Stupidity and dishonesty of Alabama cops is on full display for all the world to see--in multiple cases

The stupidity and dishonesty of Alabama police officers is on glaring display in the video that captures the body slamming of Sureshbhai Patel, a grandfather from India who was in the state to help his son and daughter-in-law take care of their newborn son. (See video above.)

Similar stupidity and dishonesty would be on display if a video of my arrest in Shelby County, Alabama, ever is made public. I saw the video during my bench trial for resisting arrest in January 2014. At the time, it was under the control of assistant district attorney Tonya Willingham (tonya.willingham@alabamada.gov or 205-669-3750), and as public property, it still should be in her possession.

Let's consider the Patel video first, and two mind-blowing elements of it jump out at me:

(1) Almost from the moment the officers confront Patel on a sidewalk in Madison, Alabama, it's clear the older gentleman does not speak English. The 10-minute video, from the first police cruiser, shows this. In the first 1:30 of the encounter, an officer says, "I can't understand you, sir," and Patel mentions India and appears to point toward his son's house, a seemingly clear sign that he is not from this country and does not speak English, but has legitimate reasons to be here. Despite that, officers keep badgering Patel and giving instructions in English--acting baffled when he doesn't respond well and tries to quietly walk away. The encounter should have ended there, with no sign of a crime on Patel's part, but that's not what happened.

(2) At about 2:10 on the longer video, Officer Eric Parker tells Patel: "Do not jerk away from me again, or I will put you on the ground. Do you understand?" About four seconds later, Patel does not appear to be moving and certainly is not jerking. But Parker grabs him by the back of the neck, trips him, and thrusts him forward to violently land on his head.

(3) After all of this, the cops still don't seem to get it. "He don't speak a lick of English," one cop says. "I don't know what the problem is," another says. (See 3:26 video at the top of this post.) After the officers have almost broken Patel's neck by jamming his head into the ground, they seem amazed that he can't walk. "Stand up, stand up," one of them says. "You can walk," says another.

Let's consider a few elements from my encounter with Shelby County officer Chris Blevins:

(1) In his incident report, Blevins states that he has two warrants for contempt of court in his vehicle. But the video shows that they stayed in his vehicle, and he never showed them to me or mentioned that he had them. (See incident report at the end of this post.) He reports walking inside our garage to tap on the trunk of our car--all without showing he had any legal authority to be there or verbally stating why he was there. Despite that, Blevins apparently was surprised when I got out of my vehicle and, in his words, "began yelling for me to get out of his house." Gee, can't imagine why I would do that. An armed stranger, who has shown he has no legal grounds to be there, is walking right into my house--even after being told to get out. Why would that concern me?

(2) Blevins admits he made the initial physical contact after I put my right hand in my right front pocket. Apparently, he thought I was reaching for an assault weapon. (News flash: I was putting my car keys in my pocket, where they always go when I get home.) Blevins also noted that I pushed a button to close the garage door behind us. I don't remember doing that, but I do remember thinking, "Don't close the door because you want this guy out of here." It's possible I reflexively pushed the button because I've been doing it that way when I've come home for 25 years.

(3) Blevins then writes, "I told Mr. Shuler that I had a warrant for his arrest," but this is a lie--and the video proves it. He never mentions an arrest, his apparent purpose for being there, until after I've been knocked to a concrete floor three times and maced in the face.

(4) On the video, Blevins can be heard repeatedly saying, "Don't fight me, don't fight me" as he is shoving me around. But according to Blevins own words, I wasn't fighting him--it was the other way around. The only physical act that Blevins describes of me is putting my arms in front of me--an effort to try to protect my face and glasses from his flailing arms.

(5) Blevins admits throwing me through boxes, to the floor, three times. Never does he say I took any offensive action against him, other than raising my arms in front of my face.

(6) At my resisting-arrest trial, before District Judge Ron Jackson, prosecutor Willingham was ordered to turn over copies of any warrants as evidence. Her reply? "Your Honor, we don't have any." And she didn't ask for a recess, so that she could go find the warrants in her office, which is in the same building. As of now, it's a matter of court record that no warrant existed for my arrest. And that raises a whole bunch of disturbing questions under a landmark U.S. Supreme Court that we will be discussing in upcoming posts.

My entire arrest was captured on video, although it has some flaws. Blevins' vehicle was parked at about a 45-degree angle to our garage, so when we go inside the garage and the door closes, the dash cam loses sight of us and mostly shows our backyard. Audio, however picks up the whole thing--and that shows that Blevins entered our home without showing, or saying he had, a warrant. Blevins' own words, show that he initiated physical contact, and I never lashed out at him; I never cursed or threatened him, and I never tried to run away. Also, after Blevins and I exit the garage, Officer Jason Valenti can be heard threatening to break my arms.

The video should be made public.

Meanwhile, how in the world did I get charged with resisting arrest from all of this? Even conservative legal analysts, such as Ken White at Popehat blog, have said the preliminary injunction against me was prohibited under the First Amendment, and that means my arrest for allegedly violating the injunction was unlawful. On top of that, I contested service in the lawsuit--I did not ignore the court's order, as has been widely reported--and I'm aware of no hearing at which proper service was established. Without that, the court did not even have jurisdiction over me.

Maybe that's why no warrant has turned up. Perhaps no one wanted to sign a warrant for a citizen over whom the court had no jurisdiction.

Popehat is based in Los Angeles, and over all that distance, attorney White smelled something funny about my conviction for resisting arrest. He wrote:

It's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.

Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. . . . Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

Popehat raises a powerful question: Can you be charged with resisting an unlawful arrest?

We will address that question shortly.


