Legal Web Site Suggests That Federal Judicial Clerks Are Not Capable Of Answering The Office Telephone

Hugo Black Courthouse

A law-related Web site suggests that federal judicial clerks should not be allowed to answer office telephones, in the wake of our reporting on a clerk in the Northern District of Alabama.

As the great columnist Dave Barry often has said, "I am not making this up."

Judicial Clerk Review (JCR) bills itself as "an oasis for law students and lawyers who are applying for judicial clerkships."  JCR then describes its mission: "We provide tailored support to our clients, removing uncertainty in the application process and ensuring they put their best foot forward as they apply for what we consider to be THE BEST law jobs."  

In furtherance of that goal, JCR's Web site includes a blog, which picked up on our recent reports about David Waters Jr., who clerks for U.S. Magistrate T. Michael Putnam at the Hugo Black Courthouse here in Birmingham. We have shown in a series of posts that Waters and Putnam have a clear conflict in my wife's pending employment case against Infinity Insurance, Waters showed supreme arrogance in hanging up on me once, Waters showed even more rudeness when hanging up on me a second time, and I had the pleasure of telling him off before the whole thing was over.

How did JCR describe the action? Let's take a look, from a post titled "Legal Schnauzer Sniffs Out Law Clerk":

Blogger and journalist Legal Schnauzer (aka Roger Shuler) is on a tear against U.S. Magistrate Judge T. Michael Putnam and Judge Putnam’s law clerk, David Waters, Jr. Legal Schnauzer has accused Putnam of presiding over his wife’s employment discrimination case despite an existing conflict of interest. According to Legal Schnauzer, at the heart of that conflict is the law clerk, whose dad is a partner in the law firm that represents the defendant employer in Legal Schnauzer’s wife’s lawsuit.

Schnauzer called chambers, apparently to inquire about this potential conflict, and got Waters on the phone. Twice. Both times, Waters hung up on Schnauzer, who recorded their second exchange. Legal Schnauzer has taken aim at Waters, accusing Waters of residing comfortably within the one percent and claiming to target Waters’s “finely manicured face” with a verbal assault over the phone. It’s personal, folks.

I kind of like it at this point, although I disagree about it being personal, from my standpoint. I don't have anything personally against David Waters Jr.; my ire comes from the fact that Waters is part of a broken system, and he seems to have an indifferent attitude about the corruption that I know is rampant in the Hugo Black Courthouse where he works.

My jaw dropped when JCR addressed the larger issues that my posts present. I thought their first item was interesting, the second one was absolutely on target, but the third one . . . well, it was a stunner. You can read here for yourselves:

What might be the bigger lessons here? (1) Had the law clerk simply gone about his business and, instead of clerking, entered the relative anonymity of law firm associate-dom after law school, he likely would have avoided this attention. I guarantee the clerkship experience is worth it. (2) If clerkships were truly open to a diversity of perspectives, backgrounds, and experiences, the thread of elitism that undergirds Legal Schnauzer’s accusations would not have much traction. (3) Maybe law clerks shouldn’t be permitted to answer the phone in chambers. Many judges and their staff shield the law clerks from public interaction on behalf of chambers. Not just for the good of the law clerk but to save chambers any embarrassment as well.

Now, I admire JCR for its statement in No. 2, and it's a rare dash of candor from someone in the legal profession: "If clerkships were truly open to a diversity of perspectives, backgrounds, and experiences, the thread of elitism that undergirds Legal Schnauzer’s accusations would not have much traction."

JCR seems to be admitting that nepotism, cronyism, and elitism is at the heart of the clerk selection process. In fact, the blog suggests the process is closed off to many capable candidates.

But JCR truly baffles me when it hints that maybe law clerks aren't capable of answering the phone and dealing with the public. The ones who get coveted clerkships are supposed to be "the best and brightest" of the young legal crop? Lord, have mercy.

JCR seems to ignore the real issue at the heart of my communications with David Waters Jr. If my wife's case were being handled according to the law, I never would have contacted him. If Judge Putnam had recused himself from the outset, as the law requires, David Waters and I never would have crossed paths.

Waters didn't come off sounding bad in my interview because he's a blockhead. It's just that he was put on the spot, facing honest and tough questions for which he had no answer. 

If Putnam had been following the law, I wouldn't have called in the first place. But assuming I had called anyway, Waters could have calmly explained the applicable law, and I probably would have understood and gone on about my business.

The only honest answer Waters could have given me on this occasion was: "Look, you know your wife is being cheated, I know your wife is being cheated, but I'm just Judge Putnam's law clerk and I can't do anything about it."

Knowing such an answer would have cost him a job, Waters chose to stumble and fumble around, coming across as an arrogant jackass who really doesn't care whether the public receives justice or not.

David Waters Jr. might not be that kind of shallow person. But the more deeply entrenched he becomes in a broken system, the more often he's going to sound like a shallow person.

That's the real lesson here: Corrupt judges make life difficult for everyone around them--litigants, lawyers, even law clerks who make the mistake of answering the phone.

Mayor Walt Maddox And The Tuscaloosa City Council Welcome CEO Ted Rollins And His Heavy Baggage

Tuscaloosa Mayor Walt Maddox

Do the city leaders of Tuscaloosa, Alabama, approve of child abuse, perjury, and deadbeat dads? A reasonable observer could conclude the answer is yes after the City Council recently voted thumbs up on construction of a new student-housing project called The Grove.

Does that name sound familiar? Well, The Grove is the banner under which Charlotte-based Campus Crest Communities builds student-apartment complexes around the country. Ted Rollins, the company's CEO, has all of the ugliness noted above--and then some--in his background.

