Friday, February 28, 2020

Did Balch Bingham and Verizon resort to a fake deposition to stonewall discovery in lawsuit over apparent attempted theft of Burt Newsome's practice?

Burt Newsome
A deposition at the heart of a lawsuit over Balch Bingham's alleged conspiracy to steal the lucrative collections practice of Birmingham solo attorney Burt Newsome shows signs of being a hoax, according to a new report at the Web site

How could a deposition be a hoax? K.B. Forbes, publisher of banbalchcom, lays out the peculiar circumstances that point to possible discovery fraud in this instance. One of the most suspicious factors involves the deponent's resistance to answering any question that would reveal his personal-identifying characteristics. (The deposition is embedded at the end of this post.)

Why would Balch and its affiliates want to create a phony deposition? Newsome's legal team determined that conspirators likely used a Birmingham-based phone number -- (205) 410-1494 -- to communicate about the conspiracy, perhaps via prepaid "burner" phones. If the deposition was a hoax, it likely was designed to stonewall Newsome's efforts via discovery to unearth communications among individuals who were trying to ruin him professionally.

The deponent, a Verizon Wireless employee named "Jason Forman," testified that (205) 410-1494 was a router switch, and to his knowledge, had no ties to burner phones. But consider the odd circumstances surrounding the deposition, which leave a reasonable person wondering if the deponent really was a Verizon employee named Jason Forman. One oddity? Forman identified himself as a custodian of records at Verizon but denied having any expertise about the technology behind cell-phone numbers. Forbes provides background on the deposition:

And Balch Bingham almost got away with it.

Hitting the panic button after Newsome’s legal team linked all the co-conspirators to a single wireless phone number in 2017, Balch Bingham and their stooges put into a play what many believe was a phony, staged deposition in July of 2017 allegedly with Verizon’s top experts.

Balch attempted to take a Verizon burner cell phone and magically turn it into a “router switch.”

And the embattled law firm appears to have used all their political and legal connections to prevent Newsome from showing Balch and the co-conspirators had allegedly perjured themselves when they consistently declared they did not know each other.

What about specifics that point to possible discovery fraud? Forbes provides them:

We learned recently that the alleged phony, baloney deposition with Verizon on July 31, 2017 was done via computer video conferencing; yet no video recording of the deposition is available.

The alleged expert Jason Forman was no expert on routing switches or telephony. He simply processed subpoenas for 14 years at Verizon.

And the individual who gave the deposition: Was he really who he said he was? Was he an actor?

Also consider the recent revelation that Jay Town (U.S. attorney for the Northern District of Alabama), who was captured in photos meeting with Alabama Power CEO Mark Crosswhite in an apparent effort to rig the summer 2018 North Birmingham Superfund bribery trial, has ties to Verizon Wireless and Balch Bingham. Here is how we desribed it in a recent post, based on Forbes original reporting:

We . . . have questioned the legitimacy of the deposition. Was it a real or staged event? Highly unusual, the deposition with Verizon did not take place at their large corporate campus.

Instead, this deposition supposedly took place at a Regus Center (a rent by the hour office space facility) in Bedminster, New Jersey, less than 10 miles from Verizon’s Corporate Headquarters located in Basking Ridge, New Jersey.

And what law firm represents Verizon regularly? McElroy, Deutsch, Mulvaney and Carpenter in Morristown, New Jersey, just one mile away from Verizon’s Corporate Headquarters.

And who worked for McElroy, Deutsch, Mulvaney and Carpenter before his career as a prosecutor?

Jay E. Town.

Pulling in all their weight to crush Newsome, we suspect Balch (and/or their sister-wife Alabama Power) appears to have reached out to Town for his assistance in July of 2017, a tour de force.

Forbes provides more insights in yesterday's post:

Reading the deposition, you can see the affair was a farce, pure fiction.

Why would Jay E. Town be tied to such a half-baked deposition? He was in the process of being confirmed in the U.S. Senate and we believe a phone call or two were made. Who was Balch’s biggest stooge at the time? U.S Senator Luther Strange.

We remind our readers that a staged event is of no surprise.

Alabama Power’s sister-wife Balch Bingham gave birth to a fake AstroTurf campaign in the North Birmingham Bribery Scandal. The use of actors by electric utility companies and their consultants was exposed in 2018. And Alabama had a legendary story of actors portraying themselves as tree-hugging environmentalists in 2013 so they could smear and eventually oust a Public Service Commission member in 2014.

In our almost two decades of advocacy work, we have never, ever seen such an extreme miscarriage of justice as we have seen done against Burt Newsome, a father of four children, who allegedly was wrongly targeted, falsely arrested, and defamed by Balch Bingham.

Town should have let the FBI probe the trampling of the civil liberties and due process of an innocent man; instead Town appears to have looked the other way for the sake of his friends: the Siamese twins of Alabama, Balch Bingham and Alabama Power.

If Town has an ounce of integrity left in his body, he should hand the Newsome Conspiracy Case off to the Public Integrity Unit of the FBI in Washington, D.C.

That brings us back to "Jason Forman," the guy who stonewalled in the Newsome deposition. Was he legitimate or was he an "actor," providing information that had little connection to reality? The deposition tells us this, for sure: "Jason Forman" was determined not to provide any personal information that could be used to confirm his identity.

(To be continued)

Thursday, February 27, 2020

Shadowy facial-recognition company Clearview AI, with ties to Alabama Republican operative Jessica Medeiros Garrison, reports "intruder" stole client list

Jessica Medeiros Garrison at a gambling expo in Las Vegas.

 A controversial facial-recognition company, which has Alabama connections, said yesterday an "intruder" stole its entire client list, according to a report at The Daily Beast. It's not clear how the intruder gained access, if the data was stolen digitally or in some other fashion.

Birmingham-based GOP operative Jessica Medeiros Garrison serves as vice president of public affairs for Clearview AI, which has been pitching its services to law-enforcement agencies and casino operators, among others. Garrison is the one-time campaign manager and mistress for former U.S. Sen. (R-AL) and Alabama attorney general Luther Strange -- and her social-media presence appears to have gone dark since her ties to Clearview became public.

Reports Betsy Swan at Daily Beast:

A facial-recognition company that contracts with powerful law-enforcement agencies just reported that an intruder stole its entire client list, according to a notification the company sent to its customers.

In the notification, which The Daily Beast reviewed, the startup Clearview AI disclosed to its customers that an intruder “gained unauthorized access” to its list of customers, to the number of user accounts those customers had set up, and to the number of searches its customers have conducted. The notification said the company’s servers were not breached and that there was “no compromise of Clearview’s systems or network.” The company also said it fixed the vulnerability and that the intruder did not obtain any law-enforcement agencies’ search histories.

An attorney for Clearview quickly went into damage-control mode:

Tor Ekeland, an attorney for the company, said Clearview prioritizes security.

“Security is Clearview’s top priority,” he said in a statement provided to The Daily Beast. “Unfortunately, data breaches are part of life in the 21st century. Our servers were never accessed. We patched the flaw, and continue to work to strengthen our security.”