(To be continued)


(Note: Below is Officer Chris Blevins' incident report on my arrest. I have not run this previously because I've seen an Alabama Attorney General's opinion that says only the front page of an incident report is public information; the back page, including the narrative, is considered officer work product and therefore is not public. However, as the subject of the arrest, I am entitled to have a copy of the report, so I believe that overrides any work-product privilege that Blevins might assert. Anyone who wants to challenge this is welcome to contact me, but under the circumstances, I believe the following document is public information, especially since it all took place inside my home.)

Shuler Arrest-Incident Report by Roger Shuler

Indian legal expert says lawsuit in Sureshbhai Patel beating is "anaemic" and unlikely to achieve justice

Sureshbhai Patel

The lawsuit filed in an Alabama police officer's beating of a grandfather from India is weak and might not result in significant restitution for the victim, an Indian legal expert says.

Ravi Batra, a lawyer based in New York, used the term "anaemic" to describe the civil complaint.

Sureshbhai Patel, 57, remains in a Huntsville, Alabama, following spinal fusion surgery to treat his injuries. At the moment, it appears Patel will not achieve justice on the criminal front either. That's because Officer Eric Parker has been charged with third-degree assault, a misdemeanor, even though the law shows the charge should have been a felony (either second- or first-degree assault). Parker already has pleaded not guilty to the misdemeanor count.

Batra's critical take on the Patel lawsuit came in an interview with Narayan Lakshman, of The Hindu newspaper. From the article:

Speaking to The Hindu Ravi Batra, the New York-based lawyer who defended Congress leader Sonia Gandhi and her party in a U.S. court, argued that the case filed in Madison by attorney Hank Sherrod mentions the City of Madison as a defendant but excludes it from individual counts brought by the lawsuit, instead targeting the individual officers who assaulted Mr. Patel.

Compounding the apparent weakness of the lawsuit is the fact that a jury trial for Mr. Patel’s case, which his complaint calls for, risks being racially tilted given that U.S. Census data indicates that within the population of Madison County there are more than 27 white residents for every Asian.

The Madison Police Department also could be getting off easy in the civil case, Batra says:

While it was unclear whether Mr. Sherrod was taking a soft approach toward suing the City of Madison, it appeared that the Madison Police Department was also neatly manoeuvring towards a position where it may not be possible for a court to require the Department to pay Mr. Patel to the full $100,000 legal limit for such tort claims.

This was apparent after Police Chief Larry Muncey took action last week to arrest and recommend firing Eric Parker, the officer who threw Mr. Patel to the ground without warning and left him with severe spinal column injuries.

With Parker unlikely to remain in the police force, Mr. Batra noted, Chief Muncey may have effectively “immunised” the Police Department from lawsuits, as supervisory liability apparently does not exist for civil rights violation cases such as these unless there was evidence of a conspiracy.

Could the lawsuit be made stronger? The answer appears to be yes, but the road to justice for Mr. Patel still presents obstacles. One can only imagine how tough the case would be if the assault had not been videotaped:

The Patel family may still have an option to strengthen the lawsuit by proving that it was the “policy and practice” of the Madison Police Department that led to the attack on Mr. Patel, a fact that could be corroborated by the fact that the two other officers at the scene did not appear to stop or criticise the actions of Parker.

Meanwhile, The Hindu has also analysed U.S. Census data for Madison County which suggest that 69.6 per cent of county residents were “white alone,” that is, not of mixed race, and only 2.5 per cent of residents were “Asian alone.”

Given that juries across the country are usually selected across socioeconomic groups broadly to represent the distribution of the population of the county or district in question, the Patel lawsuit may face a preponderantly white jury who may not be keen to convict a white police officer of an attack on an Asian and foreign national.

Why isn't Alabama police officer charged with a felony for assaulting a 57-year-old grandfather from India?

Officer Eric Parker

An Alabama police officer faces a charge of third-degree assault, a misdemeanor, for body slamming a 57-year grandfather from India. But our analysis of applicable law indicates officer Eric Parker should be charged with either second- or first-degree assault, both felonies that call for potential prison time.

Is the Alabama legal establishment trying to protect Parker, even though his body slam of Sureshbhai Patel near a Madison sidewalk has drawn international news coverage? The answer appears to be yes.

Ironically, news broke this afternoon that Parker had pleaded not guilty to the charges against him. One could argue that is appropriate because the misdemeanor charge is improper; it should be a felony.

Assaults are covered under Code of Alabama 13A-6-(20-22). Third-degree assault is a Class A misdemeanor, second-degree assault is a Class C felony, and first-degree-assault is a Class B felony.

The dividing line between misdemeanor and felony assault is the presence of "serious physical injury." That clearly is present in the Patel case, so Parker must be charged with felony assault.

How badly was Patel injured? According to news reports, he has been hospitalized for several days, he has been partially paralyzed, he has undergone spinal-fusion surgery, and he faces months of physical therapy. Does that amount to "serious physical injury"? Let's look at Alabama law.

A case styled Brock v. State, 555 So. 2d 285 (Ala. Crim. App, 1989) is instructive. It states:

"Serious physical injury" is "[p]hysical injury [impairment of physical condition or substantial pain] which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Section 13A-1-2(9).

Mr. Patel received an injury to his spine, which clearly involves "protracted impairment of health." The violence with which he was slammed on his head also created a "substantial risk of death."

It's hard to see how anyone could seriously argue that the Patel case does not involve "serious physical injury." Because of that, under Alabama law, the charge against Parker must be a felony--either second- or first-degree assault.

