Wednesday, July 31, 2019

Doug Jones, who rode support of black voters to U.S. Senate, takes cash from Balch law firm, which tried to cover for industries that poisoned North Birmingham

Doug Jones

U.S. Sen. Doug Jones (D-AL), who rode a wave of support from black voters to upset Republican Roy Moore in a 2017 special election, accepted a campaign donation from a Birmingham law firm that tried to block cleanup of toxic pollutants heavy industry had pumped into a predominantly black neighborhood.

Jones' June report to the Federal Election Commission (FEC) shows he received $5,000 from Balch and Bingham LLP Federal PAC, according to a recent report at Alabama Political Reporter (APR). That's the same Balch and Bingham that was a central player in the North Birmingham Superfund scandal, with former partner Joel Gilbert convicted of bribery in a federal trial last summer.

APR reports much of Jones' campaign support is coming from outside Alabama:

U.S. Senator Doug Jones, D-Alabama is drawing contributions from Democratic donors from all over the country in his bid for re-election in 2020.

Senator Jones reported to the Federal Election Commission a final cash balance at the end of June of $4,259,540.86 in cash on hand after a busy first half of 2019. . . .

Jones has several individual contributors. Barbara Hostetter of Boston, Massachusetts has contributed $11,200 to Jones. Hostetter is not employed. Kevin Rowe of Santa Fe, New Mexico contributed $2,800 to Jones. Rowe is the owner of K. Rowe Investments. Daniel Seymour of Weston, Connecticut has donated $5,400 to Jones including a $2,800 donation. Seymour is a portfolio manager with Paloma Partners. Penny Pritzker of Chicago, Illinois has contributed $5,600 to Jones. Pritzker is the Chairman of PSP Partners. Ashley McDermott of New York City has donated $2,800 to Jones. McDermott is a self-employed activist. Allen Pinny of Pebble Beach, California has contributed $5,600 to Jones. Pinny is not employed. Charles Miller of Pebble Beach, California has contributed $5,600 to Jones. Miller is retired. Jeffrey Bayer of Woody Creek, Colorado has contributed $4,000 to Jones. Bayer is employed in real estate by Bayer Ventures. Philip Purcell of Park City, Utah has contributed $5,600 to Jones. Purcell is an executive with Continental Investors. Randy Gori of Edwardsville, Illinois has contributed $5,600 to Jones. Gori is an attorney employed by Julian Gori. Amy Fowler of Rhinebeck, New York has committed $5.600 to Jones. Fowler is a self-employed author. All of these leading contributions to Jones were earmarked by ACTBLUE. According to original reporting by the Yellowhammer News, 78 percent of Jones’ contributions come from outside of Alabama.

Where does Balch and Bingham enter the picture? APR provides the answer:

Jones reported 351 contributions from other committees. The biggest of these contributions include: AFLAC PAC $10,000, UBS Americas Inc. PAC $5,000, Blue Cross Blue Shield of Alabama $10,000, All for our Country Leadership PAC $10,000, Keystone America PAC $10,00, Victory NOW PAC $5,000, Balch and Bingham LLP Federal PAC $5,000 . . .

How alarming is the pollution problem in North Birmingham? An article from helps explain:

The pollution in the north Birmingham neighborhoods of Collegeville, Harriman Park and Fairmont has been around for more than 100 years. The controversy surrounding the cleanup of that pollution is much newer.

Sandwiched between two coking plants, and surrounded by other industrial facilities and heavy rail lines, these neighborhoods have long borne the environmental brunt of the city's steel-making success, but since 2014, a legal battle is being waged between the U.S. Environmental Protection Agency, the state of Alabama and the five nearby industries identified as "potentially responsible parties" to the pollution over who should pay to clean up 100 years of industrial residue.

North Birmingham Superfund site
The current activities at the Superfund site involve contaminated soil. The dirt in the yards of many area residents has accumulated levels of toxic material high enough to meet or exceed removal limits set by the EPA. . . .

Soil that was removed was laden with contaminants including arsenic, lead, or polycyclic aromatic hydrocarbons like benzo(a)pyrene. All are strongly linked to human health problems, and benzo(a)pyrene is classified as a Group 1 carcinogen by the International Agency for Research on Cancer.

The cleanup will be ongoing for some time yet. . . . The EPA has identified 235 additional parcels of land that meet the criteria for removal. . . .  At current pace, the removal operations will be complete in about three more years.

The total cost of the cleanup is expected to be $20 million. . . .

The potentially responsible parties (PRPs) are: the United States Pipe and Foundry Company (seen above), Walter Energy (now ERP Compliant Coke), Drummond, Alagasco, and KMAC Services.

Who wanted to make sure industry, especially Drummond Co., did not pay its share of the cleanup costs? That would be Balch and Bingham, the outfit that now supports Doug Jones' U.S. Senate campaign. The Balch scheme involved apparent bribery of state officials and almost the entire Alabama Congressional delegation, as we wrote in a recent post (with original reporting from

On October 30, 2014, a ghost-written letter drafted by Balch and Bingham and signed by six members of the U.S. House of Representatives in Alabama was dispatched. That same day, Congressman Robert Aderholt reported receiving $5,000 from Alabama Power, according to FEC filings.

* A week before, Drummond Company gave Congressman Bradley Byrne $5,000 on October 22, while forking out another $5,000 to Congressman Mike Rogers on October 24.

* Balch and Bingham sweetened the money trail by tossing $2,000 to Congressman Aderholt on October 28, 2014.

* At various times in October, Congressman Mo Brooks received $2,000 total from Balch and Bingham, $2,500 from Drummond, and $5,000 from Alabama Power.

* Congresswoman Martha Roby reported a $4,000 contribution from Alabama Power on election day, November 4, 2014—five days after the letter was mailed out.

Over $30,000 was used to grease the wheels.

By accepting campaign cash from Balch, Doug Jones essentially has aligned himself with a law firm that tried to cover for industries that poisoned black neighborhoods. Specifically, Jones has aligned himself with a firm that apparently sees no problem with toxins such as arsenic, lead, or polycyclic aromatic hydrocarbons like benzo(a)pyrene (a known carcinogen) infiltrating black neighborhoods. This isn't the first time Jones has stabbed his black supporters in the back. He also supported legislation that limited their opportunities to achieve home ownership, according to a report from Michael Harriot at Title of the 2018 article is Doug Jones and the Democratic Party Just Screwed Black Voters ... Again:

My grandmother, a slight woman whose values still trickle down through four generations, and who radiated love and wisdom as if she were our family’s own self-contained solar system, once showed me the scars on her legs from being bitten by a police dog and instructed me to “trust a white man as far as you can throw him.”

While that ancient African proverb now seems like a bit of reverse racism, Alabama’s black voters, in all their egalitarian forgiveness and goodwill, ignored it this past December when they cast their ballots for Doug Jones, sending him to the Senate chambers to represent them.

