Judge Madeline Haikala's botched decision to throw out criminal charges against Alabama police officer shows cops often receive favorable treatment in court

Sureshbhai Patel
(From washingtonpost.com)

(Second post in a series)

The ambush killings yesterday of three police officers in Baton Rough, Louisiana, has placed such hot-button status on issues related to police brutality that they threaten to relegate this week's Republican National Convention to back pages of the nation's newspapers.

Top officials seem to be in a state of shock and confusion, with even normally articulate President Barack Obama seemingly at a loss for meaningful words.

This much seems certain: Gunman Gavin Long did a disservice to Americans who would like to see a serious and extensive examination of dozens of high-profile police brutality cases that have erupted around the country since a white police officer shot a young black man named Michael Brown at Ferguson, Missouri, in summer 2014.

Since Long opened fire yesterday morning, numerous public officials have stepped forward to make statements along the lines of, "This must stop. Violence against police officers cuts at the fabric of our society."

That is an understandable response. But it's as if the other side of the equation -- the documented (often on videotape) mayhem law-enforcement officers have heaped on citizens -- has been largely, and hopefully temporarily forgotten.

In our first post in this series, we showed that officers enjoy a distinct advantage in any physical encounter with a citizen. In a new study at Think Progress, statistics for 2015 show that 97 percent of officers in police-violence cases never face criminal charges. In the rare instance where an officer does face criminal charges, juries and judges are likely to cut him an extraordinary amount of slack.

We had such a case earlier this year in Alabamian, which left Sureshbhai Patel (a grandfather from India, who was visiting his son, daugther-in-law, and new grandchild in the Huntsville suburb of Madison) partially paralyzed.

A Legal Schnauzer analysis shows that Haikala abused the law--and the public trust--when she threw out criminal charges against Alabama police officer Eric Parker in the Patel case?

That abuse becomes worse when you understand that Haikala's ruling cannot be appealed, due to fairly complex case law related to the United State's Double Jeopardy Clause.

That means Eric Parker, who has been fired as a police officer, is home free on federal criminal charges, and Attorney General Luther Strange dropped state misdemeanor assault charges against him in May; Parker still faces a lawsuit and perhaps substantial civil liability.

The government would have had multiple grounds for seeking to have Haikala's ruling, granting the defense's Motion for Judgment of Acquittal, overturned. The strongest ground might have been this: The trial judge repeatedly misapplied the standard for reviewing the defense's motion to acquit Parker.

Haikala, however, never will be held accountable for her abuse of the law because to allow an appeal from the prosecution would violate case law that protects Parker (and other defendants) from double jeopardy--multiple trials for the same offense.

Before we turn to the double-jeopardy issue, let's consider the quality (or lack thereof) of Haikala's ruling. At the beginning of her 92-page ruling, Haikala appears to know what she is doing. (See full ruling at the end of this post.) She cites the correct standard for review of a Motion to Acquit, as follows:

When considering a motion for the entry of a judgment of acquittal, “a district court must view the evidence in the light most favorable to the government, and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. The prosecution need not rebut all reasonable hypotheses other than guilt. United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005)

In layman's terms, that means all close calls should be decided in favor of the non-moving party, which would be the prosecution in the Patel case. We should note that, in Miranda, the Eleventh Circuit vacated the trial court's judgment of acquittal, partly because the trial court misapplied the standard cited above. From the Miranda ruling:

The Government seeks reversal of the judgment of acquittal on the ground that the District Court failed to draw all permissible inferences in favor of the jury's guilty verdict, and did not view the evidence in the light most favorable to the Government. We reverse the judgment of acquittal because we conclude that the evidence was sufficient to demonstrate that Mr. Miranda was a member of the conspiracy, and that he is guilty of the possession crimes that were committed in furtherance of the conspiracy.

The Miranda case and Patel were fairly similar, but there is at least one very important difference--the Miranda case led to a jury verdict of guilty, while two trials in Patel led to deadlocked juries. That difference explains the government's ability to appeal in Miranda--and its inability to appeal in Patel. That might seem unfair, even nonsensical, to a reasonable citizen. But we will explain in a moment how an appeal in Patel would run afoul of the Double Jeopardy Clause.

For now, it's back to Haikala. The Patel case boils down to two questions, she writes;

(1) Did Parker engage in an unreasonable use of force?

(2) Did Parker willfully deprive Patel of his civil rights?

At this point, Haikala seems to understand the proper standard for review and the key issues in the case. That's a good thing. But Haikala then veers wildly off course.

Over and over, she fails to view the evidence "in the light most favorable to the government." One of many examples can be found on pages 33-34 of the judge's ruling:

Officer Parker stated that as he pulled Mr. Patel toward the grass, he (Officer Parker) placed his weight on his right leg, and he lost his balance and fell with Mr. Patel. . . .

Some of the MPD officers who watched the dashcam video testified that Officer Parker used a leg sweep to take Mr. Patel to the ground. . . . Captain Stringer testified that what he saw in the dashcam video was not consistent with MPD policy because he “didn’t see what appeared to be resistance” from Mr. Patel, such that “[t]he amount of force that was used at the time didn’t meet the level of any resistance that might have been offered.” (Doc. 106, p. 18). Captain Sanders, the Government’s use-of-force expert, testified that the technique that Officer Parker used was not consistent with prevailing police standards. (Doc. 106, p. 47). Based on the motion of Mr. Patel’s body, Captain Sanders opined that Officer Parker must have kicked Mr. Patel’s feet out from under him. (Doc. 106, p. 52). Captain Sanders stated that the technique that Officer Parker used was violent, and there were less violent techniques that Officer Parker could have used to control Mr. Patel. (Doc. 106, p. 49).

You have two expert witnesses stating . . .

(1) Patel did not appear to resist;

(2) The amount of force Parker used was not appropriate for the situation;

(3) The technique Parker used is contrary to prevailing police standards;

(4) Parker apparently kicked Patel's feet out from under him, a more violent technique than was necessary to control Patel.


All of those statements go to one of the two key questions in the trial: Did Parker engage in unreasonable use of force? Multiple government witnesses said the answer was yes--and, by law, Haikala was required to view the evidence in a light most favorable to the prosecution.

