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.


11 comments:

legalschnauzer said...

Here in the comments sections, I would like to spotlight just a few of the many alarming oddities about this case:

(1) Jefferson County Judge Carole Smitherman seemed to take as gospel truth that the phone number that appears to tie the conspirators together was a routing number, not an actual cell phone number.

But, consider these words from the Newsome cert petition: 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.

What's it mean: The phone number appears on the records of three defendants, and they all received calls from the number on key dates involved in the Newsome matter. Was it really a routing number.

legalschnauzer said...

(2) We've reported before about the strange behavior of hhe Verizon rep in the deposition: https://legalschnauzer.blogspot.com/2020/03/why-did-verizon-wireless-witness-jason.html

The deponent, Jason Forman, refused to provide basic information -- his home address, his home phone number, Social Security Number, the college he attended, etc. It's not even clear the deponent was the Jason Forman who worked for Verizon. Photographic evidence suggests he was an imposter.

legalschnauzer said...

(3) This might be the strangest exchange in the history of depositions:

Burt Newsome (BN): State your full legal name, for the record.

Jason Forman (JF): Jason Forman, F-O-R-M-A-N.

BN: Do you have a middle name, sir?

JF: Yes, Eric, E-R-I-C.

BN: So Jason Eric Forman?

JF: Correct.

BN: Okay. And what's your home address?

JF: I'm not giving you that.

BN: Well, I mean you're under oath here.

JF: There's no reason for you to have where I live, sir.

BN: This is important stuff.

JF: There's no reason for you to have where I live, sir. You can have my office address, which is 180 Washington Valley Road. . . .

BN: What's your home phone number?

JF: I'm not giving you that, either. I can give you our office number . . .

BN: What's your Social Security number?

JF: I'm not giving you that, either.

BN: Okay . . . Let the record reflect he's refusing to answer questions as well, which is another reason that I object to this deposition. . . . And what's your educational background?

JF: I have a degree in criminal justice.

BN: And where did you get that from, sir?

JF: I'm -- you're asking a whole lot of personal information, and it's not relevant to what we're doing here. I'm here to testify to records. I'm not giving you my resume. It's unnecessary.

BN: Your technical background is relevant to the case and to what you're testifying about.

JF: I have been -- I have been a custodian of records for Verizon Wireless since 2003.

Anonymous said...

I wasn't aware you got to pick and choose what questions you answered in a deposition.

legalschnauzer said...

Hah, right. That's not how it's supposed to work. But then, this whole deposition apparently was a scam from start to finish. But Judge Smitherman apparently bought the whole thing. Why is that? We'll look at that in a moment.

legalschnauzer said...

(4) From the outset of the Newsome case, the co-defendants claimed they did not know each other, so there could be no conspiracy. Is that true? Consider this from banbalch.com:

According to public records, Al Seier was one of three initial members of a company called Southshore Development, LLC. Al Seier, who pulled a gun on Burt Newsome in January of 2012, is the late brother of alleged co-conspirator Claiborne Seier, an attorney who was handling his brother’s financial affairs.

And who did Southshore Development, LLC interact with in 2010 to amend their mortgage with BBVA Compass to resolve a problem loan? Balch & Bingham.

And who did Southshore Development, LLC interact with in July of 2011 to provide a full release of the mortgage? Balch & Bingham.

Regardless if the documents prepared by Balch attorney Jennifer Powell Decker (formerly Miller) and Balch partner Jeremy L. Retherford were done on behalf of BBVA Compass or Southshore Development or both, the fact is that Claiborne Seier on behalf of his brother Al’s entity was interacting with Balch & Bingham six-months before Al Seier pulled a gun on Newsome.

Balch partner Retherford works in the Creditors Rights & Bankruptcy practice at Balch. And who worked alongside Retherford?

None other than Clark A. Cooper, the alleged mastermind of the Newsome Conspiracy Case who was fired in March of 2017 and is now selling mattresses.

This was more than a simple “instrument” or transaction. This appears to be the birthplace of the Newsome Conspiracy Case located delightfully next to a septic tank of perjury.

legalschnauzer said...

(5) Why might Judge Smitherman consistently rule in favor of Balch and the conspirators? Was it because she and her husband, Rodger Smitherman, were bought off? Ban Balch has insight:

We have been reviewing closely the contributions given to the Smithermans. We are talking about contributions to Judge Carole Smitherman AND her husband State Senator Rodger Smitherman.

We looked at several different contributions given to Senator Smitherman after the co-conspirators, including Balch & Bingham, were all linked together in the Newsome Conspiracy Case by a single burner cell phone number in an amended complaint filed on June 30, 2017. We have found several questionable contributions.

Alabama Power provided $2,500 to Senator Rodger Smitherman on July 26, 2017. The PAC was run at the time by a former Balch partner, Alexia Borden. On July 31, Balch filed a motion to strike the amended Newsome case from late June. A hearing was set for August 31, 2017, but Judge Carole Smitherman, without a hearing, approved the motion to strike on August 2 – before Newsome could even file a responsive pleading and 29 days before the hearing she had scheduled on the motion, a miscarriage of justice and what appears to be an alleged quid pro quo in exchange for an Alabama Power paid Biloxi trip. In between these events, the Alabama Power contribution and the signed order to strike, Smitherman apparently joined her husband on a junket to Biloxi, Mississippi. According to his expenditure reports, he spent the Alabama Power contribution in order to attend the Southern Legislative Conference between July 29 through August 2, 2017. A review of the photos on the SLC site seem to show that neither Smitherman attended any of the events.

