Who Really Is Exhibiting Racism in Alabama Judicial Flap?

Kenya Lavender Marshall

The investigation and sanctioning of three white attorneys in the 1990s indicate the Alabama State Bar has been practicing racial politics in its handling of the recent Kenya Lavender Marshall case.

Marshall, who is black, had her law license suspended, and that caused her to be removed as the Democratic Party nominee for a Jefferson County judgeship. That led the Alabama Democratic Executive Committee (ADEC) to replace Marshall with Elisabeth French, who is black, instead of Nicole Gordon Still, who is white and was runnerup to Marshall in the primary election.

James Laster, president of the Jefferson County chapter of the Alabama New South Coalition, reacted by saying Still was a victim of racism and calling for French to step aside as a way of showing she does not support biased and racially charged decision-making. The Birmingham chapter of the Southern Christian Leadership Conference (SCLC) seconded that sentiment yesterday.

A Legal Schnauzer investigation, however, indicates the New South Coalition and the SCLC are looking in the wrong place for racism. Our research on a case from the 1990s indicates it was the Alabama State Bar, not ADEC, that probably was acting with race-based motives.

Marshall was charged with misappropriating about $30,000 in client funds. Perhaps the best known Alabama case involving similar allegations started with a bar complaint in 1994 against three Birmingham lawyers--Robert "Coach" Hayes, Robert Roden and Huell Carter.

How does the State Bar's handling of the Marshall case compare to that in the Hayes case, where all three accused lawyers were white? Marshall's punishment was much more severe. And her investigation was handled in a much more expeditious fashion. That strongly suggests that the Alabama State Bar went after Marshall with racist and poltical motives in mind.

The Hayes case has a personal angle to it for us here at Legal Schnauzer. It started when Richard Poff, then a law clerk at the firm of Hayes Roden and Carter, filed a bar complaint claiming the partners were improperly billing personal expenses to clients. The charges generated a criminal case, multiple lawsuits, and heavy local and even national publicity.

When our legal troubles heated up in late 2003 and early 2004, we already had been cheated by Jesse P. Evans III and Michael Odom, the first two attorneys I hired to defend me against a groundless lawsuit filed by our criminally inclined neighbor, Mike McGarity. Thinking Richard Poff seemed like a noble whistleblower, I contacted him, and he accepted my case.

That did not prove to be such a good idea. Poff turned out to be just as bad as Evans and Odom. He took $4,500 of our money up front and essentially did no work on our case. We later would discover that Poff went through an ugly divorce and bankruptcy, partly driven (according to court records) by gambling debts.

What can we learn from the Hayes episode? First, we can examine two appellate rulings on lawsuits that grew from the case--Poff v. Hayes and Hayes, et al v. Alabama State Bar. These cases strongly suggest that Kenya Lavender Marshall was a victim of what is known in the law as "disparate treatment."

The Alabama State Bar operates in a secretive fashion, so it's hard to get a grip on the facts in the Hayes and Marshall cases. Certainly the two cases are not identical, so making comparisons can be tricky. But several facts jump off the page at us, indicating that the Alabama State Bar treated a black woman very differently than it treated three white men.

Consider these major components of the two cases:

* Lawyers and Crimes--No criminal charges have been brought against Kenya Lavender Marshall. Criminal charges were brought against all three lawyers in the Hayes case, and all three wound up pleading guilty to various misdemeanors. Here is how a related appellate ruling summarizes the outcome of the criminal cases against Robert "Coach" Hayes, Robert Roden, and Huell Carter:

On February 14, 1997, following three weeks of trial in the criminal cases against the attorneys, Roden and Hayes pleaded guilty to four misdemeanor charges;  one involved the offense of obtaining a signature by deception;  another involved making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act;  another involved misapplication of property;  and another involved falsifying business records.   Carter pleaded guilty to two misdemeanor charges;  one involved the offense of obtaining a signature by deception, and the other involved making a contribution in the name of another person, in violation of the Alabama Fair Campaign Practices Act.

If you are keeping score, that's a total of 10 guilty pleas to criminal charges in the Hayes case. We have no guilty pleas, and no criminal charges, in the Marshall case.

* A Matter of Sanctions--Even though she was not hit with any criminal charges, Marshall received a four-year suspension of her law license. The Hayes case generated 10 guilty pleas to criminal charges, and how did the Alabama State Bar handle that? Hayes and Roden received two-year suspensions, and Carter was suspended for 247 days. Again, if you are keeping track, here is how the scoreboard reads:

     Kenya Lavender Marshall--0 guilty pleas equals four-year suspension

     Hayes, Roden and Carter--10 guilty pleas equal suspensions of two years or less

* Insight on Investigations--Marshall's case started when a client, Orlandera Johnson Jr., filed a bar complaint in January 2010. (By the way, Johnson's father, Orlandera Johnson Sr., was a longtime police officer in the City of Homewood. Johnson Sr. was killed in a car crash near Bessemer on January 5, 2010.) The Alabama State Bar announced a temporary suspension of Marshall's license on August 3. That means the investigation in Marshall's case took roughly eight months

What about the length of the investigation in the Hayes case? It started with a bar complaint in June 1994. That prompted a 13-month investigation that ended in July 1995. No action was taken for another 10 months. The bar finally filed formal disciplinary charges on May 15, 1996. Again, if you are keeping track, here is our scoreboard:

     Kenya Lavender Marshall--Total elapsed time from filing of bar complaint to discipline: Eight months.

