Bloggers Find that the First Amendment Only Goes So Far

Most Americans probably know we have this thing called the First Amendment, and it involves the right to "freedom of speech." But many Americans might be surprised to learn how little protection the First Amendment provides in the employment arena.

That becomes alarming as more and more Americans--many of whom have jobs--express themselves through blogging and other forms of "new media."

Some bloggers tackle the problem by writing anonymously. But CNN reports that it is becoming increasingly difficult to remain anonymous on the Web. And the cases of folks being fired because of their blogs are piling up.

I know because I am one of those folks.

CNN reporter John D. Sutter spotlights two women who lost their jobs because of their blogs. One of them had drawn a sizable audience in Pittsburgh, Pennsylvania, while writing anonymously as PittGirl for Pittsburgh magazine and on her blog, That's Church. Shortly after outing herself as Virginia Montanez, a 35-year-old married mother of two, "PittGirl" lost her job at a nonprofit organization called NEED.

Her great sin? She has a razor sharp--some might say snarky--sense of humor. And she has written critically, at times, about the mayor of Pittsburgh.

The second canned blogger is Heather B. Armstrong, who wrote under her real name at a blog called Dooce. She got fired not long after her employer discovered her online work, and "Dooce" has become Internet slang for getting fired because of your blog.

Armstrong apparently did not pursue legal action in the wake of her termination. And Montanez indicates on her blog that she does not plan to seek a legal remedy either.

It's just as well because the First Amendment, as it's been interpreted so far, probably would not protect them. If you find that troubling, join the crowd.

The biggest problem for Montanez and Armstrong is that they both apparently worked for private employers. And while this runs contrary to many Americans' sensibilities, the First Amendment does not protect those who work in the private sector.

David L. Hudson Jr. has written an excellent article on blogging at firstamendmentcenter.org. Here is how he describes the current state of the law:

Private employees do not receive the protections of the First Amendment because there is no trigger of state action. The provisions in the Bill of Rights, including the First Amendment, apply as limitations only against government actors, such as public employers. Private employees would need to rely on contractual-based remedies or a state statute that might provide protection.

One of Armstrong's problems is that she wrote about people and activities at work. She has cautionary words for those who might consider doing the same thing:

I started this website in February 2001. A year later I was fired from my job because I had written stories that included people in my workplace. My advice to you is BE YE NOT SO STUPID. Never write about work on the internet unless your boss knows and sanctions the fact that YOU ARE WRITING ABOUT WORK ON THE INTERNET. If you are the boss, however, you should be aware that when you order Prada online and then talk about it out loud that you are making it very hard for those around you to take you seriously.

Public employees are protected by the First Amendment, particularly if they are writing about matters of public concerns. Here is how Hudson describes it:

Public employers are subject to the First Amendment. Many public-employee cases are governed by the so-called Pickering-Connick test. In Pickering v. Board of Education (1968) and Connick v. Myers (1983), the U.S. Supreme Court made clear that public employees can speak out on matters of public concern. If an employee’s speech touches on a matter of public concern—issues such as racial discrimination or governmental corruption—then the courts apply a balancing test. The employee’s interest in free expression is weighed against the employer’s efficiency interests. If the expression causes disruption at the workplace, many courts will tip the scales in favor of the employer.

I've only read parts of Montanez' blog, but she might have a First Amendment case if she decided to pursue it. The nonprofit organization where she worked perhaps has received public funds, and that could make her a public employee. Her criticisms of the mayor could be considered matters of public concern. If she were to pursue a case, it might help bring some much-needed clarity--and fairness--to this area of law

As for me, my termination at the University of Alabama at Birmingham (UAB) after 19 years on the job, presents classic First Amendment issues. I was a public employee. My blog focused on judicial and governmental corruption, clearly matters of public concern. I did not identify myself as a UAB employee or write about any people or activities in my workplace. I did not disrupt the workplace.