Sure, he was a white man, they reasoned, but he wasn’t like the others. Even with his problematic campaign, he was one of the good ones. He would remember what black voters did for him. How could he not recognize that the only reason he is now referred to as “Sen. Doug Jones from the state of Alabama” is the black vote? After all, he’s a Democrat. How could he forget who put him there?

In return, Doug Jones and the Democratic Party, once again, have thrown black people to the wolves.

How did Jones and his fellow conservative Dems screw black supporters? Harriot explains:

Politico magazine reports that on Wednesday, the Senate passed a bank-deregulation bill that rolls back many of the regulations imposed on banks and lenders. The bill passed with the support of the Trump administration, Republican senators and 17 Democratic senators—most of whom are considered to be moderate or conservative Dems. The legislation now moves to the House of Representatives, where it is expected to pass.

For more than a decade I have been trying to push the idea that blackness has evolved past its murky racial and cultural definition. As a college macroeconomics instructor, I taught a class, Race as an Economic Construct, that advocated examining race through the lens of data and numbers. (The science of economics is not limited to the production and distribution of goods, services and wealth.)

One of the easiest ways to illustrate this point is with the history of black home ownership. Home ownership is the biggest builder of wealth in America and is still affected by the history of segregation, Jim Crow and redlining. It fuels every indicator of discrimination in this country and is one of the best examples of the manifestation of white supremacy.

Housing discrimination relegated African Americans to homogeneous, poor black communities with underfunded, segregated schools. Poorer schools create the education gap. The education gap creates employment disparities. Underemployment creates poverty and the phenomenon called “black-on-black crime.” Poverty leads to the inability to acquire affordable housing, which relegates black people to low-income communities, which leads to underfunded schools, which leads to more crime and so on. It is a vicious circle.

How central is this issue to the black experience in America? Harriot explains:

It is all about homeownership.

We have always known this. The Root has routinely reported on the difficulties black people encounter when buying a home. A recent report by the Center for Investigative Reporting, along with Reveal News, uncovered how U.S. banks systematically prevent blacks and Hispanics from becoming homeowners.

JPMorgan Chase paid $55 million in January to settle charges that it discriminated against black and Latino borrowers. In 2011, Bank of America handed over $335 million for making its minority customers pay more than its white customers for the same loans. A federal lawsuit against Wells Fargo alleges that the bank has discriminated against Philadelphia’s black and Latino borrowers since 2004.

It is an indisputable fact that many banks treat their black customers unequally. The only reason we know this is that banks are required to report demographic data on most mortgage loans. That data is publicly available to anyone who wants to look at it.

Among other things, the legislation passed by the Senate on Wednesday strips away for some banks the requirement to report the race, ethnicity and gender of their mortgage customers. Under the new proposal, only the largest banks will have to report demographic data, which means that it will be impossible to find out if the other banks discriminate. If the law passes, these banks will be able to deny black customers without fear of repercussion or lawsuits.

The Democratic Party could have singled out that provision to the public and made a fuss. They could have called it racist (because it is racist), which would have made the legislation lose support. They could easily have refused to vote for this bill unless that specific provision was stripped away.

Sen. Doug Jones from the state of Alabama voted for it.

Michael Harriot was way ahead of the curve on this one, understanding that Doug Jones doesn't give a damn about the black voters who put him in office. By accepting campaign cash from Balch and Bingham, Jones just adds more evidence to the pile.

Tuesday, July 30, 2019

Feds have no evidence that Missouri resident Scott J. Wells sought out child-porn images or took "affirmative actions" to receive them, but they seem determined to proceed with a baseless case anyway

Scott J. Wells
The federal child-pornography case against Missouri resident Scott J. Wells could come down to a simple question: Did Wells ask anyone to send him images of child pornography?

We already have shown the Wells case should be dismissed, and never should have been brought, based on a number of grounds, which include: (1) The government has charged Wells with an offense that would be physically impossible to commit; (2) The feds do not even allege that Wells took some of the most common actions that prove "knowing" receipt or distribution of child porn -- such as use of file-sharing programs or subscriptions to Web sites that sell unlawful images (also known as contraband). (3) The feds launched their search of Wells' home, leading to his arrest, based on two images sent from Facebook to the National Center for Missing and Exploited Children (NCMEC); although the images sound almost identical, and Wells has said a Tennessee woman named Kara Adkins sent it to him unsolicited, and he sent it back when he realized it appeared to be a naked photo of Adkins' daughter, whom Wells understood to be 19 years old (not a minor); (4) There is no evidence in the government's criminal complaint -- embedded at the end of this post -- that Wells knowingly downloaded and saved the Adkins image, or any other unlawful image to his computer.

As for the number of images found on a computer in a child-porn case, the criminal complaint in U.S. v. Wells suggests the following: (1) The government repeatedly -- and apparently incorrectly -- uses the term "upload" to describe Wells' actions, which indicates he did not download (or save) anything improper to his computer; (2) The government based its search on two (maybe one) images, and courts have found in U.S. v. Miller, 527 F. 3d 54 (3rd Cir., 2008) that 11 images were not enough to be relevant for purposes of probable cause in a child-porn investigation. From our April 2019 post about the Miller case:

In Miller, the appellate court found: "The second factor, the number of images of child pornography found, likewise does not weigh in the government's favor in light of the overwhelming number of adult images that were found. The government presented evidence pertaining to only twenty of the 1200-1400 images found on the zip disk, and the District Court subsequently determined, in the process of sentencing Miller, that only eleven of these images constituted child pornography. Miller contended that he was unaware of the existence of these images . . .

As you can see, these cases can become fairly involved. But many of them, including U.S. v. Wells, can be resolved with a simple question: Did the accused ask anyone to send him child porn, did he seek it ought in any way and download it to his computer to take "control and dominion" over it, did he take "affirmative actions" to seek out unlawful images. Several court cases spell out the law on this. One is U.S. v. Kuchinski (9th Cir., 2006), which held:

We have made it plain that a person does knowingly receive and possess child pornography images when he seeks them out over the internet and then downloads them to his computer. In fact, we have declared that, “[i]n the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it.” Romm, 455 F.3d at 998;  see also United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002)

Another such case is U.S. v. Stulock (8th Cir, 2002), which held:

After a bench trial, Stulock was convicted of knowingly receiving the child pornography videotape, but he was acquitted on the charge of knowingly possessing child pornography. The possession charge specified only the images found in the browser cache.  The district court explained that one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser's cache, without having purposely saved or downloaded the image.

A review of the government's criminal complaint -- embedded below -- shows little or no evidence that Scott Wells asked to receive child-porn images, sought them out in any way, or took "affirmative actions" to assert "dominion and control" over them.

This adds to the evidence that the Wells case, by law, must be dismissed. But prosecutors (led by James J. Kelleher), apparently wanting to avoid the embarrassment and possible legal repercussions of bringing a baseless case, have dug in their heels and seem to be determined to proceed, whether they have a legit case or not. And Brady Musgrave, Wells' third court-appointed lawyer, has made it clear he has no intention of filing any pretrial motions that would actually defend his client.