     Hayes, Roden and Carter--Total elapsed time: Almost two years.


What conclusions can a reasonable person draw from this? Here is what we conclude:

* Kenya Lavender Marshall, a black female, had no criminal charges but received a suspension that is twice as long as three white male lawyers who had a combined 10 guilty pleas.

* Kenya Lavender Marshall, a black female, was punished in a time frame that was way less than half of that used in a case involving three white male lawyers.

* Why was Kenya Lavender Marshall, a black female, investigated and punished so quickly, compared to three white males charged in a similar case? Was it because she is black? Was it because she was running as a judge against a white candidate who had been appointed by Republican Governor Bob Riley, who is white? Was it because she soundly beat the white candidate, the one endorsed by the Jefferson County legal establishment, in a primary election? Was it because no Republican candidate qualified for the race, so Marshall had a clear path to being seated as a judge?

In our view, the answer to all four questions is yes. We don't see how a reasonable person could come to any other conclusion.

What to make of this? We thought it made sense to get Robert "Coach" Hayes' thoughts on the matter. After all, he knows what it's like to face charges similar to those leveled against Marshall. Since serving his two-year suspension, Hayes has been able to rebuild his legal career. He now is the chief partner in the Birmingham firm of Hayes Jackson Weaver and McKinney. When contacted at his office yesterday, Hayes said he did not want to comment on the Marshall case or the Alabama State Bar.

We have no qualms commenting about the Alabama State Bar. In our view, the evidence is overwhelming that it is a racist organization that is willing to be used as a political tool. Thanks to the veil of secrecy surrounding the Alabama State Bar, we don't know about the validity of the charges against Kenya Lavender Marshall. It's possible she deserved some form of punishment.

But the record is clear that she was treated much more severely than three white comparators. And the record is clear that her case was handled much more quickly than a case involving three white comparators. That indicates the Alabama State Bar was acting with racist and political motives.

The Alabama Democratic Executive Committee probably sensed that a black female candidate, who had been heavily favored by voters, was treated unfairly. The committee decided, we suspect, that the fair and right thing to do was to replace her with a black female candidate--one who was equally qualified to the white candidate. That, in our view, is not racism; it's a logical reaction to racism.

The New South Coalition and the SCLC are barking up the wrong tree when it comes to injustice. We suggest they train their sights on the Alabama State Bar.

After all, who is really practicing racism here?

Siegelman Seeks Reversal Based on Ruling in Skilling Case

Former Alabama Governor Don Siegelman is asking a federal appeals court to reverse convictions against him, based on the U.S. Supreme Court's recent ruling that narrowed honest-services fraud law.

Siegelman and codefendant Richard Scrushy say the U.S. 11th Circuit Court of Appeals should overturn their convictions because of the Supreme Court's findings in a case involving former Enron executive Jeffrey Skilling. Attorneys for Siegelman and Scrushy filed briefs with the 11th Circuit yesterday.

Sam Heldman, a Washington, D.C.-based attorney, said revisions in honest-services law require a reversal in the Siegelman case:

In June, the Supreme Court of the United States told the Eleventh Circuit Court of Appeals to consider Governor Siegelman’s appeal again, with guidance from the Supreme Court’s new decision in Skilling v. United States.

Today, Governor Siegelman filed his brief with the Eleventh Circuit, explaining that under the Skilling decision, all charges against Governor Siegelman should be dismissed.

One issue, Heldman said, is that the jury was tainted by instructions on a law that the Supreme Court now has held was unconstitutionally vague:

Most of the case against Governor Siegelman is based on the law that the Supreme Court addressed in Skilling, the so-called “honest services” law. The Supreme Court held in Skilling that the reach of that law is much narrower than prosecutors had long believed. It covers only true bribery and kickback cases. Governor Siegelman’s case is not a bribery case. It is purely a case about lawful contributions to the lottery campaign, not a case about bribery. Governor Siegelman did not get a penny from those campaign contributions for himself. Under Skilling, there simply was no crime.

This leaves only two charges against Governor Siegelman, under laws other than the “honest services” statute. But Skilling requires dismissal of those charges as well. In charging Governor Siegelman under those other laws, the prosecutors in this case have tried to expand those laws beyond the words that Congress wrote. The Supreme Court in Skilling emphasized that in our system, criminal laws must be carefully written to give notice in advance of what is prohibited, and that prosecutors cannot stretch the laws to cover the prosecutors’ chosen targets. Here again, Governor Siegelman simply did not break any laws.

Here is the full Siegelman brief:

Siegelman Dismissal Brief

Alabama Judge Switches Parties for Purely Electoral Reasons

Suzanne Childers

An Alabama domestic-relations judge says she is switching parties because of a gradual change in philosophy. But a source tells Legal Schnauzer that Suzanne Childers really is becoming a Republican because she feels a white Democrat no longer can win elections in Jefferson County.

Childers told The Birmingham News that she had been watching Fox News and found herself more and more agreeing with its conservative commentators. But a source, who knows Childers personally, told Legal Schnauzer last week that the judge felt it was no longer possible to win elections in Jefferson County as a white Democrat. Childers reportedly made that statement after several white judicial candidates lost to black candidates in recent Democratic Party primaries.

This is the second time Childers has been in the news of late for peculiar reasons. Last December, she announced that she was carrying a gun with her to court for protection. That came after the county had laid off 46 sheriff deputies during a financial crisis.