Advances in communication technology seem to have caused a clash between two broad legal ideas--"freedom of speech" vs. "at will" employment. Many states, including Alabama, are "at will" states, meaning an employer can fire you for almost any reason--as long as it isn't discriminatory.

Imagine that you have a Facebook page and write often about your love of the Boston Red Sox. Your boss, a New York Yankees fan, stumbles upon your page and fires you for being a Red Sox fan. Or imagine that you state on Twitter that you believe Grand Funk Railroad is the greatest rock band of all time. Your boss, a huge Rolling Stones fan, takes offense and decides to fire you.

Could your boss get away with this? Under the current law, the answer probably is yes. If you are in a protected class under discrimination law--race, gender, age, national origin, ethnicity, religion, disability--you might have grounds for a lawsuit. If you are a standard-issue, able-bodied white guy under the age of 40 (SAWGU-40), you probably would not.

In fact, SAWGU-40s have almost no protections in the workplace at all. If I were an SAWGU-40, and I used to be one, I probably wouldn't write anything on the Internet. Heck, I probably wouldn't sign my real name on an e-mail to my mother.

Things aren't a whole lot better in the workplace for folks who aren't SAWGU-40s. In our baseball scenario above, let's imagine that you are a black, female, 55-year-old Hindu, whose mother was from Kazakhstan--and you have multiple sclerosis. Let's imagine that your Yankees-loving boss fires you because you are a Red Sox fan.

Sounds like a slam-dunk discrimination case, right? Well, maybe not. A key word in most discrimination cases is "comparator." This refers to someone in a comparable position who has been treated more favorably than the complainant. But what if the boss treats all Red Sox fans badly--regardless of race, gender, age, and so on?

That might make it tough to win a discrimination case. You probably could file a lawsuit and cost your former employer all kinds of headaches, money, and (hopefully) public shame. Because of financial and public pressures, you might garner a nice settlement and get your job back. But would you prevail on the merits? Not necessarily.

Does this sound ridiculous? It should. That's because the notion of "at will" employment is barbaric, in what is supposed to be an enlightened society. And most Americans have no idea how weak First Amendment law actually is.

Will this change any time soon? New technology, and cases like those involving Virginia Montanez and Heather B. Armstrong, might force change. David L. Hudson Jr. writes: "This is a developing area of the law that merits close attention."

Let's hope the attention, and change, come sooner rather than later.

Dateline NBC Exposes the Sleazy Debt-Collection Industry

We have written extensively here at Legal Schnauzer about our experiences with third-party debt collectors, the folks who have done so much to earn the nickname "bottom feeders."

Now Chris Hansen and Dateline NBC have joined the fray, with an investigative report on Sunday night that showed the shocking depths to which some debt collectors will sink in order to get consumers to cough up money.

In the case of third-party debt collectors, who buy old "junk" debt from original creditors for pennies on the dollar, they often cannot prove that a consumer owes the debt. With no legal leg to stand on, the "bottom feeders" resort to tactics that New York Attorney General Andrew Cuomo compares to terrorism. These tactics are at the heart of the Dateline NBC report, and I've seen such tactics in a very personal way.

Hansen is best known for his "To Catch a Predator" series on would-be pedophiles. He takes on a different sort of predator--one interested in money, not sex--with his latest piece, which originally aired back in March. Like the sexual predators Hansen has become famous for confronting, these financial predators do not feel constrained by the law.

In some splendid investigative reporting, Hansen shows just how brazen third-party debt collectors can be. In one case, a collector threw a string of insults at a consumer. In another, a collector indicated that an alleged debtor was going to be thrown in jail.

These conversations were tape recorded, and you can check them out here. They are gross violations of the Fair Debt Collection Practices Act (FDCPA), which governs debt-collection activities. But Cuomo says junk-debt collectors resort to unlawful tactics because they tend to work--and pay off handsomely.