Ban Balch blog turns to Washington, D.C., for answers about apparent secret deal that kept Alabama Power execs out of last summer's Superfund bribery trial

Mark Crosswhite

Federal entities have been asked to investigate a possible secret deal that kept Alabama Power executives from testifying in last summer's North Birmingham Superfund bribery trial, according to a post at

K.B. Forbes, co-founder/executive director of the nonprofit Consejo de Latinos Unidos (CDLU) and publisher of Ban Balch, says Alabama Power was the only contributor to a money-laundering scheme not to have a representative called at the Superfund trial. The public certainly has an interest in knowing why Jay Town, U.S. attorney for the Northern District of Alabama, failed to call CEO Mark Crosswhite or anyone else from Alabama Power. Forbes is seeking answers, and he has turned to Washington, D.C., to find them. From a post yesterday at Ban Balch:

Earlier this month we reported how Alabama Power’s CEO Mark Crosswhite could possibly be under scrutiny by the U.S. Department of Justice.

Now we, the CDLU, are taking it a step further.

We are asking the Office of the Inspector General of the U.S. Department of Justice and the House Judiciary Committee to review the alleged secret deal that prevented federal prosecutors from calling anyone from Alabama Power in the North Birmingham Bribery Trial last year.

Why does the absence of Alabama Power from the bribery trial -- which resulted in convictions for former Drummond Co. executive David Roberson, former Balch Bingham partner Joseph Gilbert, and a guilty plea from former State Rep. Oliver Robinson -- emit a foul odor? For one, the trial never touched some of the creepiest Balch-connected swamp creatures in Alabama politics. Two, it's hard to see how justice could have been done when the chief prosecutor left Alabama Power out of the equation. Forbes explains:

Alabama Power donated $30,000 to the corrupt AstroTurf entity Alliance for Jobs and the Economy (AJE) that laundered money to bought-and-paid for politician Oliver Robinson.

Yet Alabama Power was the only donor to AJE not to testify in the criminal trial that convicted Balch-made millionaire and equity partner Joel I. Gilbert.

Alabama Power is the sister-wife, siamese twin of embattled law firm Balch and Bingham.

David Roberson, with the help of Birmingham attorney and Balch victim Burt Newsome, has filed a lawsuit that promises to pull the mask off behind-the-scenes efforts to protect some of Alabama' s most well-known power brokers and Balch stooges -- Luther Strange, Richard Shelby, Jeff Sessions, Robert Bentley, Gary Palmer, Jessica Medeiros Garrison, and more. It appears we certainly can add Mark Crosswhite to that list. Writes Forbes: 

As the most powerful man in Alabama, Crosswhite and other top executives at the utility are all former Balch partners.

But even the most powerful individual for one of the largest employers in Alabama cannot be above the law.

Pulling strings, at the end of the day, helps no one except investigators.

Monday, July 29, 2019

Documents from the Scott J. Wells child-pornography case in the Missouri Ozarks unmask our federal courts in all of their goofy, crooked, and clown-car glory

Scott J. Wells

How clownish was the process that caused Missouri resident Scott J. Wells to be detained for more than two years on federal child-pornography charges, even though the government's own narrative shows it would have been physically impossible for Wells to commit the alleged offenses? The process is spelled out in three documents (all embedded at the end of this post) -- and they show the proceedings would have had to improve considerably to be a dumpster fire.

Perhaps the nuttiness best shines through in the middle document below -- a "Minute Sheet" prepared by U.S. Magistrate David P. Rush for a combined preliminary/detention hearing. Get a load of Rush's words under the "Preliminary Hearing" heading:

Court takes notice of the court file, which includes a signed affidavit in support of the complaint. No evidence presented with regard to probable cause. Court finds probable cause and orders the matter held for grand jury or other proceeding.

If you did a double take upon reading that, you aren't alone. A federal judge actually writes that the prosecution presented no evidence regarding probable cause, but he found probable cause anyway. Those are your taxpayer dollars at work, folks.

It doesn't get any better from there. All three documents contain gross deception, falsehoods, and nonsense. Consider the first document embedded below -- United States Motion for Pretrial Detention and for a Hearing Pursuant to 18 U.S.C. 3142(e) and (f). In item 6(b), the document states:

In relation to the weight of the evidence supporting the charges in the Complaint, Facebook initiated SyberTip 16099575 on December 21, 2016, and CyberTip 16533142 on January 15, 2017, regarding a user uploading and sending a file containing child pornography. Law enforcement traced the account back to the defendant  and executed a search and seizure warrant at the defendant's residence. A forensic preview examination on the defendant's laptop computer revealed 60 images of child pornography.

The government conveniently leaves out several critical points:

(1) The Facebook CyberTips did not involve just one image file; it involved two -- and the feds' criminal complaint states that Wells uploaded both at the same exact same time, down to the second. That, of course, is physically impossible to do. That means there was no probable cause to search Wells' residence, and anything obtained there was the fruit of an unlawful search.

David P. Rush
(2) The feds' criminal complaint provides zero evidence that Wells knowingly possessed the 60 images referenced above.

(3) The feds provide no evidence that anyone in the images was a minor (under age 18). In fact, the complaint does not mention the age of anyone.

The government resorts to more deceit in item 6(c):

In relation to the history and characteristics of the defendant, the defendant is unemployed and lives at home with his mother and father, who are in their 70s. On August 19, 2004, Wells was convicted of sexual misconduct, statutory sodomy, incest, and child molestation in the Circuit Court of Greene County, Missouri, case number 31302CF5509. On November 17, 2004, the Circuit Court granted Wells' motion for a new trial due to ineffective assistance of counsel, and vacated Wells' convictions. On July 5, 2006, Wells pleaded to four counts of endangering the welfare of a child.

What does the government conveniently leave out?

(1) Wells' convictions were not overturned just because of ineffective assistance of counsel (by my brother, Missouri attorney David Shuler). It also involved at least one accusing witness being caught in a clear lie under oath.

(2) Judge Don Burrell could have, and probably should have, dismissed the child molestation case against Wells altogether. But he threw the state a bone and granted a new trial, with Wells entering an Alford plea to endangering the welfare of a child. An Alford plea, by definition, generally means that the defendant did not actually commit the offense in question, but is pleading to dispense with the matter and avoid the dangers of trial for both sides. We've seen nothing in the record that remotely suggests Scott Wells actually endangered the welfare of a child.

(3) As for Wells' employment status, the government fails to mention -- and the public defender probably did not even mention it -- that he is virtually blind in one eye and must use a walker to remain upright and mobile due to a benign brain tumor he's had since childhood. Yep, sure sounds like a danger to society.

