Thursday, July 30, 2020

Martin Gugino, the 75-year-old activist in Buffalo, NY, has a fractured skull and cannot walk, but will prosecutors be able to get assault convictions vs. cops?

Martin Gugino, the 75-year-old activist who sustained a fractured skull (and could not walk for a time) when he was shoved to a concrete sidewalk by police in Buffalo, NY, has been released from a hospital, according to a report at CNN:

Martin Gugino, the 75-year-old protestor who was pushed by two Buffalo police officers in early June, has left the hospital, his lawyer Kelly Zarcone said in a statement on Tuesday.

Gugino will continue his recovery at an undisclosed location to ensure privacy. Zarcone said that Gugino can "walk with a little help" and that his condition will continue to improve with time and rest.
Despite the severity of Gugino's injuries, our research indicates prosecutors will have difficulty getting convictions on assault charges against the two cops who pushed Gugino. That's because New York law, as in many other states (including Alabama), requires the state on second-degree assault to prove that not only defendants intended to assault the victim, but that they also intended to cause him serious physical injury.

That almost seems to require mind reading, so how can it be proven in a court of law? Our research of New York case law indicates it can be done, but it generally comes down to two words: "readily inferable." Let's look at a relevant New York case:

New York v. Adam M. Hadfield, 2014 NY Slip Op 05462 

The Facts:
Defendant was convicted, after a nonjury trial, of assault in the second degree. The charge stemmed from his conduct, while incarcerated at the St. Lawrence County Correctional Facility, in kicking another inmate in the face during a game in the recreational yard. When questioned by Correction Sergeant Jeffrey Bercume, defendant admitted that he had kicked the victim in the face because he was annoyed with him, but asserted that it had been accidental. The incident was recorded by facility cameras, and a video thereof was played and admitted into evidence at trial. Upon his conviction, defendant was sentenced as a second felony offender to a prison term of seven years with three years of postrelease supervision, to be served concurrently to the aggregate 53-year prison term imposed on the same date for unrelated convictions. Defendant now appeals.

The Law (most citations omitted): 
Contrary to defendant's claims, the verdict is supported by legally sufficient evidence and is not contrary to the weight of the credible evidence. To prove that defendant committed the crime of assault in the second degree as charged, the People were required to establish that, while incarcerated after having been charged or convicted of a crime, defendant intentionally caused physical injury to another person (see Penal Law § 120.05 [7]). Defendant conceded that, at the time of the incident, he was incarcerated and had been charged with numerous sex offenses and other crimes; he challenges only the evidence of his intent and of the victim's physical injuries. Viewing the evidence, particularly the video of the assault, in the light most favorable to the People and affording them the benefit of every favorable inference, as we must on a legal sufficiency review, we find that the People established beyond a reasonable doubt that defendant intentionally caused physical injury to the victim (see People v Bleakley, 69 NY2d at 495). His intent was readily inferable from the deliberate, forceful and unprovoked conduct itself and the surrounding circumstances, all of which were clearly captured on the video . The People proved that the victim had sustained "physical injury" with evidence that he remained crouched down for several minutes after the assault and was later found disoriented and injured in his cell with a swollen face and cut lip, experiencing a high level of pain. The victim had no memory of the incident or of the surrounding time period, and the medical evidence established that he had sustained a concussion (see Penal Law § 10.00 [9]. As "there is a[ ] valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial" , we find that the evidence was legally sufficient.

Upon our independent review of the weight of the credible evidence, we find that, in light of the video of the assault unmistakably demonstrating defendant's intent to cause physical injury to the victim, a different verdict would have been unreasonable. Even if a different verdict would have been reasonable , viewing the probative force of the conflicting evidence in a neutral light and according deference to the credibility determinations of County Court, as factfinder, given its ability to view the witnesses firsthand, we are satisfied that the verdict was not contrary to the weight of the evidence. The court rationally rejected as incredible defendant's explanation that his actions in kicking the victim in the face were accidental or part of the game, as his conduct can only reasonably be viewed as intentional.

In Hadfield, the presence of video was a central factor in the state's ability to prove intent to injure and achieve a conviction. Will video of the Gugino incident provide  a similar boost to the state's case? That, it seems to us, is  a close call -- and it will depend on a court's interpretation of the video and other evidence in light of the words "readily inferable."

We will be following the proceedings from afar.

Wednesday, July 29, 2020

Tales of intrigue from Tommy Gallion: An intrepid attorney, with deep Southern roots, shines a bright light in dark corners of Alabama politics (Part 2)

Shadow Government, Southern Style: A Saga of Political Corruption From D.C. to Dixie (2020), by Thomas T. Gallion III; available from Amazon and Kindle eBooks

Tommy Gallion's Shadow Government  might be the most searing examination of Deep-South political corruption in the postmodern era. It is a work of considerable depth and breadth, deserving of its own review -- which we will endeavor to provide in an upcoming post. It also is "in the moment," filled with essentially breaking stories, largely unknown to the reading public here in the midst of election season,  Gallion set out to become an investigative journalist before settling into a long legal career, with a base in Montgomery, AL. Shadow Government shows that he has the searching eye and inquisitive mind of  a reporter.

Tommy Gallion
 Before delving into our review in a few weeks, we will produce a series of posts that examine some of the breaking news found in Shadow Government's pages. This is the second of those posts: (Part 1 is here)

What was the real motivation behind the political prosecution of former Democratic Gov. Don Siegelman and his codefendant, former HealthSouth CEO Richard Scrushy?

No one, to my knowledge, has been able to pin a definitive answer on this question -- although there are many intriguing theories. Most people, it seems, assume it was a Republican scheme to force Siegelman out of politics because they could not beat him at the ballot box. Gallion, however, takes a different view: He says it was designed more to gain control over Scrushy's considerable financial clout than to limit, or ruin, Siegelman's political clout. In other words, it was more about money than politics. From Shadow Government, Southern Style:

During the summer of 2018, I met with Scrushy to learn what had happened to him. (See note at end of post.) After several meetings, I asked Scrushy if he ever considered that the whole thing had been a ploy by Rob Riley, his brother-in-law [Rob] Campbell, and Doug Jones to set him up  to take over the legal business of HealthSouth that Campbell's firm had been courting for years. I also told that based on the information he had just given me, plus the fact Rob Riley, Doug Jones, and Campbell's firm had sued him, this was their plan from the beginning. I personally put together the puzzle and informed him this whole matter had nothing to do with Siegelman, but was to make money for Campbell, Riley, and Jones and to attempt to void Scrushy's retirement policy with HealthSouth. Scrushy said he had never thought about that being the Campbell firm's plan, but he now thinks that is the case from recent facts the two of us had uncovered. I looked at the documents and saw that Campbell's firm, Rob Riley, and Doug Jones were among the lawyers who repesented the plaintiffs in a lawsuit against Scrushy. I asked Scrushy if they found any documents in his barn to use against him. He said there were many documents in that barn, all of which were taken by Campbell's law firm when Judge Horn issued his ruling against Scrushy. Since Scrushy isn't a lawyer, I explained to him that all Riley and Jones wanted to do was look and see what was there so they woul know what documents to take or subpoena. I explained to him that I considered Riley's and Jones's lying to him about why they wanted to go into his barn to be fraud.

(Note: Gallion contacted me on this date -- 7/29/20 -- and noted that the time frame in this passage from his book is incorrect. After double checking his appointment calendar from the period, Gallion determined the Scrushy meetings started in fall, not summer, 2018 The exact date of the initial meeting was 10/28/18.)