Madeline Haikala

But the judge did not do that; she sided with defense claims that Parker used a reasonable level of force. In other words, Haikala ruled unlawfully--and there are probably another dozen or more examples where she does the same thing.

Judge Haikala's ruling is a gross miscarriage of justice, on numerous grounds, but the prosecution's hands are tied because of the Double Jeopardy Clause.

The best explanation of double jeopardy we've found comes from a case styled U.S. vs. Jenkins, 420 U.S. 358 (1975). From that case:

In those cases, where the defendants had not been adjudged guilty, the Government's appeal was not permitted since further proceedings, usually in the form of a full retrial, would have followed. Here there was a judgment discharging the defendant, although we cannot say with assurance whether it was, or was not, a resolution of the factual issues against the Government. But it is enough for purposes of the Double Jeopardy Clause, and therefore for the determination of appealability under 18 U. S. C. § 3731, that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent's favor. To subject him to any further such proceedings at this stage would violate the Double Jeopardy Clause.

In ever-day language, Haikala's ruling cannot be appealed because, if it were overturned, that would subject Parker to further proceedings. And our legal system takes seriously a defendant's right not to be tried multiple times for the same offense.

I can find nothing in the law that would have kept Haikala from denying the Motion to
Acquit and ordering a third jury trial. In the interests of justice, that is what should have happened. Instead, she unilaterally took Parker's fate out of a jury's hand and made the decision herself--and she did it in a way that the prosecution, representing the people of Alabama and the other 49 states, could not appeal.

Here is one harsh way to look at it: Judge Haikala screwed the public, and the victim (Patel), and she did it in a way where neither one can seek redress.

Does that kind of decision contribute to the resentment many citizens seem to feel toward police? We suspect the answer is yes..


(To be continued)

Sureshbhai Patel Ruling by Roger Shuler

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Newsbud, a new venture in independent journalism, makes Legal Schnauzer part of an early presentation on the cases of Don Siegelman and Robert McDonnell

Sibel Edmonds, founder of Newsbud

I recently was honored to be asked to discuss the latest in the Don Siegelman case, on what I hope will become a major voice in American journalism. The new venture is called Newsbud, and it features major political and journalism figures -- including Sibel Edmonds, author and former FBI whistleblower, and veteran radio news man and talk-show host Peter B. Collins.

Edmonds, who publishes the Boiling Frogs Post blog, is founder of Newsbud, which is 100-percent funded by viewers. That means it presents the kind of independent reporting, with no corporate or political control, that we desperately need in this age of a frayed and timid journalism landscape.

That's why I was so pleased to be a contributor on one of Newsbud's earliest presentations. My segment focused on the recent U.S. Supreme Court ruling that overturned the bribery convictions of former Virginia Governor Robert McDonnell. Peter B. Collins and I discussed the following questions: What impact will the McDonnell ruling have on the case of former Alabama Governor Don Siegelman, who remains in federal prison on charges similar to those in the McDonnell case? And why did the Supreme Court hear the McDonnell case after passing on multiple opportunities to review the Siegelman matter, which has become known as perhaps the most notorious political prosecution in American history.

Below is Newsbud's full Episode 5, which includes my segment starting at about the 11:00 mark. I think you will see immediately that this is a professional news operation, which is likely to live up to its motto -- "Newsbud: Where Media Integrity Matters."

What is Newsbud's mission, how does it plan to shake up journalism in the 2000s. For one, it's reaching out to an underserved audience. Says one promotional item: "Support the alternative-alternative media by getting involved and joining us, the irate minority."

It's the alternative-alternative media for the irate minority. I like the sound of that. Check out, for example, Newsbud's treatment of the Dennis Hastert pedophilia/hush money scandal. You will see what the mainstream media was not willing to report, by clicking on this link.

Here is more about Newsbud's mission and vision, from an article by Sibel Edmonds:

Now is the time to stand up for your right to be informed and help create a news and multimedia network unlike anything else online, in print, or on TV. Newsbud will produce original stories, investigative reports, video-podcasts, editorials, and discussion forums, and it will be a real independent alternative because it will be 100% people funded. . . .

Solely people-funded media means no corporate advertisement gunk. It means no marketing gimmicks imbedded in the information presented. It means no strings attached to billionaire sugar daddies- be it Soros, Koch, Rockefellers or Carnegies. It means a media outlet only accountable to you-to we the people. This means integrity. It means ethical and agenda-free journalism. It means making we the people relevant, and taking the 0.0001% out of the equation, thus making them irrelevant. And most importantly, it means that it is up to you and me, up to us the people, to do what it takes to create NEWSBUD-Where Media Integrity Matters. Thomas Jefferson put it simply and eloquently: "An informed citizenry is at the heart of a dynamic democracy."

Here are links to other Newsbud episodes produced so far:

* Synthetic Terrorism: The Uncanny Parallels from 9/11 to Istanbul Airport Attack

* The Telling Travel Log of NATO Chief Stoltenberg: Is NATO Getting Desperate for a Conflict?

* U.S. Foreign Military Sales to Lebanon

* ChemTrails: The CIA and Weather Modification

* Meet Operation Gladio B’s New Terror Mastermind: Akhmed Chatayevbr


Newsbud is in the midst of a Kickstarter campaign, and if you would like to help a promising journalism enterprise take flight, we invite you to check out the following link:

Below is the new episode, featuring Peter B. Collins and I discussing the Don Siegelman case, in the aftermath of the SCOTUS ruling in McDonnell. Our segment starts at about the 11:00 mark.

The process that led to Gov. Robert Bentley appearing before a grand jury began with Legal Schnauzer report last August about affair with Rebekah Caldwell Mason

Gov.  Robert Bentley (center) heads to the grand jury
room in Montgomery on Wednesday
(From alreporter.com) 

What impact has Legal Schnauzer had on the legal and political landscape of Alabama? We provided insights on that question in a post yesterday. (And yes, we still very much need donations. They keep us and the blog alive. A note about how to make donations is at the end of this post.)

