Tuesday, August 31, 2021

Balch & Bingham has an accused child-predator problem, and it's leaving burn marks from the Alabama Governor's Office to the U.S. Supreme Court

Gov. Kay Ivey: "Burn, Baby, Burn" (banbalch.com)

Balch & Bingham's handling of former attorney Chase Tristian Espy, now facing child-solicitation charges, have left burn marks from the Alabama Governor's Office all the way to the U.S. Supreme Court, according to a report at banbalch.com. It all reminds us of the question many television viewers asked when actress Shelley Long departed the long-running comedy hit Cheers: "What was she thinking?"

In fact, Ban Balch Publisher K.B. Forbes asks a version of that question when writing about the Espy matter, under the headline "Fallout: Balch’s Alleged Child Predator Burns Governor Kay Ivey and Causes a SCOTUS Cringe":

What in God’s name was Balch & Bingham thinking by not warning Alabama Governor Kay Ivey about alleged child predator and former Balch associate Chase T. Espy?

After eight long years at the embattled law firm, Espy, according to Balch’s own mouthpiece, was terminated in September of 2020. In April, just days after the alleged online solicitation of a child, Espy was hired as Deputy General Counsel to the Governor.

Balch should have warned the governor. But then again, maybe Balch believes that the law firm “owed no duty” to tell the Governor or her staff the truth.

Ivey has longstanding ties to Balch & Bingham, but it might be time for her to rethink those:

Balch’s former partner Will Sellers was Ivey’s top political advisor until she appointed him to the Alabama Supreme Court.

His wife, Lee Sellers, is currently the Director of Special Projects and Deputy Chief of Staff to the Governor.

Balch is wrapped around the Governor like a warm blanket by Montgomery’s power couple.

For whatever reason Espy was terminated, Balch should have warned the Governor or her Deputy Chief of Staff.

Instead, Espy’s arrest created international headlines because the alleged sexual deviant worked for the Governor.

That casts an unflattering light on the highest office in Alabama politics, and it might be wise for Ivey to start asking some tough questions, suggests Forbes:

Now the Governor needs to ask, who recommended Espy for the job? Who provided references and glowing letters of recommendations?

From September through March, Espy was “self-employed,” according to LinkedIn. Was he given a generous severance package by Balch?

Balch, like always, has wiped Espy clean from their website and blogs, but Espy was no little minion above a paralegal.

Espy was a valued attorney for eight years at Balch who even appeared on pleadings before the Supreme Court of the United States.

Can you imagine that an alleged pedophile, an alleged sexual pervert who sought sex with a child was presenting before the Roberts court?

Cringingly embarrassing.

Balch appears to not have had the decency, the integrity to warn their closest political allies.

And the fallout has begun.

The Sellers need to distance themselves from the once-prestigious law firm, and no one in Montgomery should trust Balch, whose core value appears to be lying while burning their friends.

And the Espy fiasco proves so.

Burn, baby, burn!

Amicus brief in Burt Newsome case shows courts are skeptical of release agreements in criminal cases because they can provide cover for police misconduct

Levin & Zeiger, Philadelphia

Part Four

The U.S. Supreme Court (SCOTUS) should review the conspiracy case aimed at Birmingham attorney Burt Newsome in order to declare that release and dismissal (R&D) agreements in criminal cases -- of the type present in the Newsome matter -- are unlawful when they foreclose all future civil liability for non-government actors, according to an amicus brief filed with the high court in support of Newsome's petition for certiorari.

Consejos de Latinos Unidos (CDLU), a non-profit, non-partisan national public charity based in Birmingham, filed the amicus brief on Newsome's behalf. The brief states that CDLU "has spurred three U.S. Congressional investigative hearings and numerous federal, state, and local probes. The CDLU fights unethical and unsavory businesses, inept government agencies, and corruption. CDLU educates the public about miscarriages of justice when government breaches the rule of law." Brian J. Zeiger, of the Philadelphia law firm Levin & Zeiger, prepared the amicus brief. (Full brief is embedded at the end of this post.) At the heart of Zeiger's argument are concerns about police misconduct, an issue right off the front pages of today's newspapers. But first, he notes that R&D agreements bastardize the role of a prosecutor in the American justice system. Writes Zeiger:

These (R&D) agreements offend core premises of basic fairness because they serve no public prosecutorial function, suppress valid civil claims against private parties, and impermissibly make the prosecutor have an interest in the outcome, in violation of both due process and professional ethical obligations. This case presents a good vehicle for this Court to condemn such agreements and stop authorities in Shelby County Alabama from exploiting this practice to the detriment of CDLU’s constituents. Further, this release dismissal order, was propped up to an unfiled draft order to vacating an expungement order that was never entered into the Alabama State Judicial Information System (SJIS) record.

A prosecutor holds a special position in our system of justice. “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). Thus, this Court has required that matters only be prosecuted by a “disinterested prosecutor.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987). But when a prosecutor considers private interests, he is not disinterested. “The Government’s interest is in dispassionate assessment of the propriety of criminal charges” but a “private party’s interest is in obtaining the benefits of the court’s order.” When a prosecutor has private interests as well, he “may be tempted to bring a tenuously supported prosecution if such a course promises financial or legal rewards for the private client. Conversely, a prosecutor may be tempted to abandon a meritorious prosecution if a settlement providing benefits to the private client is conditioned on a recommendation against criminal charges.”Id.

“In a case where a prosecutor represents an interested party, the ethics of the legal profession require that an interest other than the Government’s be taken into account. Given this inherent conflict in roles, there is no need to speculate whether the prosecutor will be subject to extraneous influence.” Id. Thus, a proceeding is inconsistent with “basic notion of fairness” if the prosecutor “represents an interested person” to the proceeding. Id. And such errors are structural, as it “is a fundamental premise of our society that the state wield its formidable criminal enforcement powers in a rigorously disinterested fashion, for liberty itself may be at stake in such matters.” Id. at 810. 

SCOTUS, Zeiger notes, never has approved of the widespread use of R&D agreements. How does police misconduct enter the picture? Zeiger explains:

Courts have long viewed release-dismissal practices with skepticism, if not outright hostility. For instance, in 1968 the D.C. Circuit ordered criminal charges over which it had supervisory powers dismissed in the D.C. Superior Court. See Dixon v. D.C., 394 F.2d 966 (D.C. Cir. 1968). In a concurring opinion, Chief Judge Bazelon explained that this dismissal was justified in part because of the prosecution’s abuse of a release-dismissal agreement, and the “need to prevent” such agreements from being used in future cases. See id. at 968. According to Chief Judge Bazelon:

"The major evil of these agreements is not that charges are sometimes dropped against people who probably should be prosecuted. Much more important, these agreements suppress complaints against police misconduct which should be thoroughly aired in a free society. And they tempt the prosecutor to trump up charges for use in bargaining for suppression of the complaint. The danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest 

"Courts may not become the ‘enforcers’ of these odious agreements. We must therefore bar prosecutions which are brought because the defendant refused to promise or reneged on a promise not to file a complaint against the police. Prosecutors will then have no incentive to offer or make such agreements." Id. at 969-70. 

Other courts held similar views. In a later opinion, the Tenth Circuit described its 1984 case in Lusby v. T.G. & Y. Stores, 749 F.2d 1423 (10th Cir. 1984) as having “excoriated” the use of “releasedismissal agreement.” Hammond v. Bales, 843 F.2d 1320, 1322 (10th Cir. 1988). In another case, the Ninth Circuit strongly condemned such agreement, saying:

"It is no part of the proper duty of a prosecutor to use a criminal prosecution to forestall a civil proceeding by the defendant against policemen, even where the civil case arises from the events that are also the basis for the criminal charge. We do not mean that the prosecutor cannot present such a criminal charge. What he cannot do is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the latter’s civil case. The situation is made no better by the fact that here the record indicates that it was the court that asked [the criminal defendant] whether he would stipulate. Rather, it makes it worse. It brings the court to the aid of the prosecutor in coercing the defendant into agreeing to what amounts to a forfeiture of his civil rights. Nor can the prosecutor, because of failure to obtain the demanded stipulation, then introduce another charge in the hope of defeating the possible civil action of the defendant. MacDonald v. Musick, 425 F.2d 373, 375 (9th Cir. 1970). Indeed, the Ninth Circuit described release-dismissal agreements as criminal 'extortion.'” Id. at 376.