The firm drew national attention when The New York Times ran a front-page story about its work with law-enforcement agencies. The Times reported that the company scraped 3 billion images from the internet, including from Facebook, YouTube, and Venmo. That process violated Facebook’s terms of service, according to the paper. It also created a resource that drew the attention of hundreds of law-enforcement agencies, including the FBI and the Department of Homeland Security, according to that report. In a follow-up story, The Times reported that law-enforcement officials have used the tools to identify children who are victims of sexual abuse. One anonymous Canadian law-enforcement official told the paper that Clearview was “the biggest breakthrough in the last decade” for investigations of those crimes.

What could the breach mean for Clearview? That remains unclear:

The notification did not describe the breach as a hack. David Forscey, the managing director of the no-profit Aspen Cybersecurity Group, said the breach is concerning.

“If you’re a law-enforcement agency, it’s a big deal, because you depend on Clearview as a service provider to have good security, and it seems like they don’t,” Forscey said.

Facial-recognition technology—which matches photos of unidentified victims or suspects against enormous databases of photos—has long drawn intense criticism from privacy advocates. They argue it could essentially mean the end of personal privacy, especially given the proliferation of security cameras in public places. Some law-enforcement officials, meanwhile, see it as a tool with enormous potential value.

Wednesday, February 26, 2020

Expert witness: Missouri lawyer David Shuler lacked the skills and mindset to defend a child sexual-abuse case -- committing malpractice of "staggering" scope

David Shuler
A Missouri attorney had neither the experience, the skill set, nor the temperament to take on the criminal defense in a complex case of alleged child sexual abuse, according to an expert witness in a subsequent legal-malpractice lawsuit. Scott J. Wells, the defendant in the original sex-abuse case wound up with convictions in 2004 -- carrying likely five life sentences as punishment -- although records show four complaining witnesses told wildly inconsistent stories, with at least one caught lying under oath about the alleged presence of scars on Wells' penis.

Wells paid roughly $65,000 to bring Jefferson City lawyer Daniel Dodson into the case, and he managed to bring the result down to misdemeanor Alford pleas to child endangerment, which involved no appearance on a sex-offender registry, no time behind bars, and not even an allegation in the record that Wells actually endangered anyone, much less that he sexually abused anyone.

Dodson became an expert witness in Wells' legal-malpractice lawsuit against his original attorney, David Shuler of Springfield (my brother), and Dodson called Shuler's level of malpractice "staggering." We know from experience that it is rare to hear that kind of brutal critique from one lawyer about another.

So, how poor was David Shuler's performance in the sex-abuse case? Dodson says Shuler simply was not capable of handling the case and put his client in an awful fix. Here is how Dodson put it in a deposition for the legal-malpractice case, with Shuler's lawyer, Scott Bellm, doing the questioning:

Bellm: Okay. At what point did you change your approach from focusing on keeping the sentencing -- or the punishment phase down -- 
Dodson: Yeah. 
Bellm: -- versus a motion for new trial based on ineffective assistance of counsel?
Dodson: Well, I already had some pretty good indication from Scott that Shuler just really wasn't -- frankly, just wasn't capable of taking on a case like this and doing it. There's just a certain skill level that comes with it. I mean, this is not a routine burglary, where your client's been caught red-handed or has confessed or something; this is the equivalent of brain surgery, and it wold be like a general practitioner taking someone in to perform brain surgery. I knew that from talking to Scott. 
When I read the deposition, I would see such things as Shuler going in and not really even knowing which complaining witness he was talking to, in terms of the facts. And I think I had also gathered some information that Shuler had some personal issues with a sick child or something. But I was fairly clear in my mind that Scott had not been well represented, after reviewing, you know, some portion of the file. 

Shuler was incapable of handling the case, and he failed to take steps to educate himself about such cases, to make himself at least minimally capable, Dodson says:

Dodson: . . . the closest comparison would be a death-penalty case. I mean, I haven't done a death-penalty case, but if I were to take one on and not get some help from lawyers who have done them before, I think I would be committing malpractice, unless I won. 
Bellm: So it's -- in order to adequately defend Mr. Wells in this case, it would not have been enough for him to use someone with an ordinary skill level, learning experience, training; he would need someone who was, in fact, extraordinary? 
Dodson: No, he would need someone who had taken on the responsibility of learning what you need to learn to do a child sex-abuse case. . . . I'm sure you have noticed that there are several authors I mentioned who write books on how to determine if a child's telling the truth or to give the trier of fact indicators as to whether or not a child's telling the truth. . . .  
Ordinary . . . you can't do a case like this without having to delve into some of the things you need to learn to do this particular type of case. I don't consider that extraordinary. A journeyman criminal defense lawyer who's learned to do child sex cases has looked into these things that Shuler hadn't looked into. 
Bellm: Okay, All right. He needed a different skill level, skill set, training, and learning to be able to adequately defend Scott? 
Dodson: That -- I was noting this in the transcript, and I remember this-- I mean, he was essentially a plea-bargain lawyer. He was an ex-prosecutor who took some criminal cases because he knew a little bit about them. But he hadn't done a jury trial since he had left the prosecutor's office, hadn't tried a felony since he had left the prosecutor's office, and this, frankly, isn't the type of case to cut your teeth on. 
Bellm: Should have referred him? 
Dodson: Yeah, he should have said, "I don't have what it takes to represent you in this case." I -- that's -- it may happen a lot, but it's sad because Scott Wells almost went to prison on this.

Dodson disagreed with Shuler's strategy to waive a jury trial and have the case heard by a judge only. In fact, Bellm states that Shuler's contract with Wells limited the scope of the representation to a non-jury trial. Dodson said he considered that an improper contract because Wells might have been better off before a jury, but the contract took that option off the table.

Bellm: Can we agree that it was not . . . necessarily a breach of the standard of care for him to waive the jury? 
Dodson: I think that's probably true. Yeah, I don't think it was a breach. I think it was probably a bad judgment call in this case, but it was --  
Bellm: Not negligent? 
Dodson: No, I think it was a trial strategy -- a trial strategy borne of not knowing anything about doing these cases and generally having a make-up -- Mr. Shuler's make-up -- he's probably still not tried a jury trial and may never do it. He's not a jury-trial lawyer. 
Bellm: In any event, even if he had not waived jury and they would have had a jury trial. there's no way in the world anybody . . . could ever predict one way or the other what the outcome would have been? 
Dodson: With David Shuler as his lawyer, I can predict what the outcome -- . . .  In this case, I think it was rather obvious that Scott Wells wasn't guilty, and that there were so many holes and so many problems, and then the stuff that came up at trial that wasn't reacted to, I think the case was a winner. 

Members of the Wells family told Dodson that the facts of the case, as presented by the prosecution, were nonsensical:

Dodson: They were always, of course, adamant, you know, Scott -- this is preposterous. Some of the things that came up, I mean, the allegations of what supposedly went on in a tiny little apartment with other people nearby were just, frankly, absurd, and that's one of the many things that didn't get pointed out in trial. And that's part of what they were communicating to me is that, you know, this stuff -- this is obviously not true. trying to help me find a way to get that across that Shuler didn't find. 