These two stories might make Childers seem like a bit of a loon, and that's unfortunate because our sources say she is the best judge in a Jefferson County domestic-relations court that is wracked with corruption. Here is how we described her in an earlier post:

Our sources say Childers is far and away the best domestic-relations judge in Jefferson County, which might not be saying much. One of Childers' colleagues, Ralph A. "Sonny" Ferguson, is a hideously bad judge and has been the subject of coverage at Legal Schnauzer.

Our sources say there is a pretty good chance of receiving justice when your case is before Childers, mainly because she does not play favorites with certain Birmingham law firms--something Ferguson is notorious for doing.

Here is how The Birmingham News describes Childers' decision to become a Republican:

Childers said Tuesday that she started watching the conservative-oriented Fox News Channel and increasingly found herself agreeing with what its commentators said.

"It's been a gradual progression," Childers said. "I have become more and more aware that my values, principles and ideas are more parallel with the Republican Party."

In a statement, Childers said the switch was "in the people's" best interest.

"It's in the people's best interest if I remain a judge," she said when asked to explain her statement.

The first part of that statement, according to our source, is not true. Childers really is changing affiliations because she thinks it will help her win elections.

The second part of the statement, while it sounds arrogant, might be true. Childers surely knows that a number of other judges who have served on the domestic-relations court are hopelessly corrupt. And it's probably true that Childers is the only hope many parties have of getting an honest ruling in a Jefferson County divorce case.

Just how bad is the corruption in the domestic-relations court? We soon will be starting a series of articles that will lay it out in grotesque detail.

Arrest Is Made in Murder of Former Riley Aide

Zoa White

A 24-year-old man has been arrested in the murder of Zoa White, a former aide to Alabama Governor Bob Riley.

Carlos Edward Kennedy was arrested late last night and charged with murder. White, 69, was found dead in her midtown Mobile home on June 28. Police said White died from blunt-force trauma to the head, and there were signs of burglary at the home, but had released few other details.

The White murder case had political overtones from several angles. Here is how we described it in an earlier post:

White had worked on Riley's 2006 re-election campaign and served as director of special projects for the Alabama Department of Economic and Community Affairs (ADECA).

Bill Johnson, who ran unsuccessfully in the 2010 Republican primary for governor, served as director of ADECA under Riley. It's unclear if Johnson and White worked for ADECA at the same time.

Johnson, however, has become one his former boss' harshest critics, raising questions about campaign funds Riley allegedly received from Mississippi gaming interests, funneled through disgraced GOP lobbyist Jack Abramoff.

In fact, Johnson has said that a federal investigation into gambling-related activity in the Alabama Legislature should focus on Riley and other anti-gaming forces, not just pro-gaming Democrats.

Johnson also has filed a complaint with Alabama Attorney General Troy King, alleging numerous conflicts of interests involving the governor and members of his family.

Johnson received death threats after revealing campaign-funding irregularities regarding Riley. Johnson was so close to White and her family that he helped inform friends about funeral arrangements.

Mobile County District Attorney John Tyson led the investigation on White's murder. Tyson also serves as commander of Riley's anti-gambling task force.

Update:

Here is the latest from WKRG in Mobile:

Charges Upgraded In Zoa White Murder


Update No. 2:


According to Local 15 News in Mobile, investigators say White was beaten to death with a hammer:

The 69-year-old retired realtor was found dead in her home on Silverwood Drive in Midtown Mobile earlier this Summer. According to investigators, White was beaten death with a hammer. Blunt force trauma to the head was the cause of death.

Detectives say the investigation is ongoing and if anyone has any information, please call the Mobile Police Department at 215-208-7211.

Obama Should Be Listening to Message from Alabama Democrats

Elisabeth French

Democrats in Alabama sent a resounding message last week with their surprising resolution to a dispute over the nominee for a judicial seat in Jefferson County. We would suggest that President Barack Obama pay attention.

By choosing Elisabeth French over Nicole Gordon Still for the judicial nomination in Birmingham, the Alabama Democratic Executive Committee (ADEC) revealed a distaste for anyone with connections to the state's political and corporate elite. Because the decision involved a judgeship, the ADEC also seemed to be expressing its concern about the justice system--in Alabama and beyond.

The message, in our view, boils down to this: "We've seen our federal justice system used as a political weapon. We've seen corporate interests buy up our state justice system. Too many Democrats have stood by silently while this happened--and we are sick of it. We support judges who are not beholden to the business or legal establishment. We support judges who apply the law equally to all."

If Obama and other national Democrats ignore this message, they will do so at their peril. And we suspect they will pay a heavy price at the ballot box in November.

Alabama's mainstream press has tended to portray ADEC's decision as based on race. French is black and Still is white--and the nomination came open when Kenya Lavender Marshall, who is black and won the Democratic primary, had her law license suspended over allegations from the Alabama State Bar that she had misappropriated some $30,000 from a client account.

But this is not the first time recently that Alabama Democrats have rejected a candidate who seemed too cozy with the state's elites. Just a few weeks back, Artur Davis was beaten soundly in the party's primary for governor. Davis, who is black, had sought support from the Business Council of Alabama and other corporate types. Still had been appointed to the judicial seat last June by GOP Governor Bob Riley, and we suspect that helped sink her chances with the Democratic committee.