How do we know? It comes from our research connected to Rollins v. Rollins, a divorce case in Shelby County, Alabama, described here as the worst courtroom cheat job we've encountered.  The final order from Circuit Judge D. Al Crowson was so flagrantly corrupt and one sided that it has left Ted Rollins' children (Sarah and Emma Rollins) and their mother (Birmingham resident Sherry Carroll Rollins) on and off food stamps for several years.

As CEO of a public company that has received more than $800 million in Wall Street support, Ted Rollins owns multiple private jet craft. And yet, he has no problem allowing his own children to go hungry here in Alabama, just a few miles up I-59 from Tuscaloosa.

Rollins once caused his children to be thrown out of their home in Greenville, South Carolina, all because he refused to make court-ordered mortgage payments. He even has a history of using illegal drugs while on a business trip to meet with officials of a public university. Appropriately enough, Ted Rollins got his "Rocky Mountain High" while in Fort Collins, Colorado, to seal a deal for The Grove at Colorado State University.

Parents of University of Alabama students are going to entrust their children to this guy? Mayor Walt Maddox and his political colleagues apparently have no problem with that. And so far, they have not responded to my questions on the subject, avoiding accountability much the way Ted Rollins does when asked about his repeated violations of court orders.

Almost all of the information about Ted Rollins' unsavory history is a matter of public record. But can Maddox and members of the Tuscaloosa City Council be expected to comb through court records every time a developer seeks approval for a construction project?

Well, in this case, they didn't have to. That's because I did the work for them.

On the morning that the city council was to vote on a rezoning request connected to The Grove project, I sent an e-mail to Maddox and then council member Lee Garrison. (In the August 27 municipal elections, Garrison was elected chair of the Tuscaloosa City School Board and officially gave up his council seat.)

I identified myself as a journalist who had reported extensively on an Alabama divorce case involving Ted Rollins. I cited just some of the ugly facts in the CEO's background and provided links to articles and public documents. I asked Maddox and Garrison if they supported such a corporate executive entering the Tuscaloosa business environment, and if so, why.

My query has drawn no response from either Maddox or Garrison. But I do know my e-mail reached its destination. A source tells Legal Schnauzer that Maddox mentioned the e-mail in a pre-council meeting that day and said he would distribute the information to council members.

Did the revelations have any impact? Did Tuscaloosa city leaders take the documented ugliness in Ted Rollins' background seriously? The answer appears to be no, considering that the rezoning request was unanimously approved that night--and the full Campus Crest project was approved at a subsequent council meeting.

Ted Rollins

What are we to take from all of this? Well, we know that Tuscaloosa's city leaders were informed in advance about Ted Rollins' background, which includes a state investigation for alleged child sexual abuse of his stepson. In other words, we know that this CEO has been investigated for the kind of behavior that led to the Jerry Sandusky scandal at State College, PA, and Penn State University. But the leaders in another college town, right here in Alabama, seem utterly unconcerned about that.

What exactly did Mayor Maddox and his council colleagues know before putting out the welcome mat for Ted Rollins and his company? Here is the copy of the e-mail I sent at 11:05 a.m. on August 20:

Mr. Garrison and Mr. Maddox:

I'm a journalist in Birmingham and write on justice issues at Legal Schnauzer.

I understand the Tuscaloosa City Council is about to consider issues related to The Grove, a planned student-housing development that is to be built by Campus Crest Communities of Charlotte, NC.

Campus Crest CEO Ted Rollins has extensive ties to Alabama and our court system, and I have reported on him in a lengthy series of posts. My reporting, supported by public documents and witness statements, shows the following:

* Mr. Rollins has been convicted of assaulting his 16-year-old stepson in North Carolina. http://legalschnauzer.blogspot.com/2012/05/campus-crest-communities-ceo-ted.html

* The assault constituted an act of child abuse under North Carolina law. http://legalschnauzer.blogspot.com/2013/01/ceo-ted-rollins-and-former-alabama.html

* Mr. Rollins was investigated for child sexual abuse of the same stepson, based on the complaint of an anonymous concerned citizen. http://legalschnauzer.blogspot.com/2012/09/campus-crest-communities-ceo-ted.html

* Mr. Rollins perjured himself in a divorce action that unlawfully was conducted in Shelby County Circuit Court, greatly reducing his child-support payments. http://legalschnauzer.blogspot.com/2012/03/ceo-ted-rollins-lied-under-oath-on.html

* Mr. Rollins failed to pay court-ordered child support for almost three years in South Carolina, resulting in a bench warrant for his arrest. http://legalschnauzer.blogspot.com/2012/01/ceo-of-campus-crest-communities-was.html

Do the two of you support the arrival of such a "family friendly" company and its CEO in Tuscaloosa? If so, why?

I would appreciate your response to these questions, plus any other comments you care to make, for publication at Legal Schnauzer.

Sincerely,

Roger Shuler 

legalschnauzer.blogspot.com 

(205) 991-7438 rshuler3156@gmail.com

Lee Garrison no longer serves on the City Council, but we will give Mayor Maddox another opportunity to address these issues. Will he remain in hiding, much the way Ted Rollins does when confronted with tough questions? We soon will find out.

What Does The Curious Timing Of Lawsuit Threats Say About Motives Of Jessica Garrison, Bill Baxley?

Jessica Medeiros Garrison

We've established that the first of my two communications with Jessica Medeiros Garrison came on July 12, when I sent her an e-mail requesting an interview about her relationship with Attorney General Luther Strange. I gave Garrison more than four days to respond, and I never heard from her, so my first report on her extramarital affair with Strange was published on July 17. 

From that date until August 13, I published six posts about the affair, and I never heard from Garrison or her attorney, Bill Baxley.