For all the examples of this blog's impact cited yesterday, we have a new one today. Gov. Robert Bentley appears to be among those testifying at a special grand jury in Montgomery County, convened by Alabama Attorney General Luther Strange. That's from a report today by Bill Britt of Alabama Political Reporter (APR). The grand-jury was impaneled on July 11, following a court motion filed by Strange. (See motion at the end of this post.)

Another report today, from John Archibald of al.com, says the grand jury is focused primarily on activities surrounding the extramarital affair between Bentley and former senior advisor Rebekah Caldwell Mason.

How did the affair come to light? Legal Schnauzer broke the story last August 31, becoming the first news outlet to report Rebekah Mason and an extramarital affair were at the heart of First Lady Diane Bentley's divorce complaint, which ended a 50-year marriage. The mainstream press and al.com did not start taking the story seriously until March 2016, when audio tapes surfaced of "Doctor Love" Bentley and Mason discussing his tendency to caress her breasts and grope her nether regions.

In the roughly seven-month period from the time I broke the story until audio tapes emerged, al.com spent much of its time attacking me as a blogger with "dubious credibiltiy," who had produced a story that was "smoke." Has al.com ever offered an apology and given the slightest credit to the journalist who actually broke the story (with tips from outstanding sources who have helped me break a number of other stories the MSM doesn't want to touch.)? Of course not.

Would Gov. Bentley ever have been caught in his Web of sexual and financial treachery -- and wound up appearing before a grand jury -- without our reporting at Legal Schnauzer? That's hard to say. Attorney Donald Watkins started publishing on the Bentley/Mason affair, and it's possible fallout, about the same time we did. I think it's likely that Watkins also would have broken the story, but without Legal Schnauzer, I'm not sure any other news outlet would have picked up on his reporting to help spread the word.

This much is certain: The Web press -- mostly Watkins and me -- broke and did almost all of the early heavy lifting on the Bentley/Mason scandal, which now is the subject of a grand-jury investigation. Would that have happened without independent journalism from the Web, without constraints that advertisers, publishers, and editors can place on MSM reporters? The answer is "absolutely not."

Gov. Robert Bentley and many of his associates are facing the music of a grand jury because of Donald Watkins and me. No wonder there are reports that Bentley has unlawfully used state and federal databases in an effort to trump up criminal charges against the two journalists who have unmasked him.

Grand juries meet outside of the public sphere, but here is key information that has been reported so far. Bill Britt reports that Stan Stabler and Hal Taylor, from the Alabama Law Enforcement Agency (ALEA) joined Bentley among those who entered the grand-jury room. Taylor was chief of staff to former ALEA director Spencer Collier. Here's more from APR:

Not only was APR there to observe those entering the Grand Jury, sources around the courthouse confirmed that others who appeared earlier in the week were J.T. Jenkins, ALEA’s second-in-command under Collier, and Ray Lewis, who served as Bentley’s “Body Man” before becoming Chief of Protective Services.“

“Lewis knows what skeletons are stashed in Bentley’s closet and where to go looking for them,” said a former Trooper who spoke to APR on conditions of anonymity.

The presence of Stabler and former ALEA staff would indicate at this stage the grand jury is hearing testimony concerning events leading to Bentley’s firing of Collier, for filing an affidavit concerning the criminal trial of former Speaker Mike Hubbard.

John Archibald provides more details about the grand jury's apparent focus.

Those identified as testifying were all intimately involved in the events leading to revelations by Collier that Bentley long had an improper relationship with his former political adviser Rebekah Caldwell Mason.

Collier said in March that Lewis and Stabler made him aware of "improper" and sexually explicit cell phone messages between the governor and Mason. Collier said he confronted the governor about those messages, but the governor refused to break off the relationship.

The situation came to a head after confrontational meetings in February relating to the Hubbard investigation and involving Collier, Bentley, Mason, Bentley's lawyers, Taylor and others.

The grand-jury investigation appears to revolve around the Bentley-Mason affair -- and Legal Schnauzer broke that story. That means whatever comes from the grand-jury room in Montgomery, Alabama, will have its roots in this blog's Bentley-Mason reporting, which started on August 31, 2015.

As for donations, they are very much needed and appreciated. Some readers who primarily use mobile devices might experience difficulty in finding the donate button for Legal Schnauzer. Here is a note about that issue:

The PayPal donation button is on the upper right hand side of blog where it says "Support The Schnauzer." 💥However, please note that the donation button is NOT VISIBLE on the mobile version which typically is the default for cell phones and other mobile devices.💥To access the PP donate button on cell phones and other mobile devices, scroll to the very bottom of the mobile site and click on "View Web Version." The web version is where you will see the PayPal button above the photo of a schnauzer on the right hand side. Thank you!

Here is the motion that AG Luther Strange filed, seeking a grand jury:

AG Request for Special GJ by John Archibald on Scribd

Your donations allow Legal Schnauzer to continue digging on stories that have helped oust a federal judge and house speaker -- and might soon net a governor

Murphy Abigail Shuler (1993-2004):
The real schnauzer who inspired a blog.

Within the past year, three major political figures in Alabama -- U.S. Judge Mark Fuller, gubernatorial advisor/mistress Rebekah Caldwell Mason, and House Speaker Mike Hubbard -- have been forced to step down from their positions. And Governor Robert Bentley teeters on the precipice of impeachment and indictment, with knowledgeable insiders saying it is unlikely the "luv guv" will be able to hang onto his position of power.

Legal Schnauzer has been front and center in the reporting of all four stories -- and with news today that a special state grand jury has been impaneled in Montgomery County, we plan to be on the front line if more major figures fall.

But we need your help. Loyal readers have helped sustain this blog -- even when I was unlawfully thrown in jail for daring to report accurately and aggressively on subjects that ruling elites did not want uncovered -- and we invite your support to help continue the battle. My wife, Carol, and I have paid an enormous emotional and financial price for engaging in journalism that portrays modern-day "Big Mules" in a not-so-favorable light. In essence, conservative forces have stolen almost everything we owned, forcing us to live like refugees -- in a flea-bag motel, in a state (Missouri) where we do not want to be.