Also, an extraordinary speech by Montgomery attorney Joe Morgan Reed seemed to set the stage for the ADEC's decision. (See video below.) In nominating French, Reed did something that lawyers almost never do--he admitted that our justice system is badly broken. After introducing himself as a member of the "brass knuckles wing of the Democratic Party"--and that fighting spirit seemed to resonate--Reed got down to the painful truth:

"For a lot of you who do not have a law license, I can tell you that one of the worst places you will go is a courtroom. You think you might be treated fairly, but you probably in all likelihood will not be. It is a different kind of justice--one that is Republican and one that is Democrat.

"We have Democrats who act like Republicans. We have Republicans who are definitely Republicans. We now have an opportunity to put a Democrat . . . a Democrat . . . a Democrat in office. . . .  We need a judge who will be a Democrat 24 hours a day, seven days a week, 365 days a year."

With his brief speech, Joe Morgan Reed seemed to seize the day. And his nominee, Elisabeth French, went on to win handily.

No Republican qualified for the race, so French is expected to take her place on the court in January 2011.  Many questions remain, including this one: Did the Alabama State Bar treat Kenya Lavender Marshall fairly--or did it have political motives in acting only after Marshall had beaten Still in the Democratic primary?

The Alabama State Bar tends to act in a secretive fashion, so it is hard to answer such questions. The public knows little about the evidence against Marshall, and knows even less about whether she had a valid explanation for the problems with her trust accounts.

We can, however, attempt to compare her case to similar cases that have been before the State Bar. We know of one case in particular from the 1990s that involved three Birmingham lawyers and allegations that they mishandled client funds.

We have been looking back at that earlier case and will write about it shortly. What are our conclusions? Well, we are still working on that. But we know this: The 1990s case involved three white males, and the State Bar's handling of that matter raises serious questions about whether Kenya Lavender Marshall was treated fairly.

For those who have concerns about equal protection and due process in postmodern America, a comparison of how the Alabama State Bar handled the two cases seems to add to the sense that our justice system is corrupt and tainted.

President Obama, so far, has chosen to do virtually nothing about justice issues, choosing to "look forward, not backwards." Progressives in Alabama seem to be saying that they are unhappy with that approach. We suspect the president will continue to ignore such concerns, and his party will pay a price.

Why did Joe Morgan Reed's words resonate in Montgomery, Alabama, last week? Thanks to the folks at Left in Alabama, we can see for ourselves. Here is a video from the event, with Reed's comments starting at about the 2:10 mark. Elisabeth French speaks at about 4:50, and a clearly agitated Nichole Gordon Still speaks at about 6:08.

Cats and Computers Are A Comical Combination

Perhaps we are easily amused here at Legal Schnauzer, but LOL Cats photos featuring computers almost never fail to tickle us.

We have two kitty kats of our own, the brother-sister Tonkinese combo of Baxter and Chloe, and maybe that has heightened our appreciation for the curious feline mind. Anyway, it's easy to imagine our Tonks being fascinated with computers, and that might be why we find the subject so amusing.

For example, Baxter is our household's mischief maker, and we certainly can imagine him pulling this stunt:





This gorgeous Tonk looks a lot like our big girl, Chloe:



see more Lolcats and funny pictures


I could imagine Baxter trying this--although he probably would sit on the glass and make a scan of his butt:



see more Lolcats and funny pictures


This black beauty reminds me of a few editors I've had over the years:



see more Lolcats and funny pictures


Finally, our kitty kats have shown no signs of being technically savvy. But maybe we should hold out hope:



see more Lolcats and funny pictures

Alabama Progressives Land a Solid Punch on "New Mules"

Bruce Gordon

Last week's Alabama tempest over a state-court seat in Jefferson County appeared to be about women of various colors. But evidence strongly suggests it was driven, behind the scenes, by men of one color--white.

These men and their followers, who come from both sides of the political fence, are driven largely by one desire--to strengthen their grip on political and judicial power. For years, they've been known in Alabama as "Big Mules." The Democratic Party committee that last Thursday chose Elisabeth French as its nominee for a Jefferson County judgeship in essence was telling today's "New Mules" to stick it. And in our view, that's a good thing.

We also think it's a good thing to "out" some of the New Mules who probably played a role in the effort to oust Kenya Lavender Marshall, who had won the Democratic primary, and force in Nicole Gordon Still, the runnerup.

One of these New Mules, we suspect, is prominent Birmingham attorney Bruce L. Gordon. His name has not been mentioned in mainstream-press coverage of last week's drama. But our research indicates he probably was a key character in the chain of events that led to Elisabeth French's selection.

News reports on the story have focused on race, largely because Marshall and French are black, and Still is white. Roughly three weeks after Marshall handily defeated Still in the Democratic run-off, the Alabama State Bar announced that it was temporarily suspending Marshall's license over allegations that she had misappropriated $30,000 in client funds.

That seemed to open the door for Still to become the nominee, and with no Republican challenger, it appeared she would hold onto the seat she had filled since being appointed by GOP Governor Bob Riley in June 2009. The Alabama Democratic Executive Committee (ADEC), as expected, removed Marshall as the nominee. But it threw a curveball by choosing to bypass Still and pick French instead. French had not run for the position, but state bylaws do not limit who can be considered when a nomination is vacated.

Our guess is that members of the ADEC smelled a rat from the curious timing of the State Bar's investigation of Marshall. And they probably thought the foul odor came from the Bob Riley camp, which undoubtedly wanted to see its nominee get the job. But the ADEC essentially flipped Riley a bird by bypassing Still and picking French instead.