Tuesday, July 28, 2020

In an avalanche of errors, fake protesters appear in Birmingham neighborhood -- at the wrong house -- to "demonstrate" against publisher of

Protesters at the wrong house in a Birmingham neighborhood

A group of mostly black fake protesters recently appeared at a suburban Birmingham neighborhood, apparently with designs on terrorizing a "white man" -- publisher K.B. Forbes -- and his family. But the demonstraters' plans went slightly awry; they went to the wrong house, at the wrong address, and terrorized the wrong family. Oops!

Security footage of protesters van
Why was Forbes targeted? It's probably because he has dared to report, accurately and thoroughly, about various misdeeds at the scandal-plagued Balch Bingham law firm. But the "protest," apparently staged by paid actors (paid by Balch?), left a family -- the wrong family -- so shaken that they intend to move. From a Forbes report at, under the headline "Buffoons! Balch Stooges Terrorize Wrong Family at Wrong Address; Family to Move":

Last week, we, the CDLU, had a joint phone call with federal and local law enforcement. We told them that we did not know if we should laugh or cry.

We are shaking our heads in absolute disbelief.

Are Balch Bingham stooges really this stupid, really this incompetent?

On July 4th, a van load of phony protesters attempted to stage a fake demonstration against the “white man” in front of the family home of our Chief Executive Officer. (More on the “white man” in a minute.)

Problem is they terrorized the wrong family at the wrong address. The stooges allegedly blocked the family’s driveway with the rental van and were shouting at them and holding signs allegedly denouncing the “white man.”

When we spoke to law enforcement officers who had actually gone to the scene, they told us the mother and her 13 year-old child, who witnessed the incident, were shaken, traumatized, and terrified, and that the mother was a nervous wreck, absolutely “petrified.”

As the family was being terrorized, she would not hang up the phone until law enforcement arrived at her home, according to deputies.

The "protesters" did manage to terrorize somebody; it was just the wrong people. Our bad!

When we met with the innocent family almost a week later, the poor mother was still visibly upset, in shock, and suffering from trauma and tremendous fear. She and her husband let us know that after 14 years living in the neighborhood, the family was moving because of the traumatic incident. The family strongly felt they were targeted and harassed for being white, and wish to remain anonymous fearing the alleged agitators could retaliate.

The July 4th protest against the “white man” was actually the second act of the orchestrated campaign to defend Balch, according to investigators.

The first act was a Facebook Live video on July 2 from Carlos M. Chaverst, Jr. where at the end he rambles about the “white man” K.B. Forbes and his home, while labeling him WYPIPO.

Forbes, the Chief Executive Officer of our organization, the CDLU, is the son of a Hispanic immigrant, and has spurred several Civil Rights investigations.

Obviously the Balch supporting stooges did not know who Forbes was, and did not care because they probably were paid for their fake outrage.

Law enforcement still is trying to sort out what happened and who is responsible for orchestrating it -- but they already have significant leads:

While investigators were searching for the culprits behind the phony protest that terrorized and traumatized the wrong family, Bill Britt of the Alabama Political Reporter published his 1,500 word flop on July 9 portraying Balch as a victim.

Britt’s foolish and mocked narrative affirmed that the campaign defending Balch was orchestrated.

After uncovering who rented the van, from where, and when, investigators were able to connect the dots all the way to the most ardent Balch stooges at the highest levels in Alabama.

Balch Bingham is the sister-wife of Alabama Power, one of the largest employers and most powerful entities in Alabama.

The usual suspects, consultants, and goons appear to be involved in this disaster, this cluster.

We obtained the Facebook Live video of the Balch supporting stooges terrorizing the wrong family. And the video alone is an embarrassment.

          * The stooges have no idea who they are protesting, calling Forbes on social media  and on    the  video by: Forge, Forges, and Forger.
    * The stooges appear to have no idea where they are, protesting and shouting at the wrong house, the wrong address.

    * The stooges’ fake protest is for less than 2 minutes, and the live feed continues for an additional 2 minutes after the phone is dropped inside the rental van.

    * The stooges left before law enforcement had arrived.
    Last week, after Josh Moon amputated his brain for Balch in the fourth act of the orchestrated campaign, we, the CDLU, had a joint phone call with federal and local law enforcement about the terrorizing incident against the innocent family and related acts.

    We told them that we did not know if we should laugh or cry.

    And we also learned that Facebook Live personality and WYPIPO detector Carlos M. Chaverst, Jr. had been arrested by three different law enforcement agencies.

    As reported:

    In Hoover, police on June 4 obtained a warrant for Chaverst for inciting to riot, which is a misdemeanor crime. The charge stems from statements made by Chaverst on social media May 29 which authorities said threatened property damage in Hoover, police said. The Facebook Live, in part, said, “We’re going to burn that (expletive) up. We’re fixing to make Hoover our little (expletive).”
    In Homewood, Chaverst is charged with second-degree bail jumping. Under Alabama law, a person commits the crime of bail jumping in the second degree if, having been lawfully released from custody, with or without bail, upon condition that he/she will subsequently appear at a specified time and place in connection with a charge of his/her having committed any Class C felony or any misdemeanor, he/she fails to appear at the time and place. Is this the person Balch Bingham boosters wanted to attack the CDLU in hopes of gaining sympathy?

    Have they truly lost their minds?

    Sadly, some partners at Balch Bingham, their stooges, and defenders appear not to be able to understand why the firm has become the laughing stock of the legal community while losing major clients and millions in revenue to competitors.

    Terrorizing the wrong family is just one more reason to add to the list.


Monday, July 27, 2020

Attorney John P. McKleroy, who helped seek guardian for Joann Bashinsky in probate court, failed to disclose criminal conviction to Golden Flake board of directors

John P. McKleroy
 A veteran lawyer, who helped file a petition for a guardian or conservator in the probate case of Birmingham philanthropist Joann Bashinsky, has a conviction for domestic violence in his background, according to a report at Alabama Today. John P. McKleroy, formerly of the Spain Gillon law firm in Birmingham, was arrested in 2006 and pled guilty to third-degree domestic violence and harassment in Tuscaloosa County District Court. Writes Apryl Marie Fogel at Alabama Today:

If you’ve been following along, you know that we’re learning together about the dysfunction, potential corruption, and madness involved in Alabama’s conservatorship and guardianship system. One of the missing components in my coverage to date has been addressing a frequent question, “How does this happen to someone?” Today, let’s explore that.

The story that sparked this series was that of longtime philanthropist and heir to the Golden Flake company, Joann Bashinsky (aka Mrs. B or Mama B).

In her case, Mrs. B’s forced and contested conservatorship began after firing two longtime employees John P. McKleroy and Patty Townsend, who seemingly “betrayed her.” The day they were fired, after months of insubordination and actions that went against the express wishes and interest of Mrs. B, the two petitioned the court for an “emergency order.” Today, we’ll look at McKleroy’s role in this.
McKleroy and Towsend filed an emergency order. What did they have to gain? Access and control of tens of millions once they took away Mrs. B’s voice and votes on the boards of her company and foundations. What did they have to lose? Not much or so they would have thought, if not for Mrs. B aggressively fighting their efforts and telling her story publicly.

What kind of man would do this? Well, the same man who would plead guilty to third-degree domestic violence and harassment, as McKleroy did. The police report detailing his abuse describes his violent assault saying, “while in a domestic altercation,” McKleroy did, “push, choke, and slap the victim.”