We believe our kind of fearless reporting is essential in helping Alabama become the kind of state where constitutional rights are protected for everyone -- rather than having favors dished out to a select few. If you are able to help us along that journey, please click on the donation button to the right, under the "Support the Schnauzer" headline. If the payment options there do not work for you, please contact us at rshuler3156@gmail.com, and we would be glad to make other arrangements.

To our knowledge, Legal Schnauzer is the oldest and most established investigative-journalism blog in Alabama. We started in June 2007 -- writing mostly about our legal travails in Shelby County, plus the political prosecutions of former Gov. Don Siegelman and Mississippi attorney Paul Minor during the George W. Bush administration. We are proud to have helped pave the way for additional "Web journalism" sites, such as Bill Britt's Alabama Political Reporter (APR) and the Facebook page of attorney Donald Watkins.

In 2013, the Chicago-based digital marketing and research firm Cision named us among the top 50 law blogs in North America (No. 37). We were the only blog on the list not associated with a law firm, law school, or foundation/association. We were one of only two blogs on the list not written by a lawyer.

At the time we started, I was not aware of another blog like Legal Schnauzer, focusing on court-based and political corruption. In fact, I'm still not aware of another blog quite like it -- where someone who is both a professional journalist (with a B.J. degree from the University of Missouri and more than 30 years of professional experience) and a victim of judicial corruption has spelled out how anyone can be victimized in court.

Has Legal Schnauzer made a difference? Consider the following.

* U.S. Judge Mark Fuller, who butchered the Siegelman case and sent two innocent men (Siegelman and former HealthSouth CEO Richard Scrushy) to federal prison, resigned last August after a wife-beating incident came to light. A number of news outlets reported on the wife-beating story, but we had earlier broken a story about court records that showed Fuller's divorce from his first wife involved allegations of physical and emotional abuse. That helped establish a pattern of abusive behavior and probably played a key role in Fuller's forced resignation.

* We broke the story of the Robert Bentley/Rebekah Caldwell Mason affair last August -- and along with Donald Watkins, we were the first to report on the possible legal and financial implications of the scandal. Watkins and I provided critical reporting roughly seven months before al.com started taking the story seriously.

* Former House Speaker Mike Hubbard has been convicted on ethics-law violations and sentenced to four years in prison. Bill Britt and APR played a lead role in breaking and reporting that story, but we played an important supporting role by providing analysis (along with Watkins) that readers were not likely to find in the mainstream press

We believe a new day is dawning in Alabama -- one where public officials can no longer casually betray the public trust without any fear of being caught and punished. Legal Schnauzer has been on the leading edge of that revolution for almost nine years now, and we hope you will consider providing financial support that will allow us to continue making a difference.

This endeavor started as a little blog devoted to the memory of our real schnauzer, Murphy Abigail Shuler (1993-2004), who helped us survive some of the worst times in our own legal trainwreck. It has grown into a news outlet that helped bring down multiple corrupt politicos in Alabama -- with more possibly on the way.

While Murphy inspired us, dedicated readers have sustained us. Dozens of stories here have grown from tips or inside information that our readers provided. Without readers who care about advancing the cause of justice, the blog would be a shell of what you see now. To them, we are eternally grateful.

Readers have played a key role in the digging that unearths stories the mainstream press does not want to touch. We stand ready to keep those schnauzer claws digging. For those who are able to provide financial support, your help is greatly appreciated. It comes at a critical time in the effort to make "due process" and "equal protection" realities in Alabama.

We don't have them now. But together, we can have them in the future.

Here's flip side of police brutality cases like the recent ones in Louisiana and Minnesota: A judge is likely to protect cops by butchering the law, as Madeline Haikala did in Alabama case of Sureshbhai Patel

Protests continue over the police shootings of Alton Sterling

and Philando Castille

The police shooting deaths of Alton Sterling in Baton Rouge, Louisiana, and Philando Castille in Falcon Heights, Minnesota, have sparked a storm of protests around the country -- including one in Dallas that led to the payback assassinations of five officers.

For the moment, many citizens are outraged about the kind of violence that can happen on the front end of an encounter with police. But what about the back end, when (in some cases) the "justice system" seeks to "punish" the offending officer?

A new report from Think Progress shows that, in 2015, 97 percent of officers in violence cases faced no criminal charges. That might be just as well because we've seen evidence in Alabama that, even when a cop does face criminal charges, a judge is likely to twist the facts and law into a pretzel in order to get him off.

A Legal Schnauzer analysis shows a federal judge repeatedly butchered the law earlier this year when she threw out criminal charges against an Alabama police officer who body slammed and partially paralyzed a 57-year-old grandfather from India.

The case of Sureshbhai Patel--who underwent cervical spinal-fusion surgery and is unable to walk or grip his hands, is disturbing on numerous levels. Two federal juries in Alabama could not reach a verdict, even though video showed no sign that Patel had engaged in criminal activity and was merely walking down the sidewalk in his son's Madison neighborhood, when Officer Eric Parker stopped him and slammed him headfirst to the ground. Reports about the two hung juries indicate racism and sexism are alive and well in federal courthouses--certainly in Alabama and probably elsewhere.

Perhaps most disturbing, from a legal standpoint, U.S. District Judge Madeline Haikala, made one error after another in her 92-page ruling (released on January 13, 2016) that granted the defense's Motion for Acquittal and ensured that the criminal case against Parker would not go to a jury for a third time. (See Haikala's ruling at the end of this post.)

Haikala, a former lawyer with the Birmingham firm Lightfoot Franklin and White, was nominated to the federal bench by President Barack Obama in May 2013. That a Democratic appointee could perform such a hatchet job on a criminal civil-rights case that drew international attention is enough to make one wonder if there really is any difference between the two major political parties.

Our review of the Patel case indicates the following:

* Haikala misapplied the standard for reviewing a Motion for Judgment of Acquittal;

* The federal case that Haikala cites to justify throwing out the charges against Parker does not support her ruling;

* The federal case that Haikala cites is not even about a Motion for Judgment of Acquittal; it involves appellate issues after a jury verdict;

* Haikala ignored evidence in the record that Parker lied about at least three key issues in the case;

* Haikala short-circuited a process where a jury, if properly instructed on the law, clearly could have found that Parker willfully violated Patel's civil rights--the central issue in the case;

* Haikala ultimately ruled that because two juries had deadlocked in the case, a third jury likely would produce the same result--and therefore the criminal charges should be thrown out. “The government has had two full and fair chances to obtain a conviction,” the judge wrote. “It will not have another.” Haikala cites not a single piece of case law to support that finding.