In Town of Newton v. Rumery, 480 U.S. 386 (1987), a case discussed at length in Newsome's certiorari petition, SCOTUS did not endorse release-dismissal agreements, but it did accept that they could serve some limited public interest. Courts, in general, have continued to hold  a dim view of R&D agreements. Writes Zeiger:

The Courts of Appeals have long demanded strict compliance with Rumery’s factors. Release dismissal agreements are not “presumptively valid”— quite the opposite. Coughlen v. Coots, 5 F.3d 970, 974 (6th Cir. 1993). Indeed, “these agreements should be scrutinized closely in cases where substantial evidence supports an allegation of police misconduct, in view of the potential for abuse of release-dismissal agreements by law enforcement officials.” Id. And, in every case, the prosecution must have “an independent, legitimate criminal justice objective” for the agreement. Id. But “[t]he potential for abuse of release-dismissal agreements has led the Supreme Court to urge the use of a critical eye when courts are asked to enforce them.” Gonzalez v. Kokot, 314 F.3d 311, 317 (7th Cir. 2002). . . . 

Although this Court has allowed limited use of release-dismissal agreements, individual jurisdictions have raised greater concerns. For instance, New York has adopted a very strong presumption against release-dismissal agreements. In Cowles v. Brownell, 538 N.E.2d 325, 327 (1989), the court found that these agreements were “no benefit, only a loss” to the criminal justice system. If the charges were not provable, the prosecutor had an ethical duty to dismiss them without extracting the price of a civil release. If the evidence was sufficient to gain a conviction, as the prosecutor maintained, then the dismissal of charges was contrary to the public interest in seeing a wrongdoer punished. Thus the release-dismissal agreement before the Court undermined “the legitimate interests of the criminal justice system solely to protect against civil liability; it surely does not foster public confidence that the justice system operates evenhandedly.” Id. 

Release-dismissal agreements are also unethical. As one commentator put it, “the ethics rules … prohibit a prosecutor from entering into a release-dismissal agreement,” because “there is a risk that is significant” “that the prosecutor will not pursue the government’s interest in the criminal matter due to the civil interests of the police and municipality.” Peter A. Joy, Kevin C. McMunigal, Police Misconduct and Release-Dismissal Agreements, Crim. Just. 31, at 33-34 (Fall 2018). Further, “a prosecutor violates [his] duty whenever the prosecutor conditions the dismissal of criminal charges that lack merit on a release of civil claims.” Id. at 34-35.

R&D agreements become particularly troubling when they are used to protect private parties from civil liability -- as was the case in the Newsome matter. From the CDLU brief:

The use of release-dismissal agreements to relieve private parties of all potential civil liability, even those who are not identified in the agreement cannot be justified. Rumery allowed certain types of agreements in highly circumscribed situations. It did so somewhat reluctantly. This Court never espoused what has now become widespread practice in Alabama, and what is now presented by Mr. Newsome’s petition. Indeed, all of the concerns expressed by this Court in Rumery make it plain that the types of agreements involved in Mr. Newsome’s petition offend basic notions of fairness and should not be allowed.

This Court presumes that civil lawsuits, particularly those alleging public corruption or misconduct should be filed and grievance should be aired. See Rumery, 480 U.S. at 395-96 (Powell, J., plurality op.). And this Court was willing to let release-dismissal agreements to interfere with that presumption, but only to “protect public officials” because some such lawsuits are meritless and defending them is to “the detriment of the[ defendants] public duties,” which “is distinctly not in the public interest.” See id. (emphasis added). That rationale, of course, has no bearing whatsoever on lawsuits involving private litigants. Private litigants serve no public function, they have no public duties, and our civil justice system presumes that lawsuits are the way to determine whether private actors have harmed one another. Release-dismissal agreements for unidentified private parties undermines our civil justice system—it hardly serves public needs.

The CDLU amicus brief points a glaring finger at dubious practices in the Shelby County Courthouse. Here's how Zeiger presents that issue to SCOTUS:

This Court should be deeply disturbed by the prospect of any release-dismissal agreements that attempt to waive civil liability for unidentified private parties. That alone offends due process and the premise of fundamental fairness. But this case presents a compelling story of a blanket and deeply unethical form of release agreement, coupled with procedural irregularities that suggest an even greater concern about the actions of the prosecution. As recounted by Mr. Newsome’s petition, John Bullock, a private citizen, filed the menacing criminal complaint against Mr. Newsome. But Bullock, in conjunction with the prosecutor, agreed to drop the charge. The prosecution, however, insisted on a blanket release-dismissal agreement on a standard form that was apparently used widely in the jurisdiction, and contained checkboxes for use in different cases. This release did not have any specific consideration for the facts of Mr. Newsome’s case, or articulate unique reasons why a release-dismissal agreement served the public prosecutorial interest. It was completely silent on why such an agreement was permissible, much less necessary to serve the ends of public justice. The form contained a release of all of Mr. Newsome’s civil and criminal claims against countless governmental entities as well as nongovernmental entities, complainants and potential witnesses.

Thus when Mr. Newsome filed a civil action against Clark A. Cooper, his former law firm Balch & Bingham, LLP, Mr. Bullock and Claiborne Seier, the full reach of the release-dismissal agreement became clear. Only Mr. Bullock had any direct involvement with the menacing charge. And Mr. Seier, Mr. Cooper and the law firm had nothing at all to do with the menacing complaint itself, and the allegations made by Mr. Newsome seem only to relate to behind-the-scenes efforts by those other defendants to either gin up a reason for malicious charges or exploit the charges once filed. Yet they were ultimately deemed to be covered by the release, and the broader lawsuit was dismissed in light of the agreement.

This Court should be deeply troubled by Shelby County’s apparently systematic practice of requiring the release of any and all possible claims from anyone, so long as any tenuous relation to the criminal charges can be imagined at a later date. What public interest could such a release possibly serve? Perhaps more significantly, what motives could elected prosecutors have to utilize such agreements? As discussed above— the answers are already clear. A prosecutor cannot be independent when pushing for an agreement that benefits private actors with little relationship to the charges at issue. See Young, 481 U.S. at 807; Rumery, 480 U.S. at 401-02 (O’Connor, J., concurring). And the temptation for impropriety is too great for this Court to tolerate.

Is that the only dubious Shelby County activity spotlighted in the CDLU brief? Absolutely not. Writes Zeiger:

Even that is not the end of the problem presented in this case. After Mr. Newsome filed a lawsuit alleging corruption and a conspiracy to falsely charge him with a crime, and, even more telling, alleging that the release-dismissal agreement “was obtained through fraudulent representations and a conspiracy”, the civil defendants appeared to work in tandem with the court to make sure this troubling release-dismissal agreement remained in effect. Mr. Newsome ultimately expunged his conviction and with it the release-dismissal agreement. And based on that expunction, the court overseeing his civil lawsuit vacated its prior dismissal of the lawsuit based on the release. But the defendants became involved in the expungement case, despite likely having no standing to do so, and presented the trial court with a draft order vacating the expungement. The order, however, was never entered into the State Judicial Information System and did not have any legal effect. Yet with concerted action by the defendants, and a long run of litigation in the state courts, the Supreme Court of Alabama ordered the draft order entered, notwithstanding the troubling circumstances surrounding its origin, but yet the order was never entered. This drew two dissenting opinions from the Court. Indeed, as one of the dissenting justices explained, the relevant order was never entered into the Alabama State Judicial Information System, and therefore the Alabama appellate courts never had any jurisdiction to take action, much less direct the reinstatement of the release-dismissal agreement. Whatever ultimately happened, or the legality of the on-again off-again expungement order, the Rumery Court warned others to be on the lookout for precisely this type of potential “prosecutorial misconduct. 

