Judge In Paul Minor Case Continues His Evil Ways

Paul Minor

The biggest problems with our justice system involve people, not process. Every now and then, I will discover an element of the law--something from the codes, statutes, procedures, cases--that I take issue with. But for the most part, the actual law makes sense, at least to me. Our system has become a sewer because of the people--lawyers; judges; even clerks, in some cases--who are supposed to apply the law, but instead act in a corrupt fashion.

That's not to say, however, that the system itself doesn't have some perverse qualities. And two of them are on display this week in the Paul Minor case in Mississippi.

Minor, a plaintiff's lawyer known for successfully taking on corporate interests, was convicted on federal corruption charges in April 2007. Wes Teel and John Whitfield, two former state judges, also were convicted in the case, and the men have spent the past three-plus years in federal prison. The Minor story has been a companion case to the Don Siegelman saga in Alabama, two clear examples of political prosecutions during the George W. Bush era.

The U.S. Fifth Circuit Court of Appeals overturned the bribery convictions in the Minor case and sent it back to the trial court for reconsideration, in light of the U.S. Supreme Court's narrowed definition of honest-services fraud in a case involving former Enron executive Jeffrey Skilling.

Attorneys for the Minor defendants filed a motion to vacate the convictions, and given the actions of higher courts, you would think that might have been a chance for U.S. District Judge Henry Wingate to finally get something right. But you would be wrong.

Wingate ruled yesterday that he is returning Minor, Teel, and Whitfield to prison. The three men had asked to be sentenced to time served, a profoundly reasonable request considering that public documents show they never committed a crime in the first place. But Wingate denied the request. He reduced Minor's 11-year sentence to eight years and reduced Teel's sentence by 22 months and Whitfield's by 19 months.

How absurd is this? Consider this from one of our recent posts about the Minor case:

We've shown through probably 100-plus posts here at Legal Schnauzer that Minor, Teel, and Whitfield indeed were convicted for actions that are not criminal--and it was not even a close call, just as in the Siegelman case in Alabama. What was the gist of the charges? Minor had provided loan guarantees to the state judges, which was legal under Mississippi law. The judges later made rulings that were favorable to Minor's clients, and the government contended that was proof of corrupt acts--that Minor received the rulings in exchange for the loan guarantees.

There were several problems, however, with the government's case. One, there was no testimony or evidence that a quid pro quo agreement existed between Minor and the judges. Second, a review of the cases in question show clearly that the judges ruled correctly, based on the facts and law before them. In other words, Minor's clients prevailed because they deserved to prevail--not because of any hanky panky behind the scenes. Expert witnesses were prepared to testify to this effect at trial, but Wingate did not allow it. In essence, the Minor defendants were not allowed to put on a defense, and Wingate's jury instructions simply were concocted from the bench, having little to do with actual relevant law.

Folks who are interested in background on the Minor case might want to check out these two posts:

An Inside Look at the Dirty Work of Federal Prosecutors in the Age of Bush


Josef Stalin's Spirit Lives On Through the Paul Minor Case in Mississippi


As for newer material, get a load of this report last week in the Jackson Clarion-Ledger:

U.S. District Judge Henry Wingate heard arguments on the defense motions but said if there were an error in the judicial bribery trial, it was harmless.

"The jury found facts establishing guilt," Wingate said.

Errors that caused three innocent men to be sent to federal prison are "harmless"? And how did the jury manage to find facts that established guilt? Why, Wingate gave them jury instructions that were not remotely correct under the law.

How screwy were Wingate's jury instructions? We've addressed that in a previous post. Here was a key portion of Wingate's instruction:

"You may find specific criminal intent even though you may find that the rulings were legal and correct, that the official conduct would have been done anyway, that the official conduct sought to be influenced was lawful and required by law, and that the official conduct was desirable or beneficial to the public welfare."

You can search law books until your fingers bleed, and you will not find that description of bribery or honest-services fraud. That's because it doesn't exist. Henry Wingate made it up, and the Minor defendants were convicted for a "crime" that is a figment of a judge's imagination.

What about those perverse qualities that are built into our "justice" system? Here are two big ones:

(1) A judge gets a second chance to screw up--When an appellate court finds an error at the trial-court level, it returns the case to the same judge who likely is responsible for the screw up in the first place. Does that make a lick of sense? Of course not. In the Minor case, the Fifth Circuit, in essence, found, "Judge Wingate, you screwed this up." So what did the Fifth Circuit do? It sent the case right back to Judge Wingate, who now is pissed off because he's been reversed. Works out real well for the defendants, especially those who were convicted based on jury instructions that describe a "crime" that does not exist under the law.

(2) The value of remorse--One way to get a sentence reduced is to go in front of a judge and act contrite about having broken the law. But what if you didn't break the law? What if the actual law was not even presented to the jury that convicted you? What if you know all of that? You are supposed to be remorseful about something you didn't do?

That, too, is at play in the Minor case. Consider this from a story about Wingate's most recent ruling:

The government had initially requested maximum sentences for the three men. Wingate said he would not do that, resentencing all three to terms that were less that those suggested in federal sentencing guidelines.

Wingate said he impressed by the contrition shown by the three. “You have with you conduct earned a reduction” in the sentence, Wingate said.

The Minor defendants, understandably, are desperate to get out of prison. And they know how the game is played, so they are apologizing for "crimes" they did not commit.

That's all part of the "theater" involved in our justice system. And it can't get much more perverse than what we are seeing in the Paul Minor case.

Bob Riley Might Not Be Out of the Woods on Testifying About Abramoff in Alabama Bingo Trial

Bob Riley

In a decision that should surprise no one, a federal magistrate ruled yesterday that former Alabama Governor Bob Riley will not have to testify in the federal bingo trial that heats up today with the calling of the first witness in Montgomery. Could this be another step in a high-level effort to make sure the public never knows the full extent of the Jack Abramoff scandal? We will examine that question in a bit, but what about the specifics of the subpoena ruling?

At first glance, Sunday's ruling smells of the usual political maneuvering and judicial corruption that has come to mark federal courts in Alabama. But upon further review, the finding from U.S. Magistrate Judge Terry Moorer might not be a complete victory for Riley. (You can view Moorer's order at the end of this post.)

The bingo trial is a national story because it grew largely from $13 million that Mississippi Choctaw gaming interests spent to help get Riley elected in 2002. Those funds reportedly were laundered through Republican felons Jack Abramoff and Michael Scanlon, meaning the bingo trial touches heavily on perhaps the worst political scandal in American history.

Moorer quashed a subpoena from gambling magnate Milton McGregor, seeking to have Riley and three other current or former state officials called as witnesses. Moorer's finding, however, was "without prejudice," meaning the issue can be raised again later in the trial. And Moorer indicates that McGregor might indeed have a strong case for seeking testimony from Riley and the other state officials at some point in the proceedings.

The decision to quash the subpoena was based largely on a U.S. Supreme Court case styled United States v. Nixon, 418 U.S. 683, 698, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). That case states that decisions to allow such subpoenas must be based on three factors: (1) relevancy; (2) admissibility; (3) specificity.

