Siegelman Prosecutors Lash Out at Whistleblower

The prosecution's response to a Motion for a New Trial in the Don Siegelman case is an ugly document, filled with irony, hypocrisy, distortion, and deceit.

Much of the ugliness is not aimed at Siegelman or codefendant Richard Scrushy; it's aimed at Tamarah Grimes, who lost her job after blowing the whistle on prosecutorial misconduct in the Siegelman case.

No wonder prosecutors are uncomfortable with Grimes. She has shown the world what kind of dysfunctional ship U.S. Attorney Leura Canary has been running in the Middle District of Alabama.

Like most bullies, Canary's henchmen attack the person who stands up to them. But Grimes appears to be prepared to fight back. In a statement issued yesterday, Grimes said:

I have been advised that the response filed by the government late Thursday evening relies heavily on my alleged lack of credibility. From my perspective, this is nothing more than the latest attempt in a series of failed attempts by the government to impugn my integrity, beginning with the unsuccessful attempts to prosecute me in March and May 2008.

I challenge the government to make those allegations against my integrity under oath and to provide legally admissible evidence to support its allegations. I will do the same. I am certain of what I saw and heard. I will gladly provide testimony under oath to the appropriate oversight authorities.

What is the main beef that prosecutors seem to have with Grimes--other than the fact she has unmasked them as a bunch of rogues? It's--get this--that her allegations have not been made under oath.

Consider this attack on Grimes from the government's response:

Grimes’s new claims were set forth in a 10-page letter to Attorney General Eric Holder dated June 1, 2009, more than three years after Grimes’s limited involvement with the Siegelman/Scrushy team, and after she had retained Martin Adams, Scrushy’s son-in-law (and criminal defense attorney) to represent her. D. 486 (Adams becomes counsel of record for Scrushy on October 27, 2006). This recent letter makes clear that Grimes is prepared to make (or repeat) virtually any allegation against her former employer. But not under oath.

Notice that prosecutors seem to have a problem with Grimes being represented by Richard Scrushy's son-in-law. These are the same prosecutors who seem to have no problem with the Siegelman case being overseen by Leura Canary, the wife of one of the former governor's most prominent political opponents.

Prosecutors also portray Grimes as someone who is too cowardly to make statements under oath. Never mind that Grimes has made her allegations to multiple watchdogs in the U.S. Justice Department, as a federal employee is supposed to do. And she supported them with hard evidence, e-mails that showed that Canary remained involved with the case after her supposed recusal--and that jurors and prosecutors had improper contacts. Grimes also took her concerns right to the top--to Attorney General Eric Holder. And this apparently caused her to be terminated from her job.

Oh yeah, she's a coward all right.

Notice the government's obsession with sworn statements, when it comes to Grimes:

Even though one of Scrushy’s lawyers now represents Grimes, defendants apparently cannot persuade her to put her allegations in declaration form. Her unwillingness to swear to her allegations subject to the penalty of perjury or other criminal sanctions should lead this Court to dismiss summarily her allegations.

How two-faced are the prosecutors here? Consider their abundant praise for Karl Rove and his recent Congressional testimony:

Furthermore, in addition to his earlier denials of these allegations, Karl Rove has recently provided testimony to Congress, in which he has quite specifically denied contacting anyone at the Justice Department about the Siegelman prosecution. Rove told the House Judiciary Committee that he never spoke to anyone at the Justice Department about the Siegelman prosecution, and that he was not aware of any such communications by anyone else in the White House.

Never mind that the prosecutors' summation of Rove's testimony is false. Notice that they conveniently neglect to mention that Rove's statements were unsworn. And Rove only agreed to testify at all after receiving a deal that allowed him to avoid testifying under oath.

The prosecutors seem to have one set of rules for Karl Rove and another set for regular folks like Tamarah Grimes. Should we expect anything less from the loyal Bushies who remain entrenched in the U.S. Department of Justice?

Does Obama Have His Priorities Out of Whack?

The Obama administration has made it clear that health-care reform is a top priority. But what about justice issues--torture, political prosecutions, U.S. attorney firings, and such? As we approach the eight-month mark of the Obama administration, we've seen few signs that those issues are getting much attention.

Maybe it's time to ask this question: Is Obama going about things in a backward fashion?

Our editorial team here at Legal Schnauzer thinks the answer is yes. And we've found other progressive voices--one well known, one not so well known--who agree with us.

Our new discovery is Don Smith, the brains behind truthsite.org, who states the case eloquently in a recent piece at OpEd News:

The reason President Obama and the Democrats are having so much trouble passing health care reform is that they failed to hold conservatives accountable for their many misdeeds. The Democrats thereby empowered conservatives to continue their ample mischief. (I write "conservatives" rather than "Republicans" because some Democrats are amongst the conservatives who promoted harmful policies.)

Conservative misdeeds range from the unspeakably evil--such as torture, rendition, lying about the reasons for going to war, and the deaths of up to a million or more civilians--to the merely despicable--such as politically motivated prosecutions, reckless deregulation, suppression of evidence, tax cuts for rich folks, stolen elections, inadequate response to Hurricane Katrina, Swiftfboating, rampant corruption, and gross mismanagement.

Hear, hear! Smith is right on target about the political hurdles Obama faces--and the steps he needs to take to get over them:

The Democrats will continue to have trouble passing a reform agenda until they decisively confront the misdeeds of the recent past by rejecting bipartisanship and pursuing prosecution of Bush-era officials. This will have the triple effect of (1) bringing criminals to justice, (2) exposing the truth to the public, and (3) weakening the influence of conservative politicians and ideology.

Progressives are the folks who put Obama into office, Smith notes. And they do not have to sit back and watch him screw up this golden opportunity to show the public what conservatives really are all about:

Indeed, we progressives have power over Obama. We are his base. If we turn against him--or, better yet perhaps, just threaten to turn against him--the news media will pick up on the story and Obama will be in trouble. Let us use that power wisely. . . .