This case presents much more than just a legal technicality over the scope of release-dismissal agreements. It goes to the basic fairness of common practice in Shelby County Alabama. It potentially affects every one of CDLU’s constituents. This Court should therefore grant the writ.

Previously . . .

 * Part One: Birmingham lawyer Burt Newsome seeks U.S. Supreme Court review in case involving allegations of a plot to frame him for a crime and ruin his practice

 * Part Two: Lawyer Burt Newsome asks SCOTUS to untangle Alabama courts' messy handling of case alleging he was framed for a crime in plot to ruin his practice

* Part Three: Alabama courts trampled Burt Newsome's due-process rights -- the kind of errors that happen around the country and require U.S. Supreme Court interventio

Monday, August 30, 2021

Balch & Bingham law firm reportedly made changes to its Internet service and computer systems, shortly before accused child predator Chase T. Espy was fired

Chase Espy

Chase Tristian Espy, a former Balch & Bingham attorney now facing a child solicitation charge, was fired at the firm last September, according to a report at banbalch.com. Adding to the growing intrigue around the story is this: Balch & Bingham last summer, reportedly in June or July, changed its wireless IP address and computer operating system, just weeks before Espy was terminated.

Espy went on to work as a staff attorney for Alabama Gov. Kay Ivey before being fired there after his arrest last week. The incident that led to Espy's arrest occurred around midnight on March 25 of this year, according to Ban Balch. From Publisher K.B. Forbes' report at banbalch.com, under the headline "Alleged Balch Pedophile Scandal Grows; Is Federal Probe Next?":

With embattled law firm Balch & Bingham admitting they fired attorney Chase T. Espy last September after eight years at the firm, advocates have reached out to federal law enforcement authorities requesting a probe.

Espy was arrested last week for allegedly seeking to have sex with a child online. However, according to news reports, the alleged criminal incident occurred on March 25 near midnight.

The bottom line is children need to be protected from pedophiles and sexual predators, no matter what powerful positions or connections they may hold or have.

Balch & Bingham appear to be habitual liars who look like they may have obscured the ugly truth.

Balch admits they terminated Espy last September. What did Balch uncover and why would an eight year veteran of the firm be abruptly fired?

Did Balch fail to report despicable behavior or criminal acts to law enforcement authorities?

Espy worked for former U.S. Sen. Jeff Sessions (R-AL) before starting an eight-year run at Balch & Bingham (one of Sessions' longtime financial backers). After Balch fired Espy last September, he landed at Gov. Ivey's office, which raises one of many questions surrounding this matter: Did Balch know about problems with Espy and fail to alert the governor's office about them?

This leads to Balch's change in its Internet and computer set-ups, which reportedly took place in summer 2020 and raises its own set of questions. Writes Forbes:

Espy used the internet and online resources as he allegedly sought sex with a child.

Now sources at Balch tell us that the wireless IP address at the Balch offices in Birmingham was allegedly changed last year just weeks before Espy was fired.

Was this simply a coincidence or is there more to the story?

Balch sources also tell us a Balch VPN was utilized at the peak of the COVID-19 pandemic for employees working remotely, and that in the fall of 2019, Balch had upgraded their computer systems in Birmingham from Windows 7 to Windows 10.

Forbes and the non-profit public charity he leads, Consejo de Latinos Unidos (CDLU), have dealt with these kinds of issues before. He writes:

Failing to report criminal acts or not investigating them is not unheard of when sex crimes are involved.

Several years ago, we, the CDLU, fought on behalf of the  victims of sexual assault at an adult day care center in California known as Healthy Start.

Healthy Start owners allegedly discouraged a traumatized employee from reporting a rape that she witnessed to law enforcement.

Putting her job at risk, she ignored their commands and went to local law enforcement and courageously reported the atrocious sex crime.

Sadly, these developmentally disabled adult children were raped and sodomized by sexual predator Juan Fernando Flores while inept government agencies did nothing for these children, even though parents complained that something was wrong for almost a full year. Adding to the horrific acts, Flores spread a sexually transmitted disease to his victims, both male and female.

If federal law enforcement officials are investigating the Espy fiasco, our sources at Balch say that they must first go to Level 3 Communications, Balch & Bingham’s internet service provider to track and see if any dark websites were visited or utilized.

Our duty is to protect children regardless of Balch’s apparent utter lack of honesty or integrity.

If Balch is asked again about Espy by the media, will they finally tell the whole truth or will Balch hide behind the cliché that “personnel decision are strictly confidential” including those of an alleged sexual predator.

Thursday, August 26, 2021

Chase Tristian Espy, staff attorney for Gov. Kay Ivey -- and a former employee of Balch & Bingham and Jeff Sessions -- is arrested on child-solicitation charge

Chase Tristian Espy

A staff attorney for Alabama Gov. Kay Ivey has been arrested on a child-solicitation charge and was promptly fired.

Chase Tristian Espy's ties to Alabama power brokers go well beyond Ivey. According to a report at banbalch.com, Espy, 36, joined the politically connected firm of Balch & Bingham in 2012. Before that, Espy was a legislative aide to former U.S. Sen. Jeff Sessions, who has longstanding ties to Balch & Bingham, which serves as the primary law firm for Alabama Power. From a report at al.com:

A staff attorney for Alabama Gov. Kay Ivey has been arrested on a child solicitation charge and was immediately fired.

Chase Tristian Espy, 36, is charged with child solicitation by computer/electronic solicitation of a child, which is a Class B felony.

Espy, a Birmingham attorney and former deputy general counsel in the Office of Governor, was booked into the Jefferson County Jail at 9:28 p.m. Wednesday, according to jail records.

The Vestavia Hills resident was released from lockup at 1:56 a.m. Thursday after posting $30,000 bond.

Efforts to reach Espy for comment weren’t immediately successful.

Homewood police Sgt. John Carr confirmed the department’s Special Investigations Unit arrested Espy. No additional information was released, but Carr said the operation is part of an ongoing effort by the Homewood Police Department to combat crimes involving the exploitation of children.

Ivey’s office confirmed Espy was fired Thursday morning and released this statement to AL.com on Thursday: “The allegations against Mr. Espy are serious, tragic and shocking. While he was employed by our office for only a few months, Mr. Espy has been terminated. As this is an ongoing investigation, no further information is available at this time.”

Espy's arrest adds to a string of public embarrassments for Balch & Bingham. Here is more from banbalch.com

From alleged elderly exploitation to now accusations of child solicitation, what other scandals will batter Balch & Bingham’s reputation?

AL. com reports:

Chase Tristian Espy, 36, is charged with child solicitation by computer/electronic solicitation of a child, which is a Class B felony. Espy, a Birmingham attorney and former deputy general counsel in the Office of Governor, was booked into the Jefferson County Jail at 9:28 p.m. Wednesday, according to jail records.

For nearly a decade, Espy was an attorney at Balch & Bingham but left to work for the Office of Alabama Governor Kay Ivey just a few months ago.

Espy joined Balch in October of 2012 after working as a legislative aide for the Balch Zombie, former U.S. Senator Jeff Sessions.

Ivey fired Espy immediately this morning according to various news reports.

Espy’s alleged conduct is sickening. Really sickening.

And Balch is clueless as to why more and more clients are distancing themselves from the embattled law firm which appears to be tied to more revolting scandals as time goes by.

As for the string of embarrassments for Balch & Bingham, here is a scorecard -- at least a partial one:

* The arrest and conviction of partner Joel Gilbert in connection with the North Birmingham Superfund bribery scandal;

*  The apparent set-up of former Drummond Company executive David Roberson as the fall guy in the Superfund scandal;

* The alleged framing of Birmingham attorney Burt Newsome, apparently engineered by former Balch attorney Clark Cooper, in an effort to claim part of Newsome's banking practice;

* The apparent elder exploitation of the late Joann Bashinsky, Golden Flake heiress and beloved Birmingham philanthropist;

* Historic ties to the Ku Klux Klan;

* Historic ties to the segregationist policies of former Gov. George Wallace, including his "Stand in the School House door" to keep black students out of the University of Alabama;

* Gov. Ivey seems to have a taste for Balch & Bingham lawyers. In addition to hiring Espy, she hired Will Sellers as her campaign  chair and then appointed him to the Alabama Supreme Court -- even though his former firm is soaking in scandal.