Was David Shuler even capable of finding the numerous holes in the prosecution's case -- and exploiting them to benefit his client? Dodson suggests Shuler was way out of his element in trying to defend a felony criminal case. In fact, Dodson said Shuler failed to convince Wells and his family of the serious situation they were facing, and that significantly more money was going to be needed to keep Wells out of prison:

Dodson: And there were a ton of other things, too. I mean research on . . . how to get expert testimony and just -- I mean, ultimately, David Shuler didn't do even half of what was needed to be done to defend this case. He didn't have the expertise to do it. He, frankly, didn't have the demeanor to do it. He didn't have -- there's just a certain mindset, even swagger, that you need to defend someone in a case like this. And he's -- I mean, ultimately, he probably should have realized he shouldn't have taken this  
Bellm: Well, it's certainly not negligence for someone without the -- what you term the appropriate mindset, swagger or so forth to practice law or take a case like this, is it? 
Dodson: Given the results I see in this case, yeah, I think that was a big contributing factor. I think, ultimately, he had no business taking this case. And part of that has to do -- I mean there are some guys who are more -- I mean you're a trial lawyer. This is what you do. . . . Some lawyers are meant to do wills and real estate and are not meant to be trial lawyers. But Shuler wasn't in that position. He didn't try cases to juries for fairly obvious reasons. He wasn't the kind of guy you needed to be sending in front of a jury.

(To be continued)

Tuesday, February 25, 2020

New evidence suggests U.S. Attorney Jay Town and Birmingham Lawyer Robert Ronnlund helped obstruct discovery process in Burt Newsome lawsuit vs. Balch

Jay Town and Mark Crosswhite

Newly uncovered evidence suggests U.S. attorney Jay Town (Northern District of Alabama) participated in a scheme to assist the Balch Bingham law firm by interfering with the discovery process in a lawsuit growing from Balch's alleged conspiracy to steal the lucrative collections practice of solo Birmingham lawyer Burt Newsome, according to a report today from the Web site

The wrongdoing could meet the elements for obstruction of justice, writes banbalch publisher K.B. Forbes, and Town does not appear to be the only Birmingham legal figure involved. Others include Robert M. Ronnlund, of the Shelby County firm Scott Sullivan Streetman and Fox -- along with his wife, Millicent Ronnlund, who is a lawyer with Balch Bingham.

What was the purpose of the scheme to interfere with discovery in the Newsome lawsuit? It involves telephone records, legal chicanery, and probably was designed to keep Newsome from obtaining evidence that would help prove his case. It's all part of the ugly backstory behind the North Birmingham Superfund bribery scandal, which produced a criminal trial in summer 2018 -- with hardly a mention of a key entity -- Alabama Power and umbrella firm Southern Company. Writes Forbes:

In Alabama, there is no such thing as a coincidence.

As observers we cannot believe the sheer stupidity of operatives who work for or are associated with the alleged unsavory conduct of Balch Bingham or Balch’s sister-wife Alabama Power.

Some of these goons think they are above the law, never to be caught or reprimanded.

And the explosive, jaw-dropping photographs of U.S. Attorney Jay E. Town chugging down drinks with Alabama Power Chairman and CEO Mark A. Crosswhite, a former Balch partner, confirms a dubious relationship and affirms the belief that Town’s integrity is lacking.

Now Balch’s alleged Tour de Force has come to light.

How did that happen? The starting point, Forbes explains, appears to be Robert Ronnlund:

The Newsome Conspiracy Case not only involved the “staged arrest” of Balch’s competitor Burt Newsome by the cop-son of a now-retired Alabama Power executive.

We also uncovered alleged criminal obstruction of justice in the Newsome Conspiracy Case by Robert M. Ronnlund, an attorney representing one of the alleged co-conspirators.

No coincidence, Ronnlund’s wife, Millicent Ronnlund, was a partner at Balch Bingham at the time the alleged obstruction occurred.

In a letter to AT&T dated January 16, 2016, Ronnlund wrote that “an objection has been filed regarding the deposition subpoena” and added, “absent a valid court order, please do not produce any documentation.”

Was that true? Not a chance, reports Forbes:

An “objection” was never filed and the threat to AT&T not to produce any documentation without a “valid court order” was 100 percent bull.

What documentation was Ronnlund attempting to impede? Phone records associated to another co-conspirator, John W. Bullock, who is not even Ronnlund’s client.

The letter to AT&T appears to be a deliberate and deceptive tactic to obstruct justice, to hide evidence, and to protect the alleged co-conspirators

Under the law, that is a serious matter and could rise to the level of a federal crime. Forbes explains:

18 U.S.C. § 1503 defines “obstruction of justice” as an act that “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”

In June of 2017, Newsome’s legal team obtained the phone records (and a copy of Ronnlund’s letter) linking all the co-conspirators to a single phone number (205) 410-1494 and filed a third amended complaint in his case.

Balch Bingham’s initial response in open court in July of 2017 was to foolishly attribute the phone number to a “telemarketer.”

As we wrote on July 14, 2017, “For heaven’s sake, some of these calls were for 18 or 19 minutes! Do we really think Balch’s partner was purchasing a set of non-stick frying pans or a box of the fastest toilet bowl cleaner?”

Ridiculed and mocked, Balch and Ronnlund allegedly went into action.

During the week of July 24, 2017, Verizon’s records of the cell number were inaccessible allegedly due to a law enforcement block.

Then Ronnlund filed a notice of a deposition with a Verizon corporate representative (occurring with no subpoena and in less than two business days) on Thursday afternoon, July 27, 2017.

On Friday, July 28, 2017, Ronnlund filed a highly questionable, unsworn Calera (Alabama) Police Department affidavit with the alleged narrative that the (205) 410-1494 number was not a phone number but a “routing switch.”

According to, no subpoena for the Verizon deposition was ever filed with the court.

After the sealed deposition with Verizon took place on Monday July 31, 2017, Balch filed a motion to dismiss Newsome’s amended complaint calling the cell phone number allegation a “falsity” and the judge, two days later, without a hearing, signed the order on August 2, 2017.

In less than a week, the key witness— (205) 410-1494— was assassinated, cremated, and buried.

How does Jay Town enter the scene? Forbes paints the picture, and it isn't pretty:

We . . . have questioned the legitimacy of the deposition. Was it a real or staged event? Highly unusual, the deposition with Verizon did not take place at their large corporate campus.

Instead, this deposition supposedly took place at a Regus Center (a rent by the hour office space facility) in Bedminster, New Jersey less than 10 miles from Verizon’s Corporate Headquarters located in Basking Ridge, New Jersey.

And what law firm represents Verizon regularly? McElroy, Deutsch, Mulvaney and Carpenter in Morristown, New Jersey, just one mile away from Verizon’s Corporate Headquarters.

And who worked for McElroy, Deutsch, Mulvaney and Carpenter before his career as a prosecutor?

Jay E. Town.

Pulling in all their weight to crush Newsome, we suspect Balch (and/or their sister-wife Alabama Power) appears to have reached out to Town for his assistance in July of 2017, a tour de force.

And who would doubt it?

As seen in the North Birmingham Bribery Scandal, Balch Bingham was able to collect high-profile signatures on ghost-written letters; concoct and pass legislative resolutions; infiltrate and stymie opponents; and use a network of political allies to breach the public good.

Dirty work. Real dirty work. And that is not a coincidence.