For years progressives have been criticizing Democrats for appeasement. Maybe it's time for progressives to follow our own advice and hold Obama accountable by saying, basically: either you stop protecting these torturers, stop continuing Bush era policies, and stop compromising on health care reform, or we on the left will withdraw our support and condemn you, too.

Progressives need to tread carefully, lest they be dismissed as radicals and lest they aid the conservative enemy, but they need to demand their due. "I want you to hold our government accountable. I want you to hold me accountable"--Barack Obama (September, 2008). Let us hold him accountable.

Smith is not the only progressive who is essentially asking, "What on earth is Obama doing, and when is he going to get his priorities straight?" David Swanson, well known for his work at AfterDowningStreet.org, presents a disturbing scenario in a Huffington Post piece titled "Bush's Third Term? You're Living It."

Swanson's chilling thesis? The first seven-plus months of the Obama administration are pretty much what we would have gotten with George W. Bush still in office for a third term:

It sounds like the plot for the latest summer horror movie. Imagine, for a moment, that George W. Bush had been allowed a third term as president, had run and had won or stolen it, and that we were all now living (and dying) through it. With the Democrats in control of Congress but Bush still in the Oval Office, the media would certainly be talking endlessly about a mandate for bipartisanship and the importance of taking into account the concerns of Republicans. Can't you just picture it? . . .

If Bush were still "the decider" he'd be employing mercenaries like Blackwater and propagandists like the Rendon Group and he might even be expanding the number of private security contractors in Afghanistan. In fact, the whole executive branch would be packed with disreputable corporate executive types. You'd have somebody like John ("May I torture this one some more, please?") Rizzo still serving, at least for a while, as general counsel at the CIA. The White House and Justice Department would be crawling with corporate cronies, people like John Brennan, Greg Craig, James Jones, and Eric Holder. Most of the top prosecutors hired at the Department of Justice for political purposes would still be on the job. And political prisoners, like former Alabama Governor Don Siegelman and former top Democratic donor Paul Minor would still be abandoned to their fate.

It's enough to make your hair stand on end. Then Swanson adds this kicker:

Now, here's the funny part. This dark fantasy of a third Bush term is also an accurate portrait of Obama's first term to date. In following Bush, Obama was given the opportunity either to restore the rule of law and the balance of powers or to firmly establish in place what were otherwise aberrant abuses of power. Thus far, President Obama has, in all the areas mentioned above, chosen the latter course. Everything described, from the continuation of crimes to the efforts to hide them away, from the corruption of corporate power to the assertion of the executive power to legislate, is Obama's presidency in its first seven months.

I've long been a fan of David Swanson, and I think he has written the most insightful critique of the Obama administration to this point.

I'm also pleased that we've discovered Don Smith. I like him, and I like his funky Web site, which features this video plea for Obama to look back--at the corrupt conservative actions of the recent past:

Prosecutors Resort to Fabrications in Siegelman Case

Federal prosecutors in Alabama apparently felt the need to create a fantasy world in their efforts to prevent a new trial in the Don Siegelman case.

In a document dated August 27, 2009, the government responds to a Motion for a New Trial Based on Newly Discovered Evidence that had been filed by Siegelman and codefendant Richard Scrushy.

Prosecutors' response contains statements that are clearly false related to several critical issues. Specifically, prosecutors make numerous misstatements about Karl Rove's Congressional testimony. They also mischaracterize the contents of affidavits that were designed to counter the sworn statements of Alabama attorney and whistleblower Jill Simpson.

Regarding Rove, prosecutors state that the former Bush White House adviser denied contacting anyone at the Justice Department regarding the Siegelman case. In fact, Rove did no such thing. He either contradicted himself or used hedge language ("not that I recall," "not to my knowledge") in all of his answers to questions about his possible involvement in the Siegelman case.

Early in his testimony, Rove did deny contacting anyone at the Justice Department about the case. But when asked if he had contacted Noel Hillman, then head of the Public Integrity Section (which is part of the Justice Department), Rove hedged: "No, not that I recall."

And as we reported on August 13, Rove certainly did not deny that someone working for him might have contacted the Justice Department regarding the Siegelman case:

When asked if anyone from the White House Office of Political Affairs (OPA), Republican National Committee (RNC), or Republican Governors' Association (RGA) communicated with the Justice Department, Rove's answer is "not to the best of my knowledge."

Under questioning from House Judiciary Committee Counsel Elliot Mincberg, Rove also did not deny that he or someone working for him might have contacted any number of key officials in Alabama, including those working for the Justice Department:

Mincberg goes on to ask if Rove or anyone from any GOP-connected groups had communicated about Siegelman with:

* Any Alabama U.S. attorney's office;

* The Alabama attorney general's office or any other state law-enforcement agency;

* Bill Canary, head of the Business Council of Alabama;

* Bob Riley, Rob Riley, or anyone in the Riley administration; or

* Members of the media or press.

Rove's answers were "not that I'm aware of" or "not that I recall."

As we noted in our previous post, Mincberg hit Rove with a couple of "money questions," which covered the entire Siegelman episode. Here was one of them:

Q Again, in the period of time between Governor Siegelman's election and the end of 2002, did you or anyone working for you ever have any communications with anyone about a possible criminal investigation, prosecution, or illegal acts by Governor Siegelman?

A Not that I'm aware of.

The bottom line? Did Karl Rove, as the government contends, deny having contact with anyone at the Justice Department regarding the Siegelman case? Not even close.

What about efforts to counter Jill Simpson's testimony? The government is deceitful about that, as well.