Court documents related to the McKleroy case can be viewed at this link. The Alabama State Bar is supposed to discipline wayward lawyers, so where was it on this issue? Out to lunch, apparently. In 2018, 12 years after McKleroy's conviction, the Bar honored him as a 50-year member, seemingly in good standing. That suggests the Bar made little effort to learn about McKleroy's criminal history or chose to ignore it.

What kind of court punishment did McKleroy receive? Reports Alabama Today:

According to a letter from his doctor and the court order, he went on to get a minimum of one year and three months of professional treatment to “address the psychological issues related to his episode of loss of control.” The clinical and forensic psychologist at the time stated that “he probably would not have sought treatment without legal pressure.”

Mrs. B was never made aware of McKleroy’s violent altercation with a member of his immediate family, (we are not identifying out of respect for the victim), the arrest, his need for therapy (including a court-ordered additional six months beyond his plea agreement), or his two years of probation. When I spoke to Mrs. B about this, she was disappointed. I asked her if she felt he should have told her about all of this, and she said, “Absolutely!”

How solid was McKleroy's standing in the Golden Flake hierarchy?

Bashinsky trusted McKleroy so explicitly before this betrayal, that when drawing up an update to her will, he advised her that her late husband, the founder of Golden Flake Sloan Bashinsky, had included him in his final will. He indicated he was a beneficiary, not just the executor. Mrs. B wanted to honor her husband’s wishes. She allowed him to include himself in her will at what he told her was the same amount as in Mr. Bashinsky’s will. What McKleroy wrote in her will, on her behalf, was that “My good friend John McKleroy shall receive,” and it ended up being 2% of her entire estate.

After firing McKleroy and Townsend, Mrs. B told Alabama Today that an examination of her late husband’s records indicated that Mckleroy had not been honest with her about that. No record of those wishes existed. The sad irony is that a significant component of their emergency request was a concern that Mrs. B wouldn’t be able to fulfill the bequests of her will.

McKleroy has made millions during his time with Golden Flake and the Bashinskys.

Reading the timeline presented in court documents, the only logical assumption is that McKleroy had been planning this for some time. He also had crafted a strong narrative in defense of his actions. Initial reports by the court-ordered Guardian ad-litem and social worker demonstrated facts contrary to what the filings by McKleroy claim. These include false accusations about Mrs. B’s cognitive abilities and her understanding of her financial investments. The filing falsely claims that Mrs. B needed to be “coached” on her requests to move money out of Level Four financial advisors, but she was able to explain the request and the justification clearly to the two court-ordered neutral parties.

According to his report to the court, Robert Squire Gwin told him just days after the two employees filed their motion, “Mrs. B[ashinsky] voiced her strong opinion that she was ‘totally disappointed and disgusted with John McKleroy and Patty Townsend’ since they both have been long time advisors over many years. She stated that she ‘felt betrayed by these former employees and advisors.'”

The court filing also stated that “Ms. Bashinsky was able to identify relevant dates and events in her life to Gwin and Sellers. Both the court-ordered guardian-ad-litem and social worker submitted statements saying that Mrs. B was lucid, able to talk. They indicated she was able to describe in detail the transfer of funds that is at the heart of this case. You see, one of the most significant components of their emergency order and one of the reasons they were fired is because the financial advisors at a Level 4 Dallas based company refused to comply with multiple requests by Mrs. B to diversify her account. Orders that the two former employees attest she didn’t understand or ask for herself.

McKleroy claimed in court that an emergency existed. The state Supreme Court said in their decision dismissing the order for conservatorship that no such emergency was indicated.
On Friday, July 24, 2020 Mrs. B hosted a board meeting, that included both McKleroy and Townsend as the other two board members, during which she directly addressed the violent criminal charges that McKleroy pled guilty to. She told me after the meeting, “I find it atrocious what Mr. McKleroy did. I feel strongly that he had a duty to disclose his actions to the board at the time it happened. At this point, it doesn’t surprise me that Patty (Townsend) isn’t disturbed by the news, but I don’t feel that this particular member’s actions are a good representation of my family’s boards.

My husband would be deeply ashamed. In light of this new information, I asked that he be removed as a director, but the other board member seems to think that those actions are excusable. In the words of Mr. McKleroy, “it was just a misdemeanor”.

Does Mrs. B need protection? Turns out that maybe so, maybe from the very people trying to steal her rights and silence her voice. After all, McKleroy’s only response to his heinous violent acts towards a loved one, “it was just a misdemeanor.”

Friday, July 24, 2020

Tales of intrigue from Tommy Gallion: An intrepid attorney, with deep Southern roots, shines a bright light in the darkest corners of Alabama politics

Shadow Government, Southern Style: A Saga of Political Corruption From D.C. to Dixie (2020), by Thomas T. Gallion III; available from Amazon and Kindle eBooks

Tommy Gallion's Shadow Government  might be the most searing examination of Deep-South political corruption in the postmodern era. It is a work of considerable depth and breadth, deserving of its own review -- which we will endeavor to provide in an upcoming post. It also is "in the moment," filled with essentially breaking stories, largely unknown to the reading public here in the midst of election season, that would merit space in any major newspaper. Gallion set out to become an investigative journalist before settling into a long legal career, with a base in Montgomery, AL. Shadow Government shows that he has the searching eye and inquisitive mind of  a reporter.

Tommy Gallion
 Before delving into our review in a few weeks, we will produce a series of posts that examine some of the breaking news found in Shadow Government's pages. This is the first of those posts:

Doug Jones and Rob Riley visit Richard Scrushy's barn to check out "antique cars"

U.S. Sen. Doug Jones (D-AL) and Rob Riley (lawyer son of former GOP governor Bob Riley) might seem like an unlikely pairing. But here is how they resorted to subterfuge in an effort to gain information they could use against Richard Scrushy, former HealthSouth CEO and codefendant in the political prosecution of former Democratic governor Don Siegelman. From Shadow Government, Southern Style:

During the summer of 2018, I met with Scrushy to learn what had happened to him. . . . I asked Scrushy if they found any documents in his barn that they used against him. He said there were many documents in that barn, all of which were taken by [the law firm of Rob Campbell, Bob Riley's son-in-law] when Judge [Alwin] Horn issued his ruling against Scrushy. Since Scrushy isn't a lawyer, I explained to him that all Riley and Jones wanted to do do was look and see what was there so they would know what documents to take or subpoena. I explained to him that I considered Riley's and Jones's lying to him about why they wanted to go into his barn fraud in the indictment.

Scrushy explained to me how this all came about: "One day, Rob Riley and Doug Jones showed up at my home and said they wanted to look at my collection of cars I kept in our barn. So I showed them around, and they saw that I had numerous pallets of documents from the federal trial in which I had been found not guilty. I didn't suspect anything because I trusted Rob and took them to the barn and left them inside because I had to go to another appointment."

After I heard this, I explained to Scrushy that after I had retrieved the documents in my investigation, I thought I knew what had happened to him. It took me hours to reach the understanding that this was part of a scheme by these plaintiffs' lawyers to take Scrushy down and obtain control of all of his assets. After I revealed to Scrushy what I had uncovered, he realized that Riley and Jones were lying to him and this was just an unethical legal ploy to set him up for a lawsuit and take over everything he and his family owned. It was now apparent that they were there to look at his personal files, not his antique cars. I have checked and do not find that Riley nor Jones has any antique cars.