My second e-mail to Jessica Garrison was sent at 1:50 p.m. on August 14 and included questions about two issues that have little, if anything, to do with Luther Strange. One issue was her purchase of a house that was appraised for almost $440,000 in the Crestline section of Mountain Brook. The other involved her business relationship with a man named Erik Davis Harp, who was indicted in 2009 as one of two kingpins in an illegal gambling ring based in Panama. According to published reports, leaders of the ring had ties to the Gambino and Genovese crimes families.

Here are the full contents of my second e-mail to Jessica Garrison:

Ms. Garrison:

I am a journalist in Birmingham, reporting on justice/legal issues at a number of Web sites, including the blog Legal Schnauzer. I have been reporting about your relationship with Alabama Attorney General Luther Strange and would like to ask you a few questions for upcoming related articles:

(1) A document from your custody case, dated 5/23/12, states that you had a new address of 119 Main Street, Mountain Brook. Another public document shows that the property was sold at "public outcry" on two different dates, 6/12/12 and 7/20/12.

A. How could you have this new address in May when the property wasn't sold to you at public auction until June and July?

B. Was there really a public auction, where the property was available for open bids, or was the house somehow cherry picked for you? If so, who assisted in this matter, and why?

(2) Public records indicate you've had a business relationship with a man named Erik Davis Harp, formerly of Tuscaloosa. Published reports show that Mr. Harp was indicted for helping to run an illegal offshore gambling operation, based in Panama. Published reports further state that the operation had connections to the Gambino and Genovese crime families.

A. What was the nature of your business relationship with Mr. Harp? Is that relationship ongoing?

B. Given your public statements against gambling, and considering Luther Strange's strong opposition to gambling, how could you be connected to a gambling king pin with ties to major criminal factions?

I ask that you respond to this request by 5 p.m. on Friday, Aug. 16.

Thank you,

Roger Shuler

legalschnauzer.blogspot.com

(205) 991-7438

Once again, I gave Garrison ample time--more than two full days--to respond. Once again, she failed to respond. But this time, I did hear from her lawyer, Bill Baxley, alleging that my reporting was false and defamatory and that I was engaging in criminal conduct (harassing communications) against his client. 

Let's briefly review what we know at this point: I published six posts about the Jessica Garrison/Luther Strange affair, over a period of one month, and I never heard a word of complaint from Ms. Garrison. I sent her an e-mail on August 14, focusing on two subjects: (1) Her purchase of a pricey house in Mountain Brook; (2) Her business relationship with a man who had been indicted in an international gambling probe.

Two days later, Bill Baxley dashes off a letter to me, threatening a lawsuit. Baxley's letter claims my reports about the Garrison/Strange affair are false and defamatory, and he demands a retraction.

The timing of all this, however, suggests Jessica Garrison's real concern is about something else altogether. And we see evidence that Bill Baxley shares that unspoken concern.


(To be continued)

Roy Moore Should Be Known As "Hypocrisy Judge" In The Wake of Ruling On VictoryLand Forfeiture

Judge Roy Moore

Perhaps no public figure in modern American history has used Christianity to attain power quite like Judge Roy Moore of Alabama.

Therefore, you might expect that Moore is well versed in the teachings of the New Testament and lives his life accordingly. But based on a recent Alabama Supreme Court order in a forfeiture proceeding involving the VictoryLand casino, you would be wrong.

As chief justice, Moore signed an order that forced Macon County Circuit Judge Thomas Young off the VictoryLand matter. We've already shown the order conflicts with long-standing Alabama precedent--and it even includes a bold-faced lie, which makes you wonder how serious Roy Moore really is about the Ten Commandments and their warning against "bearing false witness."

But that's not all. We now have evidence that suggests Roy Moore should forfeit his nickname, "The Ten Commandments Judge." A more fitting title, it appears, would be "The Hypocrisy Judge."

As one who professes to be a devout Christian, Moore should be familiar with one of Jesus' best- known teachings. It comes from Matthew 7:3--"Why do you see the speck that is in your brother’s eye, but do not notice the log that is in your own eye?"

The meaning is clear: Christians are not to judge others, especially without stopping to scrutinize their own behavior first. Does Roy Moore follow that directive? Not even close.

In its VictoryLand order, the Alabama Supreme Court repeatedly chastises Judge Young for failing to show proper deference to a higher judicial body--and Roy Moore signs his name to the order, front and center as chief justice. This is the same Roy Moore whose previous reign as chief justice ended when he refused to obey a federal-court order that he remove his Ten Commandments monument from the Alabama Judicial Building.

As recently as August 21, 2013, on the 10th anniversary of the monument controversy, Moore still was defiant, claiming that he was right on the matter and federal courts were wrong. In other words, Roy Moore made disrespectful statements about the federal judiciary just as the VictoryLand order was about to be issued. (It's dated August 23.)

What do Moore and his colleague say about Judge Thomas Young, of Macon County? (See the full order at the end of this post.) Here is part of it:

Judge Young has consistently criticized this Court's decisions regarding the litigation involving VictoryLand. He has indicated that he was "shocked and alarmed" at our decision in Tyson v. Jones, that our decision in Cornerstone was "not clear" and "did not assist him," and that the application for a search warrant this Court directed him to sign was insufficient and "improper." Most telling, Judge Young violated this Court's previous directives by failing to act immediately upon the receipt of our February 15, 2013, sealed order "to issue the warrant" and, contrary to our directive that the proceeding and order remain under seal until further order of this Court, wrote a note on the face of the warrant that would disclose the fact and nature of the proceedings in this Court to VictoryLand and presumably others prior to the "further order of this Court."