Let's return to the second document embedded below -- Judge Rush's Minute Sheet. Under "Detention Hearing," it states:

The Court takes note of its own file , including the Pretrial Services Report prepared by the USPPTS Officer. The Government has filed a Motion for Detention Hearing (Doc. 2) Arguments made regarding Defendant's custody. The Court finds, by clear and convincing evidence, that the Defendant is a danger to the community. Accordingly, the Court finds an adequate basis for detention and will issue a written order.

Rush finds "clear and convincing evidence" that Wells is "a danger to the community"? How? It certainly is not in the government's Motion for a Detention Hearing. And the criminal complaint describes an offense Wells could not have committed if he wanted to. On top of that, Rush finds in the same Minute Sheet that he has no evidence of probable cause before him. Yet, he magically determines that Wells is a danger to the community. I almost want to guffaw upon reading this garbage.

As for the third document embedded below -- Rush's order regarding detention -- consider these

The factors to be considered by the Court in determining whether the defendant should be detained pending trial are enumerated in section 3142(g). The Court has already noted that this case involves a minor victim. The evidence at the hearing established that the weight of the evidence against the defendant is overwhelming.

The evidence is "overwhelming"? This is the same judge who stated in his own Minute Sheet that the hearing involved no evidence with regard to probable cause. This guy can't keep his story straight. On top of that, Rush notes the allegations involve a "minor victim." The criminal complaint, however, does not list the age for any alleged victim. Without evidence that the victim was under 18 years of age, there is no proof the offense involved a minor.

It seems clear Rush did not read the criminal complaint closely -- if he bothered to read it at all. The judge's actions in the case should be enough to shock the conscience, but I've seen this tired act from numerous judges before. They rely on a somnolent mainstream press to make sure that documents like this usually never make the light of day.

At a pretrial conference last week, Wells' third court-appointed lawyer, Brady Musgrave gave no indication that he intended to seek dismissal of the charges based on a criminal complaint and indictment that both are deficient. He also showed no signs of filing a pretrial motion to suppress evidence that was the product of an unlawful search not based on probable cause.

It all suggests to me that Rush, chief prosecutor James J. Kelleher, and all three of Wells' court-appointed attorneys (David Mercer, Shane Cantin, and Brady Musgrave), are conspiring to cheat Scott Wells and trample his constitutional rights. If my guess is on target, this is criminal behavior (obstruction of justice, misprision of a felony, deprivation of rights under color of law) and should result in an investigation that would send several law-degree types to prison for quite a stint -- if we had a justice system that was remotely functional.

Jill Simpson, who stood up for Don Siegelman and against the influence of Russian oligarchs and mobsters, is fighting breast cancer and a financial crunch; she and her husband need our help

Jill Simpson, the retired Alabama lawyer who testified before Congress regarding the political prosecution of former Democratic governor Don Siegelman, is fighting breast cancer -- and that, plus business downturns for her husband, Jim March, have put them in a tight financial spot. They need help from Legal Schnauzer readers, as Jim explains in the video above.

Both Jill and Jim have been powerful and effective voices for honesty and integrity in government -- with Jill providing regular commentary here at the blog on matters of law and politics. Her Facebook page provides some of the most insightful analysis on public affairs you are likely to find at any social-media outlet.

What are some of Jill's contributions to public awareness on matters of national and international impotance? She has unmasked Karl Rove as a political thug and criminal in a way that perhaps no other American has. She was among the first political observers to note the influence of Russian oligarchs and mobsters with our government -- especially in Alabama, over a $40-billion Air Force tanker-refueling project that stood to be partially constructed in Mobile. Many Americans probably first heard the name Oleg Deripaska due to Jill's research about the Putin crony's alliance with Jeff Sessions on the tanker deal -- which ultimately went to U.S.-based Boeing over the European Aeronautic Defence and Space Co. (EADS).

Jill Simpson and Jim March
Jim, a former political operative and election-integrity expert, now works as a truck driver -- and he has seen  certain sectors of the industry struggle recently. Jim already has taken steps to move to a more profitable trucking sector -- car hauling -- but he and Jill still face a serious financial crunch in the near term.

I've known Jill almost from the day Legal Schnauzer started in June 2007. I know Jill and Jim to be a smart, courageous couple, who care deeply about their country and the democratic process. In fact, they were part of a nationwide effort that likely ensured Republicans would not steal the 2008 presidential election. Those who are glad Barack Obama spent eight years in the White House probably should thank Jill and Jim because they played a significant role in making that happen

In short, Jill and Jim face a shortfall of $2,000 to $2,500 -- as Jim explains in the video. He also explains how Schnauzer readers can help. After watching he video, we hope you will consider making a contribution. Details on contributing ate at the summary below the video at Jim's YouTube channel.

Thank you.

Friday, July 26, 2019

Injuries in jail to accused sex trafficker Jeffrey Epstein could point to an attempted mob hit at the behest of powerful elites who stand to be fingered for sex crimes

Jeffrey Epstein and Donald Trump

Accused sex trafficker Jeffrey Epstein, who was found earlier this week semi-conscious in his jail cell with injuries to his neck, might have been the target of an attempted hit, according to a D.C.-based investigative journalist.

As Vanity Fair recently reported, the number of elites (especially in Manhattan and Washington, D.C.) Epstein could finger for alleged child-sex crimes is "staggering." In other words, a lot of powerful people would rest more comfortably if Epstein were dead. With that as a backdrop, the Wayne Madsen Report writes that the judge who placed Epstein in an insecure environment has ties to organized crime. Madsen even notes that at least one member of the jail population has a history of alleged involvement with gangland-style killings. Writes Madsen:

Nicholas Tartaglione
It really does not matter whether the presiding federal judge in the Jeffrey Epstein underage sex trafficking case, Richard Berman, opposed bail for the Wall Street hedge fund mogul because Epstein represents an extreme flight risk or not. What matters is that Berman failed to make adequate provisions for Epstein’s safety inside the Manhattan Correctional Center (MCC). On July 24, Epstein was discovered by guards in his cell "nearly unconscious in a fetal position.” Epstein was said to have “marks” on his neck consistent with a suicide attempt or put there to give the impression by someone else that he attempted suicide.
What is apparent with Epstein’s so-called “attempted suicide” in the Park Row jail is that some very powerful interests do not want to see Epstein come to trial in New York. These individuals, who include Donald Trump, would rest much easier if Epstein died either by suicide, murder, or murder made to look like suicide. It matters very little if Epstein died while ensconced under tight restrictions at his Upper East Side mansion or in the MCC with access to him by other inmates.