I've seen those tactics firsthand, and I know the pressure and stress an unethical debt-collector can apply to an alleged debtor. I've reported on our experiences in the following posts:

* Welcome to My Nightmare

* Financial Terrorists Ride Again

* Financial Terrorism Revisited

Like Chris Hansen, I have tape recordings of several conversations with debt collectors, and I will be sharing them with Legal Schnauzer readers. In our case, the original creditor allegedly was American Express, the debt collector or buyer (I'm not sure which) was NCO Financial Services, and the phone calls came mostly from Ingram & Associates, a Birmingham law firm.

NCO apparently is notorious for flagrant violations of the FDCPA. Public records indicate that Ingram & Associates' principal Angie Ingram is part of something called the "NCO Attorney Network"--even though her surrogates repeatedly told us Ms. Ingram "worked for American Express," "had been hired by American Express to sue you," "had a fiduciary relationship with American Express, etc."

The Ingram & Associates folks threw all kinds of insults, threats, and falsehoods at us. Here is just one example:

First of all, neither NCO nor Ingram ever sent us anything in writing, informing us of our rights to dispute the debt or have it validated, as required by the FDCPA. They simply started calling us and alleging that we owed a debt. Did they ever offer any written proof that we owed the debt? Nope.

But they were happy to say they could sue us and that we could wind up having the deed to our house auctioned off "on the courthouse steps."

Could Ingram carry out this threat? Well, they didn't. And seeing as how they never offered a shred of proof that we owed the debt, it's hard to see how they could. And seeing as how the debt was in my name only, but our house is jointly owned by my wife and me, it's hard to see how they could sell the deed to our house on the courthouse steps.

But the fine folks at Ingram & Associates, apparently with the blessing of NCO and American Express, wanted us to believe we could wind up homeless because of an alleged credit-card debt that they had not proved we owed.

Did this cause us a little distress? That would be quite an understatement. We went for weeks thinking we might have to declare bankruptcy or we would somehow wind up homeless.

Only after researching the matter over several weeks, did we begin to suspect that we were the target of an unlawful scam.

But that's how these outfits operate. If a consumer believes he might become homeless, he is more likely to cough up money than if the collector follows the law and doesn't make bogus threats. As Andrew Cuomo told Chris Hansen, these outfits can rake in millions of dollars in a few days time, using underhanded and unlawful tactics.

Predators? Bottom feeders? Those terms might be too kind for the debt-collection greaseballs we've encountered.

But don't just take my word for it. Here is Andrew Cuomo talking about the debt-collection industry:

Visit msnbc.com for Breaking News, World News, and News about the Economy

And here are insights from Harvard University law professor Elizabeth Warren:

Visit msnbc.com for Breaking News, World News, and News about the Economy

These Mattresses Come With a Special Feature--Bedbugs!

The nation's largest bedding chain faces allegations that it has been selling used mattresses and box springs as new.

The first clue that something was amiss at Sleepy's, which has 700 stores nationwide? Several consumers discovered groves or deep depressions in their "new mattresses."

The second clue? At least one consumer received a mattress that was infested with bedbugs.

Veteran consumer reporter George Gombossy broke the Sleepy's story in Connecticut, where the chain has 74 stores. Gombossy recently was fired at The Hartford Courant, where he had worked for 40 years, after he wrote investigative articles about several of the newspapers major advertisers.

One of those major advertisers was Sleepy's. Gombossy turned in his article about Sleepy's, and it was approved by an editor, but newspaper executives then told the veteran reporter he was being dismissed. The Courant held the story without explanation, but the full piece now is available at Gombossy's Web site, ctwatchdog.com.

Here is the most shocking part of the Sleepy's story:

Jeff Maier, a Norwalk small businessman, asked [the state attorney general] to investigate Sleepy’s last December because he and his wife had a ‘’severe’’ bedbug infestation that Maier said was the result of buying what appeared to be a used box spring from the Stamford Sleepy’s store.

One week after receiving the box spring, Maier said in a telephone interview, his wife began developing red spots, which Maier said came from bedbugs.