Apparently, though, they saw what they needed to see. Shortly after their barn visit, Doug Jones and Rob Riley, along with Campbell's firm and several other lawyers, sued Richard Scrushy and cost him everything he had. Since Scrushy was a big supporter of Rob Riley's father and even held a fundraiser for him, he naturally trusted Rob. He discovered, with my help, that Republican Rob Riley and Democrat Doug Jones were close and were both plaintiffs' lawyers. Scrushy brought me documents and told me the entire story as to what happened to him, and I was stunned as the whole picture of this fraud came together so clearly. Scrushy had been in prison several years when Riley, Jones, et al., filed the final lawsuit. The judge would not continue the trial and the judge knew that Scrushy could not get out of prison to defend himself. This was a non-jury trial, and it appears the fix was in: The judge ruled with the plaintiffs in this civil trial although Scrushy had been found not guilty by a jury in a previous criminal trial that contained the same facts. The judge stripped Scrushy of everything he owned. Three very significant factors merit being noted concerning Judge Horn's court in this case: There was no jury of Scrushy's peers, there were no live witnesses, and Scrushy was not allowed to attend the trial. Welcome to justice, Alabama style!

Thursday, July 23, 2020

Alleged gunman in shooting at New Jersey home of federal judge Esther Salas had connections to Russia and left a string of pro-Donald Trump writings

U.S. Judge Esther Salas

The alleged gunman in the shooting of a federal judge's family -- killing her son and critically injuring her husband -- had ties to Russia and left an extensive string of pro-Trump writings, according to a number of reports. Roy Den Hollander, described as an "anti-feminist" lawyer, now is considered a suspect in the recent murder of another men's-rights activistFrom an article at The Atlantic:

Roy Den Hollander, the self-described “anti-feminist” attorney who authorities say is the chief suspect in the shootings of the son and the husband of a federal judge in New Jersey, attacked that judge by name in misogynistic, racist writings he wrote over a period of years and posted in bulk on the Internet Archive. Den Hollander, who describes himself as a Trump volunteer in his writings, called the judge an “affirmative action” case who affiliated with those who wanted “to convince America that whites, especially white males, were barbarians, and all those of a darker skin complexion were victims.”

Esther Salas’s 20-year-old son was killed in the attack at their home on Sunday, and her husband was wounded. Den Hollander was later found dead of an apparent self-inflicted gunshot wound in Rockland, New York. Den Hollander’s insults toward Salas were included in a 2,028-page collection of writings he posted online in 2019 under the username Roy17den, a handle that mirrored his Twitter account, @roy17den, and the email address he used both in personal letters and in court filings.

“Female judges didn’t bother me as long as they were middle age or older black ladies,” he writes when discussing a lawsuit he filed that went before Judge Salas, the first Hispanic woman appointed a federal judge in New Jersey. “They seemed to have an understanding of how life worked and were not about to be conned by any foot dragging lawyer. Latinas, however, were usually a problem—driven by an inferiority complex.”

Den Hollander wrote a number of political pieces, which tended to be highly critical of Democrats (Hillary Clinton, Barack Obama) and glowing about Republicans (Donald Trump):

Along with the attacks on Salas, Den Hollander’s writings also go after President Barack Obama (who he said has an “obsession to turn America into a banana republic”), Supreme Court Justice Sonia Sotomayor (who he claimed was “angry that nobody had invited her to her high school senior prom”), Hillary Clinton (whose supporters were “teary-eyed, sad-sack, PC loonies watching their power of intolerance go down the drain”), and an Obama appointee (whom he describes as part of “that Orwellian party of feminists, ethnics, Muslims, illegals and queers who think they are superior to everyone else, especially white males.”)

In contrast, he writes in the same sprawling document that he was a volunteer for the presidential campaign of Donald Trump, who he said “was telling the truth about illegal aliens in his bid for the Presidency.” Den Hollander describes “leaving the law library in the early afternoon for Trump Tower, 12 blocks up Fifth Avenue, to make telephone calls during the primaries and the general election.” Recounting his time working for the campaign, he says most of his fellow volunteers “were aging baby boomers like me."

Den Hollander's legal work often reeked of hatred for women:

Den Hollander, who was 72, held deeply misogynistic beliefs about women and filed a series of lawsuits against what he considered unfair advantages they had over men. One of those suits, in which he argued that it was unconstitutional for women not to be subject to military draft, reached Salas’s court in 2019. Salas did not throw out the suit, as many of Den Hollander’s previous cases had been. She instead allowed the lawsuit to proceed through the court system. But Den Hollander was upset by what he considered to be Salas’s delaying of the case. He complained that she allowed the Department of Justice to file its fourth motion to dismiss the case, suggesting she was “trying to keep this case in her court until a weatherman showed her which way the legal winds were blowing.”

“Salas clearly wanted to further her career by moving up the judicial ladder to the Court of Appeals or maybe even the Supreme Court,” he writes. “After all, there was now a Latina seat in the form of Sotomayor on the Court.”

Judge Salas came from a disadvantaged background. She is the daughter of a Cuban immigrant; her home burned down when she was 10, and her family lost everything. Salas eventually earned her bachelor’s and law degrees from Rutgers University, became a public defender, and was elected president of New Jersey’s Hispanic Bar Association. “For this little girl from Union City to grow up and become a U.S. District Judge—it’s beyond words,” she told a local reporter after she became a federal judge in 2006.

Den Hollander, who turned his hatred of women into a string of media appearances over more than a decade, saw Salas’s biography differently. “It was the usual effort to blame a man and turn someone into super girl—daddy abandoned us, we were indigent, which means they lived off of the taxpayer, but we overcame all odds,” he writes in one of the documents posted online last year. He describes Salas’s decade as a public defender as “representing lumpen proletariat ne’er-do-wells.” Her “one accomplishment,” he says, was being a high-school cheerleader.

He also attacks Justice Sotomayor, saying she was “52 years old, prime age for a Feminazi.” His voluminous writings—more than 10,000 pages of PDFs—show a deep sense of grievance against women, especially his mother, who he claims told him, at age 4, “I wish I had listened to your father and never had you!” He calls her a witch, a “Nazi loon,” and “another malevolent female.” He also describes kissing girls in third grade frequently enough that their parents complained to their teacher. The document, one of several he uploaded to the Internet Archive, is a disturbing but by now common coda to high-profile incidents of gun violence: the suspected shooter leaving a trail of arguments and anger in random corners of the web. Many of them involve a hatred of women and people of color, and connect broad claims about the world with very personal claims of grievance.

“All my life I saw other people, even strangers in the street, as potential enemies with whom conflict seemed more likely than cooperation,” he writes. “I understood that, except for my few friends, I didn’t like people because they scared me; and when someone is afraid, he hates others for causing him the humiliation and himself for allowing it. But where did this ever-present fear come from—my genes or the way my mother raised me? I opted for the culpability of my mother with some assistance from my father.”

Den Hollander claimed to have married a Russian woman, and that ended badly:

He also writes viciously about a Russian woman he says he married, calling her a “mafia prostitute.” Den Hollander writes at length about the time he spent living in Russia, including time he says he spent working for Kroll Associates. At one point, he describes difficulties he said he was having with the U.S. government, claiming it had “confiscated” his U.S. citizenship. “Boy, was I glad I didn’t vote for Obama—wrote-in Putin instead,” he writes.