Code of Alabama 13A-6-21 (Assault in the Second Degree) states, in part:

(a) A person commits the crime of assault in the second degree if the person does any of the following:

(1) With intent to cause serious physical injury to another person, he or she causes serious physical injury to any person.

(2) With intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument.

(3) He or she recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

Under Alabama law, (2) involves only "physical injury," so that would not apply to the assault on Sureshbhai Patel. But Nos. (1) and (3) would. No. (1) involves straightforward infliction of "serious physical injury," which is present here. No. (3) involves infliction of such injury by use of a "deadly weapon or dangerous instrument."

Sureshbai Patel

What does that mean? Alabama law has held that various body parts, including hands and fists, can meet the definition of deadly weapon or dangerous instrument. A case styled Hollis v. State, 417 So. 2d 617 (Ala. Crim. App., 1982) involved charges of an adult male using his fists to beat his 81-year-old mother. From Hollis:

The indictment charged that appellant caused serious physical injury to Dixie Hollis "by means of a deadly weapon, or a dangerous instrument, to-wit: by beating her with his fists." In Stewart v. State, 405 So.2d 402 (Ala.Cr.App.1981) this court stated the following:

"Certainly the use of an adult man's fists to beat a seventeen month child may appropriately allow those fists to be classified as a deadly weapon or dangerous instrument." 405 So.2d at 405.

In our judgment, the same classification is appropriate when an adult man uses his fists to beat his eighty-one-year-old mother, and under the facts of this case, we hold that appellant's fists were a "deadly weapon" or "dangerous instrument," Stewart v. State, supra.

Under the facts and the law, Officer Parker used a "dangerous instrument" (his hands) to inflict "serious physical injury" on Mr. Patel. That points to a felony--second-degree assault.

What about the intent required in a felony assault? That's not as difficult to prove as you might think. From Wells v. State, 768 So. 2d 412 (Al. Crim. App., 1999):

Intent may be presumed from the use of a deadly weapon, the character of the assault, and other attendant circumstances surrounding the assault.

Case law also has held:

"Further, `"[i]ntent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence."'

The facts, as made clear on video, make it likely that intent easily could be proven, under the law.

Could this be a case of first-degree assault, under Alabama law? I believe the answer is yes. Code of Alabama 13A-6-20 (Assault in the First Degree) states, in part:

(a) A person commits the crime of assault in the first degree if:

(1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument; or

(2) With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such an injury to any person; or

(3) Under circumstances manifesting extreme indifference to the value of human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to any person;

The law classifies Parker's hands as "deadly weapons" or "dangerous instruments," so I believe No. (1) applies. A solid case also could be made for No. (3).

Why can this not be a misdemeanor assault? Because the law on third-degree assault involves only cases that result in "physical injury" (as opposed to "serious physical injury.")  "Physical injury" has been defined, in a case styled Vo v. State, 612 So. 2d 1323 (Al., Crim. App., 1992):

A "physical injury" is "[i]mpairment of physical condition or substantial pain." § 13A-1-2(8), Code of Alabama 1975.

Courts have held that cuts, scrapes, bruises, and abrasions can qualify as "physical injuries." The damage to Mr. Patel went way beyond those.

The bottom line? Someone in Alabama's legal hierarchy classified this as a misdemeanor case when it is, in fact, a felony case.

What difference does it make? With a misdemeanor assault conviction, Parker likely would face probation and a relatively small fine. Incarceration of up to one year is possible, but my research indicates that is extremely unlikely.

A felony conviction could bring imprisonment of 1 to 20 years and a fine ranging from $15,000 to $30,000.

The difference is substantial--a felony charge says this is being treated as a serious matter; a misdemeanor means, more or less, that "the officer didn't really mean to do it, and spinal surgery isn't all that serious anyway." Not sure what kind of person could view the facts and the law here, and make that kind of statement with a straight face.

So far, it appears that someone is trying to do a favor for Officer Parker. The public should not stand for it.

Indian grandfather Sureshbhai Patel is not alone; Alabama cops assaulted me in a similar fashion

The story of an Alabama police officer body slamming a 57-year-old grandfather from India, leaving the man partially paralyzed, should not come as a surprise to Legal Schnauzer readers. That's because a similar event happened to me, and I've chronicled it here.

Sureshbhai Patel was in Madison, Alabama (a Huntsville suburb), to help his engineer son and daughter-in-law with their newborn baby. Officer Eric Parker responded to a "suspicious activity" call, confronted the non-English speaking Patel, and wound up slamming him to the ground headfirst--all for the apparent "crime" of "walking on the sidewalk while having dark skin and wearing a toboggan."

Parker was fired and faces a third-degree assault charge. Patel had spinal-fusion surgery and faces months of physical therapy.

Patel weighs about 130 pounds, and at last report he remains in a Huntsville hospital--it's unknown if he will regain full use of his limbs, although his condition seems to be improving. The assault has become an international story, with many news outlets in India running it on the front page of their Web sites.

A video of the violent encounter, which can be seen at the beginning of this post, probably has gone viral. I've watched it perhaps a dozen times, and I get a sense of dread each time before clicking "play".

Why the visceral reaction from me? To a considerable extent, I've been in Patel's shoes. I know firsthand the lack of regard Alabama "law enforcement" officers can show toward a citizen who has committed no crime--and for whom they have no lawful grounds to detain.

The assault against me also was captured on video, but it has not been made public. I've seen it, and it should be available via Tonya Willingham, of the Shelby County, Alabama, district attorney's office at tonya.willingham@alabamada.gov or (205) 669-3750.