In its response to the Siegelman/Scrushy motion, prosecutors state:

The Conyers Report itself acknowledges that the only other parties who should have firsthand knowledge of these allegations-Rob Riley, Bill Canary, and Terry Butts, as well as another person present with Riley on November 18, 2002, Matt Lembke-have all denied Simpson’s accusations including that such a phone conversation ever occurred, in sworn affidavits submitted to the House Committee.

In fact, Bill Canary presented no sworn statement to the House Committee. Riley, Butts, and Lembke did present affidavits, but they did not deny Simpson's allegations or that a phone call took place.

Here is how we characterized the Riley/Butts/Lembke affidavits in a post dated October 23, 2007:

All three affidavits have a fair amount of what I would call "hedge" language in them--

Riley
"I have no memory of being on a phone call . . ."

"I do not believe a phone call occurred . . ."

"I do not believe that I have ever met or spoken with Judge Mark Fuller . . ."


Butts
". . . nor do I recall, any conference call occurring with Ms. Simpson . . . "

"As I recall, none of us were ever outside each other's presence on that day . . . "

"Again, I neither recall any such call, nor do I believe any such call/conversation . . . ever took place."


Lembke
"I do not recall the phone call that Ms. Simpson claims took place between her . . . "

"I do not believe that I was out of Justice Butts' and Rob Riley's presence for 11 consecutive minutes . . . "

So is the government's statement accurate--that four key people denied Jill Simpson's allegations and denied that a phone call even took place? Again, not even close.

To use blunt language, federal prosecutors resort to repeated lies in their efforts to prevent a new trial in the Siegelman/Scrushy case. And the lies are not related to an arcane, minor element of the case. The false statements pertain to the Siegelman/Scrushy claims of a selective prosecution--the very heart of the matter.

The government notes that the two essential elements of such a claim are: (1) Discriminatory effect (a showing that the government “has failed to prosecute others who are similarly situated to the defendant”); and (2) Discriminatory intent.

The falsehoods noted above come in the section where prosecutors try to counter the Siegelman/Scrushy claims that the government acted with discriminatory intent.

A reasonable person might ask: Why would prosecutors resort to lying in their argument about discriminatory intent in the Siegelman/Scrushy matter?

A reasonable person might answer: Maybe it's because prosecutors know they acted with discriminatory intent and don't have a legitimate answer for it.

Justice in the Siegelman Case Will Start in Montgomery, Alabama

What have we learned about Karl Rove's Congressional testimony from our back-and-forth with veteran broadcast journalist and fellow Alabama blogger Tim Lennox?

The big lesson, for me at least, is that justice in the Siegelman case probably will not come from Washington, D.C. It is more likely to come from Montgomery, Alabama, which is Lennox' home base.

I'm not sure if Lennox would agree, but for me, three notions have become clear:

* The Rove testimony, not under oath and not in public, wasn't designed to accomplish much. And in that sense, it was a "success";

* The truth in the Siegelman case will not come out without a serious bottom-to-top investigation, focusing on hard evidence (e-mail records, phone records, etc.), as opposed to broad questions that can easily be sidestepped;

* That investigation needs to start not at the top, with Rove, but farther down the food chain--with some prominent Montgomery folks, particularly U.S. attorney Leura Canary and her husband, Business Council of Alabama president William Canary. Rove's former Alabama point person, Kelley McCullough Robertson, is another key figure.

In his most recent contribution to our exchange, Lennox acknowledges that a strong argument can be made that the Don Siegelman/Richard Scrushy transaction did not constitute a crime and that prosecutors showed signs of wanting to somehow get Siegelman, at all costs.

To his credit, Lennox interjects some humor into the proceedings. I had noted that "living in Montgomery was enough to corrode anybody's brain a little bit." (I didn't exactly say that Lennox' brain had corroded.) Lennox responded by posting a photo of himself from his Birmingham radio days in 1977 aside one from his recent television days in Montgomery--presenting compelling evidence that he certainly looks smarter now than he did then. Touche.

Unfortunately, Lennox misstates my positions in a couple of instances. For one, he states:

I previously posted about Karl Rove's testimony, asking a question that neither fellow blogger Mr. Roger Shuler nor others seem to be willing to answer: what did they expect Rove to say under oath? Why were they even remotely surprised that he failed to "confess", and instead testified he didn't remember?

Actually, I wasn't surprised at all. As I stated in a post dated August 13:

The bottom line? The Rove/Mincberg deposition was not conclusive about much.

Did Mincberg nail Rove, with bombshell testimony or evidence that "Bush's Brain" clearly was behind the Siegelman prosecution? No, but I doubt that any rational human being thought that was going to happen on this go-around.

Then, Lennox takes me to task for pointing out that prosecutors filed their case against Siegelman and Scrushy well after the statute of limitations had expired. He offers me this advice:

But try for a minute to be dispassionate about it, to examine the facts. You include the "statute of limitations" in your list of argument in favor of Mr. Siegelman, saying prosecutors filed too late. If ever there was a "technicality" in the law, the statute of limitations is it. Should prosecutors be required to file on time? Of course. But it's a sign of desperation to spend much time making that argument when you are defending a man who is truly innocent.

First of all, the statute of limitations (SOL) in any case is hardly a "technicality." It is an absolute deadline that decides many cases, both civil and criminal--and prosecutors in the Siegelman/Scrushy case missed it by several months.

But aside from that, I went on to cite four other issues where both the trial and appellate courts erred in the Siegelman/Scrushy case. Had any one of these four points been decided correctly, the defendants--by law--would have been found not guilty.

I focused on the statute of limitations to show that the Siegelman/Scrushy case never should have gotten off the ground. The other four points show that they were, in fact, innocent.

Where do Lennox and I differ the most? I think he lacks a sense of urgency about this issue? His use of the word "dispassionate" is perhaps a clue.

For better or worse, I do have a sense of urgency--and I definitely am "passionate" about it. And as I've stated before, it goes way beyond the Siegelman case, the Paul Minor case in Mississippi, or even my own case.