“Perhaps the Violence Against Women’s Act could get my citizenship back,” he added. “All I’d have to do is date an American girl then accuse her of abuse.”

Some of his interest in Russia is clearly tied to his support of the president. On the question of meddling in the 2016 election, he writes that, during the debate over Clinton’s email server, he had “what I thought was a great idea to help Trump.” If Russian intelligence had hacked the server, he would try to use an old Russian contact to dig up her emails. “So I contacted a GRU buddy requesting a few copies of the bleached or classified emails, if they had them. Telling him, I’d make them public through my media contacts.” His contact, he claims, said that GRU didn’t have the emails, which he took as a sign that “they did not hack the server or they wanted Hillary to win.”

Tuesday, July 21, 2020

Despite criticism from Trump and Gov. Mike Parson, Missouri prosecutor has lawful grounds to bring charges against St. Louis couple for brandishing guns

Mark and Patricia McCloskey

The governor of Missouri doesn't like it and the president of the United States doesn't like it, but Circuit Attorney Kim Gardner got it right yesterday when she filed criminal charges against a St. Louis couple who brandished weapons last month at protesters who were on the street in front of their $1-million home. From an Associated Press report at Politico:

St. Louis’ top prosecutor told The Associated Press on Monday that she is charging a white husband and wife with felony unlawful use of a weapon for displaying guns during a racial injustice protest outside their mansion.

Circuit Attorney Kim Gardner announced the charges against Mark and Patricia McCloskey, who are both personal injury attorneys in their 60s. They also face a misdemeanor charge of fourth-degree assault.

Gardner said in an interview with the AP ahead of more broadly announcing the charges that the McCloskeys’ actions risked creating a violent situation during an otherwise nonviolent protest.

“It is illegal to wave weapons in a threatening manner — that is unlawful in the city of St. Louis,” Gardner said.

How do we know Gardner is right about that? Well, the relevant statute -- RSMo 571. 030 -- is clear-cut:

2005 Missouri Revised Statutes - § 571.030. — Unlawful use of weapons--exceptions--penalties.

571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:

(1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use; or

(2) Sets a spring gun; or

(3) Discharges or shoots a firearm into a dwelling house, a railroad train, boat, aircraft, or motor vehicle as defined in section 302.010, RSMo, or any building or structure used for the assembling of people; or

(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;
 Item No. 4 likely is the key element in the McCloskey case. They were caught on camera doing exactly what No. 4 describes. (See video embedded at the end of this post.)

Governor Mike Parson went on the Sean Hannity Show last night to decry the charges, but in light of the statutory language, Parson pretty much made a fool of himself:

Missouri Gov. Mike Parson told "Hannity" on Monday that "without a doubt," he will pardon Mark and Patricia McCloskey, hours after St. Louis Circuit Attorney Kimberly Gardner filed felony charges against them.

The charges stemmed from the McCloskeys wielding firearms after a crowd entered their gated neighborhood, and some allegedly threatened them and their property. The McCloskeys argued that they broke an iron gate to get onto the private street.

Parson, a Republican, said Missouri was one of several states with a "castle doctrine" principle wherein people could protect themselves, their family and/or their property in certain situations.

"Without a doubt, Sean," he said when asked about a pardon. "I will do everything within the Constitution of the State of Missouri to protect law-abiding citizens and those people are exactly that. They are law-abiding citizens, and they're being attacked frankly by a political process that's really unfortunate."

He called it a "sad day" for the state and noted that he has already spoken with President Trump, who agreed that the McCloskeys should not be facing felony charges for what they described as self-defense.

"They had every right to protect their property, their home, just like any of us would. If you had a mob coming towards you, whether they tore down a gate or not, when they come on your property, they don't have a right to do that in an aggressive manner. People have a right to protect their selves, their families, their property," said Parson.

A few points about Parson's remarks:

(1) Missouri's Castle Doctrine applies where an occupant believes someone is unlawfully entering his residence.  We've seen no indication that any protester attempted to enter the McCloskeys' residence.

(2) The McCloskeys had a right to protect their property, "against a mob that came on their property"? Numerous videos are online of the incident, and I haven't seen one that shows protesters on the MCCloskeys' property. They appear to have come right to the edge of it.

(3) Is Parson suggesting Gardner should ignore the law because the governor considers the McCloskeys to be "law-abiding citizens"? The governor should know the justice system doesn't work that way. Perhaps the McCloskeys have been law-abiding citizens for most of their lives. But in this moment they acted contrary to the language of  a Missouri statute.

(4) President Trump has no authority over prosecutorial decisions in Missouri, so why is Parson talking to him? To earn political points? And Parson accuses Gardner of playing politics?

(5) If Parson does not like the way Missouri law reads, he should work with the legislature to change it. Does that mean the McCloskeys will be found guilty? No. Does it mean Gardner had probable cause to bring the charges? Yes.

Is Gardner "throwing the book" at the McCloskeys? Not exactly. From Politico:

Gardner is recommending a diversion program such as community service rather than jail time if the McCloskeys are convicted. Typically, class E felonies could result in up to four years in prison.

As for the assault charge, this comes from a recent article, quoting a St. Louis law professor:

Under Missouri law, the distinct common law concepts of assault and battery are rolled into the same statute and defined under various degrees of assault. Section 565.056 (3-4) defines assault in the fourth degree as any conduct which “purposely places another person in apprehension of immediate physical injury” or “recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person.”

Monday, July 20, 2020

As public officials consider defunding police departments, here is a reminder that sheriffs could use a "little trim" to their budgets, too -- plus oversight

Officers from the LA County Sheriff's Department

A number of municipalities around the country are giving serious consideration to some form of defunding police departments. But an article from The New Republic (TNR) suggests those discussions should also consider budget cuts for sheriff departments. Our experience has been that sheriff departments harbor just as many thugs as do police departments -- maybe more. (See here and here.) And TNR notes sheriffs tend to operate with little oversight.

The TNR piece focuses on the Los Angeles County (CA) Sheriff's Department (LASD), which it notes is just one of many around the country with a deserved reputation for housing bad actors. Writes reporter Melissa Batchelor Warnke:

The Father’s Day demonstration started peacefully. Earlier this month, Andres Guardado’s family led thousands of marchers to the Compton sheriff’s station, where they called for an independent investigation into his fatal shooting. Less than 72 hours earlier, Guardado, who was just 18, had been killed by a Los Angeles County deputy sheriff outside the Gardena auto body shop where he worked. One deputy shot the teenager in the torso at least six times before he died; his family believes he was shot in the back. None of the deputies at the scene were wearing body cameras, and a witness told the local outlet L.A. Taco that deputies destroyed cameras and surveillance footage. The L.A. County Sheriff’s Department then placed a “security hold” on Guardado’s autopsy, barring his cause of death and report from being released to the public.

Helicopters have circled over dozens of L.A.-area protests recently, but during this one a sheriff’s department helicopter reportedly was broadcasting menacing messages. “We don’t want to see your children hurt,” someone in the copter said from a loudspeaker, according to The Los Angeles Times. One protest attendee recalled hearing, “You don’t want your kids to grow up to be troublemakers like these people,” while another recorded a deputy working to agitate the crowd. Deputies on the ground then deployed tear gas, flashbangs, and pepper balls and shot rubber bullets at the demonstrators, creating chaos. (The LASD did not respond to a request for comment.)