Monday, February 24, 2020

Blue Cross and Blue Shield of Alabama proves to be a popular workplace for current and former employees who have been paying customers of notorious Ashley Madison Web site that promotes extramarital affairs

Here is a question to ponder: Since Ashley Madison (AM) data became public in summer 2015, what Alabama employer holds the distinction of having the most employees appear as paying customers at the extramarital-affairs Web site?

We are not aware of any technique for answering that question in an official, with-certitude fashion. But our research indicates the unofficial "leader in the clubhouse" for that honor is Blue Cross and Blue Shield of Alabama (BCBSAL). Yes, that is the employment home of Mike McGarity, the notorious, criminally inclined neighbor who set our legal headaches in motion.

McGarity's name does not appear on the Alabama list for AM. But without really trying, we found at least five individuals who were BCBSAL employees at the time of the data breach. Given the painstaking process required to sort through the AM data and determine employers -- the actual number of Ashley Madison customers at BCBSAL probably is two or three times larger than our unofficial count -- that is a big number for any one workplace.

Ironically, several of the Ashley Madison customers have left BCBSAL for other opportunities over the past four years or so. Does that mean those who participate at extramarital-affairs Web sites are more likely than non-users to change employers frequently? That sounds like a good subject for a doctoral dissertation in psychology or management. For now, let's take a brief look at each of the current (or former) BCBSAL employees who appear as paying customers in the AM data:

(1) Wesley J. Hagood -- senior buyer in purchasing department. Lives in north Shelby County, and property records indicate he is married to Erica M. Hagood.

(2) W. Michael Jackman -- manager of IT Project Office. Lives on Harvest Ridge Lane in north Shelby County, and property records indicate he is married to Elizabeth Jackman.

(3) Cleo R. Truss -- was a senior application system analyst. LinkedIn page shows he left BCBSAL in July 2015 to focus full-time on his role as owner of Truss Management Group/ATG Services. Lives on Lake Crest Drive in Hoover, and property records indicate he is married to Jackie W. Truss.

(4) Brent Koch -- was a programmer/analyst. Left position in April 2015 to become senior programmer/analyst at CallidusCloud in Birmingham.

(5) Manan Modi -- was a staff auditor at Cahaba GBA, a wholly owned subsidiary of BCBSAL. Now is an auditor at National Government Services in Indianapolis.

Thursday, February 20, 2020

Evidence indicates Alabama Power officials were briefed on Superfund bribery scheme, suggesting rule of law took another beating in the Heart of Dixie

Jay Town and Mark Crosswhite

This has been a week to focus on the rule of law, mainly because of apparent interference from Donald Trump and William Barr in the Roger Stone sentencing, with Trump making the absurd declaration that he is the nation's "chief law enforcement officer." The real issue is failure by justice officials, usually judges and prosecutors, to uphold the rule of law -- causing massive suffering for everyday Americans (see here and here).

Unfortunately, Alabama seems to have an endless supply of such cases, with the latest news coming from the seedy and evolving North Birmingham Superfund bribery case. We thought it could not get much uglier than the photos that recently surfaced of Alabama Power CEO Mark Crosswhite and U.S. Attorney Jay Town meeting before the summer 2018 trial in an apparent bid to rig the outcome. Now we learn, via the Web site, that Alabama Power officials were regularly briefed about the scheme:

The tiny environmental group GASP, the alleged intended target of the “brilliant” North Birmingham bribery scheme, is digging into the federal criminal trial evidence from 2018 meticulously.

And what have they found?

More evidence that appears to show that Alabama Power was being regularly briefed about the scheme.

The evidence comes, in part, via an email from the Balch Bingham law firm to Alabama Power, as described by publisher K.B. Forbes:

In an email from July 2015, Balch-made millionaire Joel I. Gilbert tells his Balch colleague Steven McKinney to forward the “dues invoice” to Alabama Power’s point person, Matt Bowden, writing “we need to probably update him soon on new developments.”

This raises some alarming questions related to the rule of law:

Why was Alabama Power being briefed while other AJE (Alliance for Jobs and the Economy) donors were not?

Is it no wonder that now, today the “unmentionable” deal has become the talk of Birmingham?

The alleged secret deal that was hatched before the criminal trial did not allow criminal attorneys or defendants to mention or discuss Alabama Power unless cleared by Alabama Power’s criminal attorney.

What a farce!

The allegations have shaken the legal community and given U.S. Attorney Jay E. Town’s reputation a severe, swollen black-eye.

And the compromising, jaw-dropping photos of Town gulping down drinks at the Moon Shine Lounge with Alabama Power CEO Mark A. Crosswhite haven’t helped either; the photos affirm a dubious relationship.

GASP looks like a winner again; the tiny mouse that roared and spooked Mark A. Crosswhite onto a wobbly chair.

Did the rule of law guide the government's actions in the Superfund bribery trial? Evidence continues to mount suggesting the answer is no.

Wednesday, February 19, 2020

Crooked judges in Alabama divorce courts turn the rule of law on its head, trampling the constitutional rights of women and children with shockng brazenness

Ted Rollins on Wall Street

The ongoing debate over the rule of law is centered on headline-makers like Donald Trump, Roger Stone, and William Barr -- with more than 2,000 former Department of Justice officials calling for Barr to resign. What about everyday Americans, including mothers and children, who suffer because judges fail to uphold the rule of law?

We have reported on several such cases, and this is where the rubber really meets the road when it comes to abuse of the rule of law, but you won't read about these cases in the mainstream media:

(1) The millionaires behind Orkin Pest Control ensure that Sherry Rollins and her daughters get cheated in divorce case -- When Sherry Rollins decided to divorce Ted Rollins, part of the family behind Atlanta-based Orkin Pest Control, the couple and their two daughters lived in Greenville, South Carolina. As the divorce case was pending, Ted Rollins defied a court order to keep up mortgage payments, causing Sherry and their daughters (Sarah and Emma) to be kicked out of their home. Desperate for shelter, Sherry moved with the girls to Birmingham, AL, where she had family.

Not long after the move, Ted Rollins sought to have the divorce case moved to Shelby County, AL, where Sherry had settled and where he had legal connections via the Bradly Arant law firm. Shelby County Circuit Judge Al Crowson allowed the move and went on to issue an order that was preposterously one-sided in Ted Rollins' favor, with Sherry getting a fraction of the child support and alimony to which she was entitled -- especially considering evidence of Ted Rollins' infidelity and other misconduct (including a vicious beating of Sherry's son from a previous marriage). In fact, Sherry and the daughters received so little from Crowson's judgment that they wound up on food stamps.

Was moving the divorce case from South Carolina to Alabama proper under the rule of law? Not even close. The controlling law can be found at a case styled Wesson v. Wesson, 628 So. 2d 953 (1993):

"Once jurisdiction has attached in one court, that court has the exclusive right to continue its exercise of power until the completion of the case, and is only subject to appellate authority."
That's the rule of law; it could not be more simple -- and Sherry Rollins and her daughters had a Constitutional right under the 14th Amendment to have it properly applied. But Al Crowson was a reptile with a robe, and he cheated them in shameless fashion.