Were Roy Moore's colleagues on the Alabama Supreme Court, knowing Moore's continuing history of defying and criticizing a federal court, able to sign the VictoryLand order with straight faces? Did Moore himself sign the order without noticing the slightest trace of irony?

As "The Hypocrisy Judge," Roy Moore seems to think he can do just about anything--and no one will notice that he's a phony.

VictoryLand Judge Young Recusal by Roger Shuler

Research On Law Clerk For Corrupt Federal Judge Provides A Chance to Vent About "The 1 Percent"

Hugo Black U.S. Courthouse

If you are a member of "The 99 Percent" you probably almost never get a chance to tell a member of "The 1 Percent" how you really feel about elites and the damage they have done to our democracy.

I recently stumbled upon such an opportunity while investigating a law clerk and the corrupt federal magistrate judge he works for in the Northern District of Alabama. At the risk of sounding self congratulatory, I didn't let the opportunity pass. I saw a high fastball coming and decided to swing for the fences, leashing a Schnauzer rant upon the ear drums of David Waters Jr.

Did I connect for a home run? Well, that is up for debate, and you can hear the exchange in a video at the end of this post. But I felt a whole lot better when my rant was over--and Waters undoubtedly was left with the distinct impression that I don't much care for legal con games in a system that is funded with public dollars.

Is David Waters Jr. really a member of the financial "1 Percent"? I would say that is highly unlikely. But as the son of a partner at the national, pro-corporate Jones Walker law firm, Waters certainly has close ties to legal elites. And his arrogance was on display when he hung up on me after being questioned about a conflict involving his boss, U.S. Magistrate T. Michael Putnam, in my wife's ongoing employment lawsuit against Birmingham-based Infinity Insurance. Actually, as we showed in a recent post, Waters hung up on me twice.

Did I land a few punches on David Waters finely manicured face? Well, you can be the judge. I went on the offensive by noting my experience before U.S. District Judge William M. Acker Jr. in my employment case against the University of Alabama at Birmingham (UAB). I pointed out what appears to be a patronage system for hiring law clerks at the Hugo Black U.S. Courthouse, a subject that Waters probably was not thrilled to see raised:

Who are some of the other law clerks down there? Is that how it’s done? I know Ben Slaughter used to be Judge Acker’s law clerk, and he now works at Haskell Slaughter. And you’re Judge Putnam’s law clerk, and your father works at Jones Walker. Is that how it’s done, all the big, pro-corporate law firms get their children these nice clerkships down there? But regular everyday people like us who get cheated out of our jobs, we just get screwed, time and again. And you don’t care, do you, David? You’ve got your future, you’ve got a nice little nest made for you, at Jones Walker, when you get out of your clerkship. Some of the rest of us have to actually work for a living and actually have to earn jobs. But you don’t care about that.

What kind of response did this draw from Waters Jr.? Nothing but an audible sigh. Sensing that I was on a bit of a roll, I decided to forge ahead:

And you’ve got a conflict of interest, and you know it, and that’s why you hung up, and Judge Putnam knows it and he’s crooked.

Waters apparently couldn't let that haymaker pass without a response, although he didn't deny that Putnam is crooked:

There is nothing I can do to help you. Further conversation on this topic is inappropriate at this point . . . This conversation has to end.

That brought return fire from yours truly:

You can end it whenever you want. You’ve already hung up once, go ahead and do it again. But I’m a journalist, and I am going to print this. I’m not going to sit back and let you and your little colleagues at Jones Walker cheat my wife. She’s been out of a job for 3 years and I know who did it . . . and Angie Ingram has been  wrongfully dismissed and you know she put matters outside the pleadings into this case, and therefore she cannot be dismissed. You know that, everybody down there knows it. Then I find out Angie Ingram is represented by someone from your father’s law firm. That’s a conflict of interest, David. You can’t sit there with any sort of serious look on your face and deny it.

With that, Waters resorted to the same line that ended our first conversation:

This conversation is over.

Click.

If it's been awhile since you've heard a member of "The 99 Percent" vent at an elite, you might want to check out this exchange. It begins at about the 3:40 mark in the video below:

Improper Actions Of Prosecutor And District Judge Are Focus Of New Appeal In Don Siegelman Case

Leura Canary

A prosecutor's failure to abide by her recusal violated Don Siegelman's civil rights and should lead to a new trial for the former Alabama governor. In the alternative, a new court filing states, Siegelman's prison sentence should be reduced because it is based in part on charges for which Siegelman was acquitted.

In a brief filed August 26 with the U.S. Eleventh Circuit Court of Appeals, Siegelman's lawyers argue that Bush-era U.S. Attorney Leura Canary continued to participate in the case after she had recused. Siegelman's legal team, which now includes former Obama White House counsel Greg Craig, claims this amounts to a violation of Siegelman's constitutional rights and requires a new trial--or at the very least, an evidentiary hearing on Canary's actions.

The brief also argues that U.S. District Judge Mark Fuller unlawfully enhanced Siegelman's sentence by relying on conduct for which a jury found the former governor not guilty. (See full brief at the end of this post.)

In the new appeal, Siegelman does not challenge the jury verdict, although his lawyers make clear he disagrees with it. Rather, he seeks review of issues that go to the heart of the case, focusing on improper actions of the chief prosecutor and the judge. From the brief:

U.S. Attorney Leura Canary's failure to honor her disqualification violated Siegelman's right to a disinterested prosecutor. While Siegelman was being criminally investigated by the U.S. Attorney's Office, Canary's husband was a hired consultant for Siegelman's political opponent; Canary had a direct financial interest in the success of her husband's client and in Siegelman's defeat. . . .