Alabama courts trampled Burt Newsome's due-process rights -- the kind of errors that happen around the country and require U.S. Supreme Court intervention

Alexandra Siskopoulos (YouTube)

Part Three

The U.S. Supreme Court (SCOTUS) should review the conspiracy case of Birmingham attorney Burt Newsome because the mishandling of release-dismissal agreements (R&D) in criminal cases -- of the type present in the Newsome matter -- is an increasingly common error in state and federal courts, argues a veteran practitioner before the high court. Alexandra Siskopoulos, a New York City attorney who filed a petition for a writ of certiorari on Newsome's behalf, says R&D agreements have become a classic form of government overreach. 

Siskopoulos also argues that Alabama courts violated SCOTUS precedent -- one of the grounds for which the high court hears cases -- and trampled Newsome's due-process rights in multiple ways -- by relying on an unfiled order that was void as a matter of state law and improperly hitting him with more than $192,000 in sanctions. 

At the heart of Newsome's argument -- especially in regards to violation of SCOTUS precedent -- is a case styled Newton v. Rumery, 480 U.S. 386(1987). How did the federal questions for which Newsome seeks review come to be raised? Here's how Siskopoulos frames it in her petition for certiorari. (The petition is embedded at the end of this post.):

Petitioners [Newsome and Newsome Law LLC] argued that the release was void under federal law pursuant to this Honorable Court’s precedent in Newton v. Rumery, 480 U.S. 386 (1987), which requires that the party relying on the release must prove the release is valid. The Circuit Court improperly determined that the release was valid without applying the Rumery factors. On appeal, the Supreme Court of Alabama addressed “[w]hether the release clause is void under federal law” and improperly applied the Rumery factors in contravention of this Honorable Court’s precedent. 

Petitioners argued that the lower court could not rely on an unfiled order which was void pursuant to law. The Circuit Court did not address this issue. On appeal, the Supreme Court of Alabama addressed the issue in its opinion but violated the Petitioners’ due process rights to appellate review by relying on an implicit holding the court had previously rendered regarding the unfiled order. 

Why is the Newsome case a matter of national significance, worthy of SCOTUS review? Siskopoulos explains:

The Supreme Court of Alabama’s decision is the ideal vehicle to address whether a release-dismissal agreement pursuant to this Honorable Court’s guidelines can encompass non-governmental persons and entities which were never contemplated in the seminal holding of Newton v. Rumery, 480 U.S. 386 (1987). Further, this Honorable Court must address whether these increasingly overbroad release-dismissal agreements can waive a litigant’s right to pursue a criminal prosecution. The Supreme Court of Alabama’s decision is also an ideal vehicle to address whether a state court judge can withhold the formal filing of a final decision/order and still be in accord with due process principles established by our Constitution.

Siskopoulos shows how U.S. Supreme Court precedent in Rumery has come to be misapplied in courts around the country -- with the Newsome case providing a classic example: 

In Newton v. Rumery, 480 U.S. 386 (1987), this Honorable Court held that release-dismissal agreements entered in a criminal action could not be deemed per se valid nor per se invalid but instead must be decided on a case-by-case approach. In Rumery, this Honorable Court established that this case-by-case approach required the defendant seeking to enforce a release-dismissal agreement prove that the agreement was entered into voluntarily, free from prosecutorial misconduct and was not offensive to relevant public interests. This Honorable Court’s holding in Rumery has resulted in government overreach in the use of release-dismissal agreements warranting this Court’s intervention. Since the Rumery decision, the use of release-dismissal agreements in criminal cases in Alabama have evolved beyond permissible use. Rather than simply waiving any civil claims against the government, the release-dismissal agreement in this action waives all civil and criminal claims against countless non-governmental individuals. 

 In essence, Rumery held that R&D agreements should protect government officials and entities from civil claims resulting from their handling of criminal cases. But the R&D document in the Newsome case goes way beyond that -- to the point that it is unconstitutional, Siskopoulos argues:

Petitioners correctly argued that the holding in Rumery should be applicable to the instant case and that this release-dismissal agreement was unenforceable as a matter of law pursuant to the holding in Rumery. Additionally, the public policy reasons set forth by this Honorable Court for not invalidating all release-dismissal agreements as void because of the government’s interests in protecting itself by use of a release, are simply unavailable to non-governmental individuals and entities. Further, Rumery never allowed for the waiver of criminal claims against any individuals. By extending the release to include “any other complainants, witnesses, associations, corporations, groups, organizations or persons in any way related to this matter,” the government, through the prosecutor’s office, impermissibly violated the constitutional rights of the Petitioners.

In deciding the instant action, the Supreme Court of Alabama upheld the lower court’s granting of summary judgment for the defendants stating that “Newsome is bound by the release clause in the D&R order.” The Supreme Court of Alabama simply failed to properly apply the Rumery factors to the dismissal-release at issue. The Supreme Court of Alabama stated “[t]he D&R order indicates on its face that Newsome voluntarily agreed to its terms. Moreover, there is no evidence, or even an allegation, of prosecutorial misconduct, and enforcing the D&R order according to its terms would not adversely affect any public interest.” The Supreme Court of Alabama improperly flipped the burden of proof set forth in Rumery onto the Petitioners. The proper burden of proof was on the defendants to show that the release obtained was voluntary, free from prosecutorial misconduct and did not affect the public interest. Defendants did not even attempt to meet this burden, yet each defendant was granted a motion for summary judgment despite the clear legal burden placed upon defendants to prove the elements established by the holding in Rumery. The defendants never met the legal burden required by Rumery

Alabama is not the only jurisdiction where this kind of misapplication occurs. The Newsome petition provides multiple examples of similar  errors around the country:

The Supreme Court of Alabama’s knee jerk reaction to summarily agree to the purported enforceability of the release-dismissal agreement is a common error that inflicts the state and federal courts. Our courts are under the erroneous notion that these agreements are presumptively valid – they are not. Ohnemus v. Thompson, 594 F. App’x 864, 868 (6th Cir. 2014). Further, since the Rumery holding, many courts have failed to employ the “critical eye” required by Rumery. Cuba-Diaz v. Town of Windham, 274 F. Supp. 2d 221, 226 (D. Conn. 2003). Clearly, the Alabama courts have forgotten that the party seeking to enforce these release-dismissal agreements must show “absence of prosecutorial misconduct.” Patterson v. City of Akron, 619 F. App’x 462, 476 (6th Cir. 2015). This was a legal impossibility in this case whereas it is fundamentally illegal (and of course unconstitutional) to have a party waive a right to a criminal prosecution. Raia v. Goldberg, 33 Ala. App. 435, 439, 1948 Ala. App. LEXIS 506, *10, 34 So. 2d 620; Y.W. by & Through Smith v. Nat’l Super Mkts., 876 S.W.2d 785, 791 (Mo. Ct. App. 1994). Further, the preprinted dismissal-release order here will never meet the exacting standard set forth by Rumery wherein a blanket policy by a prosecutor’s office does not meet the Rumery test. Cuba-Diaz v. Town of Windham, 274 F. Supp. 2d 221, 227 (D. Conn. 2003). The Alabama courts not only failed to apply the prosecutorial misconduct factor correctly, but also believed that these agreements are de facto beneficial and valid. Such a belief is a gross distortion of the Rumery test whereas these dismissal-release agreements are not presumptively valid nor are they per se beneficial to the public interest. Ohnemus v. Thompson, 594 F. App’x 864, 868 (6th Cir. 2014); Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993).