I wish Lennox could talk to the numerous lawyers who have shaken their heads as they've told me the unlawful actions they've seen taken by judges in Shelby County, Alabama. I wish he could talk to the people who have told me about their horrific experiences in Jefferson County Domestic Relations Court. That court is so bad that I know of at least two instances where lawyers have filed federal lawsuits against judges. That's "man bites dog" stuff.

I've heard of people ruined financially and damaged emotionally, I've seen families torn apart, I've heard of children being placed in situations that put their welfare at great risk.

And that doesn't count people like Siegelman, Scrushy, and Minor, who have gone to prison for crimes they did not commit.

I'm guessing that Lennox, like me, is in his 50s. Perhaps he has been fortunate enough to have lived that long and not been cheated in court--or to have not seen hard evidence about others being treated unlawfully in court.

I have not been so fortunate. I have seen the ugliness firsthand, and that almost certainly is where my sense of urgency comes from.

When you pull back the curtain and look into the grotesque face of our justice system, I don't know how anyone could remain dispassionate about it.

Death on the Football Field: Case Raises Troubling Questions About Prosecutors

A football coach in Louisville, Kentucky, goes on trial today on criminal charges connected to the heat-related death of one of his players last August.

Coach David Jason Stinson is charged with reckless homicide and wanton endangerment in the death of Max Gilpin, 15, who collapsed while running sprints on a day when the heat index reached 94 degrees. Gilpin died three days later from complications of heat stroke, according to his death certificate.

The case ultimately might be more about the questionable actions of prosecutors than anything that happened on a football field. It is the first time a high school or college coach has faced criminal charges related to the death of a player, and legal experts say prosecutors face huge obstacles in trying to prove their case.

Gilpin's parents have filed a lawsuit, which is common in such cases. But charging a coach with a crime? That has never been done before, causing many experts to question the motives of Commonwealth Prosecutor R. David Stengel.

Prosecutors have looked shaky in recent days. First, they added the wanton endangerment charge late in the proceedings, creating the appearance that it is a fallback for a weak reckless-homicide case. Second, they were accused of concealing a meeting with an expert who determined that Gilpin's death was a "tragic accident," probably caused by his use of a prescription drug for attention-deficit hyperactivity disorder (ADHD). Third, prosecutors gave defense attorneys a coroner's report only last week; the report declared that Gilpin's death was an accident.

Criminal charges in the case looked questionable from the outset.

The reckless homicide statute from the Kentucky Code is short and to the point.

Even if the prosecution is successful at the trial level, our research indicates that reckless-homicide convictions often do not hold up on appeal. In a 2001 Kentucky case, a father was convicted of reckless homicide based partly on his failure to obey the state's seatbelt-restraint law in an accident that caused the death of his daughter. The conviction was overturned.

In a 2007 Kentucky case, a man was convicted of reckless homicide based partly on the fact that his vehicle had worn tires when he was involved in an accident that led to a death. That conviction was overturned.

State of mind is a critical component in this crime. The Kentucky statute states in pertinent part:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

The opinion in the 2007 case gives examples of behavior where a reckless homicide was held to be appropriate:

Published Kentucky cases relating to reckless homicide convictions have involved circumstances such as driving under the influence, Commonwealth v. Runion, 873 S.W.2d 583 (Ky.App. 1993), running a stop sign while driving at twice the speed limit, Commonwealth v. Harrell, 3 S.W.3d 349 (Ky. 1999), or causing a disabled woman’s death through neglectful care. West, 935 S.W.2d 315.

The Louisville Courier-Journal quotes one veteran attorney:

“The classic example of reckless homicide is firing a gun into a crowded building and killing somebody,” said defense lawyer Steve Romines of Louisville. “Having kids run wind sprints doesn't equate to that.”

The wanton endangerment charge looks flimsy, too. Reports the Courier-Journal:

It may be even harder for the prosecution to convict Stinson on the wanton endangerment count because it requires proof that he knew about the risks to Max's health and consciously disregarded them, said University of Kentucky professor Robert Lawson.

“They must prove he saw the risk . . . and said, ‘To hell with it, I'm going to do it anyway,'” said Lawson, the main author of Kentucky's laws on crime and punishment.

So what were prosecutors thinking when they brought criminal charges against the football coach? That is hard to figure. Stengel, a Democrat, has been in office since 1996 and ran unopposed in his last two elections, so it doesn't appear that he needed to bring the case for political reasons.

But winning the case figures to be an uphill climb, former federal prosecutor Kent Wicker said:

Even if prosecutors persuade the jury that Stinson made excessive demands on his players, Wicker said, “There is a difference between a football coach who was too tough on his players and a criminal—and I think jurors will see him as the former.”

Did Bob Riley Try to Corruptly Influence the Alabama Supreme Court?

Governor Bob Riley recently tried to interfere with the Alabama Supreme Court in a gambling-related case, according to a report in the Montgomery Independent.

The story might raise again questions about Riley's ties to Mississippi gaming interests and disgraced Republican lobbyist Jack Abramoff.

In a story published online yesterday, the Independent reports that Riley contacted one or more members of the Alabama Supreme Court in an effort to overturn a recent decision by Chief Justice Sue Bell Cobb in a case involving bingo at White Hall in Lowndes County. Reports the Independent:

The matter involved a judge assignment in a case brought by the governor and his task force on gambling against a bingo operation at White Hall in Lowndes County. The operation uses electronic machines for customers to play bingo permitted under a special constitutional amendment for White Hall.