On October 23, 2013, about 6 p.m., Shelby County, Alabama, officer Chris Blevins almost hit my vehicle with his cruiser as I tried to pull into our garage. Blevins was unable to block my path, so I pulled into the garage, exited the vehicle, and prepared to push a button to close the garage door. Blevins showed no warrant, said he had no warrant, and did not state why he was there--but he began entering my garage anyway. He asked me to step outside, and I told him to get out of my house. In a matter of seconds, he was on me--shoving me to a concrete floor three times, spraying me with mace, and calling for another officer to help drag me some 25 feet to the driveway outside.

Ironically, Sureshbhai Patel and I are almost the same age. I was one month from my 57th birthday when Chris Blevins attacked me. I'm 58 now, so Mr. Patel actually is a little younger than me.

I was lying face down on my driveway when Officer Jason Valenti threatened to break my arms because I couldn't get my hands in the proper position to be handcuffed. That was largely because I had never been arrested in my life and had no idea what I was supposed to be doing--plus, I was disoriented and almost immobilized from the mace, which was dripping all over me.

Someone placed me in the back of a sheriff's vehicle, where I could hear officers talking about also trying to arrest my wife, Carol. Thankfully, she was taking a nap in an upstairs bedroom and did not hear what was going on. She awoke later that evening, well after dark, and had no idea where I was. Her first clue came when she went downstairs to our basement and saw boxes and other items strewn everywhere--clear signs of violence. Her first thought was that I had been murdered, probably because of something I had reported on this blog.

She contacted a friend who has a legal background, and he was able to discover that I had been booked into the Shelby County Jail. I had been arrested and would stay in jail for more than five months, becoming the only journalist to be arrested in the western hemisphere in 2013, and the only one this century to be arrested on a purely civil matter.

In the week after my arrest, officers came to our house several more times, in apparent efforts to arrest Carol. They failed, and she was able to get out word about what had happened to me--and like the Patel case, it made international news.

(A video at the end of this post shows the scene in our garage after I was attacked. Carol describes for a reporter what I had told her about the nature of my arrest. Thanks to Matt Osborne for this video and his coverage.)

What prompted law enforcement to swarm our property, both before and after my arrest? No one had made remotely criminal allegations against me or Carol. Rather, a powerful Republican political figure named Rob Riley (son of former governor Bob Riley) had filed a defamation lawsuit against me--and he named Carol in the suit, claiming she served as "administrator" of the blog, even though she was not involved with it in any capacity.

Sureshbhai Patel

Riley had sought a temporary restraining order and preliminary injunction, both of which are prior restraints that are prohibited by more than 200 years of First Amendment law, including a landmark U.S. Supreme Court case from 1931 called Near v. Minnesota, plus a 1993 case styled Alexander v. United States. I had responded to Riley's lawsuit--I did not ignore it, as has been widely reported--by filing a motion to quash service because we had been given court papers during a bogus traffic stop that represented a violation of the Fourth Amendment right to be free of unlawful searches and seizures.

I'm not aware of a hearing ever being held on my motion to quash, and I'm not aware that Riley provided any evidence that service was lawful, as was required of him under Alabama law. If a plaintiff has not proven proper service--and I never was notified of any hearing on the subject--the court has no jurisdiction over defendants.

That was the status of the case at the moment Chris Blevins set foot in my garage.

Service had been contested as improper and invalid, the court had no jurisdiction over me until proper service was proven, and there had been no hearing or ruling on that issue. With the relevant law as a backdrop, perhaps you can understand why I was insistent that Chris Blevins get the hell out of my garage.

I knew Blevins had no lawful grounds to be in my house, just as Officer Parker had no lawful grounds for body slamming Sureshbhai Patel.

The point here is not to compare the two incidents; both are horrifying examples of police abuse. An argument could be made that, due to the nature of Mr. Patel's physical injuries, his case was worse than mine. An argument could be made that, due to the fact I unlawfully spent five months in jail, my case was worse than his.

What's important, in my view, is that no one has been held accountable for what happened to me--and that could have contributed to what happened to Mr. Patel. My case remains fresh, well within any applicable statute of limitations, but there has been no civil-rights lawsuit, no FBI investigation, no criminal investigation of any sort. All of those things have happened, or are happening, in the Patel case--as they should.

If serious action had been taken against the bad actors in my case, would the Patel case have never happened? Did my case represent the kind of harsh lesson that needed to be driven home to Alabama law enforcement, in order to protect people like Mr. Patel, to protect all of us?

At the very least, the assault against me indicates you are not safe from law-enforcement thugs even if you have white skin, speak English, are standing inside your own home, and have lived in Alabama for 35 years, as I have. Mr. Patel's sin seemingly was having dark skin and an inability to understand English; mine was being a practicing journalist, willing to write tough stories about the state's legal and political elites.

(By the way, none of my reporting has been proven at trial to be false or defamatory. In the Riley case, there was no trial because Riley didn't ask for one. Judge Claud Neilson acted as a one-man censor of this blog, in gross violation of Near v. Minnesota and its progeny.)

With no accountability so far in my case, did that help set the stage for the abuse of Sureshbhai Patel--did it almost make his case inevitable, given Alabama's toxic history on race and justice? I would argue that the answer is yes.


(To be continued)

Plans to impeach Mark Fuller remind us that the federal judiciary in Alabama remains an ugly cesspool

Judge Mark Fuller

U.S. Rep. Terri Sewell (D-AL) announced yesterday that her plans to push for the impeachment of federal judge Mark Fuller are moving forward.

The news, coming one day after gay couples were allowed to legally marry in Alabama, serves as a grim reminder that the state's federal bench has not been fully engulfed with integrity and reason.