For the purposes of his analysis, Moorer states that he assumes McGregor has met the standards for relevancy and admissibility. Moorer goes on to state that a final ruling on admissibility must rest with Myron Thompson, the U.S. district judge in charge of the case. But for current purposes, Moorer states, he is finding that the testimony could be both relevant and admissible. (An Associated Press story states that McGregor's attorneys "failed to show the relevancy of Riley's testimony." That is incorrect. Moorer, in fact, states that the testimony could be relevant.)

The key factor in Moorer's finding was item No. 3, specificity. Here is the crux of the magistrate's decision to quash:

Where Defendant McGregor undeniably fails is specificity. The entirety of the argument in support of his request for these witnesses is that they are “necessary for the defense” for use in impeachment and credibility. Counsel even admits that he may or may not need these witnesses depending on the testimony of certain government witnesses. Further, McGregor’s counsel acknowledges that he does not know exactly that the witnesses would say or what information they may actually possess because he has not talked to or tried to question these witnesses. As such, he is unable to overcome the third hurdle of specificity. Consequently, the motions to quash should be granted.

Moorer, however, leaves the door open for McGregor's lawyers to revisit the matter. And that means Riley should not enjoy his motorcycle trip to Alaska too much:

The Court acknowledges that this is a complex criminal proceeding and that the information sought may very well be not only relevant and admissible at a later date, but also counsel may be able to satisfy the specificity requirement once the government concludes its case.

We have serious questions about several issues connected to the decision to quash the Riley subpoena:

(1) Is Terry Moorer truly an objective, disinterested jurist in this matter?

(2) Did Moorer correctly apply case law in this matter?

(3) What about important constitutional issues raised by McGregor?

(4) Was Moorer's decision part of a larger effort to obscure the depth and full depravity of the Jack Abramoff scandal, in which Bob Riley had a front-row seat?

We will examine these questions in upcoming posts. But for now, our guess is that Bob Riley and his supporters should not get too cocky about their "victory" on Sunday.


Riley Quash Subpoena

Did Lilly Ledbetter's Own Lawyers Screw Up Her Case?

Lilly Ledbetter

Who is primarily responsible for cheating Lilly Ledbetter, the Alabama resident at the heart of one of the most notorious discrimination cases in modern American history?

Many Americans probably would lay the blame mostly at the feet of the U.S. Supreme Court, which overturned a $3.8-million jury verdict for Ledbetter and found she failed to meet the statutory deadline for filing her claim. Among these Americans would be Supreme Court Justice Ruth Bader Ginsburg, who issued a stinging dissent in Ledbetter v. Goodyear Tire and Rubber Co. Also in that group would be members of Congress and President Barack Obama, who signed the Lilly Ledbetter Fair Pay Act of 2009 into law as a means of reversing the effects of the high court's ruling.

But Ledbetter's own lawyers, from the Birmingham firm of Wiggins Childs Quinn and Pantazis (WCQP), have largely escaped scrutiny. Our review of court documents in the case indicate that should change. In fact, Ledbetter's lawyers apparently made some key strategic decisions that proved to be costly to their client.

Jon Goldfarb, Ledbetter's lead attorney, has said all the right things in the wake of the Supreme Court decision. In a statement after passage of the Lilly Ledbetter Fair Pay Act, Goldfarb said U.S. District Judge U.W. Clemon (now retired) got it right at the trial stage:

I would also like to thank Judge Clemon for getting the law right on this case the first time. Had the Appeals Court and the U.S. Supreme Court agreed with Judge Clemon’s interpretation of the law, none of this legislation would have been necessary and Mrs. Ledbetter would have been able to keep the money that the Alabama jury awarded her.

Please understand that what the Ledbetter Fair Pay Act does is put the law back the way it was two years ago when Judge Clemon sent this case to that Jury and the Jury found in Mrs. Ledbetter’s favor.

That statement, however, does nothing to achieve justice for Lilly Ledbetter, and Goldfarb went on to make that clear:

The one question I am most often asked is will Mrs. Ledbetter finally be able to receive any of the 3.8 million dollars the jury awarded her six years ago.

Unfortunately, although Congress and the President can fix the law, they can’t give that Jury award back to Mrs. Ledbetter that the Appeals Courts took away. However, by not giving up and taking her cause to Washington, Mrs. Ledbetter has made sure that others can take action to fight pay discrimination – and Mrs. Ledbetter will tell you that is an even a richer reward.

Lilly Ledbetter has become famous, and news reports indicate she might wind up with a book and/or movie deal. But in terms of justice at the courthouse steps, she was left holding the bag. And public documents indicate her own lawyers had something to do with that.

How might the lawyers from Wiggins Childs have screwed up the Ledbetter case? Our research points to three possible areas:

* They failed to question the sufficiency of evidence on two paychecks that fell within the 180-day statutory deadline--The U.S. Eleventh Circuit Court of Appeals found that most of Ledbetter's paychecks fell outside the statutory deadline, even though she did not know for years that she was receiving discriminatory pay compared to her male counterparts. The U.S. Supreme Court agreed with the Eleventh Circuit's finding, forming the crux of a heated debate on the Ledbetter case. Aside from that debate, the high courts acknowledged that two paychecks did fall within the 180-day period, and Ledbetter's lawyers could have questioned the sufficiency of the evidence on those--but they failed to do it. From the U.S. Supreme Court's ruling:

The Court of Appeals then concluded that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions that occurred within that time span, namely, a decision made in 1997 to deny Ledbetter a raise and a similar decision made in 1998. Id., at 1186–1187.

Ledbetter filed a petition for a writ of certiorari but did not seek review of the Court of Appeals’ holdings regarding the sufficiency of the evidence in relation to the 1997 and 1998 pay decisions. Rather, she sought review of the following question:

“Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.” Pet. for Cert.

Could Ledbetter's lawyers have saved her case by focusing on the two paychecks that fell within the 180-day period? The Supreme Court's ruling suggests the answer is yes.

* They failed to follow through on pursing the Equal Pay Act--Ledbetter's original lawsuit included a claim under the Equal Pay Act (EPA), which features a longer statute of limitations than the one for claims under Title VII. The district court dismissed the EPA claim, and Ledbetter's lawyers failed to raise the issue on appeal. From the U.S. Supreme Court ruling:

Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII. Petitioner also contends that discrimination in pay is different from other types of employment discrimination and thus should be governed by a different rule. But because a pay-setting decision is a discrete act that occurs at a particular point in time, these arguments must be rejected. We therefore affirm the judgment of the Court of Appeals. . . .

The simple answer to this argument is that the EPA and Title VII are not the same. In particular, the EPA does not require the filing of a charge with the EEOC or proof of intentional discrimination. See §206(d)(1) (asking only whether the alleged inequality resulted from “any other factor other than sex”). Ledbetter originally asserted an EPA claim, but that claim was dismissed by the District Court and is not before us. If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts.

Did Ledbetter's lawyers screw up by failing to follow through on the EPA claim? Sure sounds like it.