Judge Berman's failure to separate Epstein from the general prison population is curious. That is especially true because the population includes former Briarcliff Manor, Westchester County police officer Nicholas Tartaglione, who was arrested in December 2016 and charged with the “gangland-style” execution of four men -- Hector Gutierrez, Martin Luna, Miguel Luna and Urbano Santiago -- involved in a cocaine distribution racket. Tartaglione, apparently also involved in the racket, allegedly carried out the mob-style hit at the Likquid Lounge in Chester, New York. Writes Madsen:

Former U.S. Attorney for the Southern District of New York Preet Bharara, who was fired by Trump early in his administration, said of Tartaglione, “While all murders tear at the fabric of our communities, when the alleged perpetrator of a gangland-style, quadruple homicide is a former police officer, that strikes at the heart of civilized society.” What better person to use to either murder Epstein or communicate a threat to him to keep his mouth shut than someone like Tartaglione. Briarcliff Manor, coincidentally or not, is the home of the Trump National Golf Club.

Tartaglione, who also worked as a police officer in Yonkers, Mount Vernon, and Pawling, hails from Otisville, New York. Those out to protect Trump may have killed two birds with one stone. If an assault of Epstein was meant to send a clear message to him to keep his mouth shut, it also may have sent a similar message to former Trump attorney and “fixer” Michael Cohen, who happens to be prisoner 76318-054 at the Federal Correctional Institution in -- Otisville.

Tartaglione fits the profile of a potential mob hit man, Madsen reports:

While MCC officials questioned Tartaglione about Epstein’s injuries, with which he denied having any involvement, it should be remembered that the former cop is exactly the type of people the mob uses to carry out hits in prison. Recall that infamous mob boss Whitey Bulger, an FBI informant, CIA MK-ULTRA mind control program participant, and Irish Republican Army arms trafficker, was beaten to death in his cell at the Hazelton federal penitentiary in West Virginia on October 30, 2018. Bulger’s eyes were practically gouged out and tongue cut off with a prison-made shiv. The Federal Bureau of Prisons, which would have had a say in Epstein’s incarceration pending trial, has a dismal record on protecting inmates like Bulger, and now, Epstein.

Could Epstein's injuries be traced to the White House? Madsen addresses that question -- and others:

It only stands to reason that Trump, fearful of his longtime and very close relationship with Epstein being exposed, along with all of the details of child rape by the two, would rely on a Mafia hitman, already in jail, to silence Epstein. In fact, knowing that most correctional centers are woefully understaffed, it would be easier to carry out a hit on Epstein in the MCC rather than under closely supervised house arrest.

There is also the question of why Tartaglione, who faces federal murder charges that could result in the death penalty and who is being held without bail pending trial, was transferred from the Metropolitan Detention Center (MDC) in Brooklyn to the MCC in Manhattan. In March 2017, Gerard Benderoth, a retired New York Police Department officer, reportedly shot himself to death in Haverstraw, New York, after being pulled over by FBI agents. Oddly, Haverstraw had phoned from his car the town’s police department, from which he retired in 2015, to inform them he was being pulled over. The FBI agents reportedly wanted to question Benderoth about his connections to Targaglione and the Westchester County cocaine smuggling ring.

A crooked judge appears to be at the center of the Epstein story. Writes Madsen:

Why would Epstein’s trial judge Berman place the accused in such jeopardy in the MCC? It is germane to look at Berman’s background. From 1979 to 1986, Berman served as the corporate counsel for Steve Ross, born Steven Jay Rechnitz, the founder of Abbey Rent a Car. Abbey later merged with Kinney Parking Company, owned by Jewish mob bosses Manny Kimmel and Abner Zwillman. After mob boss Dutch Schultz’smurder in 1935, Zwillman took over Schultz’s rackets and quickly became known as the “Al Capone of New Jersey.” Ross’s Kinney Parking became Kinney National Services in 1962. In 1969, Kinney bought Warner Bros.-Seven Arts, the film and record company and changed its name to Warner Communications, with Ross becoming CEO in 1972. In 1989, Warner merged with Time. In the late 1980s and before his death in 1992, Ross began negotiations that later landed the FIFA World Cup in the United States in 1994. Ross died at age 65 from a massive heart attack and was succeeded by Gerald Levin, who would later wrest control of CNN from its founder, Ted Turner. FIFA, which maintained offices in Trump Tower, has long been linked to international criminal syndicate activities.

The public has a strong interest in keeping Epstein safe, Madsen writes:

While few care what happens in the long run to a pedophile like Epstein, there is a great need to keep him healthy to stand trial and hopefully name all of his cohorts in his sex trafficking, including all of the VIPs like Trump, Bill Clinton, Alan Dershowitz, Prince Andrew, and others. However, Judge Berman, by placing Epstein in the midst of at least one mob hit man, should immediately recuse himself from the Epstein case.

Thursday, July 25, 2019

The big news on former special counsel Robert Mueller is not about yesterday's hearings; it's about a law professor's analysis that shows the Mueller Report is riddled with "historic" errors -- of both fact and law

Robert Mueller

The most significant Robert Mueller news did not come yesterday when the former special counsel testified before two Congressional committees about his investigation of the Russia-Trump scandal. It came two weeks ago when a respected law professor showed the Mueller Report is riddled with errors, both of fact and law.

Jed Shugerman, a professor of law at Fordham University, wrote an article at the Daily Beast (dated July 10, 2019), titled "Mueller Missed the Crime: Trump’s Campaign Coordinated With Russia." Sub-title on the article was "The special counsel will testify before Congress (in two weeks). He needs to answer for historic legal and factual errors."

We see no signs that any Democrat at yesterday's hearing questioned Mueller in a way that clarified the errors in  his report. And according to Shugerman, the errors were many; in fact, Shugerman published a blog post yesterday morning that outlined at least 10 major errors in the Mueller Report.

How did these errors affect the public's ability to understand possible Trump-era criminality? Here's how Shugerman puts it in the Daily Beast article:

Ever since the release of the Mueller Report, countless commentators have implored everyone to just #ReadtheReport. The problem is not who is reading it—the problem is the report itself, and its many errors.
Jed Shugerman
Robert Mueller made a significant legal error and, based on the facts he found, he should have identified Trump campaign felonies. Mueller’s errors meant that, first, he failed to conclude that the Trump campaign criminally coordinated with Russia; second, he failed to indict campaign chairman Paul Manafort and his deputy Rick Gates for felony campaign coordination . . . third, the 10 acts of felony obstruction in Volume II fell flat among the general public because it lacked compelling context of these underlying crimes between the campaign and Russia. On top of these errors, the former special counsel said he deliberately wrote the report to be unclear because it would be unfair to make clear criminal accusations against a president.
The bottom line is that the Mueller Report is a failure not because of Congress or because of public apathy, but because it failed to get the law, the facts, or even the basics of writing right. When Mueller testifies before Congress on July 24, he should be pressed on all of this.

Perhaps Mueller's biggest error involves his analysis of coordination between Russia and the Trump campaign. Writes Shugerman:

The DOJ’s initial appointment explicitly tasked Mueller with investigating campaign “coordination,” and it is not too much to ask that he get the law of “coordination” right. The report stated that “‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express.”