Did that sit well with the "New Mules"? Not exactly. You can get a feel for their outrage by reading Sunday's column from John Archibald of The Birmingham News, their official mouthpiece. Consider this nugget from Archibald, accusing black Democratic Party official Joe Reed of engineering the rejection of Still:

Go ahead, Joe Reed. Just kick Martin Luther King's legacy right in the teeth.

Go on. Remind us why Alabama's Democratic Party has less to fear from Republicans than from, say, the Racketeer Influenced and Corrupt Organizations Act.

This isn't politics. This is criminal enterprise.

Archibald is so mad you can almost hear him slobbering. He's so mad his column is even more incoherent than usual. Archibald wouldn't know a legitimate RICO case if one bit him on his white, doughy ass. But he's referring to the ADEC's actions the other day in criminal terms?

Hey John, if you want to see some real RICO activity, why don't you check into Bob and Rob Riley's activities over the past eight years or so? Oh wait, that would involve real journalism, and you can't handle that.

Which brings us back to Bruce L. Gordon. Who is this man? Well, he is Nicole Gordon Still's father. And as we reported on Thursday, he has connections to Rob Riley, the governor's son. That probably explains  why Bob Riley appointed Still in the first place.

Here is an important lesson for progressives in Alabama--and elsewhere. Nicole Gordon Still has made much of her strong Democratic leanings, and we suspect her father leans the same way. So why would they jump in bed with Bob and Rob Riley? Anyone with three brain cells and an Internet connection can find voluminous information that indicates Bob Riley is a hopelessly corrupt governor, and his son has serious ethical issues, too. We've written about many of those issues on this blog and have public documents to back up our reporting.

The Gordons are not the only ones who seem comfortable bedding down with a GOP family that has highly questionable ethics. We've written extensively about self-styled civil rights "hero" Doug Jones and his alliance with Rob Riley. Jere Beasley and his prominent plaintiff's law firm in Montgomery make no secret of the fact they have bedded down with Rob Riley. You can read all about it on the Beasley Allen Web site.

It appears, in some cases, that progressive principles go out the window when power and money can be grabbed by cozying up to sleazy Republicans.

Bruce Gordon knows a thing or two about cozying up to Republicans. Did Gordon defend Alabama Pain Consultants, a company that is affiliated with Rob Riley and has been tied to Medicare fraud, in order to help get his daughter appointed to a judgeship? That certainly seems to be a reasonable question to ask.

Gordon used to be with a Birmingham law firm that loves to tout its Democratic values. In fact, he was the chief partner when it was called Gordon Silberman Wiggins and Childs. Gordon left to found a new firm in 2003, and his old outfit changed its name. Wiggins Childs Quinn and Pantazis remains perhaps the best-known employment firm in Alabama. According to its Web site, here is the WCQP vision:

From its formation, the firm has risen to prominence in pursuing “ground breaking” legal issues in individual and class action suits leading the way in shaping new laws protecting and benefiting people who have been victims.

Is WCQP really interested in protecting victims? Well, I have some personal insight on that question. I am a client in one matter, and I've discussed other matters with at least three members of the firm. From where I sit, this avowedly Democratic law firm has a decidedly mixed record.

To put it bluntly, Wiggins Childs Quinn & Pantazis hasn't done a damn thing for me yet. And I've seen evidence that the firm is willing to sell victims down the river if a certain New Mule wants them to. Is Bruce Gordon, because of his ties to the Rileys, the kind of New Mule who might influence decisions at his old firm? I would not be surprised.

Because of my interactions with WCQP, I've conducted a fair amount of research on the firm's work. And I wonder how much good they really do for victims. Certainly the firm has had its share of victories. But I've seen it bring a number of weak cases that probably never should have been filed--and resulted in dismissals.

Most alarming is WCQP's handling of perhaps the most famous employment case in Alabama history. A review of court documents indicates the law firm made some major strategic blunders in the case, costing a very deserving and well-known client much needed justice.

We will be writing more about this WCQP case. And I will be writing more about my personal experience with a firm that supposedly is concerned about victims of discrimination and civil-rights violations.

From where I sit at the moment, it appears WCQP doesn't want to wrinkle the undies of the New Mule crowd. And I wonder if that is partly because of Bruce Gordon's lingering influence.

As for Elisabeth French, I see plenty of reasons to think she will be an excellent judge. I've seen numerous comments on Web forums stating that French was chosen only because of her skin color and that she is not as qualified as Still. The facts, however, do not back that up. French and Still both started practicing law in 1997, so their experience levels are identical. Both have worked for major firms. Still has served as a judge for about one year, but that's probably only because her father's influence helped her land Bob Riley's appointment. French comes from a family that seems to care deeply about justice. Her husband, Courtney French, is a partner in the Birmingham firm of Fuston Petway & French.

Courtney French also is president of the Alabama Association for Justice (ALAJ), which says its mission "is to make sure any person who is injured by the misconduct and negligence of others can get justice in the courtroom, even when taking on the most powerful interests . . . "

If ALAJ is serious about that mission, we need more organizations like it.

Can Elisabeth French help restore a sense of justice in Alabama courtrooms? It might be a step in the right direction. And I think that's what the committee that selected her is looking for.

My sense is that Alabama progressives are tired of Democrats, especially of the white and privileged variety, who try to straddle both sides of the political fence. Bruce Gordon and his daughter have tried to do that. I suspect that's why they both got shot down last week.

Alabama Democrats Pull a Shocker--And We Love It!