What is the danger in this? Siskopoulos explains:

Many counties and courts have discarded the Rumery factors and are requiring criminal defendants to agree to overbroad, illegal and unconstitutional agreements to secure their freedom. This is not the job of a prosecutor. Also, these release-dismissal agreements place a prosecutor in the dangerous role of perverting the criminal process to favor one litigant over another. The courts have routinely forewarned it is against legal ethics and standards to use the criminal process to gain an advantage in a civil case. MacDonald v. Musick, 425 F.2d 373, 376 (9th Cir. 1970). This ridiculous, dangerous release was used as a security blanket to protect many people and entities not associated with this case – including one of Alabama’s largest law firms. By failing to apply the Rumery factors and flipping the burden of proof on the Petitioners in contravention of the law, the Alabama courts violated Petitioners’ due process rights. This violation of Petitioners’ due process rights was only compounded by disposing of the action on summary judgment. Causes of action have been established as a property right protected under the constitutional guarantee of due process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). The Fifth Amendment firmly establishes an individual’s constitutional guarantee that “[n]o person shall…be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. This Court has stated “[t]o suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.” Malinski v. New York, 324 U.S. 401, 415 (1945). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976). This Honorable Court has established that there is a denial of due process where an absence of fairness fatally inflicts a trial because “fundamental fairness [is] essential to the very concept of justice.” Lisenba v. California, 314 U.S. 219, 236 (1941). “A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process.” D.N. v. K.M., 61 A.3d 150, 156 (N.J. Super. Ct. App. Div. 2013). Throughout this action and the underlying criminal proceedings relating to the expungement of Petitioner Newsome’s criminal record, Petitioner Newsome was not afforded these cherished constitutional due process protections.

What happens when constitutional protections are denied? That's where American courts can produce ugly, nonsensical results:

In filing the civil lawsuit, Petitioners clearly placed the voluntariness of the release at issue. Petitioner Newsome stated that when he signed the release, he was unaware of the conspiracy to have him arrested in order to ruin his reputation and take his book of business. Petitioner Newsome specifically alleged that the release was procured by the fraudulent conduct of the defendants and was therefore not voluntary. Petitioner Newsome’s claims of fraud were summarily rejected by the Alabama courts on a summary judgment motion. While the Supreme Court of Alabama acknowledged “that a release obtained by fraud is void,” the court improperly stated there were no issues of fact by giving carte blanche acceptance to the defendants’ self-serving attestations in support of their motions.

Also, Petitioners clearly set forth that summary judgment was inappropriate because the defendants did not and could not meet their burden of proof regarding the public policy requirements under Rumery. Petitioners established that the release-dismissal order used in Mr. Newsome’s criminal case was on a preprinted form. Petitioners established that the preprinted release-dismissal form is used in all criminal dismissals in Alabama as part of a blanket policy. The defendants offered no testimony from the prosecution as to its reasoning why it believed the release was necessary in this case - as was their evidentiary burden. Courts that have addressed the issue of form releases as part of a blanket policy of a prosecutor’s office have found these releases to be unenforceable as a matter of law. Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993); Kinney v. City of Cleveland, 144 F. Supp. 2d 908 (N.D. Ohio 2001). These courts have reasoned the public interest showing required under Rumery simply fails as matter of law when prosecutors rely on a blanket policy of requiring releases in exchange for dismissals. 

Those are not the only issues of national significance raised in the Newsome case:

Furthermore, this case gives this Honorable Court the opportunity to address whether these overbroad releases would violate public policy even when they are not part of a blanket policy of the prosecutor’s office. These types of purported agreements impermissibly blur the line between criminal and civil actions. In order to satisfy the public policy showing in Rumery, the prosecutor would need to investigate and determine that any and all civil claims between the defendant, complainant, and all potential witnesses are meritless. This is not the function of the prosecutor’s office and injects too many variables into criminal cases. Additionally, by utilizing the prosecutor’s office to preclude all civil claims against non-governmental entities, the State becomes a de facto witness in all civil actions as to the validity of the release. 

As for Alabama courts relying on an unfiled "implicit" order in the Newsome case . . . well, that sounds goofy to the layperson's ear -- and that's because it is goofy, not to mention well outside the law:

The appellate courts throughout our nation make abundantly clear that “[p]arties are entitled to clear communication from the orders issued by all courts, including courts of limited jurisdiction…[t]he rights of litigants and the integrity of our system of justice depend on a reasonable level of certainty in recording the final decisions of our courts.” State v. Montoya, 2008-NMSC-043, ¶ 21, 144 N.M. 458, 463-64, 188 P.3d 1209, 1214-15; State v. Lohberger, 2008-NMSC-033, ¶ 34, 144 N.M. 297, 304, 187 P.3d 162, 169. Our appellate courts have additionally noted that an appeal has no value unless proper notice of the final order is clearly expressed and filed with the clerk. Swander Ditch Landowners’ Ass’n v. Joint Bd. of Huron & Seneca Cty. Comm’rs, 51 Ohio St. 3d 131, 133, 554 N.E.2d 1324, 1327 (1990); State v. Lohberger, 2008- NMSC-033, ¶ 34, 144 N.M. 297, 304, 187 P.3d 162, 169. A clear, final order is important to the administration of justice because “uncertainty about whether or when a final order has been filed may unintentionally forfeit a party’s right to appellate review.” State v. Lohberger, 2008-NMSC-033, ¶ 25, 144 N.M. 297, 302, 187 P.3d 162, 167.

Sadly, this is what tragically unfolded in Petitioner Newsome’s matter whereas he was unable to engage in comprehensive appellate review of the whether the order is void. Petitioner Newsome did file a Writ of Mandamus to challenge the order, but this was not the appropriate vehicle to review a final order and the unnecessary legal maneuver changed the reviewable standard from de novo to the more deferential standard of abuse of discretion. This was a clear violation of the due process of law. Indeed, the Alabama courts have noted “a writ of mandamus is not a substitute for an appeal.” Dixon v. City of Mobile, 859 So. 2d 462, 464 n.1 (Ala. Crim. App. 2003).

As a matter of law, Petitioners had a due process right to de novo review of whether the unfiled order is void as a matter of law. In relying on its implicit holding on Petitioner Newsome’s Writ of Mandamus, the court impermissibly relied on the inappropriate abuse of discretion standard. Due process does not allow for Petitioner Newsome to be subject to an implicit holding on an order which remains unfiled.

The trampling of Burt Newsome's constitutional rights do not end there. Alabama courts also attempted to unlawfully invade his bank account, by awarding defendants more than $192,000 in costs and attorney fees:

The courts in Alabama also granted and affirmed an award for attorneys’ fees related to Petitioner Newsome’s challenge to the overbroad, illegal release that purportedly waived Newsome’s civil and criminal claims even against non-governmental parties. Burt Newsome was well within his right to file a lawsuit in his home state and consequently challenge  the enforceability of this suspect release. Indeed, the courts have routinely reminded the legal community that these releases must be reviewed on a case-by-case basis. Ohnemus v. Thompson, 594 F. App’x 864, 868 (6th Cir. 2014). Further, courts must review a purported release with a critical eye. Cuba-Diaz v. Town of Windham, 274 F. Supp. 2d 221, 226 (D. Conn. 2003). The adequacy of a dismissal-release is always reviewed in a case specific manner wherein “each case involves unique facts and policy considerations.” Lynch v. Alhambra, 880 F.2d 1122, 1128 (9th Cir. 1989). Additionally, in order to enforce a dismissal-release, it is incumbent on the party seeking its enforceability to meet the three factors set forth in the Rumery test. As a result, an action cannot be frivolous whereas a fact dependent test was required to analyze whether a dismissal-release was valid under the exacting standard set forth by Rumery. A challenge to this release was not unexpected nor was it frivolous – especially a release that illegally waives criminal claims and attempts to shield non-governmental actors and entities. In challenging this legally infirm release, Petitioner Newsome was attempting to pursue his property right via a legal action. Finally, allowing attorneys’ fees to be awarded for challenging this type of release creates a chilling effect on the right to challenge these releases which actually requires a critical eye by the reviewing court. As a result, the award for attorneys’ fees should be vacated as a matter of law.