However, Congress purposely sought to prevent such narrow interpretations: in 2002, it passed a statute directing that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination.” The Federal Election Commission established the regulations for the implementation of the statute: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement.

Outside spending for coordinated communications is an in-kind contribution, and foreign contributions are completely prohibited. And Congress made the criminal penalties unmistakably clear: “Any person who knowingly and willfully commits a violation of any provision of this Act” commits a crime. The Supreme Court upheld these limits in McConnell v. FEC with crucial observations about the functional role of suggestions, rather than agreements: “[E]xpenditures made after a wink or nod often will be as useful to the candidate as cash.” (The Trump-Russia) timeline is full of suggestions far more explicit than winks and nods.

As the Supreme Court acknowledged, this is not about bribery and quid pro quo; it’s about outsourcing a consistent campaign messaging and expenses to known allies. It seems Mueller did not hire any legal experts with experience in campaign finance regulation. Given that this investigation was about campaign crimes, this appears to be a revealing oversight with serious consequences.

House Democrats yesterday seemed to alternate between praising Mueller as a "legal giant" and asking about various allegations of obstruction of justice by the Trump team. Lost in the shuffle were the myriad errors Mueller made regarding coordination between Russia and the Trump campaign. Embedded below is Shugerman's summary of those errors, many of which were not adequately addressed in yesterday's hearings -- because Democrats were too busy fawning over Mueller, and Republicans . . . .well, they are just worthless.

Yesterday's hearings were mostly a waste of time. Jed Shugerman's analysis of the Mueller Report definitely is worth your time.

Wednesday, July 24, 2019

The government's grounds for keeping Scott J. Wells behind bars for more than two years on child-porn charges would have to improve to be flimsy

Scott J. Wells

How has Missouri resident Scott J. Wells been held behind bars for more than two years, even though he has never gone to trial, he's been convicted of nothing, and the child-pornography charges against him involve allegations that are physically impossible for him to have committed? I have a two-pronged answer to that question: (1) Bad law; (2) Bad people enforcing the law.

As Legal Schnauzer recently passed its 12th birthday, our over-arching theme has been: The law, in many cases, makes sense, but the people who enforce it (lawyers, judges, prosecutors, cops) tend to be crooked, incompetent, or both. In the Scott Wells case, both the law itself and the people enforcing it are of dubious character.

Wells has been in prison or jail since spring 2017 because of 18 U.S.C. 3142 ("Release or detention of a defendant pending trial"). In a society where an accused is considered innocent until proven guilty and is entitled to a speedy trial, I suspect Scott Wells has been treated in a wildly unconstitutional fashion. In fact, all or part of Sec. 3142 probably would be overturned if a few members of Congress had the temerity to challenge it in this "tough on crime" era.

Wells has been deprived of a speedy trial because the first two court-appointed lawyers assigned to defend him -- David Mercer and Shane Cantin -- did almost nothing on the case. We attended a pretrial hearing yesterday and saw no sign that the third court-appointed attorney, Brady Musgrave, will spring into action (seeking to have the case lawfully dismissed) at any point before the August trial date.

Sec. 3142 is long and unwieldy, so we will try to focus on its key elements. First, it allows the prosecution to seek a detention hearing and order. The judge is supposed to make a determination on detention or release based on four primary factors:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence, involves alleged sex trafficking of children, terrorism, a minor victim, or a controlled substance, firearm, explosive or destructive advice;

(2) The weight of the evidence against the person;

(3) The history and characteristics of the person, including his character, physical and mental condition, family ties, length of residence in the community, past conduct, criminal history, history relating to drug or alcohol abuse, and record of appearing at court proceedings;

(4) The nature and seriousness of the danger to any person or the community that would be posed by the person's release.

How does Wells score on this four-point checklist? Based on available information, he scores well. Re: item No. 1, there is no evidence that Wells was connected to any controlled substance, firearm, or destructive device. The issues about a "crime of violence" and "a minor victim" come under the heading of bad law and poor investigative work. 18 U.S.C. 3156 includes possession and distribution of child pornography as "crimes of violence." The law on sexual abuse and exploitation repeatedly refers to "contact offenses," where an adult makes inappropriate and unlawful physical contact with a minor. When the allegation is that an accused merely viewed an image of child pornography -- and maybe did not even do so knowingly or intentionally -- how can that involve violence? Some might consider the conduct deplorable or disgusting, but it's not violent. As for "a minor victim," that is a matter of simple arithmetic: Is the alleged victim under the age of 18? Nothing in the criminal complaint suggests investigators know the ages of any alleged victim. They make several references to "minors," but they provide zero evidence about anyone's age.

As for item No. 2, the weight of evidence against Scott Wells is zero. He became a target because of a Facebook "CyberTip" about a suspicious image that had been uploaded to his account. But the criminal complaint states that Wells uploaded two different images at the exact same time (to the second), which is physically impossible and cannot form probable cause for his arrest or the search of his home.

As for item No. 3, Wells has plenty of family ties in the community and has lived in Springfield, MO, for most (maybe all) of his life. The only criminal history I've found involved the child sexual abuse case, where a conviction was overturned due to ineffective assistance of counsel provided by my brother, attorney David Shuler. I'm unaware that Wells has any significant history with drug or alcohol abuse or failing to appear at court proceedings.

David P. Rush
As for item No. 4, it's hard to see how Wells can be a danger to anyone. He is virtually blind in one eye, and because of a benign brain tumor he's had since childhood, requires a walker to remain upright and mobile. He was rolled into yesterday's hearing in a wheelchair.

The detention process in U.S. v. Wells appears to have involved three documents -- (1) The government's Motion for Pretrial Detention and Hearing pursuant to 18 U.S.C. 3142(e) and (f), from chief prosecutor James J. Kelleher; (2) The court's minute entry for the preliminary hearing and detention hearing; and (3) The court's order regarding detention, from U.S. Magistrate David P. Rush.

All three documents contain statements that are deceptive, inaccurate, nonsensical -- or some combination of the three. We will examine those documents in an upcoming post.

We should note, for now, that the record contains no indication that Federal Public Defender David Mercer, who was representing Scott Wells at the time, filed any written response to the government's detention motion. It's not even clear that Mercer made any substantive oral argument at the hearing to keep his client free. Wells' two subsequent attorneys -- Shane Cantin and current counsel Brady  Musgrave -- have made no effort to free their client, even though there are ample grounds for doing so.

(To be continued)

Tuesday, July 23, 2019

Not only is Alabama U.S. Senate hopeful John Merrill a hypocrite on matters of sexual indiscretion, he's also an arrogant prick who claims he needs to be in federal office to help "save the republic" -- what a guy!

John Merrill

Just when you are convinced hypocrisy is John Merrill's most unattractive quality, along comes evidence that his hubris is off the charts.