The LASD’s actions that day only hinted at its 170-year history of brutality, racism, deception, and disrespect for those it has sworn to serve. The department—the largest sheriff’s department in the world, with 18,000 employees—is famously corrupt, but it is not an outlier in that respect. There are more than 3,000 sheriff’s departments in the United States, and though many have engaged in the same type of corruption and abuse of force practiced by cops, they receive less public attention. As cities like Minneapolis attempt to reform their police departments, activists are looking to do the same to sheriff’s departments. That may be a greater challenge, given their historic lack of oversight and media coverage of their misconduct and the fact they’re not accountable to mayors and city councils in the way that police departments are. But there’s also reason for hope: Most sheriffs ultimately answer to voters.

How ugly is the LASD's history? Warnke provides insight:

The list of the LASD’s abuses is too extensive to display in its entirety. In 2013, the FBI issued a slew of indictments against former and current deputies for “beating jail inmates and visitors,” “trying to intimidate an FBI agent,” and a “wide scope of illegal conduct.” In 2017, an L.A. Times investigation revealed that, three years earlier, the LASD had kept a secret “Brady list” of hundreds of deputies with histories of misconduct. The behavior documented was stunning: A deputy molested a 14-year-old girl he had been called to assist after a knife attack; a deputy pepper-sprayed an elderly man in the face and then wrote a false report in order to arrest him; and a deputy forced a stranger to perform oral sex on him in his squad car, to name just a few examples. Yet some of the deputies listed were still working within the department and testifying in criminal cases.

In 2019, the FBI opened an investigation into the LASD’s myriad violent “deputy gangs,” violent and secretive deputies’ groups that have been in operation since the 1970s. Some reforms were made that same year, when California’s “Right to Know” Act went into effect—an effort led by California civil society organizations, news institutes, and news outlets, including The Sacramento Bee and The L.A. Times, which sued the Sacramento County Sheriff’s Department after it refused to release relevant records. Earlier this year, thanks to organizing by Reform L.A. Jails, Los Angeles voters passed a ballot measure supporting subpoena power for the LASD’s civilian oversight commission and its creation of a plan to reduce jail populations. Without the sustained pressure these organizations exerted, these reforms would not have happened; many sheriff’s departments in the state, including LASD, have resisted transparency at every turn.

Sheriff departments tend to fly under the radar, compared to their police brethren, Warnke reports:

Many other sheriff’s departments merit similar scrutiny but are rarely subject to it. Jessica Pishko, a senior counsel at the Justice Collaborative, cautions that any large county, such as Los Angeles, will have a very different sheriff’s department than a suburb or rural town. But one structural issue that extends across most sheriff’s departments is that deputies have the power to conduct law enforcement on the street and run the jails, a level of authority that invites abuse. Perhaps as a result, in many rural counties, jail populations have increased dramatically over the past decade. “You shouldn’t have the person in charge of street patrols, SWAT teams, and search warrants be the same person who controls who is brought to jails and under what conditions they’re treated when they get there,” Pishko told me. In 41 California counties, the sheriff can also perform the duties of the coroner.

The differences between sheriff’s departments help to insulate them from reform. “Sheriff’s department funding structures, as well as their duties, change from county to county,” says University of Oklahoma assistant professor Lindsey Meeks, who recently released a first-of-its-kind academic study on local media coverage of sheriff’s departments. “The fact that they’re not uniform across the board definitely makes them harder to organize around than police departments—and it makes it harder for citizens to intervene in sheriff’s department processes.”

There is also relatively little existing scholarship on sheriff’s departments for researchers to draw from. “There is a very small group of academics doing this work,” Meeks says. “In our culture, there’s a strong emphasis on police and policing. When we talk about law enforcement, we tend to group sheriffs under the ‘police umbrella’ without recognizing they’re distinct entities.”

County sheriffs are typically elected to office, unlike appointed city police chiefs. (Sheriffs are appointed in Rhode Island, Hawaii, and a few scattershot counties, like Denver and Miami-Dade.) But Meeks found that local news coverage of sheriff candidates and departments is generally paltry, and sheriff elections occurring in presidential election years receive even less comprehensive coverage than in off-years. Heading into November, many Americans don’t know much about their local sheriff’s responsibilities and how their department is organized—and they’re unlikely to happen upon that information in their local news coverage.

Unless, that is, the sheriff’s abuses of power are so flagrant that they’re impossible to ignore. Former Maricopa County Sheriff Joe Arpaio outfitted the hundreds of prisoners he oversaw in all pink as they toiled at his “Tent City” jail in sweltering weather. (“Even if it was a concentration camp, what difference does it make? I still survived. I still kept getting re-elected,” Arpaio told The Guardian.)

Attitudes like Arpaio's tend to permeate sheriff's departments and many officers operate with little or no supervision:
While Arpaio may be America’s most infamous sheriff, he’s far from the only one who takes such a callous approach. In Denver, a deputy was filmed punching a man in a wheelchair, for which he had already been cleared of wrongdoing: A city employee was so frustrated by the Department of Public Safety’s handling of the investigation that she recently risked her job to raise the case to the media—and was subsequently put on leave. In Washington’s Snohomish County, Sheriff Adam Fortney celebrated his election this year by quickly reinstating three deputies who had been removed for excessive use of force. In Alabama’s Etowah County, one sheriff took advantage of an old law that enabled him to make extra money by feeding prisoners less—and bought a beach house with it. “[Alabama] law says it’s a personal account and that’s the way I’ve always done it and that’s the way the law reads and that’s the way I do business,” he told The Birmingham News in 2018.

While county governments tend to approve their sheriff’s departments’ annual budgets, which can easily surpass $1 billion in big cities, they have no concrete management authority over the sheriff or deputies. That means there are more than 350,000 sworn and civilian officers across the country who are, often by design of state law, barely supervised. “You want my badge number?” one LASD deputy allegedly told an onlooker on June 2, as deputies arrested more than 120 peaceful demonstrators. “It’s one two three four five.”

Had the taunter been a police officer, the onlooker could have reported him to the police commission, which has regulatory power over the Los Angeles Police Department. (Whether the police commission exercises that power is another question, but the power is granted.) As the taunter was a deputy sheriff, that demonstrator’s best options may have been to report the officer to the Board of Supervisors or the sheriff civilian oversight commission. L.A. County Sheriff Alex Villanueva has frequently defied the former, and refused to testify in front of the latter (even when presented with a subpoena).

While that civilian oversight committee has pushed for (and achieved some) department reforms since its 2016 inception, it only has advisory, not regulatory, powers. “We can’t make anybody do anything,” committee chair Patti Giggans told me. “The police department commission can [oversee the police department]; they can set policy.”

“The truth is that there is systemic racism and abuse of force. Law enforcement has too much power and not enough accountability, which means that the [Drug Enforcement Administration], the judges, and the whole criminal justice system are responsible, too,” Giggans added. “The system is the villain; we’ve got to shake it off and make it better. And in order to do that, we need civilian oversight.”

Friday, July 17, 2020

Former Drummond exec seeks order from Alabama Supreme Court, compelling Jeffco judge to rule on motions that have been sitting for more than a year

Tamara Harris Johnson
A former Drummond Co. executive is asking the Alabama Supreme Court to force a Jefferson County circuit judge to rule on motions in his $75-million lawsuit that alleges his former employer and the Balch Bingham law firm essentially made him the fall guy in the North Birmingham Superfund bribery scandal. David Roberson's conviction in the Superfund case is under appeal.