Cobb, a Democrat who defeated Riley appointee Drayton Nabers in 2006, assigned the case to Jefferson County Circuit Judge Robert Vance, who already was hearing a similar case in Walker County. Vance, a Democrat, was appointed to his current position by former Alabama Governor Don Siegelman.
The Independent reports that Riley went "ballistic" upon learning of Cobb's decision and vowed to overturn it. He might have stepped over a number of ethical boundaries in his efforts, the Independent reports:

Last week this newspaper received information that on or about July 29, 2009, the governor, a party to the lawsuit, placed a telephone call to one or more of the justices, urging them to overrule Cobb and remove Vance from the case. The information we received was that the phone call was while the governor was in Washington and that one of the lawyers hired to advise his gambling task force, may have been with the governor at the time. A communication with a judge in a case by a party or a lawyer for one side without the lawyers representing other parties being present violates all kinds of judicial ethics rules and laws.

The Independent apparently smells a potentially explosive story:

We have not seen the governor's telephone logs, but we do know that the governor was in Washington on July 29 because of his Twitter messages. For example at 6:51 a.m. on July 29, he twitted the following message: "Headed to Washington to discuss Water Wars strategy with the congressional delegation."

Since neither the governor nor his office has returned our call, we do not know who, if anyone, was with him in Washington, but we will be watching for the next post of those traveling on state planes.

Several justices denied receiving such a call or refused to answer questions about it. They voted 9-0 to uphold Cobb's appointment of Vance. But the Independent is urging an investigation:

If there was any attempt to improperly influence the court, the vote demonstrates such was rejected by the justices and that is to their credit.

However, we believe this is not a trivial matter and urge the Judicial Inquiry Commission, Attorney General Troy King or Montgomery DA Ellen Brooks to obtain the phone records and determine whether or not the governor made these calls and, if so, were any laws or ethics rules violated?

This is not the first report about Riley's possible attempts to interfere with the justice system. Scott Horton, of Harper's, reported that Riley urged U.S. Attorney Leura Canary to bring a prosecution against insurance executive John Goff--after Goff had filed a lawsuit against Riley and several Republican operatives. Canary did, in fact, bring a case against Goff in a matter that already had been settled in an administrative-law court.

It raises anew questions about Riley's ties to the gaming industry in Mississippi and disgraced GOP lobbyist Jack Abramoff. It also is another example of Riley's stunning hypocrisy on gambling.

A U.S. Senate committee reported that Riley was elected governor in 2002 with the help of $13 million in Mississippi Choctaw funds, laundered through Abramoff. Throughout his term as governor, Riley has opposed gambling initiatives in Alabama, in an apparent effort to protect the interests of his Mississippi gaming supporters.

Have Riley's efforts to protect the Choctaws' business interests finally caused him to step in some serious ethical doo-doo?

The Montgomery Independent apparently intends to find out.

Alabama Produces a New Kind of Bogus Prosecution

You have heard of political prosecutions, as practiced by the U.S. Department of Justice under George W. Bush. Now let us introduce you to a "financial prosecution."

That is the best term we can think of to describe what is happening to Edmond H. "Eddie" Smith IV, a well-known Mobile, Alabama, outdoorsman. Smith has been a federal prisoner for more than seven months, even though a handful of public documents show that he did not commit the crime with which he was charged.

Smith is at the heart of a story we have dubbed "a non-political version of the Don Siegelman case." And it is a cautionary tale--showing that Barack Obama might now be president, but Bush-like shenanigans still are taking place in the Justice Department.

Why do we call the Smith case a "financial prosecution"? Well, Smith appears to be a non-political sort. He is known for his hunting and fishing, a man more comfortable with guns and tackle boxes than campaigns and legislation.

So why did Smith become a target of a Bush-led Justice Department? Evidence suggests it's because he held control over an attractive piece of property in Mobile, one that has vast potential for commercial and/or residential development.

We've already seen how a lust for political power caused Don Siegelman to become a target of certain Alabama conservatives. It appears that good, old-fashioned greed prompted certain Alabama conservatives to target Eddie Smith.

Like a South Alabama fishing hole, the Eddie Smith story is murky. It raises many questions, with few clear-cut answers: What is this piece of property, and what makes it so alluring? How did Eddie Smith come to control the property? Who are the people who want to wrest it from Eddie Smith, and what was their plan for pulling it off? Will they get away with it?

We will address all of those questions in upcoming posts. First, let's establish this: Eddie Smith is a big man, a former University of Alabama football player with an outsized personality that has led him into some legal difficulties, of both a civil and criminal (misdemeanor) nature. But he is being held in the Mobile County Jail for a federal crime that he did not commit. And it's relatively easy to prove it.

We can explain it in a few steps:

(1) In late 2007 or early 2008, Smith was charged with unlawful possession of a pistol under Alabama state law. On February 13, 2008, Smith pleaded guilty to a violation of Code of Alabama 13A-11-72(b) and was sentenced to six months of imprisonment;

(2) Code of Alabama 13A-11-72 is a "hybrid statute," meaning it authorizes a range of punishment both below and above the dividing line that separates a misdemeanor from a felony. What is that dividing line? Code of Alabama 13A-1-2(9) defines a misdemeanor as "an offense for which a sentence to a term of imprisonment not in excess of one year may be imposed." Statutory law, case law (Newberry v. State, 493 So. 2d 995), and court records indicate that Smith pleaded guilty to a misdemeanor;

(3) On November 21, 2008, Mobile County Sheriff's deputies searched Smith's residence and seized 780 rounds of ammunition. Smith was charged with a violation of 18 U.S. Code 922(g)(1), which reads:

It shall be unlawful for any person--(1) who has been convicted in any court of a crime punishable by imprisonment for a term EXCEEDING one year . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

(4) The federal law could not be more clear: It applies only to an individual who has been convicted of a felony--a crime punishable by imprisonment for a term exceeding one year.

(5) The federal indictment predicated the charge against Smith on his guilty plea in the state case on February 13, 2008. But that presented a slight problem for the feds: Smith had pleaded guilty to a misdemeanor. That meant the federal statute did not apply to him. That meant it was not unlawful for him to possess the ammunition that was seized from his home.