Callie V. Granade, a district judge in Mobile, probably gave the federal judiciary in the South an image boost by issuing an enlightened (and apparently legally sound) ruling that paved the way for gay marriage in Alabama, In fact, Granade is due to hear oral arguments tomorrow that could open gay marriage in counties that, so far, have not recognized it.

Granade, a George W. Bush appointee (of all things), has received applause in progressive circles for her handling of the gay-marriage issue. But Fuller, another Bush appointee, serves as her counterpoint--an unmistakable sign that ugliness and dishonesty continue to reside on the U.S. bench in Alabama.

Fuller once was best known as the trial judge who butchered the prosecution of former Alabama governor Don Siegelman and his codefendant, ex-HealthSouth CEO Richard Scrushy. But Fuller might wind up best known as the judge who beat up his wife last summer. That is what led to the specter of impeachment, as discussed in Rep. Sewell's statement yesterday:

“In November, I requested that the Judiciary Committee initiate an impeachment investigation and hearing into Judge Mark Fuller’s arrest. Only Congress can impeach a federal judge, and I have repeatedly pressed for my colleagues on the Judiciary Committee to take the steps necessary to remove Judge Fuller from the bench.

“I am pleased that the House Judiciary Committee has requested additional funding in anticipation of potential judicial impeachment proceedings. I hoped that Judge Fuller would have spared himself, his family, and our nation the expense of this lengthy process by immediately resigning but he has resisted my repeated calls to step down.

“I will continue to work with my colleagues to uphold the integrity of the Court and to initiate impeachment proceedings.”

That should add a dose of reality to potentially heightened public perceptions about federal judges in Alabama.

Terri Sewell

Is Fuller an otherwise sterling jurist who just happened to get in a foul mood one evening at an Atlanta hotel room? Not hardly. We've written dozens of posts about Fuller's unlawful actions in the Siegelman case. Most disturbingly, we've shown that Siegelman and Scrushy could not even lawfully stand trial because the statute of limitations had run on the charges against them--and that issue properly was raised at both the trial and appellate levels.

How bad is Fuller? Former Reagan-administration official Paul Craig Roberts summed it up in an article last September:

Republican US district court judge Mark Fuller was arrested in Atlanta this month for beating his wife in an Atlanta hotel. The judge, in whose honor courts must rise, was charged with battery and taken to the Fulton County jail at 2:30AM Sunday morning August 10. If you look at the mug shot of Mark Fuller, he doesn’t inspire confidence. Fuller was a bitter enemy of Siegelman and should have recused himself from Siegelman’s trial, but ethical behavior required more integrity than Fuller has.

Too many Southerners, Roberts argues, are ignorant of their own history, going back to the Civil War:

It is extremely ironic that the formerly solid Democratic South, plundered, looted, and raped by Republican armies, votes Republican. If anything shows the insouciance of a people, the South’s Republican vote is the best demonstration. The South votes for a party that destroyed the South and its culture. There is no greater evidence of a people totally ignorant of, or indifferent to, their history than the Southern people who vote Republican.

Is Fuller the only conservative rogue on Alabama's federal bench, in an era now marked by the foresight of Callie Granade and her gay-marriage ruling?

Not by a long shot.

Roy Moore hardly is alone when it comes to ignoring federal authority in courthouses across Alabama

Roy Moore

Chief Justice Roy Moore is one of the most famous judges in Alabama history for a reason--he is notorious for challenging federal authority on certain hot-button social issues. Moore might have the loudest such voice among Alabama jurists, but he is far from alone in holding the mindset that federal authority doesn't mean much in Alabama courtrooms.

Few were surprised Sunday evening when Moore essentially instructed Alabama probate judges to "secede from the union" by ignoring a federal-court order that struck down the state's gay-marriage ban. The U.S. Supreme Court refused to take action that might have kept a stay in place, so same-sex couples were able to marry yesterday at several locations around the state.

That made international news and touched off celebrations among the progressive minority in a deeply conservative state. As for us, we are happy for the newlyweds and applaud the probate judges who ignored Moore and did the right and lawful thing. But celebrations might be short lived--and that's because Alabama courts remain places where "federally guaranteed" constitutional rights often go to die.

Just consider my own experience. On October 23, 2013, I was arrested and spent five months in jail because of a defamation lawsuit that Republican political figure Rob Riley filed. Riley sought a temporary restraining order (TRO) and preliminary injunction, forbidding me from reporting certain information that had never been found to be false and defamatory at trial.

Retired Alabama judge Claud Neilson granted both of Riley's requests, even though they were classic prior restraints, which have been prohibited under 230 years of First Amendment law, predating the end of the Revolutionary War. A prior restraint forbids speech before there has been a finding at trial that it is unlawful.

The foundational 20th-century case on the subject is Near v. Minnesota (1931), in which the U.S. Supreme Court declared that prior restraints form "the essence of censorship." In my one court hearing in the Riley case--there never was anything approaching a trial--I cited Near to show that the TRO, preliminary injunction, and my subsequent incarceration were unlawful. Nielson acknowledged being familiar with Near, but he refused to follow black-letter U.S. law.

Neilson ordered that I remain incarcerated until certain items were removed from my blog. When I noted that I was in jail, with no computer or internet access and no way to "cure" any alleged contempt of court, Neilson essentially told me that was my problem. I wasn't released until my wife was able to remove those items on March 26, 2014. Without that, I probably would still be in jail, without bond, as the first journalist to be incarcerated in the United States since 2006--and the only one this century to be arrested in a civil matter.

In effect, an Alabama judge censored certain topics on this blog.