In his petition for a writ of mandamus, Roberson says Jeffco judge Tamara Harris Johnson has been sitting on some motions, without rulings, for roughly 14 months.
 From the petition:

The court held a hearing on May 29, 2019, and the hearing lasted about ninety minutes. At the conclusion of the hearing, Judge Johnson asked the parties to submit additional briefs on various issues . . .

No order was entered, and nothing further was filed until October 16, 2019 – when Balch filed a motion for a status conference because Judge Johnson had not ruled. . .

On December 20, 2019, the Robersons submitted a proposed order, hoping for a decision, but Judge Johnson took no action. As 2019 ended, this case had been under submission for over seven months, but Judge Johnson did not list the case on her Semiannual Report of Matters Under Submission for Six Months or Longer.

Meanwhile, Roberson and his wife/co-plaintiff, Anna, have not been able to conduct any discovery. From the petition:

On December 20, 2019, the Robersons submitted a proposed order, hoping for a decision, but Judge Johnson took no action. As 2019 ended, this case had been under submission for over seven months, but Judge Johnson did not list the case on her Semiannual Report of Matters Under Submission for Six Months or Longer. . . .

As of this filing date, . . . Judge Johnson issued only one order since the hearing on May 29, 2019 – the order denying the Robersons’ motion to recuse her. There is nothing more.

Why would a judge fail to rule on matters before her? That is hard to figure, but she clearly has an "imperative duty" to rule, under the law. From the petition:

Under Alabama law, a delay of more than six months in deciding a matter is presumptively unreasonable. Indeed, every judge must file a report, twice yearly, listing all “matters which have been under submission or advisement for a period of six months or longer.” Ala. Canons Jud. Ethics 3(A)(5). For any “matter or case” listed, “the report shall give ... the reasons for the failure of the judge to decide such matters or cases.” In the last two years, the Court of Civil Appeals has twice ordered judges to rule on matters that had been under submission for six months or less.

Do the Roberson's have a right to action on their motions? There seems to be little doubt about that:

Under the Alabama Constitution, “justice shall be administered without ... delay.” Ala. Const. § 13. The Rules of Civil Procedure secure the right to a “speedy ... determination,” Ala. R. Civ. P. 1(c), and the Canons of Judicial Ethics require a judge to act “promptly.” Ala. Canon Jud. Ethics 3(A)(5).

The Robersons' petition hints that Judge Johnson's inaction is an embarrassment to the justice system:

Judge Johnson has not acted promptly; she has not acted at all. Aside from denying the Robersons’ motion to recuse her, she has not ruled on any motion since May 17, 2019 – when she stayed discovery. This delay is abhorrent to the Alabama Constitution and the administration of justice. The Robersons have a “clear legal right” to a decision in their case, and Judge Johnson has “an imperative duty” to render one.

What a mess has Johnson made of this case? The petition makes it clear:

In summary, almost fourteen months have elapsed since the “first motions” were filed, and Judge Johnson has not ruled on any of those motions. Almost eight months have elapsed since the “second motions” were filed, and again, Judge Johnson has not ruled on any of those motions. The Robersons have a “clear legal right” to a decision from Judge Johnson.

Thursday, July 16, 2020

High-traffic areas in Rome, Georgia, courthouse present an opportunity for coronavirus to take hold and spread among staff members and the public

Floyd County Courthouse in Rome, GA

Have courthouses become primary hothouses for spread of the coronavirus? Evidence from some locales suggests the answer is yes. The Floyd County Courthouse in Rome, Georgia, recently closed for two weeks after 13 court employees tested positive since May 31. From a report at

Superior Court Clerk Barbara Penson said her own decision to require her 18-member staff to undergo additional testing before they can return to work . . . has uncovered three more COVID-19 cases. Seven staff members in her office have now tested positive.

At least 13 courthouse employees have tested positive since May 31, and nearly half of them have become ill.

In addition to Penson’s staff, three members of Probate Judge Steven Burkhalter’s staff also became ill after testing positive for COVID, according to Kevin Holder, executive director of the state Council of Probate Judges.

Three sheriff’s deputies have also tested positive, according to The Rome News-Tribune.

Penson said that , because all but one of her staff members were asymptomatic when they initially tested positive, she is requiring that they present two negative COVID-19 tests taken at least 24 hours apart before she will allow them to return to work. Penson said neither she nor her chief deputy have tested positive.

Floyd County Superior Court Chief Judge J. Bryant Durham ordered all 148 courthouse employees to undergo COVID-19 tests in a June 5 judicial emergency declaration after Penson alerted him that one of her clerks had tested positive for the virus and had symptoms that included a fever. Durham also ordered that all staff must present proof in writing that they tested negative before the can enter the courthouse.

Areas of high interaction with the public seem to be driving the virus' spread:

Penson said four positive tests among her staff, and three in the probate judge’s office forced her staff and the staffs of the probate, magistrate, and juvenile courts to quarantine for two weeks. She said two of the circuit’s four Superior Court judges and their staffs were also quarantined, although none tested positive for the virus.

The courthouse employees who tested positive work on the first and second floors, which have the most interactions with the public, she said. No one on the third floor, where the superior court judges’ chambers are located, has tested positive.

Meanwhile, the courthouse was fogged twice to disinfect it, and a crew from the state prison was brought in to clean and sanitize every office and courtroom, in addition to all public spaces, Penson said.

Although the courthouse has reopened, she said she and her staff are isolating in the clerk’s office. “No one comes in here,” she said. “No one is allowed in our work area.”

Only two members of the public at a time are allowed in either the clerk’s office or the deed room, Penson said.

Personal interactions among staff have also been limited in favor of communicating by phone, fax, or instant messaging, she said. All civil and real estate transactions are filed electronically, and her office will soon be able to accept criminal filings as well, she said.

Some employees work remotely, but parts of Floyd County, a county of less than 100,000 in the Appalachian foothills, do not have broadband access, she said.

Penson said no date has been set yet for jury trials to restart.

Wednesday, July 15, 2020

Rogue judges run rampant around the country, but many of them escape punishment because of lax disciplinary systems and little media scrutiny

Marquita Johnson (Reuters)

It must be impossible to write an article about court corruption without focusing on at least one Alabama judge. That seems to be the take-home lesson from a piece at Reuters under the headline, "Special Report: Thousands of U.S. judges who broke laws, oaths remained on the bench." Heck, even the dateline is from Alabama. Write reporters Michael Berens and John Shiffman:

MONTGOMERY, Alabama (Reuters) - Judge Les Hayes once sentenced a single mother to 496 days behind bars for failing to pay traffic tickets. The sentence was so stiff it exceeded the jail time Alabama allows for negligent homicide.

Marquita Johnson, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were cast into foster care while she was incarcerated. One daughter was molested, state records show. Another was physically abused.

“Judge Hayes took away my life and didn’t care how my children suffered,” said Johnson, now 36. “My girls will never be the same.”

Fellow inmates found her sentence hard to believe. “They had a nickname for me: The Woman with All the Days,” Johnson said. “That’s what they called me: The Woman with All the Days. There were people who had committed real crimes who got out before me.”
In our experience, judges often get away with such brazen unlawfulness; Hayes did not:

In 2016, the state agency that oversees judges charged Hayes with violating Alabama’s code of judicial conduct. According to the Judicial Inquiry Commission, Hayes broke state and federal laws by jailing Johnson and hundreds of other Montgomery residents too poor to pay fines. Among those jailed: a plumber struggling to make rent, a mother who skipped meals to cover the medical bills of her disabled son, and a hotel housekeeper working her way through college.