How did the federal government manage to bring a prosecution that is bogus on its face? How did the feds get a conviction in such a case?

The answer to the first question is simple: The Bush Justice Department brought the case.

The answer to the second question also is simple: The judge in the Smith case is a Bush appointee who has an awful lot in common with Mark Fuller, the judge who ramrodded the Don Siegelman case.

Much more on that in upcoming posts.

(To be continued)

What's Going On With UAB Layoffs in Communications Group?

My former employer, the University of Alabama at Birmingham (UAB), recently laid off seven employees in its communications group, formally known as Public Relations and Marketing.

That happens to be the area where I used to work. At the risk of sounding self-obsessed, I think these layoffs raise a question that is worth pondering: Are they connected to my unlawful termination?

To some, that might sound like a ridiculous question. But if you understand the nature of employment lawsuits--and if you grasp just how grossly UAB violated federal law in my case--you see that the question might not be so ridiculous after all.

This takes some "splainin," but I hope you will follow me for a Schnauzer "teachable moment" in employment law.

UAB Public Relations and Marketing includes five groups--Media Relations, Creative & Marketing, Web Communications, UAB Reporter (the faculty and staff newspaper), and Periodicals. I worked all of my 19 years under this umbrella, seven with the UAB Reporter and 12 with Periodicals.

Everyone in the department answers to associate vice president Dale Turnbough, who I fondly remember as the person who signed my termination letter.

Highly placed sources tell Legal Schnauzer that three of the folks laid off--Doug Gillett, Cindy Cardwell, and Claire Burgess--were from Periodicals. Claire was hired after my firing, so I never met her. But I worked closely with Doug and Cindy for five or six years and consider them to be wonderful people and coworkers. UAB's loss is definitely going to be someone else's gain when it comes to Doug and Cindy. This might not help in their job searches, but I would give both of them glowing recommendations if I had the opportunity--the Legal Schnauzer "seal of approval," if you will.

As for the others laid off, there were two each in Media Relations (Deb Lucas and an administrative assistant I didn't know) and two in Creative & Marketing (Martha Bruce and Mike Turner).

Now, let's analyze this situation: It's clear that UAB and all other state entities are struggling in the Bush recession. UAB announced in early June that it was eliminating 245 jobs in its Health System.

So a story about more layoffs at UAB might not seem like a shock. But the Birmingham Business Journal article about the communications layoffs does not mention lost jobs anywhere else on campus.

And let's consider the scope of these layoffs in Public Relations and Marketing. If my memory is correct, the group has about 50 to 60 employees. The recent layoffs represent a staff reduction of more than 10 percent.

I'm sure other UAB departments have tightened their belts in various ways. But 10-percent staff cuts around the campus? If that was going on, I think it would be reported in the mainstream press.

So why the big hit in Public Relations and Marketing? And why was Periodicals, my old group, hit particularly hard. When I was unlawfully terminated on May 18, 2008, the group had 11 employees. According to its current Web page, it has nine employees, but that hasn't been updated. After the layoffs, it's down to six.

That's almost a 50 percent staff reduction over a 15-month period of time. Heck, the place is falling apart without me!

Yes, the economy is rough, but I wonder how many other UAB offices of any size have seen that kind of staff reduction during the recession. My guess? Zero.

I worked at UAB for 19 years and never heard of a 50 percent staff reduction in an office that wasn't on its way to totally being phased out. (With the critical role Periodicals plays in fund-raising and alumni support, which becomes even more important in tough economic times, it's hard to believe the office is being phased out.)

At the time I was terminated, Periodicals appeared to be the primary moneymaker in the Public Relations and Marketing service center. (What's a service center? It's essentially a fee-for-service business within an institution, one that is governed by a web of federal regulations that I don't begin to understand. The UAB Print Plant and Bulk Mail are other examples of service centers, which are also called cost centers.)

So what's really going on?

Well, let's examine a post I wrote on July 8 titled "Deception and Discrimination Continue at UAB." It contained two passages that might be worth a second look. The first:

About three weeks ago, a federal jury in Birmingham found that UAB discriminated against a former medical resident from India, based on her Hindu religion. That is one of several cases involving alleged discrimination against international medical residents. And those could raise issues about federal funding at UAB, which generally is predicated on a commitment to nondiscriminatory practices. Much more on that in future posts.

OK, let's look at the second passage, which deals with my own case:

Age and gender discrimination, conspiracy, retaliation, wrongful termination, and defamation also appear to be present in my case, which currently is under investigation by the Equal Employment Opportunity Commission (EEOC). I intend to file a lawsuit against UAB (the University of Alabama Board of Trustees is the legal entity), along with a number of folks acting in their individual capacities, once that investigation is completed.

What happened two days after that post was published? The layoffs of seven people in Public Relations and Marketing came down.

Is that a coincidence? Maybe. Maybe not.

But let's consider those two passages again. The first refers to a discrimination lawsuit brought against UAB by Dr. Seema Gupta, a former medical resident from India. The case went to a jury verdict, and Dr. Gupta prevailed on her claim of discrimination based on her Hindu faith. UAB prevailed on two other key questions: (1) Did the university discriminate against Dr. Gupta based on national origin; and (2) Did the university's actions result in a "constructive discharge" of Dr. Gupta?

I was on hand for almost the entire Gupta trial, and we will go into much more detail about it in upcoming posts. The case speaks volumes about how UAB discriminates against its employees and students--and then shamefully tries to cover over the discrimination in court. While Seema Gupta proved that UAB discriminated against her on one ground, the case as a whole was a gross miscarriage of justice--and we will be showing exactly why we came to that conclusion.