Wednesday, August 25, 2021

Christopher Key, "vaccine police" from Birmingham, Alabama, appears at Walmart store in Springfield, MO, to threaten pharmacy workers with execution

Christopher Key

You can leave Alabama, but the state's looniness tends to follow you, even to the Ozark Mountains. That's a lesson we learned this week, thanks to a peculiar chap from Birmingham named Christopher Key. From a report at al.com:

An Alabama man known as the “vaccine police” recorded himself saying Walmart pharmacy workers could face execution for administering the COVID vaccine.

In a 30-minute video posted to Facebook live, Christopher Key went to the Walmart in Springfield, Missouri, to spread his anti-vaccine message. According to the Springfield (Mo.) News-Leader, Key and a group of supporters were in Springfield as part of a protest at Mercy Hospital over an announcement that employees need to be vaccinated or face possible termination.

The video shows Key and his group of about a half-dozen supporters arriving at the pharmacy to find doors locked and the windows closed.

”You are being put on notice!” he shouted at the door as supporters filmed. “And if they give one more vaccine, as of this day after being put on notice, then they can be hung up. And they can be executed.

Key's  rhetoric then really goes off the rails:

“What they’re doing here is they’re violating the Nuremberg Code, and if you allow one more shot to go into one more person’s body, you yourself can be executed,” he said in the video. “It’s a violation of the Nuremberg Code. I do this out of love, I’m not trying to give you any fear and intimidation. I’m just letting you guys know that if you continue to do this, that you guys will be held accountable.”

Key’s claims about the Nuremberg Code have been debunked. You can read more here.

Key and his group later told police they had come to Walmart to receive the vaccine and were refused, threatening to sue both the retail chain and the police, the Leader reported.

Tuesday, August 24, 2021

Lawyer Burt Newsome asks SCOTUS to untangle Alabama courts' messy handling of case alleging he was framed for a crime in plot to ruin his practice

Newsome Law LLC

Part Two

Birmingham attorney Burt Newsome is seeking U.S. Supreme Court (SCOTUS) review of a case where he alleges individuals connected to the Balch & Bingham law firm conspired to frame him for a crime in an effort to steal a chunk of his law practice. As we noted in Part One of our series, SCOTUS is not likely to base its decision regarding Newsome's petition for a writ of certiorari on possible errors of fact or law by Alabama state courts. Rather, the nation's high court is most likely to hear cases where federal questions have been handled inconsistently, or contrary to SCOTUS precedent, in U.S. circuit courts or state supreme courts.

Even if SCOTUS refuses Newsome's petition -- and it takes up only 2.14 percent of cases it is asked to review each year -- Alabama state courts, especially those in Jefferson and Shelby counties, are not likely to come out of the case looking good. That is based on our assessment of the facts, as stated in Newsome's certiorari petition. In fact, the case emits such a foul odor that one wonders how Alabama courts managed to grant summary judgment and/or dismissal against Newsome -- while also hitting him with major financial sanctions. (Petition for certiorari is embedded at the end of this post.)

As we closed Part One, Newsome, proprietor of Newsome Law LLC in North Shelby County, had filed a lawsuit -- alleging false imprisonment, interference with a business relationship, and other torts -- against Balch & Bingham, its former attorney Clark Cooper, and alleged conspirators John W. Bullock, Claiborne Seier, and Don Gottier. The facts painted an ugly picture of law practice in Alabama, and the scene does not get any prettier as we continue our examination. At the heart of the controversy are a Dismissal and Release order (D&R) and Newsome's motion for expungement of his criminal case -- both in Shelby County. From the Newsome petitition:

In his objection to the expungement, Bullock argued that Petitioner Newsome had filed a civil action against him, and that the expungement should not be permitted because purportedly Newsome breached the terms of the release contained in the D&R order. Newsome, the government and Bullock appeared for a hearing on the motion. Initially, the court denied the expungement.  Petitioner Newsome filed a timely motion to reconsider. Defendant Bullock again submitted opposition papers and the judge granted Newsome’s motion and entered an order of expungement. Shortly thereafter, the judge who ordered the expungement retired from the bench.

As the expungement issue took center stage in Shelby County, peculiar actions were taking place with Newsome's lawsuit in Jefferson County, with defendants being granted motions to dismiss or summary judgment:

After Petitioner Newsome was granted the expungement, he filed motions to reconsider in the civil action arguing, among other things, that because his case had been expunged, under Alabama law, the Defendants could not rely on the release contained in the D&R order. The civil court granted Newsome’s motion and vacated the judgments issued to the Defendants in the civil action.

Thereafter, Defendant Bullock filed papers in the criminal action seeking to use the records in Petitioner Newsome’s expunged file. Defendant Seier, who was not the complainant in the criminal case, filed papers to have Petitioner Newsome’s expungement reversed. Defendant Seier argued that Petitioner Newsome supposedly obtained the expungement based on false pretenses because he checked the boxes on the expungement form stating that he complied with all the conditions imposed by the  court order of dismissal. Petitioner Newsome opposed the application arguing that Seier had no standing to seek a reversal of his expungement because he was not a party and was not even the complainant in the criminal action. Petitioner Newsome also argued that Defendant Bullock had apprised the judge of the civil action in opposition papers and at a hearing regarding the motion for expungement. Petitioner Newsome also argued that Defendant Seier’s motion was untimely and improper because the conditions imposed by the judge were the imposition of paying court costs and having no further arrests and the release, pursuant to the law, was distinct from the court-imposed conditions.

A new judge took over the criminal matter in Shelby County and reversed Newsome's expungement, but with an odd twist:

This purported order, however, was never file stamped and never entered in the State Judicial Information System (“SJIS”) in Alabama as required by Alabama law. Petitioner Newsome sought a Writ of Mandamus from the Alabama Court of Criminal Appeals arguing that the court order that the judge vacate the purported order because it was void based on numerous grounds including, Defendant Seier’s lack of standing to bring the motion to reverse the expungement, the motion was not brought in a timely or procedurally proper manner, and the fact that it was never formally filed made the order a nullity. The Court of Criminal Appeals noted that a Writ of Mandamus is reviewed under the abuse of discretion standard and denied the Writ based on this standard of review. Petitioner Newsome then filed a Writ of Certiorari, or in the alternative, a Writ of Mandamus with the Supreme Court of Alabama. On April 27, 2018, the Supreme Court of Alabama denied the Writ and ordered that the June 8, 2016 order be entered in the SJIS system.

Meanwhile, the civil matter in Jefferson County was taking some odd twists of its own:

While the expungement issues were being litigated, the Defendants Bullock, Cooper, Balch and Seier filed motions for summary judgment while Defendant Gottier filed a motion to dismiss. The Defendants provided self-serving attestations that, except for Cooper and Balch, the Defendants did not know one another and were not involved in any conspiracy. The Defendants asserted that there was no issue of material fact because a Verizon representative was deposed who stated a telephone number that appeared on the telephone records of Defendants Cooper, Bullock and Seier was purportedly a routing number used to connect calls from outside a caller’s home area and was not assigned to any individual customer. The Verizon representative, however, provided no documentary evidence regarding these statements. The telephone records indicate, however, that these Defendants all received phone calls from this number “on dates surrounding notable events in this case, including the date of Newsome and Bullock’s confrontation in the parking lot, the date of Newsome’s arrest, the date Cooper sent the email with Newsome’s mug shot to [the bank] executive, and the date the Newsome plaintiffs filed their complaint initiating the underlying action.” Defendant Gottier, who was brought into the lawsuit by amended complaint, asserted that this telephone number did not belong to him even though internet searches indicated that the telephone number did belong to him. Defendant Gottier asserted that he was a victim of identity theft regarding the telephone number. Newsome filed opposition papers which included an affidavit from the director of the North American Numbering Planning Agency in Washington, D.C. who attested that the telephone number belonged to Ciera Networking Systems, Inc. and an affidavit from a former Vice President of Sales at Ciera who stated the telephone number has a CIC code 9 which indicates it is a code for Ciera Networking Systems, Inc. and indicates that the telephone calls were from a prepaid phone card. Defendants made a motion to strike these affidavits.