Madeline Haikala takes oath of office
(From tulane.edu)

With the forced resignation of U.S. Judge Mark Fuller (of Don-Siegelman case fame) in the wake of a wife-beating incident--and with well-documented cases here of unlawful rulings by Birmingham-based federal judges William M. Acker Jr. and Abdul Kallon--one might have thought U.S. judges in the "Heart of Dixie" could not look much worse.

Madeline Haikala, with her butchery on the Sureshbhai Patel case, proves that the federal judiciary always can sink a little lower in Alabama.

Here is the primary question of the moment: Will the officers who gunned down Alton Sterling and Philando Castille ever be held accountable in a criminal court of law? Madeline Haikala's botch job on the Sureshbhai Patel case suggests the answer is no.


(To be continued)

Sureshbhai Patel Ruling by Roger Shuler

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Pre-trial hearing for one-time gambling kingpin Erik Davis Harp, on concealed-weapon charge in Bay County, Florida, has been delayed until December

Erik Davis Harp

A pre-trial hearing in the concealed-weapon case of Erik Davis Harp has been continued until December in Bay County, Florida, court.

Harp once was a business partner with Jessica Medeiros Garrison, an Alabama Republican operative and former campaign manager for Attorney General Luther Strange. Harp was indicted in 2009 in Queens, New York, as one of two alleged ringleaders in an illegal offshore sports gambling operation. The ring, which had a "wire room" in Panama, reportedly generated more than $20 million a month -- totaling about $567 million in a 28-month period leading to arrests.

Harp was arrested on March 15 for allegedly carrying a concealed 9 mm handgun into a government building -- the Bay County Courthouse in Panama City Beach, Florida. A pre-trial hearing was set for June 9, but that now has been postponed until 1:30 p.m. on December 15. (See court document at the end of this post.)

This seems like a straightforward case; either law-enforcement officers caught Harp carrying a concealed handgun into the Bay Courthouse or they didn't; Harp has a legitimate defense or he doesn't. (If he does, it's hard to imagine what it would be.)

It's also hard to imagine why a pre-trial hearing would need to be postponed for more than six months. Criminal defendants are guaranteed access to a speedy trial, but depending on whether a plea deal is cut or a trial date is set, this one could take more than a year to be resolved. All of that for a case that seems to revolve around a simple question: Did Erik D. Harp enter the courthouse with a concealed weapon or not?

Erik Davis Harp -- Continuance by Roger Shuler on Scribd

The trial of former Alabama House Speaker Mike Hubbard suggests confederate principles, and distrust of U.S. Constitution, never have died in the Deep South

Mike Hubbard
(From wiat.com)

The Mike Hubbard trial, on the surface, was about 23 charges of Alabama Ethics Law violations -- with a Lee County jury finding Hubbard guilty on 12 counts. But from a big-picture view, it was about the kind of mindset that has come to hold back many areas of the Deep South, not to mention other states where Southern thinking tends to hold sway. We are thinking of Great Plains or Midwest states, such as Missouri, Oklahoma, Kansas, Wyoming, Idaho, and Utah.

What is this mindset all about? We have broken it into two parts -- one called "The New Confederacy," and the other called "Conservative Tribalism." Both were on display in the Mike Hubbard trial.

"The New Confederacy" includes individuals who tend to self-identify as "patriots," even though they reject fundamental tenets of the U.S. Constitution. These modern-day confederates tend to especially reject the Fourteenth Amendment guarantees of due process and equal protection, which became part of America's constitutional landscape after the Civil War.

From 1866 to 1868, Southern states bitterly opposed ratification of the Fourteenth Amendment. The Hubbard trial showed that many Southerners, especially elites, still despise the principles of the Fourteenth Amendment.

Consider Hubbard's lawyer, Bill Baxley. He described several of the counts against his client as "mumbo-jumbo" or "gobbledygook." Baxley made little or no attempt to dispute the prosecution's version of the facts. Instead, he argued there was no crime -- essentially claiming the law does not apply to Mike Hubbard.

In the roughly 16 years my wife, Carol, and I have fought judicial corruption in Alabama, we've seen lawyers and judges repeatedly show utter disregard for the Fourteenth Amendment. Many times I've said to Carol something like, "These people just make up their own law. You can get an order, check the applicable law at a law library, and find it's 180 degrees from what the judge ruled. It's like they want to live in the United States, but they don't want to abide by the U.S. Constitution."

I probably could provide more than 100 examples where we've been on the front row to watch the trampling of the Fourteenth Amendment. But one example should suffice.

All of our legal problems flow from the date a criminally inclined individual named Mike McGarity moved next door to us. McGarity, his kids, and his guests started trespassing on our front yard with regularity, essentially turning it into the neighborhood playground, without asking what we thought about the use of our own yard. When I informed McGarity multiple times that we did not want him, or anyone connected to him, coming on our property, his response was, "I'm going to sue you for harassment."

Never mind that harassment is not a tort for which one can sue -- and it's hardly harassment to tell someone to stay off your property. This was McGarity's mindset; he either was ignorant of trespassing law or he thought it didn't apply to him. We're talking about a pretty dim bulb here, but the guy had owned property before, so he had every reason to understand the basic notion of property rights.

When my warnings only drew threats from McGarity, I consulted an attorney named Bill Lewis, and he made it clear that McGarity was violating both criminal and civil law -- trespassing by a person is a crime; an intrusion by a person, thing, or substance can be a tort. Lewis said a civil case might cost $10,000 or more, so it didn't make much sense to go that direction, especially since McGarity was committing a crime. Lewis said he would write a letter to McGarity, explaining the criminal statute, and stating that McGarity would receive no more warnings. Lewis said he hoped that would take care of it, but it would be up to us to swear out a criminal complaint with the sheriff if the trespassing continued, and we wanted it stopped.