Claud Neilson

Where do my story and the gay-marriage story intersect? Many of the same-sex couples who got married yesterday in Alabama are likely to wind up back in a courthouse someday. Even if they strive to lead the noblest of lives, some issue (divorce, estates/wills, real estate, car accident, etc.) is likely to bring them back to court.

When those days come, can they expect to be treated lawfully? Based on my experience, and the experiences of dozens of Alabamians I've written about on this blog, the answer is no.

That's because too many judges like Claud Neilson feel free to ignore binding U.S. Supreme Court precedent. Too many judges like Claud Neilson feel free to ignore the 14th Amendment rights to due process and equal protection under the law. Writing this blog has taught me that "Claud Neilsons" regularly butcher the law in numerous Alabama counties, from one end of the state to the other.

Here is another reason yesterday's celebrants should keep a wary eye: Claud Neilson is from Demopolis in Marengo County and was dragged out of retirement to handle my case in Shelby County, apparently because judges in my area had recused themselves.

Who assigned Neilson to my case, even before I was aware there was a case, before I had been (unlawfully) served, before a court could even begin to claim jurisdiction over me? The Alabama Supreme Court did it, under Chief Justice Roy Moore.

Has Roy Moore shown any sign of being concerned about the gross violations of my civil rights, even though his beloved Bible makes it clear that he should be? Not that I'm aware of. Is Moore likely to someday show contrition about his actions on the gay-marriage issue? You know what they say about snowballs and hell . . .

Despite yesterday's signs of progress, Alabama courts remain filled with judges like Roy Moore and Claud Neilson. Change comes slowly in the Deep South--and some things never seem to change at all.

Susan Lindauer shines light on my experience as only incarcerated journalist in the U.S. since 2006

Susan Lindauer

My arrest for blogging, and the subsequent five-month incarceration, were the focus of a live interview on Saturday at Covert Report with Susan Lindauer on truthfrequencyradio.com.

It probably is the most detailed account made public so far of my experience as the only journalist to be incarcerated in the United States since 2006--and the only one to be imprisoned this century in a purely civil matter.

The interviewer, in this instance, has a deep understanding of what I went through. Lindauer is a journalist, antiwar activist, and former Congressional staffer, who lives in the Maryland suburbs of Washington, D.C. Five FBI agents knocked on her door in 2005 and arrested her for "acting as an unregistered agent of a foreign government" and violating U.S. financial sanctions during the run-up to the 2003 invasion of Iraq. How solid were the charges against her? The government ultimately dropped its case, but Lindauer spent about a year in federal prison.

Lindauer provided an understanding ear when I described multiple Alabama sheriff's deputies entering my home (without showing a warrant or stating they had one), assaulting me (including mace in the face), dragging me over concrete to the back of a patrol car, and taking me to jail for more than five months--all in flagrant violation of First Amendment law that forbids prior restraints in defamation cases.

We discuss my experiences in jail, including an inmate suicide that happened just a few feet from me. We also discuss Near v. Minnesota, the landmark 1931 U.S. Supreme Court case that Alabama judge Claud Nielson repeatedly violated in my case, at the urging of Republican political figure Rob Riley. I tell Lindauer that I'm still under an unlawful permanent injunction that prevents me from discussing certain details from the lawsuit. I note that the case never went before a jury, and my reporting never has been found false or defamatory at trial. In fact, the Riley case never went to trial.

When I say I was "arrested for blogging," I'm not kidding. Near specifically forbids temporary restraining orders and preliminary injunctions in defamation cases--and yet, I was arrested for allegedly violating such prior restraints and a court order based on them.

Numerous reports have stated that I unwisely ignored a court order, but I told Lindauer that is not true. In fact, I responded to the court by filing a motion to quash service because a deputy conducted a bogus traffic stop in order to hand me court papers, in gross violation of the Fourth Amendment. I was awaiting a ruling on that motion when deputies stormed my garage.

Without being arrested, I told Lindauer, I also would have challenged the unlawful notice we received on a preliminary-injunction hearing and the bizarre and ungrounded inclusion of my wife in the lawsuit--not to mention the basic allegations of defamation. I could not challenge any of that while unlawfully in jail.

Lindauer makes clear to her listeners that this all happened in a civil matter--with a court record sealed from public view--that involved no criminal allegations.

Here is a portion of the program description from the Covert Report Web site. You can listen to an archived version of the interview by clicking on a link at the end of this post:

Today’s guest Alabama blogger, Roger Shuler shares his nightmare of imprisonment after exposing corruption in an old and powerful Alabama political family. . . . In the resulting defamation lawsuit, Shuler was subject to illegal arrest and imprisonment for 5 months, while the Court bullied him to take down those blog postings. Shuler describes getting beaten by police, and how the Courts denied the right to bail,to an attorney, or any discovery and rights to submit his proofs to a jury. This is a scary story, which our listeners need to hear. In all, Shuler got locked in prison for 5 months facing a sealed civil lawsuit— the contents of which he was not allowed to read or be informed of. Shuler is distinguished as the only journalist imprisoned in the whole United States in many years. All of us need to understand the frightening saga, because it’s happening with more regularity than most people currently are aware.

Roger Shuler interview at Covert Report with Susan Lindauer

Alabama Sec. of State Merrill admits to extramarital sexual encounter but denies receiving oral sex

John Merrill

Alabama Secretary of State John Merrill admits to having an extramarital sexual encounter but denies it included oral sex, according to an article published yesterday afternoon at al.com.

Merrill, a Republican with solid backing from business and religious organizations, also admitted to recommending the woman, Millie Brinyark, for a school-related job. But Merrill denied making the hiring decision, even though the job apparently was in a program he once managed.