* They failed to focus on the timing and Ledbetter's awareness of the unequal pay--These are called "equitable considerations," under the law, and it's hard to figure how the Wiggins Childs lawyers could not properly raise these issues on appeal. But the Eleventh Circuit's ruling indicates they did not:

We note that neither party has argued that equitable considerations require deviation from straight-forward application of the 180-day filing period. See Morgan, 536 U.S. at 121-22, 122 S. Ct. at 2076-77 (reaffirming that the timely-filing requirement is subject to waiver, estoppel, and equitable tolling, and holding that defendants may avail themselves of the defense of laches). We therefore have no occasion to consider, for example, the timing and extent of Ledbetter's awareness of the disparity between her salary and those of her co-workers.

The central point of Ledbetter's case seems to be that years went by before she was aware of the pay disparity, and equitable considerations would demand that the 180-day filing period not be strictly applied. But the Eleventh Circuit opinion indicates Ledbetter's lawyers did not properly present that argument on appeal. How could that happen? We have no idea.

Actually, we do have one idea. As regular readers know, we have spotlighted the dubious work of numerous federal judges, showing that it is not unusual for them to flat-out misstate the facts or the law in their rulings. This applies to both district judges at the trial level and circuit judges at the appellate level--and we have exposed judicial butchery at multiple levels in the Don Siegelman case in Alabama and the Paul Minor case in Mississippi. The U.S. Supreme Court is not immune from screw ups and shenanigans, as anyone who has followed Bush v. Gore (2000) knows.

Did the appellate courts essentially throw Lilly Ledbetter's lawyers "under the bus" in an effort to support a finding that cannot be supported, based on the law? We certainly think it's possible.

In fact, we think a whole lot of seedy events are possible in today's toxic legal environment. On the surface, Lilly Ledbetter's lawyers had every incentive to put forth their best effort. Most discrimination cases are taken on a contingency basis, and when Ledbetter's $3.8 million judgment went out the window, so did her lawyers' cut of that award (probably in the range of 40 percent).

In the "pro business" environment of Alabama in the Bush years, was WCQP under extraordinary pressure to make sure a "bad precedent" wasn't set for pay-discrimination cases? Did someone provide under-the-table financial incentives to make sure that other victims of unequal pay did not get the idea they could win a multimillion-dollar judgment in court?

We don't have the answers to those questions. But it seems clear that Lilly Ledbetter got screwed for years in the workplace and wound up getting screwed again in court. If I were her, I would closely review those appellate documents and direct some serious questions toward my lawyers.

A number of advocacy groups have stood up for Ledbetter in the aftermath of the Supreme Court reversal. Those groups also should take a close look at the actions of the lawyers from Wiggins Childs. The conventional wisdom has been that Ledbetter's lawyers acted in a noble fashion, putting forth their best effort in a fight against injustice. But court documents indicate that might not have been the case--that they either were grossly incompetent or intentionally sold one of their most high-profile clients down the river.

Why Did I Survive My Brush With Death on a Baseball Field?

Hayden Walton

This has been a tragic spring, with thousands of American lives lost,  or savagely disrupted, by tornadoes in the Southeast and Midwest.

It's hard to compare stories of tragedy, to determine which is more sad or disturbing. But one that touched me deeply came last week when a youth baseball player died after being hit in the chest with a thrown ball. It happened in Winslow, Arizona, the town made famous by Jackson Browne and the Eagles in the timeless hit "Take It Easy" ("I was standin' on a corner in Winslow, Arizona, and such a fine sight to see . . . ).

Hayden Walton, 13, tried to bunt a pitch, but it hit him in the chest. Walton took a few steps toward first base before collapsing. He died the next morning.

Baseball is the quintessential American game. Some of my fondest memories as a kid are of playing baseball, both the informal kind in someone's backyard or an open field and the organized kind, which I played in various leagues from age 8 up into high school. The thought of a child dying while playing baseball  is so implausible that it scrambles the mind.

The Hayden Walton story hits particularly close to home because I probably came a few microseconds away from meeting a similar fate when I was 9 years old.

Walton died from commotio cordis, which is a disruption of the heart rhythm from a blow to the chest during a critical time in the heart beat. The name of the condition comes from the Latin for "agitation of the heart." What happens during commotio cordis? Here is how a medscape.com article describes it:

Commotio cordis typically involves young, predominantly male, athletes in whom a sudden, blunt, nonpenetrating and innocuous-appearing trauma to the anterior chest results in immediate cardiac arrest and sudden death from ventricular fibrillation. The rate of resuscitation is low but improving. Although commotio cordis usually involves impact from a baseball, it has also been reported during hockey, softball, lacrosse, karate, and other sports activities in which a relatively hard and compact projectile or bodily contact caused impact to the person's precordium. Nearly 250 cases have been reported to the National Commotio Cordis Registry. . . . Despite a recent increase in registry cases because of increased awareness, the entity is still probably underreported.

Deaths from commotio cordis are relatively rare, but I seem to read about one or two cases every summer. And each time, the stories touch me deeply.

I was struck in the chest by a pitch when I was 9 years old, while playing in a Kiwanis league baseball game in my hometown of Springfield, Missouri. It was 1966, and at the time, I don't think many people had heard of commotio cordis; I sure hadn't. It wasn't until about 30 years later that I read about a young baseball player dying from a blow to the chest and first heard the term commotio cordis. My reaction? "How in the world did I manage to survive? Why am I still here?"

I played organized sports, in one form or another, well into my 30s, and that pitch to the chest was far and away my scariest moment in competition. I remember pretty much all of the details. My team was Dixon's Hornets, and we were playing our season opener at Harry Carr Park (which I understand was plowed under for some sort of development several years ago). The opposing team was Bob's Bluestreaks, and they had probably the best pitcher in our league, a kid named Richie Voyles. I don't recall ever getting a hit off Richie Voyles. But he hit me with a pitch I will never forget.

The distance from the pitching rubber to home plate for 9 year olds was not much, well short of the 60 feet, 6 inches that you usually see for high schools up to the major leagues. I'm guessing it was 48 feet or so, and when a kid like Richie Voyles could really bring it, there wasn't much time to react.

I don't remember the count, but I think it was the first pitch of my first at-bat of the season. The pitch was heading inside from the moment it left Richie's hand, and for some reason, I turned into it. If I had turned away from it, it would have hit me in the back. It would have hurt, but I would have taken my base and been little worse for wear.

Because I turned into the pitch, it caught me square in the chest. The thought that I could be hit by a pitch--particularly one thrown that hard--I don't think had ever occurred to me. I didn't fall down or even bend over; I was so shocked by the force of the pitch that I just stood there for a moment, finally gathering myself to trot to first base.

When I got home and took my shirt off, I discovered an imprint of stitches from the baseball on my chest, right on the breastbone. The mark stayed for several days.

I don't recall ever crying as a result of a sporting event. But I do remember tears coming to my eyes as I stood on first base that night, struggling to catch my breath. It was my first encounter with fear on the baseball field, and it took me a while to get over it. I developed a habit of bailing out on pitches, my left leg "stepping in the bucket" out of fear that I would get nailed again. I'm not sure I got a hit that entire season, and I got used to seeing my name at the bottom of our batting order.

It was probably a year and a half before I managed to "hang in there" at the plate and become a decent hitter again. But I never totally forgot how much it can hurt to be hit by a thrown ball. That might be one reason I never fulfilled my dream of becoming center fielder for the St. Louis Cardinals. A shortage of talent might be another.