Judge Carole Smitherman, in Jefferson County, granted the motion to strike, eliminating Newsome's evidence of coordination between and among the defendants. Smitherman proceeded to grant dismissal or summary judgment to all defendants and hit Newsome with more than $192,000 in sanctions under the Alabama Litigation Accountability Act. Alabama appellate courts upheld those rulings.

Monday, August 23, 2021

The window for beating COVID has closed, meaning the virus is here to stay, and we'll have to "dance" with it -- thanks largely to white nationalistic Evangelicals

(Getty Images)

Many Americans probably have been dreaming of a day in the not-too-distant future when we've beaten the coronavirus, and life can return to normal. That, however, is not likely to happen, according a report by Dr. Sanjay Gupta at CNN. Bottom line: The virus and the disease it causes, COVID-19, are here to stay, and we are going to have to learn to live with them -- or, in many cases, learn to deal with the deaths they cause. That sobering news arrives as another report suggests those who wish to play the blame game have an appropriate target for finger-pointing. As for Gupta, he writes:

What's becoming clear is that we, locally and globally, are not going to be able to stamp out the coronavirus completely. Experts predict it's going to become endemic, possibly joining the other four or so common cold coronaviruses in circulation.
"We're not going to eradicate this coronavirus like we've done with smallpox; it is something that I think is going to settle into a more seasonal pattern, like the flu and colds ..." said Linsey Marr, professor of civil and environmental engineering at Virginia Tech and an expert in the transmission of infectious diseases via aerosols.

"But right now, because it's novel and so many people are not immune to it, it's really ripping through the population. But I think five years from now, we will have much greater immunity either through vaccination or natural infection," she said. That means we are going to have to learn to "dance" with the virus -- a safe co-existence -- without constantly stepping on each other's toes. 

The Gupta report comes less than two weeks after award-winning author Kurt Eichenwald tweeted that COVID-19 now was a "forever disease." From the Eichenwald tweet, dated 8/8/21:

Scientists are whispering - and some are saying out loud: COVID is now a forever disease. It was allowed to rage unchecked for too long in 2020 because of politics & stupidity; the only way to stop it in 2021 was a rapid-fire, government-wide, dual-party vaccine push. GQP...1

Eichenwald and his sources, it appears, were right on target.

Many articles, and probably quite a few books, likely will be written about that time back in 2021 when we had the tools (vaccines and masks) and the leadership (Biden) to permanently beat COVID, but we blew it. For now, we are left to fill in the blanks on the story, and this is what I take the Gupta story and the Eichenwald tweet to mean: We had a window when a disciplined, society-wide attack could have wiped out the virus. But too many Americans allowed their white, conservative, insular thinking to override any concern about the common good -- and now, with the Delta variant raging around the country, the window of opportunity has closed. Here is more from the CNN Gupta report:

Dancing with Covid-19

Like with other diseases, this requires tight control -- giving the virus as little freedom as possible so as not to set the stage for the surge of sickness and death we experienced last winter. It also means finding a balance between the extremes -- on the one hand, lockdowns that trigger economic and personal chaos, and on the other, putting the rights of individuals above the good of society as a whole -- and moving toward the middle. That way we can more safely enjoy all of life's pleasures -- family gatherings, live sports and arts events, travel, indoor dining -- with only minor inconveniences, like vaccines and masks, during times of substantial viral spread.
"Let's be creative with making adjustments to life, rather than saying it's all or none, because that was kind of the feeling last year," said Dr. Jeremy Faust, an emergency physician at Brigham and Women's Hospital and an instructor at Harvard Medical School.

So, what can and should we be doing now and into the fall to make sure we follow the path to living well with the virus? Over the past couple weeks, we spoke to experts in the world of pandemic preparedness, infectious diseases and virology to try and get guidance on how to best and most safely live our lives going into the fall. Many of these experts live with the same concerns as everyone else, including managing the safety of unvaccinated children, and balancing the risk, given the Delta variant, with a deep desire to live a more normal life.
While nearly everyone is reluctant to make predictions nowadays, there was agreement on five strategies to be put in place. I have included our conversations, their specific reasoning, and the evidence to bolster the claims.

Osterholm and Marr recommended good quality masks, such as an N95, KN95, KF94, or a cloth mask that has a dedicated filter layer in the middle. Osterholm added these masks should be in plentiful supply now, compared to early in the pandemic.

Here is a summary of key steps experts shared with Gupta:

1. Vaccinations
2. Masks
3. Masks + ventilation = safer schools
4. Rapid testing
5. Reassess exposure risk
As for the blame game, an article at Salon suggests fingers should be pointed squarely at the " nationalistic white Evangelicals" among us. Writes Phil Zuckerman, under the headline "Staunch atheists show higher morals than the proudly pious, from the pandemic to climate change": 

We can start with the global pandemic. COVID-19 is a potentially deadly virus that has caused — and continues to cause — dire woe. Surely, to be moral in the face of such a dangerous disease is to do everything one can — within one's limited power — to thwart it. No moral person would want to willfully spread it, bolster it, or prolong its existence. And yet, when it comes to the battle against COVID-19, it is the most secular of Americans who are doing what they can to wipe it out, while it is the most faithful among us, especially nationalistic white Evangelicals, who are keeping it alive and well. Taking the vaccine saves lives and thwarts the spread of the virus. So, too, does sheltering in place as directed and wearing protective face masks. And yet, here in the U.S., it is generally the most religious among us who refuse to adhere to such life-saving practices, while it is the most secular who most willingly comply. For example, a recent Pew study found that while only 10% of atheists said that they would definitely or probably not get vaccinated, 45% of white Evangelicals took such a position.

The Wall Street Journal has more on the Evangelical response to an existential threat:

More than six months into the country’s Covid-19 vaccination campaign, evangelical Christians are more resistant to getting the vaccine than other major religious groups, according to newly released data.

Some 24% of white evangelicals said in June they wouldn’t be vaccinated, down from 26% in March, according to a study from the Public Religion Research Institute, a nonpartisan group that studies the intersection of religion and public life, and Interfaith Youth Core, a nonprofit focused on interfaith cooperation.

Evangelicals of all races make up about one-quarter of the U.S. population, and health officials say persuading them to get the shot is crucial to slowing the spread of the Delta variant fueling recent increases in Covid-19 cases.

The percentage of white evangelicals who say they have been vaccinated or plan to get the shot as soon as possible was 56% in June, up from 45% in March. That is tied for the lowest figure among groups included in the survey, along with Hispanic protestants, many of whom are evangelical.

Thursday, August 19, 2021

The U.S. 11th Circuit Court of Appeals denies en banc review in David Roberson case, proving once again it's the place where constitutional rights go to die

David Roberson

In a sign of ongoing corruption, incompetence (or both), the U.S. 11th Circuit Court of Appeals has denied David Roberson's request for en banc review of his conviction in the North Birmingham Superfund bribery case. Also, Roberson recently had to undergo emergency surgery for an intestinal blockage that likely was caused by rhe unrelenting stress of his legal ordeal. Both of those news items come from a report at banbalch.com

The 11th Circuit's ruling should be a shocker, but it isn't because we have reported frequently on the court's tendency to trample black-letter law, including its own precedent and that of the U.S. Supreme Court. (See here, here, and here.) Note: The 11th Circuit, based in Atlanta, covers Alabama, Georgia, and Florida.

The issues on Roberson's appeal are straightforward. He and other executives at Drummond Company relied on statements from Balch & Bingham attorney Joel Gilbert that their actions in the North Birmingham case were legal. That means Roberson had an iron-clad advice-of-counsel defense. But U.S. District Judge Abdul Kallon ordered Roberson and Gilbert to be tried jointly, which deprived Roberson of an opportunity to fully exercise one of his primary defenses.