An Al.com reporter recently wrote that he had court documents about a politician's affair and chose not to write about the matter. We learned Merrill was the politician in question and broke the story with a pair of posts (see here and here) in the past eight days. Our reporting came after State Rep. Patricia Todd (D-Birmingham), Alabama's first openly gay lawmaker, threatened to expose the extramarital activities of colleagues who oppose a recent federal-court ruling that struck down Alabama's gay-marriage ban.

What is Merrill's version of the sexual encounter? Here is how al.com describes it:

Merrill said the woman called him and asked to meet on Sunday, Sept. 12 (2010), at a condo owned by her brother. (In her deposition, the woman said Merrill asked her about getting together that Sunday, but acknowledged that she suggested the location, saying she had to go there anyway to return a parking pass.). That is where the encounter happened that Merrill and the woman describe differently.

Merrill told reporters: "Basically, when I walked in, we started talking. She kissed me, I kissed her back. Then she started unbuttoning my shirt, and after that, she started to become more aggressive, and she actually did some other things in trying to engage me in some physical activity with her, which I declined, and I indicated to her that I was not going to do that.

"I stopped, and I said, 'I need to go, I'm not going to be here anymore'."

The court documents are from a Tuscaloosa County divorce case styled Brinyark v. Brinyark. The case file has been sealed, although divorce proceedings generally are considered public documents under Alabama law, even in cases that involve a wife-beating federal judge.  Ironically, al.com successfully moved to have the divorce case of U.S. Judge Mark Fuller unsealed, but it does not seem to question the sealing of a file involving John Merrill.

In a sworn deposition, defendant Millie Brinyark provided graphic details about a sexually charged relationship with the married Merrill. In an interview with four al.com journalists on Tuesday (Feb. 3), Merrill supported much of Brinyark's testimony, primarily denying that he received oral sex and that he was the sexual aggressor.

According to al.com, Merrill claims to be the victim of a "smear campaign" by unnamed individuals who widely circulated portions of the deposition to the press, politicians, members of his church, and others. How can it be a smear campaign when it involves public documents, about testimony that Merrill largely admits is true? The al.com journalists apparently did not ask Merrill that question.

Copies of the divorce documents that have been made public do not include the full deposition and do not make it clear who hired Brinyark in an after-school program. But they do indicate that Merrill's department hired her after she apparently was forced to resign as a teacher.

The al.com article raises numerous questions, but perhaps the most staggering one is this: Why would a woman admit--under oath and penalty of perjury--to providing a man with oral sex, when she really didn't? Even Merrill can't seem to explain that one, especially considering that Brinyark's deposition reportedly was taken less than two weeks after the sexual encounter. From the al.com article:

Asked why the discrepancy exists between his version and what the woman testified to 10 days after the incident, Merrill said:

"I don't know, I don't know that I ever will know. But I do know this - I'd know if that (oral sex) had happened. I would know that, and I know it didn't."

The al.com article indicates that Merrill had an opportunity to testify under oath in the Brinyark case, but successfully opposed a motion to take his deposition.

Merrill denies Brinyark's claim that they shared sexually charged text messages and phone conversations over a period of time. Did Merrill provide copies of any texts or phone records that support his version of events? We don't know, although Merrill admits the communication was inappropriate:

The woman's testimony supports that Merrill met her saying he wanted to try to help with her failing marriage. She also said that the two exchanged sexually-toned text messages and "very sexual" phone conversations in the weeks leading to the condo encounter.

She said that Merrill often mentioned that he "always needed sex" and several times they discussed use of condoms. She also discussed her suspicion that Merrill had "set her up" on behalf of her then husband, by becoming close to her. She testified that the day before her deposition she called Merrill to ask if he had set her up, and Merrill responded no. She also testified that she loved Merrill, loved the man she was having an affair with, and loved her husband, but differently as the father of her children.

Merrill acknowledged text messaging with her but said it was not sexual.

"Anytime a married person has a communication with someone they're not married to that contains personal information, it's inappropriate, it doesn't matter what it is," Merrill told AL.com. "I know I was not ever sexually explicit in any kind of communication with her, written or verbal."

Deposition re John Merrill by Roger Shuler

Could sex scandal involving Alabama Sec. of State John Merrill turn into a criminal investigation?

John Merrill

Public attention on a sex scandal involving Alabama Secretary of State John Merrill likely has focused on sworn testimony about various body parts and amorous activities. But the most important part of the story might involve possible misuse of public funds.

The Merrill case brings up memories of Mark Sanford, the former South Carolina governor who faced ethics charges, censure, and possible impeachment for using public funds to visit his mistress in Argentina.

How is this for irony? Sanford served in the U.S. House of Representatives at roughly the same time as former Alabama governor Bob Riley. In fact, Sanford told the press that months before his affair became public, he had sought counsel from the controversial C Street religious organization known as The Family or The Fellowship. Riley has acknowledged having connections to The Family, and both the former governor and his son, Rob, are associates and political allies of . . . John Merrill.

We broke the Merrill story last Thursday after al.com reporter Kyle Whitmire admitted in a column that he had court documents related to an unnamed politician's extramarital affair and chose not to report on them. Multiple sources sent us copies of the court documents, from a Tuscaloosa County divorce case styled Bryan Scott Brinyark v. Mildred Murphree Brinyark, in which Millie Brinyark testifies about her affair with John Merrill.

Whitmire engaged his readers in a debate around the question, "When is it OK to out a public official or expose a politician's infidelity?" But he apparently ignored evidence that the Merrill story might be about more than infidelity.

We don't have the full Millie Brinyark deposition, but what we do have indicates she was forced to resign as a teacher, in part because she engaged in extramarital activities on school time and school property. She eventually went to work for an after-school program run by John Merrill, in his position with the Tuscaloosa County Board of Education. From page 313 of the deposition, which is embedded at the end of this post:

Q: So you had to actually resign?