For now, let's move on to our second key passage. It simply raises the issues that are present in my legal case against UAB (along with First Amendment violations). None of it should be a surprise to anyone at the university. Heck, their own grievance committee found I should not have been terminated, so we're not dealing with state secrets here.

But here's my point: Did that July 8 post, or perhaps something else in that general time frame, cause someone at UAB to slap his or her forehead and say, "Holy crap, we're going to have to figure out a defense in this Shuler case, and we don't have one."

What do unethical people, like some of the ones currently running UAB, do in such a situation? They create a defense after the fact--ex post facto, if you will.

I can hear some of you now: "Schnauzer, surely UAB wouldn't pull such a disgusting stunt." Oh yes, they would. (And don't call me Shirley--an inside joke for you fans of Airplane!)

How do I know? I saw them try it in the Gupta case, another instance where UAB really did not have a defense.

How could this happen? Remember this critical word regarding employment-discrimination lawsuits: comparators. That refers to people who are comparably situated, but were treated in a more favorable way than the complainant.

To put it in non-legal terms, let's consider this story that is told by a Birmingham employment lawyer: A woman came to him with a potential case. "The problem is my boss," she said. "He treats me terribly."

"How does he treat the other employees?" the lawyer asked.

"Oh, he treats all of us terribly."

The lawyer had to suppress a laugh. "Ma'am, your problem is that you work for a jerk. But you don't have a discrimination case."

In so many words, one defense to a discrimination case is to say, "Hey, we didn't discriminate against Joe. We treat everybody like crap--regardless of race, gender, age, or what have you."

It sounds absurd, but such a defense might actually gain some traction in court. Could UAB be trying to fashion such a defense, way after the fact, in my case?

Consider the recent layoffs: It included men and women, covering the gender base; it included people over 40 and under 40, covering the age base; it covered my old group, Periodicals, but also included folks from the other groups, making it look like an across-the-board "lay off."

And get this: By nailing Doug Gillett, they got rid of the most obvious comparator on my age and First Amendment claim. As I've reported before, Doug had actually blogged and conducted political activities at work, a clear violation of university policy and probably state law. He was about 25 at the time, and received only a warning--which I fully supported; Doug's a great guy who didn't mean any harm, and I was pleased that he was not fired.

I, on the other hand, did not blog at work, according to UAB's own witness at my grievance hearing--and did not violate any policy. But I was 51 at the time, and I got canned.

So try to wrap your mind around this question: Did UAB recently cheat seven people out of their jobs in an effort to cover its ass for the unlawful behavior in my case?

"Ridiculous," you might say. I would tend to agree, in theory. Such a scheme should have no impact on my case. For one, I imagine case law frowns on after- the-fact efforts to paper over discrimination. Two, I was terminated, as opposed to a layoff for budgetary reasons, so there is no comparison between the two outcomes--no matter how UAB might try to spin it. I doubt that a layoff even is considered an "adverse job action" under the law; a termination most certainly is.

But in the real world, I've seen UAB take desperate and absurd steps when it has no defense in a discrimination case. In the Seema Gupta case, I saw an attempted cover up that would have made Richard Nixon proud.

If the EEOC manages to complete its investigation of my case in this lifetime, and I am able to proceed with a lawsuit, it will be interesting to see if UAB tries to use these layoffs as some kind of warped defense for its discriminatory actions against me. If it does, that would indicate that these weren't truly "layoffs" at all; they were simply an ugly and despicable legal ploy.

At one time, I would have said that UAB wouldn't be capable of firing seven people just to cover its own ass. But with the current administration . . . I wouldn't put much of anything past them.

It Isn't Really About Don Siegelman

Karl Rove's Congressional testimony is receiving prominent display in the news, so perhaps it's a good time to put the larger Department of Justice story in perspective.

Thanks to Rove's history in the state, and the prosecution of former Governor Don Siegelman, the alleged use of the DOJ for political purposes has deep roots in Alabama. But even here, the public does not seem to grasp the seriousness of the issues involved. Even respected Alabama journalists (yes, there are a few) don't seem to fully "get" the story.

Consider my recent back and forth with Tim Lennox, a fellow Alabama blogger and veteran broadcast journalist. I started things by taking Lennox to task for writing that Rove had denied involvement in the Siegelman case, when Rove in fact did no such thing. Lennox countered with a post that hinted that blinders prevent some folks from seeing the Rove/Siegelman story clearly. I think he meant to include me among the blinders-wearing crowd.

Lennox has been around Alabama journalism for many years. I was a regular listener to his radio show in Birmingham. And I watched his Alabama Public Television program pretty regularly. I think he's a fair and capable guy.

But here is where he and I differ. Lennox has referred a few times in recent posts to "Siegelman supporters." Those apparently are the folks he considers to be wearing blinders--and he seems to put me in that crowd.

Don Siegelman has been in Alabama politics a long time, and I'm sure he has many backers--people who know and like him personally, have campaigned for him, supported him financially, etc. I'm not in that crowd, and I know a number of people who aren't in that crowd--but still think the Bush Justice Department emitted numerous noxious odors and should be examined closely.

Certain Alabama press outlets have created this notion that there is a "cult of personality" surrounding Siegelman, that his dynamic persona causes supporters to overlook his criminal wrongdoing. Lennox seems to buy into this, to some extent.

But Siegelman himself has said, correctly, that the story is not just about him or his case. The Web-based journalists who have done the heavy lifting on this story--Scott Horton, Larisa Alexandrovna, Glynn Wilson, and yours truly--are not "Siegelman supporters." The key whistleblower in the case, Alabama attorney Jill Simpson, wasn't even a member of Siegelman's party.

All of these folks, I feel certain, know the story isn't about Siegelman--or Rove, for that matter. It's about the rule of law. It's about big ideas, summarized in the 14th Amendment of the U.S. Constitution, such as "equal protection" and "due process." Do those ideas still matter, will they still be enforced?

