argument.

Attorney David Gespass, who visited me twice in jail and offered no strategy for gaining my release and seeking justice against those who caused my wrongful arrest, takes an interesting approach to allegations that he made false and defamatory statements to another attorney about me. Gespass doesn't really deny that he made defamatory statements to Paul Alan Levy, of Ralph Nader's Public Citizen in Washington, D.C. Rather, Gespass claims he made the statements outside the statute of limitations, so the defamation count should be dismissed.

But that is not the only consideration. Alabama's discovery rule means the date I discovered the injury to my reputation also is a prime factor. On top of that, Gespass makes some odd arguments along the way:

Gespass’ time-bar argument regarding the Shulers’ defamation claim also fails. Gespass does not deny that he spoke to D.C.-based lawyer Paul Alan Levy and made false and defamatory statements about Mr. Shuler to Levy. Gespass acknowledges in a previously filed document (Motion to Dismiss) that the statute of limitations in the instant case runs to March 26, 2014. On page 4 of that motion, Gespass acknowledges that his defamatory statements to Mr. Levy took place before March 27, 2014. In other words, Gespass admits his defamatory statements were made inside the March 26, 2014, window, while Roger Shuler still was incarcerated, but yet he tries to claim they are time-barred. A key question, which Gespass conveniently ignores, is: When did Shuler learn of the defamation? Roger Shuler communicated with Mr. Levy a second time, on Oct. 16, 2016, and Levy related several defamatory statements that had been made to him by “another First Amendment litigator.” Shuler states that David Gespass is the only other First Amendment litigator with whom he has ever communicated, so it clearly was Gespass who made the defamatory statements to Levy – and Gespass, in his Motion to Dismiss, does not deny it. Also, the defamation claim, coming on statements of 10/16/16, is not time barred.
Ted Rollins
One of the most outrageous claims comes from "the Rollins defendants," which includes former Campus Crest Communities CEO Ted Rollins and his one-time stepson Zac Parrish. On a variety of Web sites, these kind folks have claimed I am "Satan's Earthly Emmissary" (sic), that I am racist and homophobic, and like to have sex with animals. Much of this stuff still is out there on the Web, but here is how the Rollins Gang tries to wriggle out of being held accountable:

Rollins falsely claims the Shulers have supported their defamation count with “bare, conclusory allegations . . . without any factual support.”Strangely, Rollins follows this assertion with a full page of factual allegations from the Shulers’ complaint, supporting the defamation count. That doesn’t count the roughly 35 pages of direct evidence, attached as exhibits to the Shulers Rule 59 motion (Doc. 162), supporting their defamation count. Much of this defamatory material remains on the Web today.

Rollins and Co. aren't the only ones trying to wriggle off the accountability hook. Tech giant Google allegedly sold ads to someone associated with Rollins to help promote their defamatory Web sites. Google claims responsibility should not land at its feet:

Google’s primary argument is that Sec. 230c of the Communications Decency Act (CDA) protects if from liability for selling advertising to the owner of a Web site that promotes defamatory material. First, Google claims Sec. 230c bars any claims against Google for content that was created by a third party. Sec. 230c, however, does not say that; it says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Also, there are no facts in the record that content in the ad was created by a third party. Google further cites a district-court case – Am. Income Life Ins. Co. v. Google Inc. – for its holding that Google is immune under Sec. 230 for allegedly defamatory content found on Web sites. First, Am. Income is not controlling law in the Eleventh Circuit. Second, it involves allegations that certain Web sites published defamatory information that appeared on Google searches. In other words, Am. Income involved Google’s role as a service provider. The instant case, however, involves Google’s role as a seller of advertising – a business that reportedly produces about $14 billion annually. There is nothing in Sec. 230 that protects a distributor of ads for a defamatory Web site. The issues here involve Google’s role as a purveyor of advertising, not as a service provider. Google claims that it allows third-party advertisers to display ads on Web sites, while Google itself plays a benign role. First, the $14 billion in revenue that Google reportedly receives from its advertising business hardly suggests a benign enterprise. Second, Google’s own Web site for AdSense states: “Ads are reviewed to ensure they’re high quality and relevant to your content or audience . . . .” Google admits that it is supposed to review ads – and presumably is supposed to review the Web sites to which the ads refer -- but someone failed miserably with the ad at issue in this case.

So, Google makes about $14 billion a year off advertising and admits it is supposed to review ads for quality, but it claims no responsibility for running ads that promote blatantly defamatory Web sites.

We haven't even gotten to the most outrageous claim from defendants in "The Jail Case" appeal. We will address that in an upcoming post.

(To be continued)


Anonymous said...

Law schools must have courses on how to write briefs and motions. Looks like these scum-suckers skipped out on those classes.

Anonymous said...

Lawyers get away with producing crappy briefs because judges don't hold them accountable. Hardly anyone is held accountable in the legal system. (Notice I didn't say justice system; we don't have one.)