Despite this conflict of interest, evidence shows that Canary's involvement in the case lasted long after her May 2002 disqualification. She communicated with members of the prosecution team, made staffing decisions, and celebrated their success. According to evidence from whistleblower Tamarah Grimes, Canary even wrote press releases related to the case. This level of involvement from a prosecutor with a personal financial stake in seeing Siegelman defeated and convicted was constitutionally unacceptable. 

What are the legal particulars? They can be found in a U.S. Supreme Court case styled Berger v. United States, 295 U.S. 78 (1935).  The crux of the matter is this: Federal prosecutors have a duty to serve the public interest, not their own personal or financial interests. From Berger:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

How important is this principle? The nation's highest court held in Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) that the failure to ensure a disinterested prosecutor requires automatic reversal of a conviction. From the Siegelman brief:

The right to a disinterested prosecutor is so important—such a “fundamental premise of our society”—that failure to honor the right requires automatic reversal, without requiring the defendant to show that the error caused prejudice. . . .

In this case, Canary was disqualified from participation in the Siegelman case in May 2002, but she continued to communicate with and influence the prosecution team long after that. Given her direct, personal financial interest in prosecuting Siegelman, her continued involvement in the case violated Siegelman’s right to a disinterested prosecutor. At a minimum, Siegelman has established sufficient reason to believe that targeted discovery—which has never been conducted—would develop significant new facts substantiating his claim.

As for trial-court judge Mark Fuller, it's hardly breaking news that he butchered the Siegelman case. His unlawful and improper actions have been well documented here and at a number of other news sites, including Andrew Kreig's Justice-Integrity Project.

Kreig, by the way, devotes considerable space to the Siegelman case in his new book, Presidential Puppetry: Obama, Romney, And Their Masters, which is about to be released in hardcover. Kreig discussed the book earlier this week on the Garland Robinette Show at WWL radio in New Orleans, and a podcast can be heard here.

Siegelman's latest Eleventh Circuit filing shines new light on Fuller's corrupt handling of the sentencing process:

In calculating Siegelman’s sentence under the Guidelines, Judge Fuller dramatically increased his offense level by relying on conduct unrelated to the offenses for which Siegelman was convicted. Without explanation, Judge Fuller lumped together all the charges against Siegelman—the Scrushy Charges, the Motorcycle Charges, and the RICO Charges—treating them as a single, undifferentiated block. The consequence of this grouping was to dramatically increase Siegelman’s offense level by imposing: (1) a two-level increase for obstruction of justice; (2) an eighteen-level increase based on a $3,740,525 “total benefit” calculation; and (3) a four-level upward departure for systematic and pervasive Government corruption. As a result, a Guidelines range of 51 to 63 months’ imprisonment was suddenly transformed into a range of 151-188 months’ imprisonment.

Translation: Fuller unlawfully increased Siegelman's sentence by a factor of roughly three. How unjust is that? The brief makes it clear:

Grouping all of the conduct together was thus the most significant sentencing decision that Judge Fuller made. Yet he failed to explain or justify the decision in any way. Nor was a justification possible: The conduct underlying the Scrushy Charges, the Motorcycle Charges, and the RICO Charges involved disparate acts and aims, took place at different times over a six-year period, and involved different participants. Much of the conduct that Judge Fuller held Siegelman accountable for was also unknown and unforeseeable to him. Therefore, Judge Fuller erred in calculating Siegelman’s Guideline range by treating everything the government sought to prove at trial as a single, undifferentiated unit.

The relevant law on this issue is found in a case styled United States v. Valarezo-Orobio, 635 F.3d 1261 (11th Cir. 2011). From the brief:

Under the Sentencing Guidelines, a defendant is punished not merely based on the counts of conviction, but on the “relevant conduct” underlying those counts. . . .  Conduct qualifies as “relevant”—and hence punishable—if it is sufficiently related to the offense of conviction; where joint activity is alleged, the conduct must also be “foreseeable” to the defendant.

Siegelman's legal team makes a powerful argument that Fuller simply ignored the principles of federal sentencing:

To determine whether conduct should be grouped together, “a court must look to the similarity, regularity, and temporal proximity between the offense of conviction and the” conduct sought to be grouped. United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir. 1994). . . . But this Court has admonished sentencing courts not to paint with too broad a brush: "[W]hen illegal conduct does exist in discrete, identifiable units apart from the offense of conviction, the Guidelines anticipate a separate charge for such conduct. . . . " United States v. Blanc, 146 F.3d 847, 853 (11th Cir. 1998) (grouping of frauds together was unwarranted “because the conduct is subject to meaningful subdivision into wholly discrete and identifiable units”).

The trial record is filled with evidence that Fuller could not lawfully take a "kitchen sink" approach to sentencing:

Here, it is clear that the Scrushy Charges can meaningfully be divided from the Motorcycle Charges and the RICO Charges, such that a “separate charge” was proper for each.10 Indeed, they were indicted separately. See Amedeo, 370 F.3d 1305 at 1315-16 (separate indictment shows that the conduct was “sufficiently distinct from the offense of conviction that it warranted a separate charge”). And the fact that the jury could, without any logical inconsistency, acquit Siegelman of the RICO Charges but convict him of the other charges further confirms that they are easily separable.

Siegelman's latest appellate brief provides another ugly chapter in perhaps the most notorious political prosecution in American history. It paints the picture of a prosecutor unlawfully pulling strings from off stage, and a judge acting on his own whims rather than established legal guidelines.