A: Right.

Q: And then it was two or three years later that you began to work with the after school program?

A: Right.

Q: And that's the after school program that was run by John Merrill?

A: Yes.

That testimony raises all kinds of questions, including . . .

* Did John Merrill use public funds to do a favor for his mistress?

* Did the two of them reach an illegal "quid pro quo," a something-for-something deal, in which she would get the job in exchange for staying quiet about the affair?

* Do Tuscaloosa County schools receive federal funds? If so, could this invoke federal jurisdiction if an investigation commences?

* Did other applicants, who perhaps were more qualified than Ms. Brinyark, not get a job that would have been theirs in a fair search?

* Did other applicants, who perhaps came with less baggage than Ms. Brinyark, not get a job that would have been theirs in a fair search?


Could this get serious? Well, let's consider the case of Mark Sanford, who can't seem to stay out of trouble. In December 2014, multiple news outlets reported that Sanford (now back in Congress) and North Carolina Governor Pat McCrory accepted six-figure stock payouts from Tree.com, an online mortgage broker accused by regulators of deceiving its customers. One article on that scandal reported on the outcome of Sanford's previous trials:

Sanford joined the Tree.com board in April 2012 after finishing his term as South Carolina governor in a cloud of ethical questions, having been forced to pay $74,000 to settle 37 state ethics charges, including using taxpayer funds to pay for flights to Argentina to visit his mistress.

Wikipedia provides more details about the fallout of Sanford's affair:

On June 24, 2009, Sanford resigned as chairman of the Republican Governors Association, after he publicly revealed that he had engaged in an affair with María Belén Chapur, an Argentine woman. . . . He was later censured by the South Carolina General Assembly following a State Ethics Commission investigation into allegations that he had misused state travel funds to conduct his affair.

Before reaching that conclusion, the Sanford case involved a lengthy criminal investigation in South Carolina, ending when the state attorney decided not to press charges. Will the John Merrill scandal follow a similar path? It's too early to say, but evidence suggests that questions about sex might eventually be the least of Merrill's concerns.

Deposition re John Merrill by Roger Shuler

Bradley Arant law firm found e-bingo machines illegal, just three years after finding that they were legal

We have shown that the Alabama Supreme Court can't seem to make up its mind whether electronic bingo is legal or illegal in the state.
We also have shown that the high court seems more likely to find e-bingo illegal when casinos in neighboring Mississippi are struggling financially.

But the all-Republican Supreme Court is not the only conservative legal entity in Alabama that seems to fail at dealing with gaming issues in any consistent way. Bradley Arant, which happens to be the largest and perhaps most "pro business" law firm in the state, also can't seem to decide where it stands on the issue.

Bradley Arant found electronic bingo illegal throughout Alabama in 2008--just three years after declaring that machines at VictoryLand casino, perhaps the state's best-known e-bingo facility, were legal. That finding, which would be comical if it did not involve millions of dollars and fundamental state constitutional law, is one of many intriguing revelations from Josh Moon's investigative report at the Montgomery Advertiser back in November.

The revelation comes as the public awaits a ruling in the VictoryLand forfeiture case, which is roughly three months overdue. It adds to the mountain of dubious legal rulings on Alabama bingo in the past seven years or so. And it gives the appearance that the state's "justice system" is hopelessly compromised on the issue--operating outside established law and without any apparent moral compass.

How did Bradley Arant enter the picture? Governor Bob Riley asked them to review a finding by one of his young staff attorneys, Bryan Taylor, that e-bingo machines throughout the state were illegal. Lo and behold, the lawyers at the august Birmingham firm agreed with young Mr. Taylor.

Were Taylor, Riley, or Bradley Arant actually looking at the matter objectively? We see plenty of reasons to doubt that. Apparently so does Moon, who reports:

To make sure, (Riley) asked attorneys from one of the state's most powerful law firms, the Bradley Arant Boult Cummings firm in Birmingham, to review Taylor's opinions. They concurred with Taylor, according to Riley.

Almost as an aside, in parentheses, Moon writes:

(An interesting note: in a 2005 opinion provided to a financial institution seeking guidance on whether to lend money to McGregor for renovations at VictoryLand, Bradley Arant attorneys deemed the casino to be in compliance with the law. In fact, their attorneys stated that the only way VictoryLand would not be in compliance was if a new constitutional amendment were written.)

How could Bradley Arant's opinion change so radically in barely three years' times?

Well, we know the following:

* Bob Riley funneled more than $10 million to the Birmingham firm during the final two years of his administration, which was spent mostly fighting e-bingo? Did Bradley Arant have 10 million reasons to change its analysis on e-bingo in Alabama?

* Bob Riley's son-in-law, Rob Campbell, is a Bradley Arant lawyer--and Bryan Taylor used to work there;

* GOP felons Jack Abramoff and Michael Scanlon funneled $20 million of Mississippi Choctaw gaming money to help Bob Riley get elected in 2002. Abramoff admitted in his book that the Choctaws spent $20 million to protect their $400-million revenue stream, built to a considerable extent off customers crossing the border from Alabama.

* Bob Riley's decision to launch an anti-bingo crusade coincided with a period when the Choctaws were laying off employees and cutting back casino operations to three days a week.

How can a law firm be taken seriously when it changes its opinion on the legality of electronic bingo from legal to illegal in three years' time--apparently for reasons that have nothing to do with the law and everything to do with back scratching, political favors, and the opportunity to make millions of dollars in cold, hard cash?