I did have a pretty good throwing arm, which my coaches discovered when I caught a fly ball in right field and threw out a runner trying to advance from second to third base. They turned me into a pitcher, and that remained my primary position well into high school.

Fortunately, I had pretty good control and never walked or hit too many batters. But I do recall feeling terrible when I let one go on the inside, and it hit a batter.

How did I survive my close encounter with commotio cordis? I will never know for sure. Most articles I've read indicate the blow has to come at a certain spot on the chest, at a certain point in the heart rhythm. If it comes at one point in the heart beat, you are fine; if it comes at a second point in the heart beat, you are dead. In most cases of commotio cordis, no underlying heart defect is present. It's all a matter of location and timing.

In my case, the imprint from the ball's stitches was right on the breast bone, in the center of my chest. Best I can tell, that location is prime territory for commotio cordis. According to this article, the heart is in the middle of the chest, tilted so that slightly more of it is to the left of the breastbone than to the right, as you look down at your own chest. Would I still be here if the pitch had struck, say, a half inch to the left? Maybe not.

There is no question that the ball was thrown hard enough to cause commotio cordis. (I'm telling you, Richie Voyles could bring serious heat; he was the Nolan Ryan of our league. Another outstanding pitcher was Sammy Miller of the Superior Tilers. We called him "Sudden Sam" because, like Voyles, he could get the ball to the plate in a hurry. Thankfully, Sudden Sam had pinpoint control, and I never was afraid of him. In fact, I recall getting a few hits off him over the years. But Voyles was a different story. He could be a little wild, with a deceptive motion, and I was never terribly anxious to dig in with him on the mound.)

Timing, I suspect, was the key factor in my case. Researchers believe that commotio cordis occurs when a blow to the chest upsets the electrical rhythm of the heart at a critical moment in the heart beat. Think about your heart beat, and then try to think about a few microseconds within that heart beat. At one microsecond during a trauma to your body, you are alive; at another microsecond, you are dead. That's probably how close I was to being a goner.

One of the best technical articles I've seen on commotio cordis can be found here:

Sudden cardiac death by commotio cordis: Role of mechano-electric feedback

I've shared my baseball-to-the-chest story several times with Mrs. Schnauzer. (OK, make that many times, so much that she starts to roll her eyes when she hears it begin now.) The experience does raise this cosmic question: Why am I still here?

During particularly dark moments in our legal travails, Mrs. Schnauzer has been known to cry out, "Why are we here? Are we supposed to just take abuse for the rest of our lives, to sit back and be ruined?"

I don't always have good answers to questions like that. But since that summer evening in 1966, every moment of my life has essentially been "gravy." My little spot in this world probably should have ended when I was 9 years old. Why it didn't, now that I've become fairly knowledgeable about commotio cordis, is beyond me.

I don't spend a lot of time thinking about the night I nearly died. But when I read about a youngster like Hayden Walton, I grieve--and I think about my place in this world. Why am I still here?

Do those thoughts drive this blog, have they fueled our fight against injustice? Maybe they have.

I do know this: When I was 9 years old, I faced something far more scary than anything a corrupt judge or lawyer can bring. I'm not fearless--far from it. But I do have a sense that I must have been spared for a reason. I want the extra time I've been given to count for something.

Mrs. Schnauzer and I are just two regular folks who never sought a battle over judicial corruption. In fact, I didn't want any battles at all; I would have been perfectly happy with wonderful pets, a few good books to read, sports teams to pull for, an interesting job, and a relatively pain-free life. (Plus a gorgeous, intelligent wife; whew, glad I remembered to put that in there!) Someone upstairs apparently had other plans.

I pray for Hayden Walton and his family and friends. I pray for a young pitcher who must be feeling terrible guilt about what happened that night in Winslow, Arizona. I pray for the other players who were on that field, who probably will never see baseball the same way again. And I pray that those kids grow up in a more just world, where the law is applied fairly and correctly to all.

If this little blog can help make that happen, then maybe I'll know why I was spared.

Ohio State Football and Our Broken Justice System Have a Lot in Common

Jim Tressel

One of the most precipitous falls in the history of college athletics is unfolding now in Columbus, Ohio. Enough sleaze already has surfaced in the Ohio State University football program to force long-time coach Jim Tressel to resign. With reports of star players driving snazzy sports cars, the sludge is likely to get deeper in the land of the Buckeyes.

The most thorough overview of the Ohio State scandal can be found as the cover story in this week's Sports Illustrated. In a 10-page spread titled "How Deep It Went: An SI Investigation Reveals the Full Extent To Which Jim Tressel Lost Control Of The Buckeyes," reporters George Dohrmann and David Epstein reveal that the coach's lax relationship with the NCAA rule book goes back more than two decades.

Tressel won championships at Ohio State, and in his previous stop at Youngstown State, so administrators were happy to look the other way, ignoring clear signs that the coach's programs were built on a foundation of non-compliance with NCAA rules.

In that respect, and several others, the Ohio State football story reminds me of the U.S. justice system--another mammoth enterprise that chugs along, while those in authority ignore obvious signs of decay. In reading Sports Illustrated's splendid cover story--Dohrmann has become one of the best investigative reporters in journalism--I was struck by several themes that I've seen play out during my unpleasant, 10-year journey through the American court system.

Let's consider three themes that show up time and again--at Ohio State and in my story of battling a groundless lawsuit here in Shelby County, Alabama: (1) Phony use of religion; (2) Weak oversight; (3) Blaming the victims.

* Phony use of religion--SI writes about Tressel's regular references to religion during his rise to the top of the college-football world, noting that he "wore his Christian values on his sweater vest." The coach had such a Boy-Scout image that he acquired the nickname "The Senator." Tressel often used the Bible as a prop for his coaching career, but SI uncovered signs of Tressel's slippery ethics going back to the mid 1980s, when he was an assistant coach at Ohio State:

One of Tressel's duties then was to organize and run the Buckeyes' summer camp. Most of the young players who attended it would never play college football, but a few were top prospects whom Ohio State was recruiting. At the end of camp, attendees bought tickets to a raffle with prizes such as cleats and a jersey. According to his fellow assistant, Tressel rigged the raffle so that the elite prospects won--a potential violation of NCAA rules.

That episode was not nearly as serious as the recent violations while Tressel was OSU's head coach. But it speaks volumes about Tressel's two-faced nature:

Says the former colleague, who asked not to be identified because he still has ties to the Ohio State community, "In the morning he would read the Bible with another coach. Then, in the afternoon, he would go out and cheat kids who had probably saved up money from mowing lawns to buy those raffle tickets. That's Jim Tressel."

That's also quite a few of the people I've encountered in the legal world. One of my own attorneys, Richard Poff, gave me a business card with a cross on it. Poff then took $4,500 as a retainer and proceeded to do almost no work on my case, not the first drop of discovery. (Poff, by the way, no longer shows up as a member of the Alabama State Bar. His wife, Christina Mosca Poff, still appears on the bar's roster, which indicates her husband probably still lives her. I know a man named Gregory Dennis, and possibly others, had filed a bar complaint against Richard Poff. It's possible that Richard Poff has been disbarred, although I haven't found an official announcement. Such an outcome certainly would not surprise me.)