Elisabeth French

The Alabama Democratic Executive Committee yesterday threw a curveball at the public, while essentially flipping a giant middle finger to Gov. Bob Riley and the Alabama State Bar. We give both actions two thumbs up.

Most observers, including this one, expected the committee to remove Kenya Lavender Marshall from the general-election ballot for a spot on the Jefferson County Circuit Court and replace her with Nicole Gordon Still. The process that led to Marshall's removal reeked of politics, but we figured the Democratic committee would cave and pick Still, who had placed second to Marshall in the party primary.

We, however, underestimated the committee. They indeed removed Marshall, following allegations from the State Bar that she had misappropriated $30,000 in a client fund. But instead of going with Still, who had been appointed to the judgeship last June by Riley, they chose Birmingham lawyer Elisabeth French. With no Republican in the running, French is likely to take office in January 2011.

Our first reaction to the news was shock. After all, French had not run in the primary. But state party bylaws do not limit who can be considered if a party nomination is vacated. The committee had every right to consider someone who had not run for the position, and we now think choosing French was a master stroke--the kind of gutsy, smart move for which Alabama Democrats are not always known.

On paper, French is at least as qualified as Still and more qualified than Marshall. Both French and Still have practiced law for 13 years, while Marshall has five years of experience.

We have not seen Still's full biography, but it appears that most of her experience has come while working in law firms operated by her father, Bruce Gordon. He worked for years at the state's largest employment law firm, Gordon Silberman Wiggins & Childs (now Wiggins Childs Quinn & Pantazis) and now leads the Birmingham firm of Gordon Dana Knight & Gilmore. As we reported yesterday, Bruce Gordon has ties to the Rileys. He represented Alabama Pain Consultants, a company affiliated with Homewood attorney Rob Riley, the governor's son. We suspect that connection to the Rileys is the reason Nicole Gordon Still was appointed in the first place.

French has been in solo practice since 2008. But before that, she worked for 10 years at the Birmingham firm Pittman Hooks Dutton Kirby & Hellums. She focused on complex civil litigation and environmental law. The firm focuses on products liability, personal injury, medical malpractice, premises liability, among other areas. French is married to Courtney French, president of the Alabama Association for Justice and a member of the Birmingham firm Fuston Petway & French.

Still, taking a page from Artur Davis, came across as an ungracious loser. In a written statement, she said:

What has happened today is deplorable. This decision circumvents the election process and the will of the Jefferson County Democratic Executive Committee. While there are many great candidates worthy of office in November, this is a bleak day for the Democratic Party in Alabama.

The Frenches supported me during my entire campaign and urged others to vote for me. Then, they used their relationships and the dynamics of this election in order to be handpicked for this judgeship without ever going through the election process.

In addition to spewing sour grapes, Still seems to be exhibiting a selective memory:

* The decision circumvents the election process?--That was circumvented when the Alabama State Bar went after Kenya Lavender Marshall, just three weeks after she had won the primary. And did Bob Riley, who appointed Still, have anything to do with that? Does Nicole Gordon Still know about actions others took on her behalf, in an effort to "circumvent the election process"?

* The Frenches used their relationships?--They probably did; that's standard political practice. But what about Ms. Still? Did her father's connections to Rob Riley help get her appointed in the first place?

* French was "handpicked" for this judgeship?--What do you call it, Ms. Still, when Bob Riley appoints you, probably with the influence of your father? That's not being handpicked?

The decision to pick French already is being colored in racial terms. She and Marshall are black, and Still is white. Some have speculated that the party felt it had to replace one black female with another. And it's certainly possible that both race and gender played a role in the final selection.

But I don't think that tells the whole story. Just a few weeks ago, Alabama Democrats soundly rejected Artur Davis, a black male who had openly courted the state's business establishment in an effort to become governor.

Now, Alabama Democrats have rejected Nicole Gordon Still, who courted the state's legal establishment. Her father is a prominent and influential attorney. Her father has clear ties to Rob Riley. She was appointed by Bob Riley. Her husband, S. Chris Still, works for Balch & Bingham, one of the most pro-business law firms in the state. According to his bio, Chris Still works heavily with electric and nuclear energy companies. It seems safe to say that he represents companies that are connected to Bill Canary's Business Council of Alabama.

Perhaps this wasn't so much about race. Perhaps true Alabama progressives stood up and took a stand yesterday. Perhaps they, in essence, said, "We've seen the business establishment in this country ruin our economy. We've seen the legal establishment in this country corrupt our justice system, especially here in Alabama.

"We rejected Artur Davis, and we now reject Nicole Gordon Still. And it is not because of their skin color. It's because they have cozied up to the establishment forces who have consistently acted against the best interests of regular, everyday Americans. It's time that we push for a true progressive agenda--in Alabama and beyond. And we are taking a stand for such an agenda today."

If that was the thinking behind the decision to select Elisabeth French, I am all for it.

Are Rileys' Fingerprints All Over Jefferson County Judicial Controversy?

The interests of Gov. Bob Riley and his son, Rob, appear to be driving a process that is likely to end with the removal of Birmingham lawyer Kenya Lavender Marshall as a candidate for a seat on the Jefferson County Circuit Court.

The Alabama Democratic Executive Committee will meet in Montgomery today to vote on rescinding Marshall's candidacy and naming a replacement. Two Jefferson County Democratic groups have recommended Nicole Gordon Still as the party's pick, and Still is the favorite to receive the nod if Marshall is removed.