(2) A judge throws Bonnie Cahalane, an Alabama mother, in jail -- How can a woman wind up in jail over an alleged debt in a divorce case? Debtors' prisons became unlawful in the United States years ago, right? It can happen in Chilton County, AL, where Circuit Judge Sibley Reynolds routinely tramples the rule of law.

Bonnie Cahalane
Reynolds sent Bonnie Cahalane, of Clanton, to jail because she failed to pay $165,000 as part of her divorce settlement. Was the jailing lawful? Nope. The Alabama Constitution states that citizens cannot be sent to jail because of debts, and case law specifically states that it is unlawful to incarcerate anyone because of failure to pay a property-related debt from dissolution of a marriage. An Alabama case styled Dolberry v. Dolberry, 920 So. 2d 573 (Ala. Civ. App., 2005) is clear:

In this case, the husband argues that he cannot be imprisoned for debt pursuant to § 20, Ala. Const.1901. He is correct. The parties' marriage settlement agreement states: "The [husband] shall pay to the [wife] the sum of Fifteen Thousand Dollars ($15,000) for her equity in the home. . . . This court [has] recognized that . . . payments . . . for sustenance and support are . . . outside the scope of § 20. . . . The $15,000 payment is clearly a property settlement, as evidenced by the language in the settlement agreement "for her equity in the home." Therefore, the nonpayment of that debt is within the ambit of § 20, Ala. Const.1901. Our resolution of this issue pretermits consideration of the husband's ability or inability to pay. Accordingly, we reverse and remand.

Under the rule of law, Bonnie Cahalane could not possibly be incarcerated in her divorce case. But she spent five months behind bars, and God only knows how long she would have been held without our reporting on the case.

(3) Bill Upton, CEO of Vulcan Steel Products, is not held accountable for brazen infidelity in Alabama divorce case --  Bill Upton, the multimillionaire CEO of Pelham-based Vulcan Steel Products, admitted in court documents that he had an extramarital affair with Gincie Walker, a young woman (with serious mental-health issues, including multiple-personality disorder) he and his wife had raised as their daughter; Ms. Walker even called Bill Upton "daddy." Records indicate the affair was the driving event that ended Bill's marriage of more than 30 years to Linda Upton. (Note Bill and Gincie, the biological daughter of convicted sex offender Dr. William Flynn Walker, have since married, and she now is Gincie Walker Upton.)

Gincie Walker Upton
Such an affair represents the kind of marital misconduct for which the perpetrator usually is held accountable in divorce court. But that did not happen with Bill Upton, whose wealth is estimated in the $40- to $60-million range -- and that might be conservative. In his final order of divorce, private judge Gary Pate did not even mention Bill Upton's infidelity.

The outrage does not end there. Pate awarded sole physical custody of the couple's three minor children to Bill Upton -- even though we've seen no evidence in the record that Linda Upton was an unfit mother. Here is how we described, in an April 2016 post, the financial terms of the order:

Linda Upton receives $4,350 a month in periodic alimony, but she received zero in gross alimony. She did not even receive the marital residence. From Pate's order:

11. (a) The parties jointly own a residence at 2870 Shook Hill Road, Birmingham, Alabama. It shall be placed on the market and sold. The Wife shall have exclusive possession pending sale unless she moves. . . .

Linda Upton wound up staying at the home, but only after she had paid Bill Upton for his share of the property. And this was a husband who admitted to conducting an extramarital affair, apparently under the marital roof.

Does Pate's ruling square with the rule of law. No way. It reeks of a judge, who likely was compromised and never should have heard the case, and issued an order based on his whims and prejudices. How unlawful was it? Consider this from an April 28, 2016, post:

Code of Alabama 30-2-52 shows that Private Judge Pate butchered the Upton divorce, and a case styled Shirley v. Shirley, 600 So. 2d 284 (1992) drives that point home. From the Shirley ruling:

Section 30-2-52 permits a trial court, upon a finding of misconduct by one spouse, to make an allowance to the other spouse out of the estate of the offending spouse, as the circumstances may justify, provided "that any property acquired prior to the marriage of the parties or by inheritance or gift may not be considered in determining the amount."

Here is more related to the Shirley case:

Was misconduct present in Shirley? The trial court determined the answer was yes, and the Alabama Supreme Court agreed:

The record reveals that the parties' marriage was beset with extreme unpleasantness. In the pleadings and at trial, each party placed blame for the breakup of the marriage on the other. The husband claimed that the wife was verbally abusive, argumentative, and vindictive and that she interfered with the operation of his business both during the marriage and after the parties' separation. The wife claimed that the husband had a violent temper, had been physically abusive during the marriage, had been dishonest in his handling of the parties' finances, and had engaged in numerous extramarital affairs. At trial she specifically alleged that the husband had, without her consent, misapplied a number of her real estate commission checks for his personal use and had attempted to misappropriate certain life insurance proceeds of which she was the sole intended beneficiary. The husband denies that he has ever been dishonest in handling the wife's money or that he has engaged in adultery, although he admits to having engaged in sexual activity with a woman not his wife on three occasions.

The trial court made no specific finding of adultery, granting the divorce on . . . grounds of incompatibility of temperament and irretrievable breakdown. However, in the judgment of divorce the court recognized the husband's sexual infidelities and made specific findings of his marital misconduct and financial dishonesty toward the wife and other parties. We have thoroughly reviewed the record and conclude that there is ample evidence to support the trial court's finding of marital misconduct by the husband. . . .

What impact should such misconduct have on the outcome of a divorce case? From Shirley:

Where one spouse is guilty of misconduct toward the other spouse, the trial court's award may be as liberal as the estate of the offending spouse will permit under the circumstances of the case. Isom v. Isom, 273 Ala. 599, 143 So. 2d 455 (1962).

In other words, Bill Upton could have, and should have, taken a major financial hit for engaging in misconduct that a reasonable person might decide was way worse than that present in Shirley. But Upton's attorney did his best to cover up the issue, and the judge made no mention of it.

Sherry Rollins, Bonnie Cahalane, and Linda Upton . . . three Alabama women who probably would guffaw at the notion that abuse of the rule of law started with Donald Trump's tweet about the Roger Stone case -- and William Barr's subsequent dubious actions that appear to be based on political considerations..

Tuesday, February 18, 2020

Missouri resident Scott J. Wells is paying an awful price in federal court for a 2004 state case where his conviction was vacated, with no evidence of child endangerment in plea, and he passed a polygraph test

Polygraph test

A Missouri man has been detained for almost three years on federal child-pornography charges, based largely on his "conviction" in a 2004 state case for child sexual abuse. U.S. prosecutor James Kelleher, in hearings before multiple judges, generally has failed to mention that Scott J. Wells' conviction in the 2004 case was overturned after a complaining witness testified falsely under oath about the presence of scars on Wells' penis -- and after the state court found Wells had received ineffective assistance of counsel from my brother-lawyer, David Shuler.

Kelleher also fails to mention that Wells' plea to misdemeanor child-endangerment charges in 2004 was an Alford plea, a legal maneuver in which the prosecution and accused reach a compromise, avoiding a trial, with the defendant able to maintain his innocence. In the Wells case, there is no evidence in the record -- not even an allegation -- that he actually endangered a child.

