Did Birmingham's Balch & Bingham law firm sell out one of its own, former partner Joel Gilbert, in the North Birmingham Superfund case? Is that one reason a number of veteran attorneys have bolted the firm in recent years? Those questions are at the heart of a banbalch,com post, which raises a number of sobering issues -- given that Gilbert was convicted in a federal trial, and now is part of the grass-cutting team at a federal prison in Montgomery. Writes Publisher K.B. Forbes under the headline "Did Balch Intentionally Screw Gilbert? Former Top Partner Now Mowing the Lawn in Prison":
Ex-Balch & Bingham partner Joel I. Gilbert has been assigned gardening responsibilities at the Federal Prison Camp located at the Maxwell Air Force Base in Montgomery.
Now that legacy Balch partner Rob Fowler dumped the once-prestigious firm for a job at a coal facility that currently is not operating, insiders are curious what internal strife is happening at Balch to cause Fowler to run to the emergency exit.
Sources tell us that Gilbert may have been intentionally screwed by his own law firm, just like ex-Drummond executive David Roberson appeared to be screwed as the “fall guy” by Drummond.
The “lone wolves” theory peddled by disgraced ex-U.S. Attorney Jay E. Town appears to have been a line of crap.
And federal investigators agree.
Does that mean Gilbert and Roberson were left holding a post-trial mess while other issues -- and those connected to them -- were neatly swept out of view? It sure looks that way, writes Forbes:
The Ketona Lakes secret, the Miller Steam plant ash ponds, and the alleged involvement of up to 20 other Balch lawyers may have been the hidden pillars of the North Birmingham Bribery Scandal.
Gilbert, the father of two beautiful young children, was sentenced to 5 years in federal prison, and Balch appears to have blamed him for the scandal after his conviction three years ago. Stan Blanton, managing partner at Balch, had the audacity to try to pivot the bribery scheme away from the firm, saying “our firm was not a party to the case.”
But is that the truth? Wasn’t the criminal scheme born at the offices of Balch & Bingham? Did other Balch attorneys and representatives lie or perjure themselves? Were documents manipulated or evidence destroyed? What did the executive committee at Balch know?
Let's consider just one mind-blowing possibility: That up to 20 other Balch attorneys were involved in the scandal, but Gilbert is the only one doing time. That leads Forbes to consider other troubling issues that linger like a dark cloud over the North Birmingham case:
One of the items we discovered that has bothered us is the possibility of evidence tampering. We wrote at the height of the criminal trial in 2018:
On December 1, 2014, indicted Balch & Bingham partner Joel Gilbert dispatched a letter of intimidation to GASP, the health and environmental public charity that they tried to undercut by allegedly buying a politician for $360,000.
It appears that Gilbert may have been on vacation the week of Thanksgiving, because his last billing is for Friday, November 21, 2014. The letter is dated December 1, 2014, a Monday, but nothing shows up in the December billings.
Evidence tampering or we just can’t find it?
Then again, maybe prosecutors need to look at an example of the alleged alteration of evidence in the Newsome Conspiracy Case—Balch & Bingham’s other quagmire.
Nothing should surprise them. Nothing.
If records suggest Gilbert did not author the letter, who did? Where could that trail lead?
Now outsiders believe someone else could have paid for the letter of intimidation. Could it have been Alabama Power or a related entity?
And what about those alleged indemnity deals to cover-up and protect alleged unsavory if not criminal misconduct?
Michael S. Regan of the EPA needs to send his investigators to Montgomery and interview Gilbert. Then they need to knock on the door of embattled Alabama Power CEO Mark A. Crosswhite and find out more about the Miller Steam Plant and the alleged toxic ash ponds. Finally, the investigators need to visit with the “confused’ General Counsel of Drummond Company, Blake Andrews.
In return, Gilbert should get time shaved off for his cooperation.
Inherent goodness needs to prevail. For the sake of the residents of North Birmingham and for the sake of Gilbert’s young children.
Lawyers probably operate in a cutthroat world, so something like this would not surprise me.
Is this the case where the two defendants were tried together?
Yes, and they both -- Gilbert of Balch and David Roberson of Drummond -- were convicted. Joint trials should never happen in the U.S. justice system. The potential for prejudice -- and for innocent people to go to prison -- is too great.
Here is URL to an LS post about the problems with joint trials:
Here are specifics about the potential for prejudice in joint trials:
Was former Drummond Company executive David Roberson found guilty in the North Birmingham Superfund bribery case because he was tried jointly with a lawyer from Balch & Bingham -- the very lawyer who had falsely assured Roberson his actions, and those of his company, were fine and legal?
That seems to be the primary question raised by an opinion from the U.S. 11th Circuit Court of Appeals, upholding the convictions of Roberson and Balch attorney Joel Gilbert. The appellate ruling makes clear that Roberson's attorneys timely moved to sever the two trials, but District Judge Abdul Kallon -- apparently in the interest of "judicial economy" -- ruled for joinder. The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief stating that trials should be conducted separately when one defendant stands to be prejudiced by a joint proceeding, especially where an attorney and client are tried together.
It appears the 11th Circuit largely ignored the amicus brief in upholding Roberson's conviction. (More on the NACDL brief in an upcoming post.) But the nagging question remains: Was a man found guilty because of a joint trial, when he likely would have been acquitted if he had been tried alone? Is "judicial economy" more important than dispensing justice, than getting it right? Those seem to be the kind of troubling questions that produce mixed opinions in legal circles and probably merit en banc review of the full 11th Circuit -- and perhaps, if necessary, clarification from the U.S. Supreme Court.
The bottom line on a joint trial in Birmingham:
In everyday language: If Roberson had not been tried with Gilbert, he would have been able to raise a complete advice-of-counsel defense, and that likely would have shown he did not have the unlawful intent required for a criminal conviction.
The Roberson case teaches, essentially, that we now have a criminal "justice" system that tolerates prejudice, that "judicial economy" trumps fundamental justice, and exclusion of a critical defense is perfectly fine.
Have we really sunk that low? Will Americans continue to tolerate this in courts that are taxpayer funded, but largely unscrutinized?
From a post about the amicus brief the 11th Circuit apparently ignored:
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):
This is straight from the amicus brief that apparently was ignored;
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.
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