Anonymous said...

Christina Crow looks like she has the personality of a wolverine.

Anonymous said...

Lawyers don't go to law school to learn. They go to pass a test and get a card that will allow them to do whatever they want. The classic movie about law school was called "The Paper Chase" for a reason. That's what it is. In many cases, it produces sorry lawyers and even sorrier citizens.

Anonymous said...

@9:04 --

Law schools also offer courses on legal ethics, but look how much good those do.

e.a.f. said...

some of it comes from the old saying, "shit in, shit out". If you send a shit bag to law school, all that comes out is s shit bag with a law degree. It maybe the profession attracts specific types, who knows. We've all seen some of the great lawyers around, who work for justice, but we've seen a whole lot more who are only interested in what they can gain from it.

Part of the problem may lie with the various legal organizations and how forcefully then "enforce" the rules for the profession. Of course if the Legal Society is taken over by a bunch of "crooks", you see the results also.

In B.C., if I phone the Law Society, they will tell me if a lawyer has been suspended and why and cases against them for "illegal/unethical" endevours, so I know what lawyers to avoid. You don't even have to tell them why you are asking.

In my opinion there is more to this than what the "other side" proports. They are spending a far amount of money on pursuing this case against the Schulers. Smart people simply settle for an amount they believe the other party will accept, to avoid legal fees. Perhaps its that Americans are such a litigious society, I don't know, but really those who aren't "happy" with the Schulers have much more in mind than just "beating" them in a court case.

One would ask the question why would the other party spend, as an e.g. half a million in legal fees, (just an amount I made up) to avoid paying out $300K (another amount I made up) The other side is either, in my opinion, trying to get even, or there are much deeper nastier things they want to avoid. Some times court cases get dragged out if one party is "middle aged", (sorry there L.S.). they hope the other party dies before the case is closed.

legalschnauzer said...

e.a.f. --

You raise lots of good points. No question bar associations play a big role in the sorry state of the legal profession. I wonder about your "shit in, shit out" equation with my own brother. No question he's a shit now, after being a lawyer for 20-plus years. I'm guessing he probably was a shit before then too, even though I didn't see him as such.

Anonymous said...

The billable hour is the eternal God of the legal profession for those who pass the test and get a bar card. Justice has little or nothing to do with it for many of them.

Anonymous said...

My understanding is that defendants do not have to file a response brief on your appeal. How many of them filed a response brief?

legalschnauzer said...

@4:59 --

You are correct that defendants do not have to file a response brief, just as we did not have to file a reply brief, even though we did.

I don't have the info right in front of me at the moment, but my memory is that quite a few defendants, probably 3/4 or so, did file response briefs. Among those who did not, if my memory is correct, were Jessica Medeiros Garrison and Bill Swatek.

Anonymous said...

Christina Crow looks like she's been rode hard and put up wet -- and she doesn't appear to be real happy about it.

legalschnauzer said...

Oh, Liberty Duke didn't file a response brief either.

Robby Scott Hill said...

This is the case of the Legal Profession in Alabama ganging up on a great reporter. It finally scared the folks over at al dot com enough that they finally seem interested in defending the First Amendment, at least as it applies to themselves.

We’re baseball fans & guess what Major League Baseball does when one of its Players attacks or threatens a reporter? The Player gets a $10,000 fine & it just happened this week. That’s because MLB has effective oversight from the Office of the Commissioner of Major League Baseball. If the folks at the Alabama State Bar were in charge of Major League Baseball, it would be the other way around. Players and their fans would be putting unpopular reporters in jail and conducting kangaroo court on them to get them to shut up and stop criticizing the Players.

In Alabama, where up is down, down is up & wrong is right, Christina Crow is the President Elect of the Alabama State Bar, taking office next month. It’s the place where disgraced Governor Robert Bentley gets to place Judge Michael Joiner on the Court of Criminal Appeals & Court of the Judiciary, good luck with your quest for justice in a “court of law.”

All over Alabama, good people are being sued into poverty and having their homes taken from them because the “Players” can’t handle the truth & the Alabama State Bar is not interested in helping journalists or citizens who are speaking truth to power. I have to wonder how long it will be before people rise up against this “profession” & seek effective oversight of lawyers who cannot police themselves.

There was a time when Professional Baseball was corrupt and out of control. That’s when Congress created the Commissioner’s Office.

Robby Scott Hill said...

By the way Roger, you are too nice to me. Please criticize me all you want to on Legal Schnauzer. Everybody you criticize gets elected or appointed to something powerful in State Government. I’m looking at becoming a State Senator on the Judiciary Committee so I can change the rules for Lawyers, so start skewering me. Lol

legalschnauzer said...


Good points. There isn't much oversight over most lawyers, especially from large firms, and zero oversight for judges. We wouldn't tolerate corruption in our sports officials. Remember the NBA ref who got nailed for fixing games. Judges get away with fixing cases all the time.