On top of all that, Wells also took a polygraph test, at the insistence of Daniel Dodson, the Jefferson City attorney who took over the earlier case in an effort to clean up the mess David Shuler had created. Wells passed the polygraph test, which was administered by John Harvill, a highly regarded polygrapher from Springfield, MO.

That Wells passed a Harvill-administered polygraph was a key factor in getting the 2004 conviction overturned, Dodson said in a depostion for Wells' legal-malpractice lawsuit against David Shuler. We certainly have seen no sign that Kelleher has mentioned the positive polygraph outcome in arguments before federal judges, an indication the prosecutor is more interested in keeping Wells locked up, lawfully or unlawfully, rather than ensuring justice is done. Kelleher's actions also could point to fraud on the court, which might render rulings in the child-porn case void.

John Harvill
The law surrounding polygraphs is complex and somewhat unsettled. In general, it is difficult to get polygraph results admitted as evidence in court, but it can happen under "back-door" circumstances, when one party or another opens an evidentiary window that allows admission of the polygraph results. Here is testimony regarding polygraphs from Daniel Dodson in a deposition for Wells legal-malpractice case against David Shuler. Scott Bellm, Shuler's attorney is doing the questioning: (Two volumes of the Dodson deposition are embedded at the end of this post.)

Dodson: One of my quarrels with [Shuler], even though I may be unorthodox in this way, polygraphs are the most incredible tool in cases like this. Even a prosecutor who is entrenched and won't dismiss based on them has the wind taken out of his sails when that comes up. 
And I think Shuler mentioned it and says he mentioned it several times, but he didn't bring it home to Scott, which wasn't that hard to do, that this needs to be done, this is something that is an essential tool for getting the prosecutor to back away a little bit, especially when you have so much more to work with to say these things did not happen.

The discussion eventually turns to the law surrounding polygraphs:

Bellm: Now, with the polygraph, is it your testimony that you believe you would have been able to get the results of that polygraph into evidence at trial? 
Dodson: No. The law is heavily against me on that. I -- the purpose of a polygraphing a case like this is mostly in dealing with the prosecutor, mostly in taking -- and in this case, I think, as always, cases like this [in Greene County] start out with Jill Patterson, who believes every allegation she's ever heard from any young child and is very gung-ho about it, and the Defendant is evil and so on. But it's a -- she won't admit it, and Kelleher didn't admit it, but it's a stomach punch to a prosecutor to see a John Harvill polygraph that says, hey, this guy's telling the truth. Because they know that is as reliable as a polygraph is going to get. 
They know that John can provide a stack of about 30 letters from different law enforcement agencies who have relied on his polygraphs over the years. And I do hold out some possibility, as I said in the hearing, that, you know, at some point, someone's going to establish enough reliability to a polygraph to get it admitted. And in this case, with John's credentials, I felt like I had a shot. But keep in mind also that in a judge-tried case, the mere offering of it has the fact of it before a trier of fact. And that may be a little "back door," but it's certainly useful. 

Dodson was asked to  describe steps he took in Scott Wells' defense that David Shuler did not take -- and part of that involved the polygraph:

Bellm: Anything else that you did in general terms that David did not do? 
Dodson: Well, a big part of it was bringing home to Scott Wells his situation and the seriousness, convincing him of what he needed to be convinced of, that he needed to take a polygraph, convincing him and his family that it was going to take a lot more money to keep Scott out of prison, and yeah, doing the client-control things that you have to do in a serious situation like this. 
And there were a ton of other things, too. I mean, research on, you know, ho to get expert testimony in and just -- I mean, ultimately David Shuler didn't do even half of what needed to be done to defend this case. 

How did David Shuler's failure to get a polygraph test hurt his client? Dodson points to one glaring example where Shuler called a female police officer (Nina Sala-Gault) to the stand -- apparently because she had interviewed Wells and the complaining witnesses, and she raised the polygraph issue -- but Shuler had no results with which to counter:

Dodson: Given -- the funny thing is despite my questions about his strategic choices on trying it to a judge, the -- he had put himself in a position to win it - or he would have been in a position to win it in front of Judge Burrell if he had been effective. If he had gotten Scott to take a polygraph and pass it, then when the cop [Sala-Gault] he called to the stand, which was a strategic blunder, but when she interjected the part that [Wells] had refused to take a polygraph, that opened the door, and he would have been able to get in that polygraph evidence legitimately, and it would have been part of the record. But he hadn't done the appropriate thing in getting the polygraph and might not have thought to use it if he had it.

(Note: It's not clear from the record, but it appears Sala-Gault -- or someone else on the police/prosecutor side -- tried to get Wells to take a police-administered polygraph test, and Wells refused. Our research indicates criminal-defense lawyers generally would call that a wise decision. Dodson, on the other hand, was talking about having a test conducted by an independent polygrapher, such as John Harvill. Wells agreed to take the Harvill test, and he passed it.)

How does an attorney effectively use polygraph evidence? Dodson provides insights -- and points out that Shuler not only failed to have his client take a polygraph, be he called a witness who raised the issue on the stand:

Bellm: And I want to back up just for a second. You said something earlier. You're aware that the officer volunteered on the stand at trial the issue relative to [Wells'] failure to take a polygraph test? 
Dodson: Oh, and I'm aware she did it on direct examination, which calls into question why in the world he ever called her. . . .  
Bellm: Okay. Is it your testimony that he should have gotten the polygraph rest for the reason that she -- he could have anticipated that she might volunteer something like that and have the test waiting in the wings to rebut that testimony? 
Dodson: My contention -- of course, he couldn't have anticipated that. My contention is he should have gotten the polygraph test for the reasons I have stated, that it is an irreplaceable strategic tool, if done properly. Some people who are telling the truth don't pass polygraph tests. If it's done properly and discreetly, no one knows about it, so there's not any potential harm to it. [Shuler] should have gotten the polygraph for different reasons and been in a position to do it -- because even though [the officer] was his witness, she was certainly of the level of a hostile witness, and I think Judge Burrell would have ruled that opened the door.

A lawyer, Dodson says, does not discuss the possibility of a polygraph test with prosecutors ahead of time:

Bellm: Are you aware of in this particular case whether that offer was ever made? 
Dodson: What offer is that? 
Bellm: To have him take a polygraph test. 
Dodson: Oh, if he takes a polygraph? I can tell you strategically you don't ever want to discuss that offer. You want to get the polygraph test, and if it's a good polygraph test, you want to hold it under the prosecutor's nose and say, "By the way, my client didn't do this; does that change your outlook? You certainly would not discuss ahead of time that your client was going to take a polygraph.
Bellm: You believe the favorable polygraph results had anything to do with the plea that you were ultimately offered? 
Dodson: Absolutely.
In Dodson's view, proper use of the polygraph results could have led to dismissal of the charges against Scott Wells -- and to this day, in the federal child-porn case, Wells has his 2004 conviction (even though it was overturned) and the resulting Alford plea being used against him:

Bellm: Well, if [Shuler] would have talked Scott into obtaining the polygraph test, what you're telling me is -- if he would have talked him into it and Scott would have passed at that time, then that would have been a bargaining tool to be used with the prosecutor to secure a better plea bargain, right? 
Dodson: In this case, to secure a dismissal. 