In mid-August of 2017, Sharyn Lawson, the wife of the gentleman who had pulled a gun on Burt Newsome, was deposed. She is the sister-in-law of one of the alleged co-conspirators. Her son was also deposed. Both of them were represented by the esteemed managing partner at Hare, Wynn, Newell & Newton, D. Leon Ashford. On or about August 31, 2017, the sealing of the entire Newsome Case since its inception and the creation of a Star Chamber where court proceedings are done with no public access or information available were put into effect. On that very same day, Senator Smitherman listed receiving a donation from Hare, Wynn, Newell & Newton for $2,500, according to campaign disclosure reports.Sharyn Lawson, a former paralegal at Hare, Wynn, Newell & Newton, worked for the law firm for decades. No wonder she and her son were represented by the managing partner. A review of 131 contributions made by Hare, Wynn, Newell & Newton since 2013 shows this is the first contribution they made to Senator Smitherman, according to the state’s digital records.Six months later, on February 6, 2018. Hare, Wynn, Newell & Newton made their first contribution ever to Judge Smitherman directly for $500, according to state digital records.

legalschnauzer said...

No. 5 (continued) --

Three $5,000 contributions were made by NEWPAC to Senator Smitherman on November 1, 2017, on December 4, 2017 and on April 4, 2018. NEWPAC is run by Clark D. Fine, a former attorney at Balch & Bingham. The two major (and only) contributors in 2017 to NEWPAC were Protective Life Corp. and Great Southern Wood Preserving. Andrew Buck, the Senior Associate Counsel and Vice President at Protective Life, was a partner at Balch & Bingham for 12 years. Great Southern Wood Preserving is a client of Balch & Bingham and Balch has represented them as lead attorneys in federal court.And just like Hare, Wynn, Newell & Newton the $15,000 in donations are a first. A review of the over 120 contributions made by NEWPAC since 2013 shows these are the first contributions they made to Senator Smitherman, according to the state’s digital records.

Another contribution: $5,000 donated by BIPAC to Senator Smitherman on November 16, 2017. Like NEWPAC, BIPAC is run by Clark D. Fine, a former attorney at Balch & Bingham. On November 15, 2017, BIPAC received $10,000 from Drummond, whose executive was convicted and sentenced to 30 months in federal prison in the Oliver Robinson Bribery Scandal. The next day, two $5,000 checks were cut: one to Smitherman, and the second to the re-election campaign of Jefferson County Sheriff Mike Hale. Was it a “pay through” donation, or not? And just like Hare, Wynn, Newell & Newton and NEWPAC, this donation to Senator Smitherman is another first-time donor. A review of 126 contributions made by BIPAC since 2013 shows these is the first contribution they made to Smitherman, according to the state’s digital records.

A third political action committee tied to former Balch & Bingham attorney Clark D. Fine called CANPAC received a $10,000 donation from Drummond on the same day BIPAC did, November 15, 2017. A check for $2,500 was issued to the Rodger Smitherman campaign right after Thanksgiving.

On December 26, 2017, Judge Carole Smitherman’s husband Senator Rodger Smitherman reported receiving $2,000 from BIZPAC. A few days before that, he received $500 from VPAC. BIZPAC is the same political action committee funded heavily by Balch partners that donated over $15,000 to Judge Smitherman. Balch’s lead attorney appearing before Judge Smitherman in the Newsome Conspiracy Case is Schuyler Allen Baker, Jr. who has donated thousands to BIZPAC in the past.

legalschnauzer said...

(6) Was former Balch attorney Clark Cooper interested in trying to steal Newsome's business? Again, Ban Balch has insight:

Newsome has been helping banks in Alabama collect from companies and individuals who have defaulted on loans for over twenty-years.

A proud father of four young children, including twins, Newsome has built a solid reputation among the local banks: Bryant Bank, started by the son of the famed Alabama Football Coach Bear Bryant, Iberiabank, Renasant Bank, among others.

He runs a simple operation as a sole-practitioner with three legal assistants in a store-front office off a federal highway in unincorporated Shelby County, Alabama.

Newsome’s success caught the eye of Clark A. Cooper, a partner and attorney at Balch & Bingham who also had banking clients and was seeking more client work.

Looking at the allegations, it appears envy, jealousy and greed could have motivated Newsome’s adversaries.

According to court documents, before Newsome’s arrest, Cooper was emailing Newsome’s banking clients in early 2013 on specific cases Newsome was already engaged in—an apparent and possible violation of Alabama Rules of Professional Conduct.

Cooper wrote in an email to one banking executive, “I see that the below suit was filed by Newsome. Anything I can do so that I could work with you?”

Two days after Newsome’s wrongful arrest, Cooper, appears to have distributed emails to at least one of Newsome’s bank clients on a Saturday afternoon that contained Newsome’s recently posted mug shot and information about his arrest on the menacing charge, according to court allegations. Calling the arrest “bizarre,” Cooper allegedly implied that Newsome’s license to practice law may be at risk, an alleged falsehood.

Balch’s partner appears to possibly have crossed the line. On March 3, 2017, Balch & Bingham fired Cooper.


legalschnauzer said...

(7)A key piece of information from the Newsome SCOUUS petition:

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 Smitherman did strike the affidavits.)



legalschnauzer said...

(8) From a Feb. 2020 LS post:

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

Bottom line: Judge Smitherman apparently accepted the claims in an unsworn affidavit from defendants, while rejecting what appears to be a properly executed affidavit from Newsome, showing this was a real phone number, not a routing switch, tied to a burner phone -- the kind noted for use in unsavory activity.