Let's consider J. Michael Joiner, the Shelby County circuit judge who probably is the individual most responsible for the cheat job Mrs. Schnauzer and I have experienced. (Joiner recently was appointed to the Alabama Court of Criminal Appeals by new Governor Robert Bentley, who is from Joiner's former home base, Columbiana, Alabama.) After our troublesome neighbor, Mike McGarity, filed a lawsuit against me, my lawyers filed multiple motions for summary judgment (MSJs) because we had probably eight to 10 grounds for dismissal. (McGarity's primary claim was for malicious prosecution, claiming I swore out a criminal-trespass claim against him without probable cause. Malicious prosecution is a disfavored tort, and McGarity had no evidence to support it, mainly because he admitted to trespassing during the criminal trial. In other words, I had not only probable cause, I had actual cause. Hard to build a malicious prosecution case on that.)

My MSJs were properly executed and supported with material evidence (multiple affidavits), as required by law, shifting the burden to McGarity to show there was a reason to go to trial. He presented no timely evidence on the first MSJ, and no response of any kind on the others. When a nonmoving party presents no evidence in answer to a properly supported MSJ, the moving party's evidence must be considered uncontroverted and summary judgment granted. That's Law School 101, as spelled out in the Alabama case styled Voyager Guar. Ins. Co., Inc. v. Brown, 631 So. 2d 848 (Ala., 1993):

"When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing."

Joiner proceeded to deny MSJs that, by law, had to be granted--and under Alabama law, it is a nondiscretionary ruling. Like Jim Tressel, Joiner projects a Boy-Scout image. He has taught Sunday School classes at The Church of Brook Hills, a suburban mega-church in the Birmingham suburbs. His daughter, Christy, is a graduate of Briarwood Christian School, where Coach Fred Yancey (much like Jim Tressel) regularly touts his religious beliefs. As I've reported in several posts, Yancey, Briarwood Presybyterian Church, and its affiliated school are largely responsible for Mike McGarity (and his substantial criminal record) becoming our next-door neighbor.

Even William E. Swatek, the McGarity lawyer who has a 30-year history of ethical violations with the Alabama State Bar, spouts off about religion. After Swatek was acquitted of perjury charges in the early 1980s--and court documents indicate the prosecution had tape-recorded, irrefutable evidence that he was guilty--Swatek told a local newspaper that his belief in Psalm 37 helped him survive the ordeal. (Request vomit bag here.)

The 40-verse Psalm begins: "Fret not thyself because of evildoers, neither be thou envious against the workers of iniquity." Bill Swatek referring to others as "evildoers" and "workers of iniquity"? That takes some serious chutzpah.

Bill Swatek was a religious phony long before the world had heard of Jim Tressel. Maybe Tressel needs to become a lawyer and join an Alabama firm. He would fit right in.

* Weak oversight--We repeatedly have shown on this blog that one of the biggest problems in our justice system is a lack of oversight. At both the state and federal levels, appellate courts are supposed to be the watchdogs, the ones who make sure trial courts get it right. But too often higher courts are primarily interested in covering up wrongdoing by their trial-court brethren. Blatantly unlawful findings are affirmed, often with no opinion. Trial judges who have acted in a corrupt fashion, and violated the oath of office, are not reported--even though lawyers are required to report misconduct of other lawyers.

Similar blindness is present in the Ohio State story. Tressel had an alarming history of non-compliance while he was at Youngstown State, long before he became Ohio State's head coach in 2001. From the SI article:

In February 2000, 11 months before Ohio State hired Tressel, Youngstown State acknowledged numerous football violations and announced self-imposed sanctions, including the loss of two scholarships. Because it was satisfied with those steps and its statute of limitations on the violations had run out, the NCAA allowed Youngstown to keep the '91 national title, one of four Tressel won with the Penguins.

During his 15 years at Youngstown State, Tressel left a substantial trail that pointed to only one conclusion: He was a rogue coach. But he won a bunch of games, so YSU never punished him and Ohio State was quick to hire him.

* Blaming the victim--What almost always happens when an individual stands up to a corrupt judge or lawyer? The legal establishment promptly labels him a "disgruntled litigant." Ask anyone who truly has been cheated by the justice system and tried to fight back. They almost certainly have heard that phrase.

How did Jim Tressel get away with misconduct for more than 25 years? He repeatedly blamed his victims, the ones who tried to point out the truth behind "The Senator's" image.

One instance came when allegations surfaced at Youngstown State that the football program was violating NCAA rules, and President Leslie Cochran was forced to ask a few questions. From the SI: article:

Over the next month Cochran quizzed football staff members in informal meetings. He believed that if anybody was aware of what was going on in the program, it was Tressel. But Tressel told Cochran that the tipster was just a disgruntled former employee. Given Tressel's sterling reputation, Cochran felt confident relaying a nothing-to-see-here message to the NCAA.

A similar event took place after Tressel became head coach at Ohio State, when former star running back Maurice Clarett told ESPN that he had witnessed multiple NCAA violations while playing for the Buckeyes. Clarett said coaches connected him to boosters who gave him thousands of dollars. Reports SI:

The NCAA never sanctioned Ohio State for any of those allegations. Clarett didn't respond when investigators tried to contact him after the ESPN story, so they weren't able to proceed. Like the Youngstown State whistle-blower years earlier, Clarett was dismissed as disgruntled.

We now know that Maurice Clarett should not have been labeled as "disgruntled"; he was telling the truth. So were others who tried to raise red flags about Jim Tressel.

Here's how SI describes the see-no-evil attitude that allowed a scoundrel like Jim Tressel to prosper for some 25 years:

For more than a decade, Ohioans have viewed Tressel as a pillar of rectitude, and have disregarded or made excuses for the allegations and scandal that have quietly followed him throughout his career. His integrity was one of the great myths of college football. Like a disgraced politician who preaches probity but is caught in lies, the Senator was not the person he purported to be.

We have shown on this blog that numerous judges and lawyers, in Alabama and beyond, are not who they purport to be. We will be writing about more such individuals in the weeks and months ahead. We've been raising red flags about the justice system since this blog started in June 2007. Other brave souls--Dana Jill Simpson, Tamarah Grimes, Andrew Kreig, to name a few--have stepped forward. A democracy cannot function for long with a broken justice system. Americans should not ignore the warning signs.

The decay in our justice system is far worse than anything that ever could happen at Ohio State.

Bush-Era U.S. Attorney Is the Target of a Federal Investigation

Leura Canary

Leura Canary, the notorious Bush-appointed prosecutor who was at the heart of the Don Siegelman case, is the focus of a U.S. Department of Justice investigation, sources tell Legal Schnauzer.

Canary announced her retirement as U.S. attorney for the Middle District of Alabama on May 26. But sources say the ongoing federal investigation is the real reason Canary stepped down, even though Obama nominee George Beck has not been confirmed by the U.S. Senate. Louis Franklin will serve as acting U.S. attorney for the Middle District, pending Beck's confirmation.

A long-awaited Alabama federal bingo prosecution, featuring gambling magnate Milton McGregor and a number of state legislators, begins today in Montgomery. It is expected to last about two months and figures to be the biggest story of the summer in Alabama. But the investigation of Canary could prove to be the far bigger story, with potentially major ramifications on the national stage.