(To be continued)

Monday, February 17, 2020

Trump's stupid tweets about Roger Stone case spark outrage over rule of law, but the constitutional staple has been on life support long before Trump took office

Roger Stone
Donald Trump's interference via Twitter in the Roger Stone sentencing has unleashed an avalanche of criticism and analysis about abuse of the rule of law. Much of the coverage suggests this is a new development, but it's anything but new. For roughly 20 years of our legal travails in Alabama and Missouri, Mrs. Schnauzer and I have seen the rule of law take a beating like the one Muhammad Ali administered to George Chuvalo in 1966.

 As much as we despise Trump and would like to see him frog walked out of the White House, the problem did not start with him. Assaults on the rule of law usually come from crooked judges and prosecutors -- and the lawyers who enable them by looking the other way. Trump had the distinction, last week, of turning it into a presidential matter, but Trump is mostly a sideshow on this issue. The problem started long before he arrived on the scene, and it's doubtful Trump even knows what "rule of law" means.

Mrs. Schnauzer and I hardly are alone in noting the battering the rule of law has taken for decades. Consider this quote from a 1989 speech by Monroe Friedman, the late Hofstra University law professor who is considered the father of legal ethics as a serious academic subject:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.

I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

That quote came more than 30 years ago, from a professor -- who obviously had tenure, or the judicial lobby would have attacked his job -- and was disgusted with judges who had taken oaths to uphold the rule of law and repeatedly failed to do so.

What is the rule of law, and why does it matter. Here is perhaps the best definition I've found: the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Why does it matter? Without it -- and without judges who will enforce it -- no one knows what is lawful and what is not. Note the word "arbitrary" in the definition above; without the rule of law, everything that comes from a court is arbitrary, based on the whims of a particular judge, with no grounding in written law. This is the way courts are conducted in banana republics, and the United States is slip sliding -- not so slowly -- toward that status.

Here are three brief examples where we have seen the rule of law take a pummeling:

(1) The criminal trespass case of Mike McGarity -- McGarity is the former neighbor in Birmingham -- with a lengthy criminal record and, somehow, a job at Blue Cross and Blue Shield of Alabama -- who caused all of our legal problems, along with his crooked lawyer, William Swatek -- the guy with a lengthy disciplinary history with the Alabama State Bar.

We had lived peacefully in our home for roughly nine years when McGarity moved in next door and turned our world upside down. He, his family, and guests repeatedly trespassed on our property, and McGarity even put up a fence that took roughly 400 square feet of our yard. Essentially, he and his minions turned our yard into their personal playground -- complete with the liability we would have faced if one of them had gotten hurt on our yard, not to mention the potential for damage to our home from flying baseballs, golf balls, etc. Did McGarity bother to ask us if these intrusions were OK with us, the owners of the property? Nope. In fact, when I told him via multiple phone calls to keep himself and his various interlopers off our property, his response was, "I'm going to sue you for harassment."

I consulted a Birmingham lawyer named Bill Lewis, and he said we had two options: (a) A lawsuit, which could cost more than $10,000 and generally is meant for trespasses by inanimate objects; (b) A criminal complaint, which covers human encroachments that violate statutory violations under the Code of Alabama. Lewis agreed to send McGarity a letter via certified mail, explaining the law and stating McGarity would receive no more warnings. Lewis said he hoped the letter would solve the problem.

Unfortunately, that did not happen. We saw McGarity trespassing again, after we knew the letter had been sent and received.  At that point, we felt we had no choice but to go with option "b," and at a bench trial, McGarity was found not guilty, even though he confessed to criminal trespass, as defined by Alabama law. (I'm not making this up.)

How did District Judge Ron Jackson pull this bit of judicial chicanery? He ruled that, in this instance, we had to give McGarity written warning, and Jackson found doubt that Lewis' letter had arrived prior to the most recent trespass. Does that square with Aabama law? Not even close.

The controlling law is a case styled Chambers v. City of Opelika, 698 So. 2d 792 (1996).  Here is the key finding:

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.

The law could not be more clear: A private property owner -- or a renter, for that matter -- has no obligation  to warn an intuder, in writing or verbally. In other words, McGarity was guilty of trespass, but Judge Jackson held us to a standard that does not exist under Alabama law.

(2) McGarity sues me for "malicious prosecution" --Malicious prosecution is a "disfavored tort," and in a legitimate such case, the plaintiff essentially is claiming he was prosecuted criminally or sued civilly without probable cause. In the McGarity case, I had not only probable cause but "actual cause" because McGarity admitted at trial to trespassing, as charged. Judge Jackson's not-guilty finding did not give McGarity a malicious prosecution case -- not even close -- but it did give him the bare minimum needed to sue me. No real attorney would have brought such a flimsy case on a disfavored tort, bit Bill Swatek -- with his long history of punishment for unethical acts with the Alabama State Bar -- brought one for McGarity.

How flimsy was McGarity's case? We've already shown it was a non-starter on one ground, that the underlying case was not brought without probable cause. But it was a non-starter for a second ground, that I consulted an attorney and shared all of the relevant facts with him prior to taking action against McGarity, and that is an absolute defense to a claim of malicious prosecution.

How badly was the rule of law abused in the McGarity lawsuit? Well, the summary judgment process was an absolute butcher job. I filed three Motions for Summary Judgment (MSJ), two prepared by lawyers and one that I prepared, and all were supported by relevant evidence. Each time, that shifted the burden to McGaity, requiring him to respond to my motion with evidence that showed there was a dispute that required the case to go to trial. McGarity did not respond to the first MSJ in a timely fashion, and he did respond to the other ttwo MSJs at all.

Alabama law is real simple under such circumstances; in fact, it's probably simple in all 50 states. The key Alabama case is styled Voyager Guar. Insurance Co. Inc. v. Brown, 631 So. 2d 848 (1993):

"When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing."

As a matter of law, McGarity's case could not survive summary judgment and go to trial, but Judges Mike Joiner and Dan Reeves allowed it to happen -- giving Carol and me royal screw jobs and wasting untold numbers of taxpayer dollars. Most importantly, the rule of law was starting to take shallow breaths -- and things were about to get worse for the old boy.

(3) The mind-blowing unlawfulness in my UAB employment case -- U.S. District Judge William M. Acker Jr., thankfully, is dead -- so he won't be cheating anyone else. But the cheat job he inflicted on me is enough to shock anyone with  a conscience. Acker made numerous unlawful rulings in my discrimination-First Amendment case against UAB (where I had worked for 20 years), but the most galling involved summary judgment.

Technically, my case was against the University of Alabama Board of Trustees, and the board's lawyers quickly moved for summary judgment. But they had a slight problem: Summary judgment cannot even be considered, much less granted, until sufficient discovery has been conducted. And Acker, after telling me in open court he was going to cheat me, allowed zero discovery. In other words, the case was decided with no facts in evidence.

How grossly unlawful is that? The answer can be found in a case styled Snook v. Trust Company of Georgia, 859 F. 2d 865 (1988):

This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.