He said they hired the Stern Environmental Group of Secaucus, N.J., to investigate and to exterminate the bugs. The company – which specializes in ridding homes of bedbugs – dismantled the box spring and determined that it was the cause of the infestation, Maier said.

Stern Environmental Group’s report, made available to me, states that the “box spring . . . was the culprit. There were bedbugs inside and the box spring did not look like it was new.”

Maier said it took two months before all the bedbugs could be killed. (During that time, he told me, he and his wife had to stay in their bed because if they slept somewhere else the bedbugs would have moved with them.)

Sleepy’s attorneys offered a replacement box spring, Gombossy reports, but they denied that the bedbugs came from their merchandise. The consumer isn't buying it:

Maier said he was suspicious when the delivery was made because the heavy plastic used to seal the box spring appeared to have been opened. He said one of the workers assured him that it was opened by them as they took it out of their truck.

Maier said there is no other explanation for the bedbug infestation. The couple had not slept anywhere else in the weeks prior to their purchase, Maier said, and their personal habits had not changed.

Birmingham News' Credibility Hits Rock Bottom

In case anyone on the planet still doubts that Alabama's largest newspaper is a right-wing tool, The Birmingham News confirmed it over the Labor Day weekend.

Right there on page 5 of Sunday's editorial section was the Karl Rove column that ran in The Wall Street Journal on August 19. The Rove column does not appear to be on the News' Web site at al.com. But it was in Sunday's print edition, with this ironic headline, "Times, Post should admit errors."

The reference was to editorials in The New York Times and The Washington Post suggesting that a full investigation should be conducted into Rove's possible role in the U.S. attorney firings and the prosecution of former Alabama Governor Don Siegelman.

Rove, of course, contends that his recent Congressional testimony proves he was not improperly involved in those matters. Never mind that his testimony did no such thing. The Birmingham News was more than happy to rerun a column that was almost three weeks old--and run it apparently without any copy editing or fact checking.

The News' allows Rove to state, once again, that he gave sworn testimony, when it is well established that he was not under oath. Rove repeats his canard that Alabama attorney and whistleblower Jill Simpson had not testified before Congress, when it is well established that she did just that in fall 2007.

In fact, the News ran a transcript of Simpson's testimony on October 10, 2007. And yet it runs an op-ed piece on Sunday in which Karl Rove claims that Simpson never testified before Congress?

Is anyone at The Birmingham News even awake? Is the newspaper capable of embarrassment or shame? Is the paper going to run a followup piece with this headline: "News admits errors"? Is the paper so intent on covering Karl Rove's slimy tracks that it is content to shred what little is left of its credibility?

Need more evidence of the News' "tooldom"? Here is an e-mail I sent on September 3 to columnist John Archibald, who has repeatedly in recent months stressed the importance of corruption investigations. I sent Archibald a link to an article about recent allegations that Governor Bob Riley, a Republican, had improperly (and perhaps unlawfully) tried to influence the Alabama Supreme Court on a gambling-related case:

John:

You've written numerous columns stating that public corruption cases must remain a priority for the Justice Department in Alabama. Are you and your colleagues at The News going to look into this case? Are you going to opine that the feds must get to the bottom of this?

Roger

http://legalschnauzer.blogspot.com/2009/09/did-alabamas-gop-governor-commit-crime.html

Have I received a response from Archibald? Nope. Of course, this is the same "journalist" who told me about a year ago that he was working on an investigation of serious wrongdoing in Shelby County, which is infested with GOP public officials. Has a word about that "investigation" ever appeared in the newspaper? Nope.

Tools, indeed.

No Wonder Newspapers Are On the Verge of Extinction

Every week seems to bring more bad news for the newspaper industry. And as the stories pile up, we can't help but think that newspapers are their own worst enemy.

The latest comes from The Hartford Courant in Connecticut, a paper that once enjoyed a stellar reputation. According to an article in The New York Times, The Courant recently fired veteran consumer reporter George Gombossy for--get this--wanting to practice . . . journalism.