Merrill, a Republican U.S. Senate hopeful for 2020, made national news last week when he declared America is experiencing moral rot because of a "preoccupation with homosexual activities" and "wife-swap TV shows." Merrill went on to claim the loss of TV shows from yesteryear -- such as "Gunsmoke" and "Bonanza" -- has caused the country's broken moral compass to spiral off a cliff.

Merrill's latest salvo involves coverage of the U.S. National Women's soccer team, which won the World Cup with the assistance of several key members who are gay. In essence, Merrill seems to be claiming that Americans, in 2019, can't handle knowing that Megan Rapinoe is openly gay.

Where does hypocrisy enter the picture? Well, Merrill made these comments at a GOP gathering in Fort Payne (home to the famed country band Alabama) in the state's northeast corner (DeKalb County). Merrill went into familiar self-righteous, Bible-thumping, right-wing mode even though he admitted in 2015 to an "extramarital sexual encounter" with a Tuscaloosa woman named Millie Brinyark, who stated in a divorce-case deposition (under oath) that she provided Merrill, currently Alabama's secretary of state, with oral sex -- among other services.

As you can see, Merrill is a "do as I say, not as I do" sort of character -- the kind Alabama has a special talent for producing. But, by golly, he's an arrogant prick, too -- and that leads us to hubris.

Yellowhammer News, in its coverage of Merrill's comments at Fort Payne, reported that he is needed in the U.S. Senate to help "save the republic." We're not joking -- and that comment is ironic because Merrill's own party controls the White House, the U.S. Senate, the U.S. Supreme Court, state appellate courts, most federal courts in the Deep South, and pretty much every branch of Alabama government.

In other words, Merrill is part of the team that is leading us straight to hell, but Merrill (and Merrill alone) can save us. A guy has to be pretty full of himself to make a statement like that. But that's what John Merrill said -- when he took a moment from his self-appointed TV-reviewing duties. From the Yellowhammer News report:

Merrill pledged that he and his wife Cindy were willing to face the scrutiny of what is likely to be a very competitive statewide campaign.

“One of my friends asked me, he said, ‘John, are you prepared to go through what you’re going to have to go through if you run for the United States Senate,’” Merrill said. “He asked me this on the Sunday before the Tuesday. He said, ‘Are you prepared for the attacks that you’ll face and that Cindy will face? Are you prepared to stand up and fight against that? Is it worth it to you to go through what you’re going to have to go through and pay the price to make it happen? Is it worth it?’”

“’And I said, ‘Ron, let me ask you a question,’” he continued. “He said, ‘OK.’ I said, ‘Is the republic worth it? Is the republic worth it? It is worth it to me. And I know it is worth it to y’all and that’s why there is a room full today because y’all understand it. We have got to stand and push back, and continue to fight and support the president and to make these changes that we have to make in order to protect and defend our country as we have known it to be or it will cease to be that way.”

I've got to hand it to Merrill in one regard. He does not seem to be a big fan of Donald Trump. In fact, he insinuates that Mr. Cheeto Face is putting our republic at risk. I agree with Merrill on that one, so it will be interesting to see if he runs a full-blown anti-Trump campaign -- and if it plays well in bloody red Alabama.

Heck, even "AOC and The Squad" surely agree that Trump is flushing  our democracy down the toilet. But they should sleep easier tonight -- as should all of us -- knowing that John Merrill stands ready to save the republic.

(Note: If you are looking for intellectual consistency, you won't find it with John Merrill. While he seems to be admitting, at first glance the republic is going down the tubes on Trump's watch, he also told his audience in Fort Payne that "We have got to stand and push back, and continue to fight and support the president . . . So, Merrill declares, Trump is part of the solution, not the problem. Whew, glad we got that worked out.)

Monday, July 22, 2019

Federal indictment on child-porn charges against Missouri resident Scott Wells is void of specifics, meaning it is deficient and due to be dismissed

Scott J. Wells

An indictment, as a matter of law, is about specific allegations that a crime was committed and a grand jury's determination that the accused committed it. Yes, a recitation of the elements in a particular statute often is part of an indictment. But that, alone, is not sufficient. The true bill, which is the grand jury's written decision, must provide specifics about the offense so the accused can prepare a defense against it.

Why then does the indictment in the child-pornography case against Missouri resident Scott J. Wells contain not a single word of specifics about what he allegedly did? How can Wells defend himself when the indictment does not tell him what unlawful actions he supposedly took -- in this specific case, not in a general sense? (The indictment is embedded at the end of this post.)

The answer: Wells cannot prepare a defense based on an indictment that is so woefully deficient it must be dismissed. Will Brady Musgrave, the third court-appointed lawyer to represent Wells, file a motion to dismiss the indictment, end this hoax of a case, and free his client from more than two years of detention that is unsupported by probable cause? In fact, we've already shown the feds have charged Wells with an offense that would be physically impossible for him to commit -- and the case should be dismissed on that ground, too.

Let's take a look at the indictment in U.S. v. Wells. There isn't much too it; it's one long run-on sentence that quotes directly from the relevant statute [18 U.S.C. 2252(a)(2) and (b)(1)]:

Beginning on an unknown date, at least as early as December 15, 2016, and continuing through March 22, 2017, said dates being approximate, in Greene County, and elsewhere in the Western District of Missouri. SCOTT JAMES WELLS, the defendant knowingly received and distributed any visual depiction that had been mailed and shipped and transported in interstate commerce, and which contains materials which had been so mailed and shipped and transported by any means, including by computer, the production of which visual depiction was of such conduct, all in violation of Title 18, United States Code, Sections 2252(a)(2) and (b)(1).

Two key points:

(1) If you click on the link above to the statute, you will see that the true bill against Scott Wells pretty much tracks the language exactly -- like a student copying off the smart kid's paper in math class. Is there any allegation in it that specifies an offense that Scott Wells committed? I can't find a single word. If any reader can find a specific offense involving Scott Wells, please let me know. Without even the hint of specifics, the indictment is deficient and due to be dismissed.

Brady Musgrave
(2)  The grand jury apparently glossed over the feds' criminal complaint, which alleges Wells uploaded two separate image files at exactly the same time, down to the second. That, of course, is physically impossible, meaning the grand jury had insufficient evidence before it to return an indictment.

What does federal law say about the sufficiency of an indictment? From Hamling v. United States, 418 U.S. 87 (1974):

"Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged."

In other words, reciting the language of the statute is fine, but it's not enough. The accused must be informed of a specific offense -- but the Wells grand jury failed to do that. Why does this matter? Let's consider the language from United States v. Hess, 124 U.S. 483 (1888):

The statute upon which the indictment is founded only describes the general nature of the offence prohibited; and the indictment, in repeating its language without averments disclosing the particulars of the alleged offence, states no matters upon which issue could be formed for submission to a jury. The general, and, with few exceptions, of which the present is not one, the universal rule, on this subject, is, that all the material facts and circumstances embraced in the definition of the offence must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment, or implication, and the charge must be made directly and not inferentially, or by way of recital. . . .

