Wednesday, September 8, 2021

James E. Hill Jr., opposing counsel in Burt Newsome conspiracy case, makes curious statements that raise questions of a possible fix regarding counterfeit order

James E. Hill Jr.

Birmingham attorney Burt Newsome is seeking U.S. Supreme Court (SCOTUS) review of his conspiracy case, which alleges individuals tied to the Balch & Bingham law firm engaged in a scheme to frame him for  a crime to help make off with a chunk of his banking practice. Newsome's petition for certiorari focuses mainly on matters of law, which he argues are inconsistently applied around the country.

Questions of law, however, are not the only troubling issues the Newsome case raises. Public records indicate Alabama courts handled matters of fact with a lack of integrity, competence, or both. In fact, some Alabama-court factual holdings in the case, upon close examination, induce what might be called a "WTH"-style reaction. Consider this example:

(1) Why was a defendant's attorney conferring with the Shelby County County District Attorney's Office and the Alabama Attorney General's Office?

This question arises from Newsome's efforts to get an expungement of a menacing charge that defendant John F. Bullock brought against him. Bullock alleged that Newsome pulled a gun on him as he was attempting to leave his vehicle to visit a dentist near Newsome's office. This came while Newsome was in a state of high alert after another man (who since has died) allegedly pulled a gun on him for trying to collect on a debt the man's wife owed.

James E. Hill Jr., a state representative and a former circuit judge in St. Clair County, is Bullock's attorney. Hill now serves with the Moody-based firm of  Hill Gossett Kemp & Hufford. Billing records filed with Bullock's motion for attorney fees and costs in the Newsome case show Hill conferred with the Shelby County DA's Office by phone on 9/28/15 and sent correspondence to that office on 10/1/15. The billing records also show correspondence sent to the Alabama AG's Office on 8/15/16, followed by a telephone conference with assistant AG Ferris Stephens on 8/22/16.

Why might the communications with the DA's Office and the AG's Office be of concern? Perhaps the answer to that question is found in Newsome's appellants' brief with the Alabama Supreme Court.

First, Newsome argues that defendants' attorneys -- including Hill representing Bullock -- made it a habit to present deceiving arguments to the court. At a hearing on Newsome's motion to recuse Jefferson County Circuit Judge Carole Smitherman, the record shows defendants responding thusly regarding Shelby County Judge Sonny Conwill's ruling on Newsome's motion to expunge:

Judge Conwill writes an order that obviously threw out (Newsome's) motion to expunge, but here's also what Judge Conwill said, that the release is valid. The release is valid.

Is that accurate? Not exactly, counters Newsome:

These arguments/statements are false on all counts. Judge Conwill did not write the order. It was Seier's and Bullock's attorneys who drafted the counterfeit order, which held that Newsome had not met all the requirements of his "sentence." Newsome was not sentenced to anything -- his criminal case was dismissed with prejudice. The counterfeit order is a fraud, and Judge Conwill did not enter it or any other order holding that the release is valid. In addition, Newsome's record is still expunged, and there is not even a case on the SJIS in which to enter the order. 

Defendants' attorneys went on to argue that Newsome obtained his expungement petition under false pretenses, and that it was therefore vacated, meaning defendants were free to use the content of Newsome's expunged file in the civil action. Newsome shows that argument has a slight problem:

This counterfeit order was never stamped filed nor entered into the SJIS and is, in fact, not a legal order. 

How could Alabama courts recognize an order that never was filed in the state's official system of records, and thus, is not a legal order? That remains a mystery, one Newsome has submitted to the U.S. Supreme Court for review. But Alabama courts left the non-order very much in play. Writes Newsome:

Despite this counterfeit order not being a legal order, the trial judge allowed all of the defendants to repeatedly file into evidence in this civil action contents of Newsome's expunged criminal file, in violation of Code of Alabama Sec. 15-27-16. The trial judge accepted the counterfeit order as valid that allegedly reversed Newsome's expungement of his criminal record and relied on it herself in several hearings and in her orders. 

As for James E. Hill Jr., consider his response -- as Bullock's attorney -- to Newsome's motion to stay:

The Circuit Court of Shelby County exercised its discretion and allowed the records to be utilized by the defendants as they see fit -- an exercise in discretion with no significant possibility of appellate review of action."

 Should those words raise an eyebrow with the public? They certainly did with Newsome:

One wonders why the attorney for Bullock would think that there was no possibility of a higher court reviewing an order of a circuit-court judge at this juncture in the case. Unless, Bullock's attorney was already aware that the counterfeit order was a fraud, it was never going to be entered into the SJIS and become  a final order, and therefore Newsome would never have a chance to appeal it.

Is this the only issue of fact that Alabama courts handled in a dubious manner? No, and we will examine others in upcoming posts.


Anonymous said...

Don't lawyers have an obligation to make factual statements in court?

legalschnauzer said...

I'm pretty sure they do have such an obligation, but I'm guessing quite a few of them get away with making all kinds of nutty arguments in court. Probably depends on the judge.

legalschnauzer said...

I wonder if these statements could rise to the level of fraud on the court. My understanding is that fraud on the court involves deceptive acts or statements that "interfere with the machinery" of the court. Further, I believe fraud on the court is reserved for acts by "officers of the court" -- and that's a distinction lawyers hold.

It's unclear to me if this could be fraud on the court, but it's a question worth pondering.

legalschnauzer said...

Let's consider statements defendants' attorney made, which Newsome says are contrary to the facts in the case:

1. Judge Conwill wrote the expungement order, but two of defendants' attorneys actually wrote it;

2. Defendants claimed Newsome had not met the requirements of his "sentence," but he had not been sentenced to anything;

3. Defendants claimed Judge Conwill found the release valid, but Conwill entered no such order.

These are pretty serious misstatements that could affect the machinery of a court.

Anonymous said...

Sounds like Mr. Hill might have flapped his gums a bit too much in court.

legalschnauzer said...

It reminds me of the famed Watergate question: "What did he know, and when did he know it?