Carol and I hardly are alone in receiving this kind of treatment in U.S. courts, both state and federal. We can only imagine the hundreds of thousands (millions?) of Americans who have had their constitutional rights trampled in a similar manner. It takes a dunder-headed move by Donald Trump to make the rule of law front-page news. But what about the everyday Americans who are cheated in taxpayer-funded courts, but never will see their cases come to public attention?

We've covered quite a few such cases -- in matters that did not involve us -- and now seems like an appropriate time to bring such injustice back to the forefront.

(To be continued)

Thursday, February 13, 2020

Latest data shows Alabama has the nation's highest rates of opioid prescriptions, with Blue Cross and Blue Shield's virtual monopoly playing a contributing factor

Alabama leads the nation in opioid prescriptions, according to recent data from the U.S. Center for Disease Control and Prevention (CDC) -- and residents probably can thank Blue Cross and Blue Shield's virtual monopoly on health insurance for that distinction. From a report at on the latest findings:

Alabamians received more prescribed opioids per person than residents of any other state in 2018, according to data recently released by the U.S. Centers for Disease Control and Prevention.

Patients in Alabama received 97.5 prescriptions per 100 people. The national average was 51.4 prescriptions per 100 people, according to the most recent surveillance data.

Overall, prescription rates have fallen since 2012. That year, residents of Alabama received 143 prescriptions per 100 people, enough to supply every person in the state with one and a half bottles of painkillers.

The nation's highest opioid-prescription rates tend to be in the South, and medical professionals in the region are struggling to get the problem under control:

“The Medical Association is keenly aware of the high number of opioid prescriptions written in Alabama and has undertaken several initiatives to address the problem,” said Mark Jackson, executive director of the Medical Association of the State of Alabama. “Beginning in 2009 the Medical Association has put on education courses for physicians, nurse practitioners, and physician assistants to make them aware of the dangers and addictive nature of opioids. This past year, we had over 550 providers attend those courses and we have had 5,000 attend since 2009.”

Other states with high rates of opioid prescriptions included Arkansas (93.5), Tennessee (81.8) and Kentucky (79.5). The District of Columbia had the lowest rate at 25 prescriptions per 100 people, roughly one quarter of Alabama’s rate, according to the CDC.

Opioids are commonly prescribed to control pain, but can also be abused, which can lead to addiction and death. Drug overdose deaths in the United States have more than tripled since 1999, and the majority include opioids, a class of drugs that includes everything from prescription OxyContin and fentanyl to illicit heroin sold on the street.

How does Blue Cross and Blue Shield of Alabama (BCBSAL) enter the picture? We addressed that question in a September 2019 post, borrowing from a 2017 report at

Alabama members of Blue Cross Blue Shield receive more opioids for longer periods of time and report higher rates of substance- abuse disorder than patients in almost every other state, according to a report released Thursday.

An analysis of claims filed by Blue Cross members ranked Alabama in the top three for opioid prescriptions filled, long-term painkiller use and diagnoses of opioid-abuse disorder. More than 26 percent of Blue Cross Blue Shield members in the Yellowhammer State filled prescriptions for opioids in 2015, compared to the national average of 21.4 percent.

The study follows recent reports showing the death toll from opioid use topping 33,000 in 2015 and continuing to rise. Many of the deaths in recent years have been caused by heroin and illicit fentanyl - a powerful substance that has infiltrated the drug supply and caused a spike in overdoses. Deaths from prescription opioids have plateaued, but still account for the majority of fatal overdoses, according to the U.S. Centers for Disease Control and Prevention (CDC).

Details about Alabama's opioid problem are sobering:

According to the report, the number of substance-abuse disorder diagnoses for Blue Cross members increased almost 500 percent from 2010 to 2016. Women age 45 and older have higher rates of substance abuse than men, and men have higher rates of abuse among younger members. Less than a third of members diagnosed with opioid use disorder in Alabama received medication to treat the condition.

The CDC identified Alabama as the state with the highest number of prescribed opioids per capita in 2015, with physicians writing 5.8 million prescriptions that year. State regulators have adopted some rules to curb high rates of prescriptions. Recently, the Alabama Board of Medical Examiners adopted a rule requiring doctors to check the prescription drug database for certain patients.

Wednesday, February 12, 2020

Merger to form top 50 legal giant in Atlanta could siphon partners from Balch Bingham office, adding more pain for reeling Birmingham-based firm

Jay Town and Mark Crosswhite

The Birmingham legal community is aflutter now that photos have surfaced of Alabama Power CEO Mark Crosswhite (former Balch Bingham law firm partner) gathering with U.S. Attorney Jay Town in a meeting apparently designed to rig the summer 2018 North Birmingham Superfund bribery trial. Now, Balch might be taking a hit from another angle, according to a report at the blog

Troutman Sanders, one of Atlanta's powerhouse firms, is merging with Philadelphia-based Pepper Hamilton, creating a top 50 outfit nationally. The merger reportedly could include Balch Bingham partners in Atlanta, which would represent a talent drain on the already reeling Birmingham firm.

K.B. Forbes, publisher of, provides background for a merger that is set to take place in less than two months:

They hurt. They really hurt.

The embarrassing and compromising photos of Balch Bingham’s former partner and now CEO of sister-wife Alabama Power Mark A. Crosswhite apparently paying for drinks with Birmingham’s U.S. Attorney Jay E. Town has rocked the establishment in Birmingham.

Making a mockery of the legal system and affirming the feeling of blatant corruption behind closed doors, the photos illustrate why numerous, high-caliber, money-making partners with spectacular reputations have left the embattled law firm, including legacy partner Jesse S. Vogtle, Jr.

In recent days, Balch Bingham has tried pathetically to put a happy face on all the horrific news with more P.R. fluff by announcing the opening of a “Houston office” with one full-time attorney and one part-time attorney who will split time between Houston and Birmingham.

How embarrassing!

Things could get worse for Balch Bingham, as Forbes explains:

Now comes news that Troutman Sanders, one of Atlanta’s major, powerhouse law firms, is merging with Pepper Hamilton of Philadelphia, creating a Top 50 giant.
Like Balch, Troutman Sanders has served as a key law firm for Southern Company and its subsidiaries. Years ago, Balch arrived to Atlanta and planted its flag in Troutman Sanders territory irritating the powerful firm and allegedly trying to “steal” or steer away more Southern Company legal work.

In recent days, Troutman Sanders is expanding its operations even in the shadow of the mega-merger coming April 1, 2020.

Will this expansion include Balch Bingham partners in Atlanta?

If the monolithic new firm on the block tries to poach Balch's talent, it might represent poetic justice, Forbes writes:

Balch Bingham allegedly tried to “steal” competitor Burt Newsome’s legal work servicing banks; yet, the foolish plan completely backfired. Newsome is now a hero in the legal community for not taking it on the chin from the bullies at Balch Bingham.

Ironically, the same could be said in Atlanta. Years ago, Balch Bingham allegedly tried to “steal” competitor Troutman Sanders’s legal work in Atlanta.

Last year, we wrote that Balch’s entire footprint appears to have Athlete’s foot.

The partners at the satellite offices at Balch Bingham need to assess their future free of Balch Bingham’s Birmingham baggage.

Troutman Pepper could be the perfect place to call “my office.”

In the meantime, order a Venti Skinny Vanilla Latte and get ready to make your move.