After all, the Canary investigation could lead to individuals who have helped shape her political agenda, such as former Bush White House strategist Karl Rove and U.S. Chamber of Commerce President Tom Donohue. The investigation also could show that the Obama Justice Department is not as useless as it currently appears, indicating Attorney General Eric Holder is willing to "look backwards" at apparent misconduct of the previous administration.

Technically, Canary has been under investigation by the DOJ's Office of Professional Responsibility (OPR) since June 2008. But we've seen no sign that Canary actually has been under genuine scrutiny. Sources, however, say that changed about two months ago--and the investigation now is serious enough that it prompted Canary to "retire."

Who is leading the Canary investigation? Why did it suddenly heat up about two months ago? What is the focus of the probe (the Siegelman case, the bingo case, something else, all of the above)? We don't have the answers to those questions yet. But sources say that Leura Canary, for perhaps the first time since her appointment, is feeling real heat.

One source, with close ties to the Middle District office, was "shocked" to hear of Canary's retirement. The U.S. attorney had made "adamant promises" to her staff that she would not leave until her successor was confirmed, our source says.

What could a genuine investigation of Leura Canary mean on the national level? Her husband, Bill Canary, is president of the Business Council of Alabama and a long-time ally of Thomas Donohue and Karl Rove. In fact, Canary and Rove used funds from the U.S. Chamber and other corporate sponsors in the 1990s to help turn Alabama's Supreme Court from Democratic to Republican control.

It's hard to imagine that an investigation of Leura Canary would not encompass her husband. If both Canarys wind up under the white-hot light, they could point investigators to the individuals and entities who have been pulling their strings. That could lead to Tom Donohue, Karl Rove, the U.S. Chamber, even the Bush White House.

Is there some wishful thinking on my part in that last paragraph? Yes there is. Since news outlets reported that Florida suddenly had turned in George W. Bush's favor on election night 2000, we have seen one Republican scandal after another covered up or ignored. Obama's utter failure on justice issues, so far, has been shameful for a president who pledged to change the toxic environment he inherited.

As a colossal cynic on justice matters, I fully expect Leura Canary and her henchmen to somehow wriggle off the hook. But for the first time in 10-plus years, I'm seeing a glimmer of hope that someone in authority might be taking Alabama's justice cesspool seriously.

Leura Canary played a leading role in creating that cesspool, and sources say the seat under her fanny is getting warm. If justice still matters at all in this country, Canary's seat soon will become scorching hot. And some of her puppeteers might start feeling a tad uncomfortable, too.


[Photo: Montgomery Advertiser]

Will the First Family of GOP Sleaze Wind Up Under the Microscope?

Bob Riley with one of his GOP pals

Recent news accounts have focused our attention on the Rileys, the first family of Republican sleaze in Alabama--and one of the nastiest conservative clans in the country.

Of course, it's not new for our attention to be focused on the Rileys; we've been reporting on their wickedness pretty much from the day this blog started four years ago, in June 2007. But we are seeing signs that the attention of others--the general public, the mainstream press, perhaps even law enforcement--is turning toward the Rileys.

Bob Riley, the governor of Alabama from 2003 to 2011, and his ethically challenged son, Homewood lawyer Rob Riley, have enjoyed the benefits of a Teflon coating that would have made Ronald Reagan proud. At least one national pundit, MSNBC's Joe Scarborough, has openly pushed for a Bob Riley presidential run in 2012--and Karl Rove reportedly has been intrigued because Riley's poofy 'do reminds him of Reagan. Meanwhile, we hear from numerous sources that Rob Riley is itching to run for governor, perhaps as early as 2014.

But for the first time since the Rileys rose to statewide power--on the backs of an election that almost certainly was stolen from Democrat Don Siegelman in 2002--we are seeing signs and hearing reports that Bob and Rob's fortunes might take a turn for the worse before too long. Given the pathetic performance of the Obama Justice Department, I'm not holding my breath. But there is reason to believe that the Rileys luck might not hold out forever.

(A couple of notes: First, we should acknowledge that our headline is a tad misleading. The true first family of GOP sleaze certainly is the Bushes. But the Rileys--with their ties to Jack Abramoff, dirty gambling money, and what probably amounts to an organized-crime network--certainly deserve a place in the pantheon of Republican underhandedness. Second, we need to come up with a phrase other than "GOP sleaze." We are learning that, at least in Alabama, there are some individual Republicans who possess a conscience. In fact, we know of some Republicans who find the Rileys to be almost as repugnant as I do. If anyone ever brings the Rileys down, I suspect certain Republicans will play a helping hand.)

How is the landscape changing for the Rileys? First, let's consider recent reports that Bob Riley has been subpoenaed to testify, by lawyers for gambling magnate Milton McGregor, in the federal bingo trial that begins Monday in Mongtomery. When I first heard about this, my reaction was, "Ah, he will get off and almost certainly will not be forced to testify. And even if he does take the stand, the judge is likely to sustain so many objections from government lawyers that nothing substantive will come from it." But I'm hearing that McGregor's lawyers performed some intriguing groundwork in preparing for the subpoena--and that Big Bob might have reason to be genuinely concerned. We will stay tuned.

Second, new governor Robert Bentley has ditched a $13 million, no-bid computer-services contract that went to a shadowy company called Paragon Source under the Riley administration. The company--which had no Web site, phone number, or business address--received $7 million before payments were stopped in fiscal 2010, according to a report in The Huntsville Times. The mainstream press has largely taken a see-no-evil approach to the Riley clan, but reporter Bob Lowry is practicing some real journalism--and it will be interesting to see where it leads.

Even the Times' editorial page is asking questions about Teflon Bob and his gang of thugs:

When he first ran for governor, Riley repeatedly attacked Gov. Don Siegelman for his administration's fondness for no-bid state contracts. Additionally, Riley championed his efforts to improve government accountability and transparency as among his signal accomplishments.

Riley sent [finance director Bill] Newton, Riley Chief of Staff Dave Stewart and spokesman Jeff Emerson to meet with The Times' and Birmingham News' editorial boards in October 2009 to defend the contract from criticism.

Newton said Paragon President Janet Lauderdale was uniquely qualified to do the work because she helped install the original computer system in the early 1990s and helped the state meet a tight deadline for revamping its payroll system in 2006. . . .

Lauderdale may have been uniquely qualified, as Newton insisted, but awarding a multimillion-dollar contract without bids based on the opinions of a few people in the Finance Department -- government by good old boy? -- is hardly the way to conduct state business.

Should this become a matter for law enforcement? Well, consider that the entire Bullock County Commission recently was arrested on felony charges that they violated the Alabama Competitive Bid Law. Each of them faces a possible 10-year prison sentence, and that reportedly involved $85,000 for inmate food at the county jail. Meanwhile, the Riley administration p----d away $7 million of taxpayer funds on a no-bid contract, and we the people have zero to show for it. Which is the more serious matter?

Keep this in mind: The Bullock County commissioners are mostly black and apparently all Democrats. The attorney general who signed off on their arrests is a white Republican named Luther Strange who happens to be a best bud of Bob Riley. Gee, I wonder how that will turn out?