Appellate brief by former Alabama Gov. Don Siegelman challenging prosecution recusal, Aug. 26, 2013 by Andrew Kreig

Roy Moore Talks A Lot About Ten Commandments, But He Has A Hard Time Living By Their Provisions

Judge Roy Moore

Alabama judge Roy Moore spouts off so often about the Ten Commandments that a reasonable person might figure Moore actually knows what they say and abides by them. Moore wears his Christian faith on his sleeve to such an extend that a reasonable person might figure the judge knows the Bible and lives by its teachings, including Jesus' statement in Matthew 7:3--"Why do you see the speck that is in your brother’s eye, but do not notice the log that is in your own eye?"

Based on the Alabama Supreme Court's recent order to force Macon County Circuit Judge Thomas Young off the VictoryLand forfeiture matter, the reasonable person would be wrong on both counts. Roy Moore apparently believes Biblical strictures are for others to follow, but they do not apply to him.

How else to explain Moore signing off on an order that not only is contrary to legal precedent, but also includes a blatant misstatement of fact. To put it bluntly, the order includes an outright lie, which calls to mind Commandment No. 9--"Thou shalt not bear false witness against thy neighbour." This commonly is understood to mean that Christians are not to lie. Proverbs 6:16-19 builds on this idea:

There are six things that the LORD strongly dislikes, seven that are an abomination to him: haughty eyes, a lying tongue, and hands that shed innocent blood, a heart that devises wicked plans, feet that make haste to run to evil, a false witness who breathes out lies, and one who sows discord among brothers.

That makes it mighty clear that the Lord isn't too keen on liars. So why did Roy Moore sign his name to a document that includes a bold-faced lie?

Well, let's consider the proof against "His Honor." From page 2 of the order removing Judge Young:

The game of "bingo" can constitute a lottery or gift enterprise under Art. I, Sec. 65. Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65 (Ala., 2009). There are, however, certain local amendments to the constitution that authorize "bingo" games and act as "exceptions to the lottery prohibition" of Sec. 65. In the Cornerstone decision, released on November 13, 2009 this court set forth a six-part test to determine whether certain gaming activity constituted legal "bingo" for the purposes of those local amendments.

Whoever wrote those sentences, especially the part highlighted in yellow, is a liar. And he is lying to the Alabama citizens who fund his job and his court with their taxpayer dollars. We don't know that Roy Moore wrote those words, but he signed off on them. So what does that say about Roy Moore. It says, to me, that he's a liar--that he does not take the Ten Commandments seriously. At the very least, it says he countenances liars and supports their work.

How do we know that Roy Moore and his colleagues on the high court are liars? We can start by looking at the Cornerstone decision ourselves. The "whole shootin' match" can be read at the following link:

Barber v. Cornerstone, 42 So. 3d 65 (Ala., 2009)

The Cornerstone ruling came after former Governor Bob Riley's anti-gambling task force seized property at an electronic-bingo facility in Lowndes County, and a trial court granted a preliminary injunction and ordered the task force to return all property. The Riley defendants appealed, and the Supreme Court's ultimate ruling describes the issues it considered:

On May 26, 2009, the Riley defendants filed their appellants' brief on the merits of their appeals of the trial court's preliminary injunction. On May 29, 2009, Cornerstone and FTV filed in both appeals a motion asking this Court to dissolve the preliminary injunction and to dismiss the appeals.

The highlighted words make it clear the Supreme Court was considering a narrow issue: Was the preliminary injunction in the Lowndes County court proper?

We invite readers to click on the link above and read the entire Cornerstone ruling. Taken as a whole, it states that the court was focusing narrowly on: (1) The electronic-bingo facility in Lowndes County; and (2) The lawfulness of the preliminary injunction against the Riley defendants.

That's it--nothing about any other bingo facility in Alabama, nothing beyond a right or wrong ruling on a preliminary injunction. For those who don't want to read the entire ruling, I've presented the key section below, which encompasses roughly the last six paragraphs of the ruling. That's where the rubber meets the road, and the section can be read at the end of this post.

What do we learn? The two highlighted sections below tell us exactly what the case was about. First, we have this:

Based on the foregoing, we must conclude that the term "bingo" as used in Amendment No. 674 was intended . . .

We see nothing unclear about that. The case is about Amendment No. 674, which governs bingo in Lowndes County.

Then, we have this:

On the basis of the foregoing, we cannot conclude that Cornerstone and FTV introduced sufficient evidence from which the trial court could have determined that Cornerstone and FTV had a reasonable likelihood of success on the merits. The trial court's order issuing a preliminary injunction therefore is reversed, and the cause is remanded for further proceedings consistent with this opinion.

This, again, is clear: The case is about two entities in Lowndes County (Cornerstone and FTV) and it's about a preliminary injunction they had obtained--nothing more, nothing less.

That brings us back to Roy Moore. Why did a judge who touts the Ten Commandments sign his name to a ruling that includes a clear lie? 

As for Judge Moore's inability to see "the log in his own eye," we will address that in an upcoming post.

Barber v. Cornerstone Section by Roger Shuler

Bill Baxley And His Client, Jessica Medeiros Garrison, Play Fast and Loose With Both Facts And The Law

Jessica Medeiros Garrison

Alabama lawyer Bill Baxley apparently believes in laying it on thick. Why level one bogus claim against someone, when you can level three or four?

That philosophy seems to be at play in the recent communications I've received from Baxley on behalf of his client, Republican political operative Jessica Medeiros Garrison. First, Baxley alleged that my reports on Garrison's long-running extramarital affair with Alabama Attorney General Luther Strange are false and defamatory. I soon will present evidence that indicates Baxley himself doesn't believe that. In fact, I have evidence that suggests Baxley's letters aren't about Jessica Garrison and her affair with Luther Strange--they might not be about Jessica Garrison at all.

But Baxley was not content to raise only a bogus defamation claim against me. He followed that up by suggesting I had engaged in a crime, harassing communications, against his client. Then, seemingly unable to contain himself, Baxley alleged that I had committed another crime, stalking, against his client.