The absence of all particulars of the alleged scheme renders the count as defective as would be an indictment for larceny without stating the property stolen, or its owner or party from whose possession it was taken.

"It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, `includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species; it must descend to particulars.' . . .  The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances."

Can the prosecutors in Wells seek to amend the indictment to clean up the mess they have made? In general, no. From

The general rule is that indictments cannot be amended in substance. "An amendment to an indictment occurs when the charging terms of an indictment are altered." United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995). This follows from the fundamental distinction between the information and the indictment . . . which must be returned by a grand jury. If the indictment could be changed by the court or by the prosecutor, then it would no longer be the indictment returned by the grand jury. Indeed, in Russell v. United States, 369 U.S. 749, 769 (1962), the Court pointed out that a consequence of amending the indictment is that the defendant "could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him." "Thus, the Fifth Amendment forbids amendment of an indictment by the Court, whether actual or constructive." United States v. Wacker, 72 F.3d 1453, 1474 (10th Cir. 1995).

So, the feds are stuck with their deficient indictment in Wells. If attorney Brady Musgrave does his job -- and U.S. Magistrate David P. Rush has a hint of integrity -- the charges against Wells will be dismissed, and his incarceration of more than two years should end, pronto.

The whole sordid story suggests chief prosecutor James J. Kelleher, and perhaps others in the Western District of Missouri, should be criminally investigated for allowing such a patently bogus case to be move forward.

Thursday, July 18, 2019

Alabama U.S. Senate hopeful John Merrill, now a noted TV and cultural critic, admitted in 2015 to "extramarital sexual encounter" but said woman's claim that she provided oral sex was false -- no kidding

John Merrill

The claims of Alabama U.S. Senate hopeful John Merrill that a preoccupation with "homosexual activities" and the "wife swap TV shows" is causing moral rot in America raises a host of discomfiting questions.

Is Merrill's steaming pile of hypocrisy, given his 2015 admission to an "extramarital sexual encounter," the smelliest part of this story? Or maybe it's the Alabama press' willingness to provide cover for a white Republican by failing to mention Merrill's own indiscretions in coverage of his bromide about old-timey television shows? Or is it the explanation Merrill gave to a newspaper's panel of four journalists in 2015 that was so flimsy it stretched credulity to the breaking point?

How did Merrill explain his dalliance with a woman named Millie Brinyark to higher-ups at (The Birmingham News)? We would describe it as "off-the-charts goofy." But the assembled journos, casting inquisitiveness and healthy skepticism aside, seemed to swallow it, as fishermen like to say, "hook, line, and sinker."

After we broke the Merrill-Brinyark story on January 29, 2015 -- he was then, as he is now, Alabama's secretary of state -- Merrill met with members of the staff in an apparent effort to squirm out of trouble. Here is how we described it in a post dated February 5, 2015:

Alabama Secretary of State John Merrill admits to having an extramarital sexual encounter but denies it included oral sex, according to an article published yesterday afternoon at

Merrill, a Republican with solid backing from business and religious organizations, also admitted to recommending the woman, Millie Brinyark, for a school-related job. But Merrill denied making the hiring decision, even though the job apparently was in a program he once managed. . . .

What is Merrill's version of the sexual encounter? Here is how describes it:

Merrill said the woman called him and asked to meet on Sunday, Sept. 12 (2010), at a condo owned by her brother. (In her deposition, the woman said Merrill asked her about getting together that Sunday, but acknowledged that she suggested the location, saying she had to go there anyway to return a parking pass.). That is where the encounter happened that Merrill and the woman describe differently.

Merrill told reporters: "Basically, when I walked in, we started talking. She kissed me, I kissed her back. Then she started unbuttoning my shirt, and after that, she started to become more aggressive, and she actually did some other things in trying to engage me in some physical activity with her, which I declined, and I indicated to her that I was not going to do that.

"I stopped, and I said, 'I need to go, I'm not going to be here anymore'."

How did Merrill skirt Brinyark's graphic description, in a divorce-case deposition (under oath), of their encounter? Given that Merrill is a long-time chum of Birmingham attorney and former Alabama first son Rob Riley, it should be no surprise that his explanation is a tad hard to believe. From our February 2015 post:

The article raises numerous questions, but perhaps the most staggering one is this: Why would a woman admit--under oath and penalty of perjury--to providing a man with oral sex, when she really didn't? Even Merrill can't seem to explain that one, especially considering that Brinyark's deposition reportedly was taken less than two weeks after the sexual encounter. From the article:

Asked why the discrepancy exists between his version and what the woman testified to 10 days after the incident, Merrill said:

"I don't know, I don't know that I ever will know. But I do know this - I'd know if that (oral sex) had happened. I would know that, and I know it didn't."

Raise your hand if you think Millie Brinyark would admit, under oath in a divorce case, that she provided a BJ to a man other than her husband, when she really didn't. I suspect there aren't too many raised hands out there.

Millie Brinyark
As for the journalism on the Merrill story . . . well, it's been dreadful. We wound up breaking the Brinyark story after's Kyle Whitmire admitted he was sitting on it. From a Legal Schnauzer post of January 2015:

Secretary of State John H. Merrill (R-Tuscaloosa) is the Alabama politician whose extramarital affair was revealed in court documents but went unreported in the mainstream press.

Kyle Whitmire, a reporter for, admitted in a column on Tuesday that, prior to the 2014 general election, he had court documents that provided details about an unnamed public official's affair. The quality of the information was not in question because it involved sworn testimony in a deposition. Whitmire said it was "as close as it comes" to having a "story cold," but he "stuck it away," apparently not even consulting an editor about it. Whitmire hinted that other reporters in the mainstream press had received the information and ignored it.

Merrill, a Republican ally of former governor Bob Riley and a friend of Riley's son Rob, went on to handily win the secretary of state race over Democrat Lula Albert-Kaigler. Would Merrill have won if Whitmire had revealed the contents of court documents in his possession? That's hard to say. But multiple sources told Legal Schnauzer yesterday that the documents in question are from a divorce case in Tuscaloosa Circuit Court styled Bryan Scott Brinyark v. Mildred Murphree Brinyark.

Sources sent us copies of Millie Brinyark's deposition in the case, dated September 22, 2010, and Merrill's name is front and center. Ms. Brinyark, a former teacher, admits to allowing the married Merrill to touch her "private parts" and that she performed oral sex on him.

How small a person is John Merrill, this guy who wants to represent Alabama in the U.S. Senate? He actually had the audacity to blame his 2015 troubles on a "smear campaign." And journos apparently were dim-witted enough to believe him. From Legal Schnauzer:

According to, Merrill claims to be the victim of a "smear campaign" by unnamed individuals who widely circulated portions of the deposition to the press, politicians, members of his church, and others. How can it be a smear campaign when it involves public documents, about testimony that Merrill largely admits is true? The journalists apparently did not ask Merrill that question.