Mike McGarity

McGarity continued to trespass, along with a cast of thousands, so we felt we had no choice but to swear out a complaint. We met with an attorney in the Shelby County DA's office, she filled out paperwork for the complaint, and we took it to the clerk's office to be sworn. (Note: The attorney we met with was Lara McCauley Alvis, who recently was elected as a circuit judge in Shelby County. At the time, I think she was fresh out of law school.)

McGarity pleaded not guilty and refused to discuss a settlement, which District Judge Ron Jackson had encouraged us to reach, so the case went to trial. McGarity was charged with criminal trespass (third degree), which is not even a misdemeanor under Alabama law; it's a violation.

The issues at hand are covered under Code of Alabama 13A-7-4, and the offense has two components:

(1) "A person commits the crime of trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises."

(2) "A person enters or remains unlawfully in or upon premises when he is not licensed, invited or privileged to do so."

Law doesn't get much simpler than this, and these two issues were easily resolved at trial. The trial transcript shows that McGarity admitted he had knowingly entered upon our premises. As for the second part, it helps to have some definitions. My research indicates that being "licensed" to enter premises refers to someone who has a professional reason to be there -- a fireman, meter reader, police officer,

Being "privileged" to enter premises refers to someone who tries to address an unexpected occurrence. For example, if your hat flies off your head and lands in my yard, you have a right to retrieve it. If your dog gets loose and winds up on my yard, you have a right to retrieve him. If you see someone on my property who appears to be in medical distress, you have a right to come and check on him.

As for "invited," that's pretty obvious: It applies to someone who knows he is on friendly terms with the owner/occupants of the premises and has reason to believe he is welcome.

McGarity never claimed he had been invited to enter our property, and he never claimed to be licensed or privileged. In essence, he confessed to the crime, but Judge Jackson still acquitted him. (Bet you didn't know that could happen in an American court; well, it can, and it has.)

For some reason, the court focused on only one instance of McGarity trespassing, even though our complaint said we had witnessed him trespass on multiple occasions. McGarity admitted he had received Bill Lewis' warning letter via certified mail, but he said he wasn't sure of the date it arrived -- that it might have come after the one trespassing incident the court considered.

Here is what Jackson said to Carol and me: "I'm going to find that you had to give written warning, and there is reasonable doubt about whether the warning was received prior to the trespass. Therefore, I am going to acquit. But Mr. McGarity, you certainly are on notice now, and if you return here on these issues, the result might be different."

Jackson said this as if he was trying to be a thoughtful, even-handed judge. But the acquittal allowed McGarity to sue us for malicious prosecution, which is a tort that essentially means a case was brought without probable cause. Heck, testimony showed that we had not only probable cause, we had actual cause -- McGarity admitted to breaking the law as charged.

So was Jackson's ruling legally sound? Not even close. Jackson held that we had to give McGarity written warning. In fact, Alabama case law holds that we had no responsibility to give McGarity a warning at all. (This makes sense under the concept of private property, one of our most cherished American ideals. If a homeowner or occupant had to give a warning to keep unwanted individuals off his premises, we essentially would have no private-property rights. Someone could place a massive tent on your front yard and host a party for thousands, and when confronted, say, "Hey, you didn't warn me not to do this, so I lawfully can use your land for whatever I want.")

What is the real law, which Judge Jackson ignored? This is from a case styled Chambers v. City of Opelika, 698 So. 2d 792 (Ala. Crim. App., 1996):

The appellant has cited no authority for his position that to be guilty of criminal trespass the intruder must be aware that he or she had no license or privilege to enter or to remain on the premises. There is authority, however, that states that when those premises are private and not open to the public, there is no requirement that the prosecution prove that a prior written or verbal warning was given to the intruder.

Under the Fourteenth Amendment, we were entitled to due process, which means (in part) having an impartial arbiter. That Jackson could not get this simple law right indicates he was somehow compromised. We also were entitled to equal protection, to have Alabama law applied to us as it would be to anyone else. That obviously did not happen.

The bottom line? Under the law, we had no obligation to warn McGarity, either verbally or in writing. And he admitted under oath that we had warned him multiple times verbally. In other words, we went over and beyond what the law calls for in an effort to resolve this problem, and we still got screwed because Jackson found we had to provide written warning -- which we did, but McGarity claimed he had not received it prior to the one trespassing incident the court considered. (The truth? McGarity almost certainly received the written warning from Bill Lewis that day, and McGarity got pissed and went on our yard to try to figure out a way to run a fence up to the street, between the properties. That was a problem, of course, because McGarity had built his fence on our property, taking up about 400 square feet of our back yard -- and extending the fence, in a straight line, meant it would cross our driveway. Ooops. For some reason, Bill Lewis' office could not find the returned certified-mail receipt, so we (the prosecution) could not prove when McGarity received the warning.)

Bill Swatek: Would you want this guy for your lawyer?

One moment from the McGarity trial reminds me of the Hubbard case. Just as Bill Baxley made the nutty claims that the charges against Hubbard were "mumbo-jumbo" and "gobbledygook," McGarity's lawyer, Bill Swatek, claimed our property (our private residence) was "open to the public."

That, of course, is pure rubbish. But Swatek could not win the case by citing actual law, so he decided to make stuff up -- as any "new confederate" would. Swatek, McGarity, and Jackson are perfect examples of new confederates. They want the advantages of living in the United States, but they do not want to follow U.S. law; they want to make up law to favor themselves. Essentially, they want to live in a shadow country, without any "rule of law" to follow. They want any law to be flexible, favoring white, conservative elites -- even though McGarity hardly is an elite; he's one of the dumbest people I've ever met, and Swatek isn't much better.

How's this for irony? Swatek's son, political consultant Dax Swatek, and Hubbard have been compadres for years. So there you have it . . . connections between our court travails and the recent Hubbard case.

What about our concept of "conservative tribalism"? We will address that in an upcoming post.