The move comes at a time when newspapers should be hiring more hard-hitting consumer reporters like Gombossy, instead of letting them go. We've reported on consumer issues here at Legal Schnauzer, particularly in the debt-collection industry. We've had firsthand experience with sleazy national outfits like NCO, CACH LLC, and the National Arbitration Forum, plus Birmingham law firm Ingram & Associates.

Heck, a gutsy metropolitan newspaper could keep a reporter like Gombossy busy just writing about the third-party debt collection industry, which is one of the nation's most insidious scams. Instead, Gombossy finds himself out of a job.

Gombossy says The Courant, in tight economic times, wanted him to stop writing less-than-flattering articles about advertisers. When Gombossy refused, he says, the newspaper fired him. The newspaper claims Gombossy's job simply was "eliminated." Reports The Times:

Courant executives say that their reporters are welcome to write about advertisers, and that the separation between advertising and editorial content still stands. Mr. Gombossy’s complaints are just those of a “disgruntled employee,” Richard Graziano, the paper’s publisher, said on a voicemail message.

After Gombossy wrote critical pieces about a Connecticut contracting company, new executives at The Courant called him in and asked him "to be nice to them."

Never mind that the very definition of a consumer reporter is someone who is not nice to businesses that act against the best interests of consumers. Reports The Times:

“At that point, I told them I’m refusing and I said, ‘You’ve got to fire me if you insist on me doing that,’ ” Mr. Gombossy said. According to him, Mr. Levine then backpedaled on the demand to meet with the advertiser, but said that he could not write about a major advertiser unless it was cleared by Mr. Levine.

Gombossy requested a list of major advertisers. And then came the final straw. He wrote an article about a bedding company that allegedly was selling used mattresses as new:

One of the advertisers on the list, Mr. Gombossy said, was the mattress company Sleepy’s. Mr. Gombossy had been looking into consumer complaints about the company, and had prepared a column to be printed on Aug. 2. That column said that the Connecticut attorney general was investigating the company, a fact the attorney general, Richard Blumenthal, confirmed in an interview last week.

Gombossy said he had the piece approved by the editor, but it never ran. A few days later, he was out of a job.

His readers still have access to his hard-hitting investigative reports:

Mr. Gombossy said he plans to file a lawsuit against The Courant. He has started a Web site, ctwatchdog.com, where he has posted the column about Sleepy’s.

Gombossy was a guest recently on the mytechnologylawyer.com radio show, hosted by Andrew Kreig and Scott Draughon. You can hear the interview by clicking here and going to the 8/27/09 download. The Gombossy interview begins at about the 34:00 mark. It is a fascinating conversation, starting with Gombossy's memories of his family fleeing communism in Eastern Europe in the 1950s.

You can see the irony in someone with that kind of personal story being canned at a newspaper for writing honestly about corporate wrongdoing. It sounds like an "iron curtain" has fallen over The Hartford Courant--and the mainstream media in general.

You can check out Gombossy's new Web site at ctwatchdog.com.

Gombossy might enjoy sinking his watchdog teeth into the National Arbitration Forum (NAF), a sham outfit that recently was sued by the attorney general of Minnesota and promptly went out of the consumer-debt business amid allegations of rampant fraud.

Here is how Sylvia Hsieh, of Dolan Media Newswire, described the allegations in the Minnesota lawsuit that pulled the mask off the NAF:

The complaint mapped out a “complex web” that boiled down to a cozy financial relationship: The arbitration services of NAF and sister organizations, as well as the debt collection services of the law firm Mann Bracken and other companies, have all been owned by the same New York hedge fund since 2007.

The complaint alleged that the NAF violated state consumer fraud, deceptive trade practices and false advertising statutes through “complex and opaque corporate structuring” that concealed its financial ties and represented itself as a neutral party.

“Consumers also do not know that--despite representing to the public that it has ‘no relationship with any party’ and does not ‘counsel our users’--(NAF) works closely with creditors behind the scenes,” the complaint said.