How did Hayes explain such judicial hackery? He blamed it on, well, ignorance of the law -- and he was a judge:

Hayes, a judge since 2000, admitted in court documents to violating 10 different parts of the state’s judicial conduct code. One of the counts was a breach of a judge’s most essential duty: failing to “respect and comply with the law.”

Despite the severity of the ruling, Hayes wasn’t barred from serving as a judge. Instead, the judicial commission and Hayes reached a deal. The former Eagle Scout would serve an 11-month unpaid suspension. Then he could return to the bench.

Until he was disciplined, Hayes said in an interview with Reuters, “I never thought I was doing something wrong.”

This week, Hayes is set to retire after 20 years as a judge. In a statement to Reuters, Hayes said he was “very remorseful” for his misdeeds.

Community members are angry that Hayes was allowed to retire rather than being forcefully kicked off the bench:
“He should have been fired years ago,” said Willie Knight, pastor of North Montgomery Baptist Church. “He broke the law and wanted to get away with it. His sudden retirement is years too late.”

Hayes is among thousands of state and local judges across America who were allowed to keep positions of extraordinary power and prestige after violating judicial ethics rules or breaking laws they pledged to uphold, a Reuters investigation found.

Judges have made racist statements, lied to state officials and forced defendants to languish in jail without a lawyer – and then returned to the bench, sometimes with little more than a rebuke from the state agencies overseeing their conduct.

Rogue judges are a problem around the country, Reuters found:

Recent media reports have documented failures in judicial oversight in South Carolina, Louisiana and Illinois. Reuters went further.

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Just from the past year alone:

In Utah, a judge texted a video of a man’s scrotum to court clerks. He was reprimanded but remains on the bench.

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

In Texas, a judge burst in on jurors deliberating the case of a woman charged with sex trafficking and declared that God told him the defendant was innocent. The offending judge received a warning and returned to the bench. The defendant was convicted after a new judge took over the case.

“There are certain things where there should be a level of zero tolerance,” the jury foreman, Mark House, told Reuters. The judge should have been fined, House said, and kicked off the bench. “There is no justice, because he is still doing his job.”

Judicial misconduct specialists say such behavior has the potential to erode trust in America’s courts and, absent tough consequences, could give judges license to behave with impunity.

“When you see cases like that, the public starts to wonder about the integrity and honesty of the system,” said Steve Scheckman, a lawyer who directed Louisiana’s oversight agency and served as deputy director of New York’s. “It looks like a good ol’ boys club.”

That’s how local lawyers viewed the case of a longtime Alabama judge who concurrently served on the state’s judicial oversight commission. The judge, Cullman District Court’s Kim Chaney, remained on the bench for three years after being accused of violating the same nepotism rules he was tasked with enforcing on the oversight commission. In at least 200 cases, court records show, Judge Chaney chose his own son to serve as a court-appointed defense lawyer for the indigent, enabling the younger Chaney to earn at least $105,000 in fees over two years.

In February, months after Reuters repeatedly asked Chaney and the state judicial commission about those cases, he retired from the bench as part of a deal with state authorities to end the investigation.

Tommy Drake, the lawyer who first filed a complaint against Chaney in 2016, said he doubts the judge would have been forced from the bench if Reuters hadn’t examined the case.

“You know the only reason they did anything about Chaney is because you guys started asking questions,” Drake said. “Otherwise, he’d still be there.”

The mainstream media (MSM) rarely takes a look at crooked judges, so Reuters deserves huge props for tackling the subject. I would love to see them do an expanded version of the story, and I could give them the names of dozens of victims, with details about cheat jobs. After all, I'm "The guy who got arrested for blogging." That was MY nickname among inmates at the Shelby County (AL) Jail.

Here is what the University of Virginia's Thomas Jefferson Center for the Protection of Free Expression said about Judge Claud Neilson, the hatchet man on my case:

The Thomas Jefferson Center for the Protection of Free Expression, based at the University of Virginia, has been issuing "Jefferson Muzzles Awards" for 24 years to those who have wantonly trampled First Amendment rights.

Claud Neilson, a retired circuit judge the Alabama Supreme Court specially appointed to hear a lawsuit brought against me by Republican political figures Rob Riley and Liberty Duke, was among eight individuals or entities to receive "Muzzles Awards" for 2014-15.

How bad is the disciplinary system for judges? Real bad, reports Reuters:

State and local judges draw little scrutiny even though their courtrooms are the bedrock of the American criminal justice system, touching the lives of millions of people every year.

The country’s approximately 1,700 federal judges hear 400,000 cases annually. The nearly 30,000 state, county and municipal court judges handle a far bigger docket: more than 100 million new cases each year, from traffic to divorce to murder. Their titles range from justice of the peace to state supreme court justice. Their powers are vast and varied – from determining whether a defendant should be jailed to deciding who deserves custody of a child.

Each U.S. state has an oversight agency that investigates misconduct complaints against judges. The authority of the oversight agencies is distinct from the power held by appellate courts, which can reverse a judge’s legal ruling and order a new trial. Judicial commissions cannot change verdicts. Rather, they can investigate complaints about the behavior of judges and pursue discipline ranging from reprimand to removal.

Few experts dispute that the great majority of judges behave responsibly, respecting the law and those who appear before them. And some contend that, when judges do falter, oversight agencies are effective in identifying and addressing the behavior. “With a few notable exceptions, the commissions generally get it right,” said Keith Swisher, a University of Arizona law professor who specializes in judicial ethics.

Others disagree. They note that the clout of these commissions is limited, and their authority differs from state to state. To remove a judge, all but a handful of states require approval of a panel that includes other judges. And most states seldom exercise the full extent of those disciplinary powers.

As a result, the system tends to err on the side of protecting the rights and reputations of judges while overlooking the impact courtroom wrongdoing has on those most affected by it: people like Marquita Johnson.

Reuters scoured thousands of state investigative files, disciplinary proceedings and court records from the past dozen years to quantify the personal toll of judicial misconduct. The examination found at least 5,206 people who were directly affected by a judge’s misconduct. The victims cited in disciplinary documents ranged from people who were illegally jailed to those subjected to racist, sexist and other abusive comments from judges in ways that tainted the cases.

The number is a conservative estimate. The tally doesn’t include two previously reported incidents that affected thousands of defendants and prompted sweeping reviews of judicial conduct.

In Pennsylvania, the state examined the convictions of more than 3,500 teenagers sentenced by two judges. The judges were convicted of taking kickbacks as part of a scheme to fill a private juvenile detention center. In 2009, the Pennsylvania Supreme Court appointed senior judge Arthur Grim to lead a victim review, and the state later expunged criminal records for 2,251 juveniles. Grim told Reuters that every state should adopt a way to compensate victims of judicial misconduct.

“If we have a system that holds a wrongdoer accountable but we fail to address the victims, then we are really losing sight of what a justice system should be all about,” Grim said.

In another review underway in Ohio, state public defender Tim Young is scrutinizing 2,707 cases handled by a judge who retired in 2018 after being hospitalized for alcoholism. Mike Benza, a law professor at Case Western Reserve University whose students are helping identify victims, compared the work to current investigations into police abuse of power. “You see one case and then you look to see if it’s systemic,” he said.

The review, which has been limited during the coronavirus pandemic, may take a year. But Young said the time-consuming task is essential because “a fundamental injustice may have been levied against hundreds or thousands of people.”