Mike Hubbard receives a hideously lenient sentence today, and that might be the first sign that post-trial skulduggery is in the works and gaining momentum

Mike Hubbard

The Mike Hubbard case always has been about more than the 23 counts of ethics-law violations against the speaker of the Alabama House of Representatives. In a big-picture sense, it's been about this: Do Alabamians have any reason to trust their dysfunctional state courts? The answer, after Hubbard was sentenced today, is a resounding no.

Lee County Circuit Judge Jacob Walker III this morning sentenced Hubbard to four years in prison, eight years on probation and ordered him to pay a $210,000 fine on 12 felony ethics convictions. Hubbard was not ordered to pay restitution, even though evidence showed (and a jury found) that he used his public office to enrich himself by more than $1 million. Also, Hubbard was allowed to remain free, pending an appeal.

What kind of sentence is this? In a word, it is noxious.

Each count for which Hubbard was convicted carried a range of two to 20 years in prison. At a minimum, Hubbard was facing 24 years behind bars for his 12 convictions. But he got four years? We're supposed to believe that represents justice? We're supposed to believe Alabama judges take white-collar corruption seriously? We're supposed to believe Mike Hubbard didn't receive special treatment because he's white and male and "conservative"?

Most importantly, we're supposed to believe the rule of law holds in Alabama courts? Don't make me laugh.

The office of Attorney General Luther Strange started this charade by asking that Hubbard be incarcerated for five years. But less than two years ago, Strange asked for 50-year sentences in the ethics-law case of former state education official Deann Stone and her husband, Dave Stone.

How does "justice" work in "Big Lutha World"? If your name is Deann Stone or Dave Stone, Lutha wants to put you away for 50 years. If your name is Mike Hubbard, and you long have been connected to the Riley Inc. political machine, Lutha wants you to get five years -- and these are cases that were governed by the same law and presented similar facts, under the same attorney general.

Judge Walker, who was born with a silver spoon in his mouth and long has been part of the legal elite in east Alabama, is even worse than Strange. He sentences Hubbard to four years, orders no restitution, and allows the former speaker to remain free pending an appeal.. For good measure, Judge Walker had a clear conflict of interest all along, but Strange's office never bothered to challenge whether Walker was suited (under the law) to hear the case at all.

Judge Jacob Wlker III

We showed the other day that any matter involving Strange and Bill Baxley (Hubbard's defense lawyer) is likely to be suspect.  Did Strange, Baxley, and Walker know all along that Hubbard was going to receive an outrageously lenient sentence? A reasonable observer could say yes.

But that's not all. Consider Baxley's words today regarding an appeal:

"I believe with all my being after everything we’ve gone through that Mike Hubbard is absolutely innocent of every charge he was found guilty of," Baxley told Walker Friday.

That might just be the blathering of an old lawyer who gave up the moral high ground years ago to serve the interests of corrupt conservatives. But consider this from Baxley about one week ago:

"Mark my words, the verdict will not stand," Baxley said.

Is that more blathering or does Baxley have inside knowledge about how the appellate process is likely to play out? That's not an off-the-wall question when you consider that trial testimony showed Hubbard considered funneling $10 million to the state court system, just in case he might need a favor someday from Roy Moore, chief justice of the Alabama Supreme Court. Consider these words from Joe Miller's report at The New Republic:

Hubbard had his own reasons for saving $10 million that went beyond closing holes in the budget. According to testimony, he was hoping to carve off $10 million that he could shift to the state’s court system, which was run by Roy Moore. (Moore is currently under suspension for ordering court officials statewide to disobey a mandate from the federal courts to grant marriage license to same-sex couples.) Hubbard—who at the time was the subject of a grand jury investigation—reportedly believed that if he could help Moore, Moore might be of help to him at some point in the future. The parties involved were on board with this plan, too.

Perhaps some Alabamians have been conned into believing that Hubbard's convictions before a jury of his peers in his home county mean state courts have been renewed. It's much too early to buy into that. It's hard to see where there were any errors of fact or law at the trial level. But don't be surprised if Roy Moore and Co. overturn Hubbard's convictions anyway. Don't be surprised if Mike Hubbard never sets foot in a prison cell.

Judge Walker's sentencing today might be the first official sign that something smells to high heaven in Lee County.

With Alabama taxpayers on the hook for Robert Bentley's legal fees in Collier case, what if more suits against the "Luv Guv" are just around the bend?

Rebekah C. Mason and Robert Bentley

A legislative committee yesterday approved contracts for up to $200,000 in legal fees for Gov. Robert Bentley and Alabama Law Enforcement Agency (ALEA) chief Stan Stabler to fight a lawsuit brought by Spencer Collier, Stabler's predecessor.

That means taxpayers will be paying the bill for Bentley and Stabler to defend themselves in a legal action that was brought against them as individuals, not in their official capacities. The money will go to the Birmingham law firm Maynard Cooper Gale, which we've shown has some shaky ethics of its own.

Members of the Contract Review Committee should keep this in mind: The Collier matter might not be the only lawsuit facing Bentley, Stabler, or both in the near future.

According to multiple news reports, Bentley ordered the use of state and federal criminal databases to help gather information to attack his critics. One report has said the plan was to concoct bogus criminal charges against citizen journalists who broke the story of Bentley's affair with senior advisor Rebekah Caldwell Mason.

Another report has Bentley unlawfully accessing the medical records of at least one critic.

Could these issues lead to significant civil liability for Bentley and Stabler (and perhaps some of their associates)? Could they lead to more lawsuits, for which taxpayers might be on the hook? The answer to both questions is yes, and Alabamians might want to consider contacting legislators to let them know this isn't the way they want to see their tax dollars spent.

The potential problem does not end there. We know Bentley and Mason are the targets of a federal investigation led by John A. Horn, U.S. attorney for the Northern District of Georgia. Here is how Bill Britt, publisher of Alabama Political Reporter, recently characterized the federal probe:

A task force from the FBI, the Postmaster General, and the IRS is conducting the investigation into allegations of obstruction of justice, fraudulent use of campaign contributions, improper use of State resources, and other potential criminal acts, according to former Bentley confidants, and staffers, who are cooperating with the investigators. The most serious scrutiny surrounds Bentley’s involvement with Rebekah Caldwell Mason, his former senior advisor, and alleged paramour.

