|Brett Kavanaugh and Donald Trump|
Democratic presidential candidates are calling for the impeachment of U.S. Supreme Court Justice Brett Kavanaugh in the wake of a New York Times report over the weekend about new allegations of sexual misconduct in Kavanaugh's background.
Those who have followed this blog from its earliest days know the latest on Kavanaugh might be a national (even international) story, but it hits close to home here at Legal Schnauzer.
Kamala Harris, Elizabeth Warren, Beto O'Rourke, and Julian Castro were among 2020 presidential hopefuls who called for Kavanaugh's impeachment, claiming the new revelations provide fresh evidence that he lied under oath to Congress in his confirmation hearings last fall. From a report at CNBC:
2020 presidential contenders including Kamala Harris, Elizabeth Warren and Beto O’Rourke on Sunday called for the impeachment of Justice Brett Kavanaugh after an article in The New York Times surfaced a previously unreported allegation of sexual misconduct against the justice when he was a undergraduate at Yale University.
“I sat through those hearings. Brett Kavanaugh lied to the U.S. Senate and most importantly to the American people,” Harris wrote. “He was put on the Court through a sham process and his place on the Court is an insult to the pursuit of truth and justice. He must be impeached.”
Warren said Kavanaugh’s nomination was “rammed through the Senate” without proper analysis into the slew of misconduct allegations against him.
“Confirmation is not exoneration, and these newest revelations are disturbing,” Warren wrote. “Like the man who appointed him, Kavanaugh should be impeached.”
Later in the day, O’Rourke weighed in as well.
“We know he lied under oath. He should be impeached,” O’Rourke tweeted.
The latest allegations against Kavanaugh grew from a book excerpt the Times published on Saturday. From a report at Vox:
[These presidential-candidate reactions] were prompted by a New York Times piece published this weekend, which featured an excerpt from an upcoming book by Robin Pogrebin and Kate Kelly. (The book's title is The Education of Brett Kavanaugh: An Investigation.)
That excerpt details an incident similar to the one described by Kavanaugh’s former Yale classmate, Deborah Ramirez. Ramirez had alleged that Kavanaugh drunkenly exposed himself and forcibly thrust his genitals in her face without her consent, something Kavanaugh denied. A second Yale classmate has now levied a similar allegation from another party attended by Kavanaugh:
We also uncovered a previously unreported story about Mr. Kavanaugh in his freshman year that echoes Ms. Ramirez’s allegation. A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student. Mr. Stier, who runs a nonprofit organization in Washington, notified senators and the F.B.I. about this account, but the F.B.I. did not investigate and Mr. Stier has declined to discuss it publicly. (We corroborated the story with two officials who have communicated with Mr. Stier.)
How does the Kavanaugh story touch on personal ground here at Legal Schnauzer? We invite you to read our first post, titled "Is Your Honor Really Honorable?" and dated June 3, 2007. The post does not include the name of Shelby County, AL District Judge Ron Jackson, but it is based on Jackson's failure to abide by his oath to uphold the law in our first courtroom experience -- a criminal trespass case against our criminally inclined neighbor Mike McGarity.
In a series of subsequent posts, we provided details about how Jackson butchered the law in State of Alabama v. Mike McGarity. Perhaps the most thorough examination came in a post titled "The trial of former Alabama House Speaker Mike Hubbard suggests confederate principles, and distrust of U.S. Constitution, never have died in the Deep South":
All of our legal problems flow from the date a criminally inclined individual named Mike McGarity moved next door to us. McGarity, his kids, and his guests started trespassing on our front yard with regularity, essentially turning it into the neighborhood playground, without asking what we thought about the use of our own yard. When I informed McGarity multiple times that we did not want him, or anyone connected to him, coming on our property, his response was, "I'm going to sue you for harassment. . . ."
When my warnings only drew threats from McGarity, I consulted an attorney named Bill Lewis, and he made it clear that McGarity was violating both criminal and civil law -- trespassing by a person is a crime; an intrusion by a person, thing, or substance can be a tort. Lewis said a civil case might cost $10,000 or more, so it didn't make much sense to go that direction, especially since McGarity was committing a crime. Lewis said he would write a letter to McGarity, explaining the criminal statute, and stating that McGarity would receive no more warnings. Lewis said he hoped that would take care of it, but it would be up to us to swear out a criminal complaint with the sheriff if the trespassing continued, and we wanted it stopped.
McGarity continued to trespass, along with a cast of thousands, so we felt we had no choice but to swear out a complaint. We met with an attorney in the Shelby County DA's office, she filled out paperwork for the complaint, and we took it to the clerk's office to be sworn.
McGarity pleaded not guilty and refused to discuss a settlement, which District Judge Ron Jackson had encouraged us to reach, so the case went to trial. McGarity was charged with criminal trespass (third degree), which is not even a misdemeanor under Alabama law; it's a violation.
The applicable law hardly was complicated -- although McGarity and his attorney, William E. Swatek, apparently couldn't grasp it -- and here is how we spelled it out:
The issues at hand are covered under Code of Alabama 13A-7-4, and the offense has two components:
(1) "A person commits the crime of trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises."