Press reports indicate Baxley has downed copious amounts of Jack Daniels and other "adult beverages" over the years, so maybe that has done something to his brain cells. For whatever reason, he seems to have lost the ability to engage in facts and the law. So we will take over that job for him.

As for facts, I've never seen Jessica Garrison or, to my knowledge, been anywhere near her. I've engaged her in communication twice, both times via e-mail. On both occasions, I requested an interview and/or invited her to comment on matters of public interest. She is, after all, an attorney with a major Birmingham law firm (Balch & Bingham) and an official with a national political organization, the Republican Attorneys General Association (RAGA). On top of that, she served as campaign manager for Luther Strange in 2010.

In other words, Jessica Garrison has willingly stepped into the arena of statewide and national politics, and she should not be surprised when a reporter contacts her with questions or an interview request. As an attorney herself, she also should be familiar with the law on subjects such as defamation, harassing communications, and stalking.

My first e-mail to Jessica Garrison was sent at 12:31 p.m. on July 12, 2013. Here are the full contents:

Ms. Garrison:

I am a journalist in Birmingham, reporting on justice/legal issues at a number of Web sites, including the blog Legal Schnauzer. I've received reports from multiple sources that you and Luther Strange had an affair that culminated with your divorce and his election as attorney general of Alabama. I have been researching this matter for several months, and I'm at the point where the stories are ready for publication. I would like to give you an opportunity to respond to questions and ask that we schedule a time for an interview, either via phone or in person.

My plan is to begin running the articles in the next few days, so I ask that you respond to this request by 5 p.m. on Tuesday, July 16.

Thank you,

Roger Shuler

legalschnauzer.blogspot.com 

(205) 991-7438

As you can see, I identified myself and stated my affiliation and my purpose for contacting her. I stated that I wanted to give her an opportunity to respond to questions about her relationship with Luther Strange. I said I would be glad to conduct the interview by phone or in person--and I gave her more than four days to respond to my request. I treated her with respect and professional courtesy, but  I never heard from her, so I proceeded with my first report about the affair on July 17.

Jessica Garrison had every opportunity to address this issue. If she wanted to make verbal statements or present physical evidence that indicated no affair took place, I was prepared to listen, take notes, and report accordingly. She was contacted five days before the first word ever appeared on this blog about the Luther Strange affair.

Ms. Garrison never responded--never took advantage of a chance to discuss this issue--but now she's claiming my reports are false and defamatory. In a curious twist, Ms. Garrison did not communicate her claims to me until Bill Baxley's letter of August 16, exactly one month after she had failed to respond to my interview request.

That's not the only curious twist in this evolving tale.


(To be continued)

Lee "Penis Nose" Garrison Offers Prayer For Stan Pate At The Same Time His Lawyer Threatens Legal Action

A stretch limousine used
for Tuscaloosa election

Tuscaloosa, Alabama, now holds the distinction of hosting perhaps the zaniest, most flagrantly crooked municipal election in U.S. history.

It started with a photo of one candidate wearing a penis nose, plus evidence that the same candidate has roundabout ties to the Gambino and Genovese crime families. (And this guy won!) It ended with national headlines about e-mails that offered free drinks for sorority girls to vote, plus transportation to the polls via stretch limousine.

For good measure, Alabama Public Radio provided a serious tone to the proceedings by reporting that the election might have involved violations of state law.

As for the wacky stuff, the most amusing moment--at least to me--has gone largely unreported in the press.

It involves school-board candidate Lee "Penis Nose" Garrison (he of the Gambino/Genovese connections) issuing a statement to supporters about businessman Stan Pate, who allegedly erected a billboard and a Web site to poke fun at the Garrison campaign and encourage votes for the other candidate. 

For some reason, Garrison failed to see the humor in Pate's antics. So here is part of Garrison's statement to his followers:

My response is simply this, I pray for Stan. I pray for God to help him in only the way that God can heal. My family is very upset over what he has done, but we forgive him for his actions and I pray that Tuscaloosa will do the same.

Now, isn't that nice. But here is the kicker: While Lee Garrison was down on his knees, earnestly beseeching the Almighty to save Stan Pate's soul, Garrison's attorney (Lisa L. Woods, of Birmingham) had other ideas--she was sending letters that threaten legal action against Pate. (The letters can be viewed at the end of this post.)

Way to show some love for your fellow man there, Mr. "Penis Nose"! Do you have a divine revelation that part of God's plan to help Stan Pate involves a side trip to the Tuscaloosa County Courthouse? How very Christian, indeed!

Let's take a look at some of Lee Garrison's Christian charity toward Stan Pate--on  full display in missives Attorney Woods sent to W. Cam Parsons, counsel for Pate, and to Mr. Pate himself. Here is my favorite part of the letter to Pate's lawyer:

Given your years in practice, I am certain that you understand that, sometimes, things are said in the course of divorce and post-divorce matters that are not true. Simply stating that some third party "swore" to such information does not make the statements true. That said, we ask that you advise Mr. Pate to take his website down and refrain from making or repeating false statements against my client.

We learn from this that Lee Garrison is alarmed about information that Stan Pate apparently gleaned from a court filing in Garrison's divorce case. Ms. Woods takes much the same approach in her letter to Pate:

You have posted a court filing, purportedly by Ms. Jessica Garrison and/or her counsel. It is our position that the statements contained in the same were false then and are false now. An Objection and Response to those false allegations was filed on my client's behalf. We notice that you did not bother to place that document on your post. We perceive this as disregard for the truth in your posting.