It's hard to imagine a more blatant trampling of a defendant's constitutional right to a fair trial. But a three-judge panel of the 11th Circuit upheld Kallon's ruling, and when Roberson sought en banc review of the full 11th Circuit, it was denied. Here's how we framed the issues in a post from July 2021, citing an amicus brief from the National Association of Criminal Defense Lawyers (NACDL): 

Was it fair for former Drummond Company executive David Roberson to be tried jointly with a Balch & Bingham lawyer -- the very lawyer who had assured Roberson and others at Drummond that their actions leading to the North Birmingham Superfund trial were legal?  The answer is no, says a nonprofit bar association that submitted an amicus curiae brief strongly suggesting the trials of Roberson and Balch lawyer Joel Gilbert should have been severed to avoid the high risk that Roberson would be prejudiced. In fact, the National Association of Criminal Defense Lawyers (NACDL) says the district court's decision to try the case jointly merits a new trial for Roberson. A three-judge panel of the U.S. 11th Circuit Court of Appeals seemingly ignored the amicus brief in upholding Roberson's conviction. But Roberson likely will seek an en banc review of the full 11th Circuit. Based on the NACDL brief, he will be armed with a strong argument.

The question at the heart of the NACDL's brief is this: Did Circuit Judge Abdul Kallon err when he  declined to sever Roberson’s trial from that of his attorney co-defendants, despite Roberson’s resulting inability to present a complete advice-of-counsel defense? The association's blunt answer is yes. Here is how the brief frames the argument:

This brief addresses a narrow but vitally important question: when, if ever, a criminal defendant may be tried alongside an attorney on whose advice he relied with respect to the alleged offense. A motion for severance under Federal Rule of Criminal Procedure 14(a) always requires a careful balancing of competing interests. But joint trials of attorneys and their clients raise unique concerns that weigh heavily in favor of severance. The right to seek and rely on the advice of counsel is fundamental to our system of justice. For that reason, the law has long recognized that a defendant’s good-faith reliance on the advice of counsel may serve as a complete defense to many criminal charges. And the importance of the advice-of-counsel defense has only grown with time, as our world and our legal codes have become increasingly complex. Yet joint trials of attorneys and their clients risk undermining that defense by precluding client-defendants from presenting at trial the advice they obtained from their lawyer co-defendants. Courts should view such joint trials with a healthy dose of skepticism.

The NACDL beief explains how Kallon's decision to hold a joint trial undermined Roberson's defense:

The facts of this case vividly illustrate the danger such trials create. David Roberson, a mid-level executive at Drummond, was indicted and tried on charges of federal bribery along with two of Drummond’s attorneys. At trial, the prosecution successfully introduced a portion of a statement Roberson made to investigators admitting his concerns about retaining the consulting services of the state legislator the trio was accused of bribing. But when Roberson sought to introduce the rest of his statement—explaining that he had resolved his concerns by obtaining advice from Drummond’s lawyers—that evidence was excluded to protect his co-defendants’ Confrontation Clause rights. That ruling appropriately sought to safeguard the other defendants’ constitutional rights under Bruton v. United States, 391 U.S. 123 (1968). But it did so at the expense of Roberson’s own constitutional right to present a complete advice-of-counsel defense. Rather than subordinate Roberson’s interests to those of his attorneys, the district court should have granted Roberson a separate trial where his critical exculpatory evidence could be properly explored.

Joint trials of attorneys and their clients will often present such problems. Advice of counsel is a commonly raised defense—and one essential to the smooth functioning of highly regulated fields. But joint trials pose inherent obstacles to asserting the defense successfully: It is particularly likely that attorney and client co-defendants will have irreconcilable defenses, or that exculpatory evidence for one defendant will inculpate another and be rendered inadmissible because of the resulting prejudice. And because trials of this sort are often lengthy—perhaps implicating corporate activities governed by complex laws and regulations—there is a significant risk that prejudice against a defendant will manifest well into the trial. Accordingly, courts should exercise special care when considering the fundamental fairness of trials implicating the attorney-client relationship. By their nature, such trials present heightened risks of prejudice and inefficiency that should tip the balance in favor of prompt severance.

It's hard to overstate the importance of these issues in America's criminal courts. From the NACDL brief:

The right to seek and rely on the advice of counsel is central to our legal system. That right can be undermined, however, when prosecutors seek to try a criminal defendant and his attorneys at the same trial. A joint trial in these circumstances may—as here—lead to the exclusion of evidence critical to an advice-of-counsel defense. And where such prejudice requires a do-over of a lengthy trial, insisting on a joint trial at the outset may end up hindering rather than promoting judicial efficiency. Thus, while courts must weigh severance motions on a case-by-case basis, in this specific context the balance tips sharply in favor of prompt severance.

Federal Rule of Criminal Procedure 14 allows courts to “order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires” where “joinder of offenses or defendants ... appears to prejudice a defendant or the government.” Fed. R. Crim. P. 14(a). Although joint trials can often “conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays,” courts cannot “‘secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty.’” Bruton v. United States, 391 U.S. 123, 134, 135 (1968). Accordingly, in considering whether severance is warranted, courts must “balance the right of defendants to a fair trial, absent the prejudice inherent in a joint trial, against the interests of judicial economy and efficiency.” United States v. Gonzalez, 804 F.2d 691, 694 (11th Cir. 1986). Such balancing occurs on a case-by-case basis, as “[t]he risk of prejudice will vary with the facts in each case.” Zafiro v. United States, 506 U.S. 534, 539 (1993). “‘Ultimately, the test is whether the defendant received a fair trial’”—that is, whether the trial achieved “[f]undamental fairness.” Gonzalez, 804 F.2d at 695, 696.

The passage in green above was concisely composed by the U.S. Supreme Court -- stating that the right to a fair trial trumps concerns related to judicial economy -- and it forms the crux of Roberson's argument. But the 11th Circuit has an ugly history of ignoring or misconstruing the nation's highest court -- even botching its own precedent -- and David Roberson is the court's victim this time. Here is more from the NACDL brief:

Undue prejudice may occur where “a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” That prejudice may take many forms, but two are particularly relevant here. First, a joint trial may cause unfair prejudice “when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant.” Second, a defendant may be prejudiced where “essential exculpatory evidence that would be available to a defendant tried alone [is] unavailable in a joint trial.” The Supreme Court addressed the first type of prejudice in Bruton. That case involved the admission of a non-testifying co-defendant’s confession that also inculpated the defendant. The Court held that admitting such a statement violated the defendant’s Sixth Amendment confrontation rights, because the co-defendant’s right against self-incrimination rendered the statement immune from cross-examination. In so holding, the Court rejected the argument that the prejudice could be cured by a “sufficiently clear” jury instruction “to disregard” the statement’s reference to the defendant. Accordingly, “where two defendants are tried jointly, the pretrial confession of one [non-testifying defendant] cannot be admitted against the other.” Richardson v. Marsh, 481 U.S. 200, 206 (1987).

The threat of prejudice easily can be avoided. But neither Kallon nor the 11th Circuit seem to care about Roberson's right to a fair trial:

To comply with that rule, the defendants can be tried separately. See United States v. Avery, 760 F.2d 1219, 1223 (11th Cir. 1985) (introduction of statement by “non-testifying co-defendant that implicates another co-defendant can present the compelling prejudice that requires a severance”), abrogated on other grounds by United States v. Lane, 474 U.S. 438, 449 (1986). Or the prosecution can refrain from using the co-defendant’s statement at all. Or, as the Supreme Court explained in Richardson, the statement may be redacted “to eliminate not only the defendant’s name, but any reference to his or her existence.” 481 U.S. at 211 (emphasis added). A redaction that still implicates the defendant, despite not naming her directly, will not suffice. See Gray v. Maryland, 523 U.S. 185, 195 (1998).

Another kind of prejudice can occur where being tried with others prevents a defendant from presenting “essential exculpatory evidence” of his own. That situation calls for severance because it compromises a defendant’s constitutional right to advance a complete defense. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006).

Consider those words in green above: The U.S. Constitution guarantees David Roberson's right to present a complete defense. But Judge Kallon and a three-judge appellate panel denied that right -- and the full 11th Circuit did not think it merited 11th Circuit review.

That sounds unbelievable, but we are talking about the 11th Circuit here. And we know from experience that its ability to plunder the law has no apparent boundaries.