Rob Riley

How might Rob Riley fit into this picture? An Associated Press report states that federal law-enforcement officials will start holding individual health-care executives accountable in fraud cases that used to be aimed at their companies. Regular readers know that Rob Riley is an owner of Performance Group LLC, a rehabilitation-medicine company that has engaged in rampant Medicare fraud, according to a federal whistleblower lawsuit filed in 2008.

Rob Riley's entry into the health-care field seems to coincide with his appearance in a federal lawsuit against individuals and entities connected to Birmingham-based HealthSouth. Riley joined the case to become co-liaison counsel with G. Douglas Jones, a former U.S. attorney in the Clinton administration. Here's how we reported it in an earlier post:

According to Sam Stein at Huffington Post, Rob Riley abruptly joined the HealthSouth lawsuit on January 13, 2005, representing the New Mexico State Investment Council.

Sources tell Legal Schnauzer that a few months after entering the HealthSouth case, Riley and two partners formed a company called Performance Group LLC.

Performance Group, our sources say, is a Birmingham-based corporation that provides physical-therapy services. The company has clinics in Birmingham, Cullman, and Albertville.

Performance Group apparently has plans to grow. Our sources say Riley and his partners sold ownership interests in the company to some 20 Alabama physicians who referred patients to the Performance Group entities for physical therapy.

This arrangement, in which physicians refer patients to an entity in which they have a "compensation relationship," appears to violate federal law, our sources tell us.

That's not the only way Riley and his partners seem to be skirting the law. They also are filing false claims for reimbursement with federal health-care programs, sources say.

How ugly could this story get? Jones, Riley, and other lawyers clearly were grabbing for some serious cash--apparently using inside information they gleaned from the Don Siegelman/Richard Scrushy criminal case--and were rewarded with a percentage out of attorney fees that totaled more than $50 million.

On top of that, several of Riley's partners in Performance Group LLC are affiliated with the University of Alabama at Birmingham (UAB), which means taxpayer resources could have been used to help support health-care fraud--all while Rob Riley's daddy was governor of Alabama. Wouldn't that just be swell?

The whistleblower case against Performance Group LLC has been dismissed without prejudice, meaning it can be refiled. The dismissal was ordered by U.S. District Judge William M. Acker, an 83-year-old Reagan appointee who seems to have a habit of making blatantly unlawful rulings to help protect Alabama elites.

We soon will be exploring in detail a number of cases where Acker has made some highly curious rulings, including the whistleblower case against Rob Riley's company.

Will the Rileys and some of their enablers (Jones? Acker? Strange?) ever wind up in the glare of some mighty uncomfortable white-hot spotlights? I would not count on it happening. But I no longer think it's impossible.

Dispute Over Grass Clippings Ends With a Neighborly Assault

Jarod Hopson

A 27-year-old Kingsport, Tennessee, man has been charged with aggravated assault after punching his 63-year-old neighbor during an argument over grass clippings.

Jarod Hopson allegedly threw the punches, and Kenneth Jennings wound up with multiple fractures in his face. Jennings reportedly will need reconstructive surgery.

Neighbor disputes always are of special interest here at Legal Schnauzer. They seem to come in endless and fascinating varieties--and Mrs. Schnauzer and I know what it's like to be in the middle of one. Our 10-year legal battle started because of difficulties with a neighbor named Mike McGarity, who we later discovered has at least eight criminal convictions in his background.

No wonder he was hard to deal with. No wonder we wanted to keep him off our property. And as with the case in Tennessee, our experience involved criminal trespassing that led, over a period of years, to an assault. In Tennessee, the trespass and the assault happened almost simultaneously.

The problem in Kingsport reportedly started when Hopson's mother, Jennie Lovelady, objected to Jennings mowing too close to her yard, causing grass clippings to wind up on her property. One witness said Lovelady screamed at Jennings and even laid down in front of his mower.

When Jennings tried to get her to move, an argument ensued, with Hopson coming out of his mother's mobile home to punch Jennings several times.

I know what it's like to be assaulted by a neighbor; Mike McGarity assaulted me, and here is how I described it in an earlier post:

I was the victim of a felony assault in October 2006. My troublesome neighbor, Mike McGarity, essentially stalked me and then hit me in the back with a roadside sign, leaving a bleeding abrasion. There was an eye witness to the attack. . . . McGarity used a "dangerous instrument" and caused "physical injury." Under the law, that's a felony.

When Shelby County officials insisted on treating the case as a misdemeanor, I refused to file a criminal complaint. I have a pending lawsuit that includes a claim for assault and battery against McGarity.

What did I do to incur McGarity's wrath? I walked to the entrance of our neighborhood to remove signs (for-sale signs, garage-sale signs, etc.) that had been unlawfully placed in the right-of-way and were obstructing the view of drivers trying to pull onto a busy highway. I was trying to keep someone from getting hurt or possibly killed. But McGarity was having none of that.

He followed me and started putting the signs back up. When I told him why I was taking the signs down, he said, "Let's get it on, right here." I said I wasn't interested in fighting him, but the signs were going to come back down. When I turned and walked away, he swung a sign as hard as he could and hit me in the middle of the back.

That's an example of how the simplest of acts can lead to an assault, much like the case in Tennessee. It would be interesting to know if Jarod Hopson has a criminal record. My guess, based on his actions and the photo above, is that the answer is yes. By the time, McGarity assaulted me, I knew about his criminal record, which included convictions for violence- and sex-related offenses. At that point, I wasn't surprised at anything he might do.

In analyzing neighbor disputes, it's always instructive to play a game we call "Who's the Jackass?" There's almost always at least one jackass in a neighbor dispute. Sometimes, there are two or more, so it's hard to tell who's really at fault.

I've learned from experience to check for one tip off: Does an individual possess a smart-alecky, vile manner? The first sign of trouble with McGarity came when I called to ask if he could quiet down his dog, a coonhound mix that barked at all hours of the day and night--often for two or three hours at a time. McGarity's response? "You need to get ear plugs." That kind of comment is a pretty clear sign that you are dealing with a jackass. (By the way, if you've never heard a coonhound bark continuously for three hours, you should try it some time. Talk about a treat! There's a reason they are considered great hunting dogs--but not necessarily great pets; their voices travel like you wouldn't believe.)

After proving himself to be a horse's ass, McGarity apparently thought it would be fun to repeatedly trespass on our property. He seemed shock to discover that he wasn't welcome. When I made multiple phone calls to inform McGarity that he, his family members, and guests were to stay off our property--this was after we had witnessed multiple instances of trespassing--he threatened to sue me and said, "We're going to keep on coming."

At that point, I didn't know about McGarity's criminal record. But when I found out about it a few years later, I wasn't at all surprised. (A Schnauzer tip for dealing with difficult neighbors: Check your local courthouses to see if they have a criminal record. If they are world-class jackasses, the answer probably is yes--and public records about arrests often help explain a lot.)

In the Tennessee case, it seems clear that Hopson and his mother, Jennie Lovelady, were at fault. Would it have been nice if Jennings had been mowing in a way that did not blow grass clippings onto Lovelady's property? Sure, but he almost certainly was not violating any statute or ordinance.