(2) "A person enters or remains unlawfully in or upon premises when he is not licensed, invited or privileged to do so."
Law doesn't get much simpler than that, and these two issues were easily resolved at trial. The trial transcript shows that McGarity admitted he had knowingly entered upon our premises. As for the second part, it helps to have some definitions. My research indicates that being "licensed" to enter premises refers to someone who has a professional reason to be there -- a fireman, meter reader, police officer.
Being "privileged" to enter premises refers to someone who tries to address an unexpected occurrence. For example, if your hat flies off your head and lands in my yard, you have a right to retrieve it. If your dog gets loose and winds up on my yard, you have a right to retrieve him. If you see someone on my property who appears to be in medical distress, you have a right to come and check on him.
As for "invited," that's pretty obvious: It applies to someone who knows he is on friendly terms with the owner/occupants of the premises and has reason to believe he is welcome.
McGarity never claimed he had been invited to enter our property, and he never claimed to be licensed or privileged. In essence, he confessed to the crime, but Judge Jackson still acquitted him. (Bet you didn't know that could happen in an American court; well, it can, and it has.)
How does a judge acquit a defendant who has unwittingly confessed to the offense as charged? He does it by going off the rails, completely outside the law, making stuff up on the bench and pulling it out of his ass, as he sees fit: Here is our description of how Jackson went rogue:
For some reason, the court focused on only one instance of McGarity trespassing, even though our complaint said we had witnessed him trespass on multiple occasions. McGarity admitted he had received Bill Lewis' warning letter via certified mail, but he said he wasn't sure of the date it arrived -- that it might have come after the one trespassing incident the court considered.
Here is what Jackson said to Carol and me: "I'm going to find that you had to give written warning, and there is reasonable doubt about whether the warning was received prior to the trespass. Therefore, I am going to acquit. But Mr. McGarity, you certainly are on notice now, and if you return here on these issues, the result might be different."
Jackson said this as if he was trying to be a thoughtful, even-handed judge. But the acquittal allowed McGarity to sue us for malicious prosecution, which is a tort that essentially means a case was brought without probable cause. Heck, testimony showed that we had not only probable cause, we had actual cause -- McGarity admitted to breaking the law as charged.
So was Jackson's ruling legally sound? Not even close. Jackson held that we had to give McGarity written warning. In fact, Alabama case law holds that we had no responsibility to give McGarity a warning at all. (This makes sense under the concept of private property, one of our most cherished American ideals. If a homeowner or occupant had to give a warning to keep unwanted individuals off his premises, we essentially would have no private-property rights. Someone could place a massive tent on your front yard and host a party for thousands, and when confronted, say, "Hey, you didn't warn me not to do this, so I lawfully can use your land for whatever I want.")
What is the real law, which Judge Jackson ignored? This is from a case styled Chambers v. City of Opelika, 698 So. 2d 792 (Ala. Crim. App., 1996):
"The appellant has cited no authority for his position that to be guilty of criminal trespass the intruder must be aware that he or she had no license or privilege to enter or to remain on the premises. There is authority, however, that states that when those premises are private and not open to the public, there is no requirement that the prosecution prove that a prior written or verbal warning was given to the intruder."
Under the Fourteenth Amendment, we were entitled to due process, which means (in part) having an impartial arbiter. That Jackson could not get this simple law right indicates he was somehow compromised. We also were entitled to equal protection, to have Alabama law applied to us as it would be to anyone else. That obviously did not happen.
The bottom line? Under the law, we had no obligation to warn McGarity, either verbally or in writing. And he admitted under oath that we had warned him multiple times verbally. In other words, we went over and beyond what the law calls for in an effort to resolve this problem, and we still got screwed because Jackson found we had to provide written warning -- which we did, but McGarity claimed he had not received it prior to the one trespassing incident the court considered. (The truth? McGarity almost certainly received the written warning from Bill Lewis that day, and McGarity got pissed and went on our yard to try to figure out a way to run a fence up to the street, between the properties. That was a problem, of course, because McGarity had built his fence on our property, taking up about 400 square feet of our back yard -- and extending the fence, in a straight line, meant it would cross our driveway. Ooops. For some reason, Bill Lewis' office could not find the returned certified-mail receipt, so we (the prosecution) could not prove when McGarity received the warning.)
How does Brett Kavanaugh connect to our reporting on State v. Mike McGarity? Since exposing Ron Jackson as a crook, we have reported on numerous other corrupt judges -- at both the state (J. Michael Joiner, G. Dan Reeves, Don Blankenship in Alabama; plusJerry Harmison and Margaret Palmietto in Missouri) and federal levels (William Acker Jr., Abdul Kallon, Mark Fuller, Gerald Bard Tjoflat)
Now, more than 12 years after our first point, the entire country might be forced to reckon with the notion that our "justice system" is awash in deceit -- even at the highest levels, as Brett Kavanaugh has shown, judges cannot be trusted to act with honor and integrity.