Tim Lennox is a sharp guy, and I think, in time, he will grasp that the "Siegelman case" really isn't about Siegelman at all. Lennox, I'm guessing, has spent the past several years living in Montgomery, and that's enough to corrode anybody's brain a little bit.

I'm certainly no smarter than Tim Lennox, but I've had a personal experience that helps me understand what the Siegelman case really is about. I know what it's like to walk into a courtroom and, after later studying the relevant law, realize the judge had cheated me repeatedly. In fact, I would love to sit down with Lennox sometime and show him exactly what happened in my case. Perhaps that would help him understand how a corrupt justice system threatens our democracy.

And that's really the issue here. If you study the facts and the law involved, you see that Don Siegelman and Richard Scrushy did not commit a crime. That goes also for the Paul Minor case in Mississippi. And yet, four men sit in prison from those two cases, and a fifth (Siegelman) might be heading back to prison.

Did Karl Rove play a role in those cases? That remains unclear. But this much is crystal clear: The judges and the prosecutors in both cases acted corruptly. And that, aside from any role Rove might have played, needs to be investigated.

In the Siegelman case, the alleged criminal activity clearly took place outside the five-year statute of limitations. The judge and prosecutors had to know that, but they barged ahead anyway. The alleged actions of Siegelman and Scrushy do not constitute a crime. But based simply on the statute of limitations, the case should have never gotten off the ground.

In the Minor case, the underlying rulings by two state judges were decided correctly under the law, so there could not possibly be a bribe or fraud. But the judge gave unlawful jury instructions--the same thing happened in the Siegelman case--resulting in convictions.

I've had two brief phone conversations with Don Siegelman. And I've never communicated with Paul Minor at all. I don't think that qualifies me as a "supporter" of either gentleman.

So why have I written several hundred posts about their two cases? I know what it's like to be cheated in court. And after studying the facts and relevant law in their cases, I know that Don Siegelman, Paul Minor, and their codefendants were cheated in court.

When people are cheated in court, that means our constitution has been trampled. Judges and prosecutors have a sworn duty to uphold and apply the law correctly--to ensure that "equal protection" and "due process" apply in reality, not just in theory.

That's why the actions of the Bush Justice Department must be investigated--and any wrongdoers must be punished.

That's what this story is really about. And it's way bigger than Don Siegelman--or Karl Rove.

Attack of Killer Dogs Comes Down to Human Negligence

As the title of our blog suggests, we are big dog lovers. We also are great admirers of people who care for dogs--and other pets--in loving and responsible ways.

That's what makes a recent story here in the Deep South doubly heartbreaking.

Sherry and Lothar Schweder, an older couple who lived near Athens, Georgia, were killed by a pack of wild dogs. The story is tragic on multiple fronts. In addition to what must have been a horrific death for the Schweders, all 16 dogs in the pack were euthanized.

The story also is filled with irony. The Schweders clearly were animal lovers; They had 27 pets--seven dogs and 20 cats.

In fact, they apparently chose to live in a rural area so they could have plenty of room for their animals. Authorities in Oglethorpe County, Georgia, are evaluating the Schweders' pets for adoption.

Authorities believe Sherry Schweder, 65, was walking along a country road near her home, in search of one of the couple's missing dogs, when she was attacked by the pack. Lothar Schweder, 77, got in his car and went looking for his wife when she did not return home. He saw her body near the side of the road, and when he got out of the car to investigate, the dog pack attacked him, too.

Here is an Associated Press video report.

The Schweders sound like they were a delightful couple, the kind of folks I wish I had for neighbors--although 27 pets would be a bit over the limit allowed in our subdivision. She had worked at the University of Georgia library for more than 30 years. He was born in Germany, worked in corrections in Kansas, and taught German at the University of Georgia before retiring.

Who is to blame for this tragedy? Well, that's not easy to figure out. The dog pack apparently regularly convened at the home of an elderly man who lived not far from the Schweders. But it looks like the dogs did not actually belong to him.

It appears the man noticed the dogs near his property at some point and started feeding them. He moved recently because of an illness but would return every other day to feed the dogs. Authorities have determined that no criminal charges will be brought against the man.

What can explain the brutal attack? An Associated Press report provides some insight:

Dogs are so much a part of American life—valued members of or even substitutes for human families—that it can be easy to forget they are still animals with teeth and the ability to use them if instinct demands it.

Add the lack of an owner and steady meals, and dogs can quickly begin to resemble their wolf ancestors, teaming up in packs for hunting and protection. They may look like pets, but behave like predators.

Our view is that, somewhere along the line, a human's negligence led to these deaths. Someone failed to have their dog or dogs fixed. Someone allowed their dog or dogs to roam. Before long, you had a pack, filled with domesticated dogs that had become dangerously feral.

Here in Alabama, I've heard stories about hunters who, when they have a dog that is ineffective in the field, will let it go to fend for itself. The dogs in the Georgia case did not look like hunting dogs, so I don't think that was a factor there. But it shows how irresponsible some people can be with "man's best friend."

I've heard it said that humans chose to domesticate dogs and cats, so we owe it to them to provide responsible care. Someone failed to live up to that responsibility in Georgia--with tragic consequences.

Bob Barker, of The Price is Right Fame (and a proud product of Springfield, Missouri), is an eloquent spokesman for animal rights and responsible pet ownership. I believe he has been quoted as saying that one of his goals is to be able, at his own funeral, to rise up from the casket and say, one last time, "Spay and neuter your pets!"

If Barker pulls that off, I hope I'm there to see it. Hopefully such a dramatic event would help spread the word--to rural Georgia and beyond.

The Schweders almost certainly would approve. Their funeral was yesterday in Athens, Georgia, and here is a line from their obituaries:

In lieu of flowers, the family requests that donations be made to Madison/Oglethorpe Animal Shelter or Athens Area Humane Society.