Technically, the blowing of grass clippings probably constitutes a civil trespass, and Lovelady could have filed a lawsuit, seeking any damages and an injunction to block Jennings from sending grass clippings her way in the future. But such a lawsuit would probably cost several thousand dollars and most folks likely would not consider the issue to be worth that.

As long as Jennings was on his own property--and by all accounts, he was--he wasn't doing much of anything wrong. If Lovelady had concerns about the grass clippings, she should have waited until Jennings was finished mowing and talked to him by phone or face to face.

Is it possible that Lovelady had previously asked Jennings, in a nice way, not to blow grass clippings on her yard? Yes, it is. Is it possible he ignored her requests or responded in a smart-ass way? Yes, it is. If that was the case, it was unfortunate, but Lovelady's only recourse was to file an expensive lawsuit or learn to live with a few extra grass clippings on her yard. Laying down in front of Jennings' mower and starting an argument was not the way to go.

Lovelady's biggest mistake, the act that turned this into a criminal matter, was going on Jennings' yard. By entering a neighbor's property and laying down in front of his mower, she showed a bizarre lack of respect for boundary lines. That almost certainly amounts to a criminal trespass, which was compounded when Hopson followed her onto the property and punched Jennings.

In addition to the criminal charges, Jennings probably will file a lawsuit for assault and battery, trespass, personal injury, and other torts. We don't know what kind of assets Lovelady and Hopson possess, but they had better hope they have good insurance.

Our guess is that they eventually will wish they had never set foot on Jennings' property.

Burton Cummings: Celebrating a Classic Voice in Rock and Roll

If the Gods of Rock and Roll were to grant me one wish this summer, I would wish for transportation and tickets to take in Burton Cummings' tour of his native Canada.

Burton Cummings might not be a familiar name to many music fans under the age of 40. But in my view, he and John Fogerty of Creedence Clearwater Revival stand as two of the five greatest vocalists in rock-and-roll history.  Given that two other spots have to go to John Lennon and Paul McCartney, that doesn't leave much room for anyone else. (My fifth spot would go to Don Henley, of the Eagles.)

Cummings made his mark as a solo artist in the late 1970s and early 1980s. But he is best known as the lead vocalist and one of three driving creative forces (with Randy Bachman and the late Kurt Winter) of The Guess Who. From Neil Young to Gordon Lightfoot to Rush to Alanis Morissette, Canada has turned out some stellar musical talent. But The Guess Who remains the quintessential Canadian band.

The band members grew up around the prairie town of Winnipeg, and Cummings was a white guy producing bluesy vocals long before anyone ever heard of Hall and Oates or Taylor Hicks. In fact, The Guess Who's first album was called Wheatfield Soul.

"Share the Land," "Laughing," "No Time," and "No Sugar Tonight/New Mother Nature" are just a few of The Guess Who hits that remain staples on classic-rock stations. Lenny Kravitz brought The Guess Who to a new generation of music fans when he covered the band's best-known work, "American Woman," in 1999.

Like many bands, The Guess Who was beset by personnel changes and legal wrangling through the years. Bachman co-wrote many of the band's early hits before realizing that his Mormon beliefs did not mesh with the other band member's lifestyles. He went on to form Bachman-Turner Overdrive, churning out such '70s classics as "You Ain't Seen Nothing Yet" and "Takin' Care of Business."

Jim Kale, the band's original bassist, bought the rights to The Guess Who name and tours the U.S. with a band that bears the famous name but has almost nothing to do with the original group. The other members of the real Guess Who cannot use the name without paying Kale a hefty royalty. Cummings derisively calls today's Guess Who, who might soon be playing at a state fair or outdoor venue near you, "Kale's clones."

What remains of the real Guess Who (Cummings on keyboards, Bachman on guitar, Donnie McDougall on guitar, Bill Wallace on bass, Garry Peterson on drums) overcame legal squabbles to tour under that name in 2000 and 2003. But since then, Cummings (and sometimes Bachman) have toured mostly with a backing band called The Carpet Frogs.

The Frogs are backing Cummings on his current tour across Canada. Cummings' voice might be a little more thin than it was in the '60s, '70s, and '80s, but at age 63, he remains a compelling live performer. Here are Cummings and The Carpet Frogs with "These Eyes," a Guess Who ballad that has aged remarkably well--and Cummings provides insight on how the song came to be:



The Guess Who has a rocking legacy, as Cummings proves with this performance of "Star Baby":



Cummings' best-known work as a solo artist is "Stand Tall," a song about overcoming life's challenges:



If I had to pick the two most memorable songs of my youth--by North American artists; not counting British-invasion tunes from The Beatles, Dave Clark Five, and others--one would be CCR's "Up Around the Bend." The other would be The Guess Who's "Share the Land," a song whose message still resonates some 40 years after it was released. Enjoy:

White Americans Say Racism Increasingly Is Turned in Their Direction

A new study finds that many Americans believe racism against whites is growing, and in some cases, even surpasses that faced by blacks.

Researchers at Harvard University and Tufts University found that 11 percent of respondents gave white racism in American a maximum rating of 10 points, according to a report in The Telegraph of London. The study, titled "Whites See Racism as a Zero-Sum Game That They Are Now Losing," was published in Perspectives on Psychological Science.

How could a significant number of Americans actually see anti-white racism as a bigger problem than racism directed toward blacks? The study explains:

Although some have heralded recent political and cultural developments as signaling the arrival of a postracial era in America, several legal and social controversies regarding ‘‘reverse racism’’ highlight Whites’ increasing concern about anti-White bias.

We show that this emerging belief reflects Whites’ view of racism as a zero-sum game, such that decreases in perceived bias against Blacks over the past six decades are associated with increases in perceived bias against Whites—a relationship not observed in Blacks’ perceptions. Moreover, these changes in Whites’ conceptions of racism are extreme enough that Whites have now come to view anti-White bias as a bigger societal problem than anti-Black bias.

That finding might draw a "WTF" response from many rational folks. But The Telegraph provides insight on the study's findings:

The study polled roughly 200 white people and 200 black people drawn at random from a national census and asked them to rate racist attitudes against blacks and whites in each decade from 1950 to 2000.

Both groups felt racism against black people was substantial in the 1950s and both groups agreed the situation had markedly improved.

However, white respondents to the survey indicated that racism is now on the rise against white people. Eleven per cent of people responding to the survey even gave anti-white racism a maximum rating of ten points.

The authors said the research showed America has not yet reached a "post-racial" era, despite the election of Barack Obama as the country's first black president.

The findings left at least one of the researchers scratching his head:

"It is a pretty surprising finding when you think of the wide range of disparities that still exist in society, most of which show black Americans with worse outcomes than whites in areas such as income, home ownership, health and employment," said Samuel Somers, an associate professor of psychology at Tufts who co-authored the study.

One expert, however, offered some insight into what might be driving the findings:

David E. Berstein, a professor of law at George Mason university, told the New York Times that the US policy of affirmative action, which sees universities and employers overtly favour black candidates over whites, had led many whites to complain about the unfairness of the system.

"It is not terribly surprising that whites subjectively perceive discrimination against members of their own group as an especially significant and growing problem, even though, objectively speaking, bias against blacks is far more pervasive, problematic and ill-intentioned," he said.