Legal Schnauzer has learned that Still, through her prominent lawyer father, has ties to the Rileys. That, plus the curious timing of the charges against Marshall, indicate political considerations are at least partially driving the process.

Race seemingly has played a strong factor in the case since the Alabama State Bar announced on August 3 that it was temporarily suspending Marshall's license over charges that she misappropriated $30,000 in a client's fund. Marshall and three other lawyers who have expressed an interest in the court position are black; Still is white.

Gov. Bob Riley appointed Still to the judgeship in June 2009, but she had to run for re-election this year. Still spent $105,000 on her campaign and outspent Marshall by almost 8:1. But in the July 13 primary, Marshall won handily with 55 percent of the vote; Still came in second.

No Republican has qualified for the race, so the Democratic nominee is likely to take office in January 2011. It increasingly looks like that nominee will be Still. And it appears that her family connections to Bob and Rob Riley are helping her cause.

Still's father is Bruce Gordon, who has practiced law in Alabama for 45 years and is a partner in the Birmingham firm Gordon Dana Knight &; Gilmore. Still was with the firm, and her name was on the masthead, until Bob Riley appointed her to a judgeship.

Still's campaign Web site notes that she was among three candidates chosen by a nonpartisan commission  to be submitted to the governor. But that might not tell the whole story.

For several years, Bruce Gordon and the Gordon Dana law firm represented a company called Alabama Pain Consultants in a lawsuit involving Aspen Medical Products. That case is ongoing, and the Gordon firm has withdrawn from representation of Alabama Pain Consultants. But the case establishes a tie between Bruce Gordon, Nicole Gordon Still's father, and Rob Riley.

Alabama Pain Consultants is owned by Thomas Spurlock and David Marshall. Spurlock, a chiropractor, works in the UAB Department of Surgery and is a business partner with Rob Riley. Spurlock is an owner and officer in Performance Group LLC, a company whose other owners include Rob Riley.

As we have reported here at Legal Schnauzer, Performance Group and Alabama Pain Consultants are among the defendants in a federal whistleblower lawsuit, alleging they have engaged in Medicare fraud.

Consider a few passages from the whistleblower lawsuit. Here's one:

Beginning during or before 2005, defendant Spurlock routinely forged the signatures of physicians on prescriptions for physical therapy services to be provided by Spinal Rehab and Performance Group. In addition, Spurlock forged the signatures of physicians on certificates of medical necessity for medical equipment to be provided by Alabama Pain.

Here's another:

Beginning during or before 2005, defendant Spurlock, a chiropractor, signed his name as "Thomas Spurlock, M.D." on prescriptions for physical therapy and certificates of medical necessity for medical equipment for the purpose of misleading others regarding his authority to order such items and ultimately have them paid by insurers, including Medicare. . . . (the whistleblower) has witnessed Spurlock forge the signatures of numerous doctors who practice in and around Birmingham.

How deep did the fraud go?

Beginning in 2005, defendants Spurlock and Marshall instructed employees of Spinal Rehab and Performance Group entities, including (the whistleblower), to provide every patient from those physical therapy clinics with medical equipment from defendant Alabama Pain, a medical equipment company owned by Spurlock and Marshall. Employees were instructed to ensure that each physical therapy patient received a back brace, a transcutaneous electrical nerve stimulator ("TENS unit"), and/or a cervical collar. Pursuant to the instructions of Spurlock and Marshall, these items were to be provided regardless of whether they were medically necessary.

And here is more:

As an inducement to carry out this fraudulent scheme, Spurlock and Marshall paid employees bonuses or commissions for each piece of Alabama Pain medical equipment provided to physical therapy patients. Employees received $50 for each back brace, $25 for each TENS unit, and $25 for each cervical collar. . . . As a result of this fraudulent scheme, hundreds of claims were submitted to Medicare for medical equipment that was not medically necessary.

This alleged fraud was being conducted by Rob Riley's business partners. And those partners eventually were defended in another lawsuit by Bruce Gordon. A source tells Legal Schnauzer that Gordon and his firm, which included Nicole Gordon Still at the time, represented Alabama Pain Consultants well into 2008 and only withdrew when the company failed to pay legal bills.

Did Bruce Gordon's efforts to help bail out Rob Riley's business partners have a payoff? Well, Gordon's daughter was appointed to a judgeship in 2009.

And when Nicole Gordon Still failed to win the Democratic primary in mid July, the Alabama State Bar waited about three weeks before suddenly coming up with charges against the woman who beat her--Kenya Lavender Marshall.

Much remains unclear about this story. But this much is clear:

* Rob Riley and his business associates have stepped in some major legal doo-doo and probably could use some friendly judicial faces to help them wipe the stink off their shoes.

* Rob Riley and Nicole Gordon Still have quite a bit in common. They both have lived charmed, prosperous lives, driven largely by the fact they have powerful, influential daddies.

Are these powerful white families--and the Alabama legal establishment--joining forces to ensure that a black candidate never is seated as a judge, even though she apparently won an election fair and square?

Alabama citizens who care about justice should be giving that question a lot of thought over the next few days?

Meanwhile, here is a video of Kenya Lavender Marshall's appearance before a Democratic Party group earlier this week:

Don Siegelman and the Evil of a Political Prosecution

Our little corner of the blogosphere probably has produced as much coverage about the Don Siegelman case as any other spot on the Web. So our Schnauzer eyes and ears stay tuned for comments--informed and otherwise--about the case.