It further alleged that the NAF encouraged creditors to file arbitration claims, helped creditors draft arbitration clauses and sometimes collection claims against consumers, and referred creditors to debt collection law firms, including Mann Bracken, which then filed arbitration claims before the NAF.

The NAF story is just getting started. A number of class-action suits have been filed and more apparently are in the works. (Full disclosure: I am a plaintiff in a case that was filed last week in federal court in Minnesota. Evidence indicates that I am just one of many Alabamians who have been defrauded by NAF.) We will be following that story.

Did Alabama's GOP Governor Commit a Crime?

When the Montgomery Independent reported recently on Governor Bob Riley's effort to interfere with a decision of the Alabama Supreme Court, it stated that such a communication "violates all kinds of judicial ethics rules and laws."

But here is a bigger question: Did Riley commit a crime?

The answer almost certainly is yes--if it is proven that Riley did indeed place one or more phone calls to members of the Supreme Court in order to overturn a ruling by Chief Justice Sue Bell Cobb in a gambling-related case.

What crime would it be? Honest-services wire fraud, 18 U.S. Code 1343 and 18 U.S. Code 1346.

That is pretty much identical to honest-services mail fraud, which was central to the Don Siegelman/Richard Scrushy case in Alabama and the Paul Minor case in Mississippi. The primary difference between the statutes is that mail fraud involves use of the U.S. mails in "furtherance of a scheme to defraud," while wire fraud involves use of the federal wires (phone lines, computer lines, etc.).

We captured the essence of both crimes in a post titled "Mail Fraud: A Primer."
Here are the key components:

A person commits mail or wire fraud if he has (A) Perpetuated a scheme to defraud that includes a material deception; (B) with the intent to defraud; (C) while using the mails in furtherance of the scheme. Neder v. U.S., 527 U.S. 1 (1999).

An intent to defraud is at the heart of the crime:

What is intent to defraud? Courts have defined it as "a willful act by defendant with specific intent to deceive or cheat." U.S. v. Stephens, 421F.3d 503, (2005)

One of the most recent honest-services fraud cases in the 11th Circuit is U.S. v. Walker, 490 F. 3d 1282 (2007). Here is how the court described the key elements of the crime:

The scope of conduct covered by the honest services mail fraud statute is extremely broad. . . . Nevertheless, even if a public official engages in "reprehensible misconduct related to an official position," his conviction "for honest-services fraud cannot stand where the conduct does not actually deprive the public of its right to [his] honest services, and it is not shown to intend the result." Id. (emphasis added). Conversely, once the government establishes a scheme formed with the intent to defraud, the honest services fraud is complete "regardless of how that intent manifests itself in execution." United States v. Antico, 275 F.3d 245, 264 (3d Cir.2001); deVegter, 198 F.3d at 1328 ("A public official's undisclosed conflict of interest . . . does by itself harm the constituents' interest in the end for which the official serve—honest government in the public's best interest." (emphasis added); United States v. Jain, 93 F.3d 436, 441 (8th Cir.1996) (finding that for a successful prosecution following the showing of intent, "[t]he scheme to defraud need not have been successful or complete.")

Riley's scheme was not successful; the Supreme Court voted to uphold Cobb's ruling. But based on the Montgomery Independent's reporting, it appears the "intent to deceive" was there. And that is the crux of the offense.

As long as the Obama administration allows Leura Canary to remain as U.S. attorney in Montgomery, Riley has nothing to worry about. And it's yet to be shown that corrupt Republicans have anything to fear from the Obama administration anyway.

But if a tough, competent prosecutor somehow gets appointed in Montgomery, Bob Riley could have some uncomfortable days ahead.

Some Strange Wheels Are Spinning at UAB

The point person for my unlawful termination at the University of Alabama at Birmingham (UAB) apparently has herself been shown the door.

Pam Powell, who was my supervisor for 12 years in the UAB Office of Periodicals, now is listed as retired (effective July 2, 2o09) at the university's online directory.

Has my tormentor been demoted and forced into retirement? Sure looks that way. Why has that happened? Beats me.