Notice that Garrison's lawyer states it's "our position" that statements in the court filing were false. Further notice that Garrison's lawyer states "we perceive" Pate's failure to also publish an Objection to the filing point to his disregard for the truth in the posting. Finally, notice that Garrison's lawyer offers no law to support her claim that Pate's publication of a court filing is defamatory.

That's because no such law exists. In fact, the general rule is that statements made in judicial proceedings carry absolute immunity and cannot be made the basis of a defamation claim. The Alabama Supreme Court spelled this out in a case styled Barnett v. Mobile County Personnel Board, 536 So. 2d 46 (Ala., 1988). In that case, the high court describes the kinds of documents that carry immunity:

There is another class of privileged communications where the privilege is absolute. They are defined in Hastings v. Lusk, 22 Wend. [N.Y.] 410, 34 Am.Dec. 330. In this class are included slanderous statements made by parties, counsel, or witnesses in the course of judicial proceedings, and ... libelous charges in pleadings, affidavits, or other papers used in the course of the prosecution or defense of an action. In questions falling within this absolute privilege the question of malice has no place. However malicious the intent, or however false the charge may have been, the law, from considerations of public policy, and to secure the unembarrassed and efficient administration of justice, denies to the defamed party any remedy through an action for libel or slander.

Why is this the case in Alabama--and across the country? The Barnett court explains:

The doctrine of absolute immunity for statements in judicial proceedings reflects a judgment that the need for completely free speech for litigants is dominant, and that this freedom is not to be endangered by subjecting parties to the burden of defending their motives in subsequent slander litigation, or to the risk that juries may misapprehend those motives.

Lee Garrison and his lawyer should know that Stan Pate cannot be held liable for publishing a court document that is public record. (By the way, I published the same modification of custody filing to the Scribd document-sharing Web site and here on Legal Schnauzer; in fact, that's probably how Stan Pate became aware of it. If Ms. Woods thinks Stan Pate has engaged in defamation, then I guess I will have to brace myself for a threatening letter from her.)

If the lawyer doesn't know simple provisions of defamation law, she needs to give up her bar card and go into a different line of work. If Lee Garrison doesn't know the law, and understand it, he needs to exit the political arena and enter a field outside the public spotlight, where his feelings won't so easily be bruised.

Stan Pate Lawsuit Letters by Roger Shuler

Borrowing A Phrase From Bill Baxley's Colorful Past, I Instruct The Infamous Attorney To "Kiss My Ass"

Jessica Medeiros Garrison

Alabama lawyer Bill Baxley has a lengthy history of erratic behavior, with numerous published reports about drinking, gambling, and womanizing. Perhaps Baxley's most infamous personal scandal involved his extramarital affair with an Associated Press reporter named Marie Prat.

On the legal side, Baxley might best be remembered for his reply, while Alabama attorney general, to a threatening letter he received in 1976 from a leader of the Ku Klux Klan. Baxley's three-word response: "Kiss my ass."

I don't want to make a habit of copying anything from Bill Baxley's sordid playbook. But Baxley recently sent me a threatening letter on behalf of Jessica Medeiros Garrison, who has been the subject of several posts here at Legal Schnauzer about her long-running extramarital affair with current Attorney General Luther Strange. (Baxley's letter can be viewed at the end of this post.)

The August 19 letter is brief, but it includes such outrageous misstatements of fact and law that I thought it would be appropriate to borrow a page from Baxley's playbook for my response. I politely invited him to "kiss my ass."

I've already noted that a Baxley letter dated August 16 included a number of assertions that are off the charts. For example, he claimed that contacting his client to request an interview or invite comment on matters of public interest would constitute the crime of harassing communications.

Baxley's second letter might have been even more absurd. First, he claims that I am not a journalist under Alabama law and do not qualify for privileges enjoyed by journalists. Baxley cites no law to support that claim, and he apparently didn't bother to check my background before spouting off.

I have a journalism degree from the University of Missouri, which has the first journalism school that was established anywhere on the planet, and 35 years of professional experience. I was on staff as a reporter/editor for 11 years at the Birmingham Post-Herald and for 19 years at the University of Alabama at Birmingham (UAB). I've lost track of how many newspapers and magazines have published my work.

Bill Baxley

It wasn't enough, however, for Baxley to present himself as clueless. He also had to come across as thuggish and ignorant. His letter closes with the claim that I had been "stalking" his client. 

Stalking has a very specific legal meaning. Under Alabama law, stalking is a crime, a felony that is punishable by up to 10 years in prison. The description of stalking can be found at Code of Alabama 13A-6-90, and here is the gist of it:

A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm is guilty of the crime of stalking.

If Jessica Garrison has falsely stated to others that I have been stalking her, and Bill Baxley has repeated that information to others . . . well both client and lawyer are going to have some serious legal issues on their hands. 


Here is my full reply to Bill Baxley's latest communique:

Mr. Baxley:

To borrow a phrase you once used so eloquently . . . kiss my ass.

I have a degree in journalism from the University of Missouri (B.J., '78) and have more than 30 years of professional experience in the field, working for daily and weekly newspapers, magazines, a university publications office, and more. I've been a guest on radio and TV broadcasts, both locally and nationally. My blog has been named one of the top 50 law blogs in North America, and I've been interviewed on justice issues by media outlets from coast to coast. My work on Legal Schnauzer was cited before Congress in fall 2007 when the House Judiciary Committee investigated political prosecutions under the Bush Justice Department.

If I'm not a journalist under Alabama law, then I would like to know who is. I would suggest that you do a little research into my background before making yourself look like a fool again. 

Sincerely,

Roger Shuler

In the interest of brevity, I didn't address Baxley's stalking allegations in that reply. But you can rest assured that issue will be addressed shortly.

Bill Baxley Letter2 by Roger Shuler