A common refrain we hear from the anti-Siegelman crowd goes something like this: "Well, the prosecution might have been politically motivated, but a jury found him guilty, so it doesn't really matter."

This, of course, ignores the fact that improper jury instructions were given--plus ample evidence that the judge was corrupt and the jury was tainted. But it misses the larger point. Under the law, it definitely does matter if a prosecution was politically motivated. In fact, such a prosecution desecrates one of our democracy's building blocks--the Fifth Amendment right to equal protection.

The U.S. Supreme Court has held "selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints." U.S. v. Batchelder, 442 U.S. 144 (1979).

The nation's highest court also has found that the Equal Protection Clause prohibits selective enforcement "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448 (1962).

Clearly, enforcement based on political affiliation falls under the kind of arbitrary classification that is prohibited by the Fifth Amendment. (Siegelman's Motion for a New Trial can be viewed at the end of this post.)

Federal courts generally have accepted the two-pronged test for selective prosecution set out in U.S. v. Berrios, 501 F. 2d 1207 (1974):

To support a defense of selective or discriminatory prosecution, a defendant bears a heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’

Appellate courts historically have been reluctant to override prosecutorial discretion and have established an assumption that a prosecutor has not violated equal protection. To overcome that, a criminal defendant must present "clear evidence to the contrary." United States v. Armstrong, 517 U.S. 456 (1996).

Can Siegelman meet this burden? Consider this passage from his Motion for a New Trial:

There is additional evidence of similarly situated individuals who were not prosecuted by the Republican-controlled Department of Justice:

a. Dr. Swaid N. Swaid donated $3,000 on July 16, 2002 to the gubernatorial campaign of Governor Riley. . . .  In November 2002, Governor Riley was elected to the Office of Governor for the State of Alabama. . . .  On December 19, 2002, after the election, Dr. Swaid contributed $10,000 to the gubernatorial campaign of Governor Riley. . . .  On January 20, 2003, Governor Riley was sworn into Office. . . .  In February of 2003, Governor Riley appointed Dr. Swaid as the Chairman of the Certificate of Need Board;

b. On August 17, 2001, Guice Slawson donated $50,000 to Governor Riley’s campaign. . . .  In April, 2003, Governor Riley appointed Guice Slawson as the Administrator of the Alabama Alcoholic Beverage Control Board; 

c. In 2008, Raymond Harbert of Harbert Management Company donated $10,000 to Governor Riley’s campaign. In March 2009, Harbert was appointed to the Auburn University Board of Trustees;

d. Michael Scanlon, a lobbyist convicted in the Abramoff lobbying scandal worked with Jack Abramoff to funnel millions of dollars from the Choctaw Indians into Alabama during the 2002 governor’s race according to the McCain Report. . . . An e-mail exchange between Abramoff and Scanlon on December 3, 2002 indicated that Abramoff had spoken with “Nell” (Rogers) of the Choctaws and that “she definitely wants Riley to shut down the Poarch Creek operation, including his announcing that anyone caught gambling there can’t qualify for a state contract or something like that. . . . ” According to a Birmingham News story dated December 9, 2004, the Poarch Creek Indians are complying with federal regulators who objected to two-thirds of their gaming machines. . . . The article quotes U.S. Attorney Leura Canary as stating, “the Poarch Creek tribe has been extremely cooperative.”

e. On December 19, 2005, Jim Hudson, the President of Hudson-Alpha Institute Biotechnology, along with Board Members Lonnie McMillan and Dr. Milton Harris, each gave $100,000 to the Alabamians for Biotechnology PAC. . . . On this same date, the Alabamians for Biotechnology PAC gave a contribution in the amount of $300,000 to the “Riley for Governor” campaign. . . .  In August 2005, Hudson-Alpha Institute announced that the State of Alabama had pledged $50 million to their project. . . .  Governor Riley was quoted in August of 2005 as saying “With a $50 million commitment from the state…”. On October 18, 2006, Jim Hudson gave $100,000 to the Alabamians for Biotechnology PAC. . . .  On October 18, 2006, the Alabamians for Biotechnology PAC gave $25,000 to the “Riley for Governor” campaign. . . .  On October 30, 2006, the Alabamians for Biotechnology PAC gave $20,000 to the Riley for Governor campaign;

f. According to an article published in the Mobile Press Register on April 21, 2008, “At least 86 individuals will enjoy access to Alabama Governor Bob Riley, thanks to their pledges of $40,000 each to a Republican fundraising committee designed to gain control of the Legislature. . . . ” The article goes on to say that “members of the Circle have pledged $10,000 a year over the next four years as part of the fundraising program called Campaign 2010. In return, the donors have been promised access to exclusive events and conference calls with Riley”.

That's at least six examples of similarly situated individuals who were not prosecuted for acts similar to those alleged in the Siegelman case. If Siegelman and codefendant Richard Scrushy were granted an evidentiary hearing, one can only imagine how much evidence they could gather to support their claims of selective prosecution based on political affiliation.

The Siegelman/Scrushy case might eventually come down to this: Is it more important that we protect the  of concept of prosecutorial discretion or that we protect individuals from abusive prosecutions? One is a legal doctrine created by the legal profession; the other is a constitutional guarantee. Which is more important?

More than 100 years ago, the U.S. Supreme Court warned about the dangers of rogue prosecutors who use their powers for improper reasons. In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the court wrote:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.

Do we still take that warning seriously? Do we still take the Due Process Clause seriously?

The outcome of the Siegelman case will tell us.

Siegelman--Motion for New Trial