This is how Alabama attorney Donald Watkins put it recently:

The FBI's investigation of Bentley is focused on his racketeering and public corruption conduct as governor. His primary accomplice in these crimes was Rebekah Mason.

The governor is aware that his federal criminal indictment is imminent. The number of counts in the indictment is expected to set a record for a federal racketeering and public corruption case. Bentley will be arrested at his capitol office, which is the headquarters for his racketeering enterprise.

Could such a wide-ranging criminal investigation lead to civil liability? You might want to pose that question to O.J. Simpson sometime. My answer: You can count on it.

If Alabama taxpayers are on the hook for $200,000 to defend Bentley Inc. against one lawsuit, what if three, five, 10 or more lawsuits are right around the corner? Will taxpayers put up with being asked to pay more than $1 million to defend a governor who really can't be defended?

How does Mike Hubbard face $1.6 million in restitution and fines after convictions for crimes, while I face a $3.5-million default judgment for blogging?

Jessica Medeiros Garrison and Luther Strange

The State of Alabama is asking a circuit judge to impose more than $1.6 million in restitution, fines, and fees on former House Speaker Mike Hubbard, who was convicted on 12 counts of ethics-law violations. A sentencing motion indicates Attorney General Luther Strange considers this part of a "strong, meaningful" sentence for Hubbard, while defense attorney Bill Baxley said the sentencing motion -- which includes a recommended five years behind bars -- is "too absurd to respond to."

Lee County Judge Jacob Walker III is scheduled to sentence Hubbard tomorrow, with a hearing to begin at 10 a.m. This much we already know: Essentially, Strange and Baxley agree that the proposed sentence is tough, with Baxley claiming it is overly harsh. But I've had a first-hand experience with Strange and Baxley that leads me to a very different conclusion, one filled with irony and a strong hint that both of these "august attorneys" are dishonest and corrupt -- part of Alabama's problems, not the solutions.

More importantly, their words and actions suggest Alabama's court system remains a disgusting, dysfunctional sham -- one that cuts corners for white conservative elites (even a criminal like Mike Hubbard), while gouging everyday folks.

What colors my view of the $1.6 million the state seeks from Mike Hubbard, who was found by a jury of his peers to have committed criminal acts that repeatedly betrayed the public trust? You might recall that Jefferson County Circuit Judge Don Blankenship imposed a $3.5-million default judgment on me in April 2015, in a defamation case brought by former Strange campaign manager Jessica Medeiros Garrison. So Mike Hubbard might have to cough up $1.6 million related to 12 counts of criminality, while I have a $3.5-million default judgment hanging over my head in a civil matter where the public record shows I committed no wrongful act.

Let me explain: Garrison filed suit in fall 2013, claiming posts at Legal Schnauzer about her extramarital affair with Strange were false and defamatory. Garrison even went to the women's fashion magazine Marie Claire to brag about her $3.5 million default judgment and made the laughable claim that she was standing up for other women who've had something mean written about them in the press. The article was filled with inaccuracies and defamed me in more ways than I can count.

Here are just a few of the problems with Garrison's $3.5-million "windfall":

* A lawyer who reviewed the file said the record showed no one even attempted to serve me with notice of the default-judgment hearing, so it's little wonder I didn't appear. That means Blankenship's ruling, as a matter of law, is void. A scrap of toilet paper has more legal clout than his opinion.

* As a matter of law, my reporting never was found to be false or defamatory. First Amendment law requires that a jury trial be conducted in a defamation case -- that a judge, acting solo, cannot lawfully make a determination that published matter is defamatory. In Garrison's case, there was no trial and no jury, so there could be no finding that my work was false and defamatory. This has been stated many times in case law, including Bernard v. Gulf Oil, 619 F. 2d 459 (5th Cir., 1980), which held: "The essence of prior restraint is that it places specific communications under the personal censorship of the judge."

* Blankenship, who acted as a personal censor in the Garrison case, issued an order indicating almost all of the $3.5 million was granted because Garrison (and maybe Strange) claimed I had reported that her son is the AG's biological child. Unfortunately for Garrison, I reported no such thing. That means there is no legal basis for the judgment, and it largely was the product of perjury on Garrison's part.

Judge Don Blanenship
(From alacourt.gov)

What about the irony in all of this? While Strange recused himself from the Hubbard case, his office was in it all the way. In the Garrison lawsuit, the AG even testified in a hearing regarding Garrison's lawsuit -- apparently because he knew I would not be present, and he wouldn't face any unpleasant cross examination. As for Baxley, he was Garrison's attorney in the lawsuit, and he has to know the $3.5-million has no basis in fact or law. Baxley has a duty, under Rules of Professional Conduct for lawyers, to act with honesty and a sense of fairness toward the opposing party and the tribunal. And yet, he allows a bogus $3.5-million default judgment to sit there because it serves someone's corrupt agenda. Strange is doing the same thing.

Don't be surprised if something fundamentally dishonest is going on behind the scenes in the Hubbard sentencing. We already know Strange sought 50 years behind bars for defendants in an ethics-law case less than two years ago. But his office has recommended that Hubbard be incarcerated for no more than five years. That is a stunningly lenient recommendation -- and Strange's own previous requests prove it -- so the public already has reason to believe that Hubbard is receiving favorable treatment. Judge Walker does not have to follow the prosecution's recommendation--he can go above it or below it -- so he needs to hit Hubbard with at least 10 years, which would be meaningful punishment for the crimes committed.

Strange and Baxley, in roundabout ways, are telling the public that $1.6 million is a severe punishment for Mike Hubbard following his conviction on 12 criminal counts. Meanwhile, they both played major roles in Jessica Garrison's default judgment, and they seem to be saying $3.5-million is a proper amount for a journalist whose reporting never has been found to be false or defamatory at trial -- and whose constitutional rights to due process and equal protection were raped by a judge from the Democratic Party (Don Blankenship), who should be above such corrupt actions.

What does the rule of law mean to Strange and Baxley? The answer appears to be "absolutely nothing" -- and it will be interesting to see how that plays out in the Hubbard sentencing.