Powell waged a five-month harassment campaign against me, which got so alarming in April 2008 that I went to her superior, associate vice president Dale Turnbough, and complained about age discrimination and other concerns. I filed a formal grievance against Powell in UAB Employee Relations on the same day I spoke with Turnbough. Roughly two weeks after filing the grievance, I was placed on administrative leave and then fired on May 18, after 19 years on the job.

It's hard to imagine a more glaring example of workplace retaliation.

Doug Gillett, one of three Office of Periodicals employees who recently was laid off, writes on his Hey, Jenny Slater blog that Powell had been demoted in the months leading up to his dismissal. Gillett writes:

On Friday I got laid off from my job at UAB, where I'd worked for nearly seven years, easily the longest stretch I've ever worked at any one job. On the one hand, it was kind of liberating, given that honestly, I'd pretty much fucking hated my job for the past few months. Without naming names or digging too much into the soap-operatic office politics that have taken over at my former place of employment, I received several signs over the past couple months, the most important of them being the careless (and callous) demotion of my beloved department head who had faithfully served the school for more than three decades, that indicated to me that none of us were particularly respected or valued anyway; so in that sense, my being removed from that situation is a good thing.

I like Gillett and considered him an excellent coworker, but I'm going to have to take him to task here:

* Doug, I've got to penalize you 15 yards for brown nosing. In fact, you might have to be ejected from the blogosphere for a few days for flagrant brown nosing. "Beloved?" Try talking to the three employees Powell has supervised who were around the age of 50. Two were fired and one was almost hospitalized due to work-related stress. (Her words, not mine.) Those folks probably would use a number of descriptive terms related to Powell--and some of them might start with "b"--but "beloved" would not be among them.

* You just realized that you weren't valued or respected when Powell got demoted? Do you recall a certain 19-year employee (me) who vanished into the good night without an explanation, who was treated like a criminal and not even allowed to return to his desk and gather his personal items? Do you know why this 19-year employee (me) was treated that way? Because I had the audacity to start a blog--just as you had--and exercise my First Amendment rights, to tell the truth about political and judicial corruption in Alabama and beyond.

Did you know that my computer usage at work was "investigated" for roughly a month in early 2008, apparently in an effort to determine if I was writing my blog at work? Were any of the other three bloggers in our office--including you--investigated in this manner? Nope. And guess what? UAB's own information-technology sleuth testified at my grievance hearing that I never typed the first word on my blog while at work.

UAB then resorted to vague allegations that I was "researching" my blog at work--whatever that means. As you know, part of our job description was, in our free moments, to use the Web to keep up with news events that could turn into story ideas for our publications. I did that. As you also know, various forms of new media had become a hot topic in our office, and we were instructed (in our free moments) to learn how blogs, social-networking sites, and audio/visual sites worked. I did that, and several of my suggestions based on that research were used with our clients. In other words, Doug, I got fired for doing my frickin' job!

Yep, all of those things Powell told us to do in our free moments? When she wanted to bump me off, she suddenly decided those were "non-work related activity." So what happened to me? My boss told me to do something, I did it, then she fired me because what she told me to do was "non-work related activity." And you think things just started getting weird with Powell's demotion? Heck, Powell played a big part in creating the weirdness.

And get this, Doug: UAB's own grievance committee determined that I should not have been terminated, but President Carol Garrison upheld my termination anyway. You want to know where the soap opera begins? Look toward the 10th floor of the Administration Building (where Garrison resides)--and the Board of Trustees' comfy digs in Tuscaloosa. It goes right to the top.

* Doug, you say Powell's demotion was "careless and callous"? What would you call the "career execution" that I experienced? And Powell played a huge role in it. Did it ever occur to you that Powell got what was coming to her--that she brought it on herself? And you want to know about callous? Has one single person from UAB contacted my wife or me to see how we are doing, with me having been thrown out on the street--cheated out of my job--in the worst economy since the Great Depression? I'm still waiting for the first sign of concern from anyone at UAB--the place that's supposed to be known for its "caring touch" in health care. Does anyone at UAB give a rip what this has done to our health? Not that I can tell. Powell's treatment of me went way beyond callous--to corrupt, deceitful, vicious, and inhumane--so excuse me if I don't shed a tear for her.

* On the subject of non-work related activity, Doug, you know a little something about that. I'm sure you recall that you got into some hot water for actually blogging and conducting political activities at work, a clear violation of university policy and probably state law. My memory is that you were given some kind of warning and went on to work seven years at UAB, only losing your job because of budgetary constraints. I wasn't blogging at work, researching my blog at work, doing political stuff at work or any other form of non-work related activity. I was simply doing what I had been told to do--but I got fired. You see the difference in the way you (a 25-year-old at the time) and I (51 at the time) were treated? You see why your use of the term "beloved" in relation to Pam Powell makes me want to regurgitate.

* Doug, if you are lucky, you'll be 51 some day. If and when you get there, I hope you will take a moment to think of how Pam Powell treated me. I hope you take a moment to think about how it might feel to be cheated out of your job at that age--or any age, for that matter. I hope you will, at some point, reconsider your use of the term "beloved" regarding Pam Powell. You're a smart guy, with a good heart and keen powers of observation. Look back to the months before Pam Powell's demotion and consider when the crap really started and who, to a great extent, caused it.

Let me get out of rant mode with my guy Doug long enough to ask this question: Why was Pam Powell unceremoniously shown the exits, and did it have anything to do with her role in my unlawful termination?

I have filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and should be getting the go-ahead soon for filing a lawsuit against UAB (actually the University of Alabama Board of Trustees is the legal entity) and a number of folks in their individual capacities. Did that have something to do with Pam Powell's demotion and apparent forced retirement?

I can't begin to understand why UAB's current administration acts the way it does. The place, in its current state, has become so dysfunctional as to boggle the mind. Even Doug Gillett says it's filled with "soap-operatic office politics." But I have seen how UAB handled one discrimination case against it. And I see some possible parallels between that case and Pam Powell's ignominious exit.

Dr. Seema Gupta was one of several international medical residents to receive shabby treatment at the UAB School of Medicine's Huntsville Residency Program, and I mentioned her case in a recent post. UAB's mistreatment of medical residents from India and Pakistan already has received coverage in one of India's major newspapers.

UAB was found to have discriminated against Dr. Gupta on the basis of her Hindu religion, and the case has attracted the attention of several prominent political figures in India, a country where UAB is trying to form business alliances.

The Indian politicians have sent complaints to their American counterparts, including U.S. Senator Richard Shelby (R-AL), who apparently proceeded to do nothing about the discrimination. The Gupta case is likely to attract international press coverage in the coming weeks, and we will be writing extensively about it here at Legal Schnauzer.

For now, let's make this point: A physician named Allan J. Wilke (along with Dr. Marcia Chesebro and Dr. Melissa Behringer, in the Gupta case) appears to have been at the heart of the problems with international medical residents at UAB's Huntsville residency program.

All of this took place under the "watchful" eye of Dr. Robert Centor, who is supposed to be overseeing the Huntsville program when he isn't busy writing a blog called Med Rants. Hmmm, wonder if Centor uses UAB equipment or time to write his blog.

What did UAB do not long after Wilke bumped Seema Gupta from her residency spot, after she had almost completed two years of the three-year program--and after UAB's own committee found that she should not have been non-renewed? The university demoted Wilke.

If you notice that the Seema Gupta case emits an ugly smell, similar to the one that surrounds my case, that's because it does. And we soon will begin filling you in on the details of how UAB accepts international medical graduates--and their tuition money--and then treats them like dirt.

Speaking of treating someone like dirt, that brings us back to Pam Powell. Did UAB pull a "Wilke" with her, showing her the door after she caused all kinds of human-resources problems? Our Schnauzer nose, and ears, will be looking for the answer to that question.

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.