I am one of only three journalists in the past 115 years to be sent to jail related to a purely civil matter

Actress Judy Garland became
part of a historic defamation
case.

We have shown that I am the only journalist in the 2000s to be incarcerated in a civil matter, a case that had nothing to do with an alleged crime. How many journalists were incarcerated over purely civil cases in the 1900s?

The answer shines disturbing light on events that led to me being thrown in the Shelby County, Alabama, jail from October 23, 2013, to March 26, 2014. It also might cause citizens to ask if Judge Claud Neilson, Birmingham lawyer Rob Riley, and lobbyist Liberty Duke--the three individuals most responsible for my incarceration--should be subject to a federal investigation.

As to our original question, only two journalists were jailed over civil matters in the 20th century--and both cases involved circumstances radically different from those in my case.

How extraordinary were the actions of Riley, Duke, and Neilson? For some perspective, I'm only the third journalist to be jailed in a civil matter in 115 years--since the days of the William McKinley presidency.

Actually, my incarceration was even more extraordinary than the previous paragraph suggests, but we will save details about that for an upcoming post.

For now, we know that a 1972 U.S. Supreme Court case styled Branzburg v. Hayes allows for the imprisonment of journalists who refuse to turn over information related to a criminal case. According to a list compiled in April 2013 by Fox News, that has happened at least 28 times since 1900, five times in the 2000s.

What about the two civil cases where journalists were sent to jail in the 1900s? One of them involved an actress who played the lead role in one of the most beloved movies of all time. The other involved alleged political chicanery in a small Illinois town. Let's take a look:

* Garland v. Torre (1958)--Judy Garland, best known for her role as Dorothy in The Wizard of Oz, sued New York Herald Tribune writer Marie Torre, claiming quotes in a Torre column from an unnamed CBS executive defamed her. Torre reported that Garland was balking at a planned CBS special because, according to a network source, Garland thought she was "terribly fat" at the time. Garland claimed the statement was false and defamatory and harmed her professional reputation. Garland's lawyers took Torre's deposition, but she repeatedly refused to reveal the identity of her source. A federal judge sentenced Torre to 10 days in jail for contempt of court. This was the first case where a plaintiff faced a formal First Amendment challenge to a demand for information about sources.

* Costello v. Capital Cities Communications, et al (1984)--Richard Hargraves, an editorial writer for the Belleville (IL) News-Democrat, wrote an unflattering piece about Jerry Costello, chairman of the county board of supervisors. Hargraves wrote that Costello had lied regarding a campaign promise to oppose new taxes, and Costello sued for libel. During a deposition, Hargraves refused to name anyone in county government to whom he had spoken before writing the editorial, and a judge ordered him jailed for three days.

How do Garland and Costello differ from my case? Perhaps the biggest difference is that the plaintiffs in these cases did not seek unlawful preliminary injunctions. Also, the plaintiffs clearly sought trials because parties were subjected to depositions and cross-examination as part of trial preparation. There was nothing even resembling a trial in my case. Neilson conducted one hearing, to which I was escorted from the Shelby County Jail in shackles and chains, and that was it.

Lawyers for Garland and Costello apparently knew that the law does not allow for a preliminary injunction in a defamation case. Rob Riley and Liberty Duke apparently didn't know it or chose to ignore it. I lost five months of my freedom because of that.

Did Alabama Deputy Violate the "Sanctity Of The Home" and usher in an era of police misconduct?

A landmark U.S. Supreme Court case places a special burden on law-enforcement officers when entering the home to make an arrest. Evidence we've seen so far indicates Shelby County deputies failed to meet that burden when entering my home on October 23, 2013, to make an arrest on civil-contempt charges.

Payton v. New York 455 U.S. 573 (1980) "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." In fact, the words of Payton suggest the actions of Shelby County deputy Chris Blevins would have been unlawful even if he had a warrant.

That's because my arrest was not for a felony; it wasn't for a crime, and it wasn't supported by law. That would seem to make the Blevins' actions even more constitutionally dubious, considering that he entered my home without showing a warrant, knocked me to a concrete basement floor three times, and sprayed Mace in my face--all without even telling me why he was there.

A close reading of Payton, however, indicates Blevins' entry into our home would not have been made lawful by the presence of a warrant. (Hat tip to an anonymous comment who raised this issue on yesterday's post.)  The Payton court found that a warrant must be present to enter a dwelling "to make a routine felony arrest." What about entry to a home for a misdemeanor arrest--or, as in my case, an arrest that was not criminal in nature at all?

Payton does not specifically address this issue, but it strongly suggests that entry into a home under such conditions is unlawful, even with a warrant.

Blevins' actions were troubling the night I was arrested, and that was roughly a year before police misconduct became a national issue with the fatal shooting of an unarmed black teenager named Michael Brown by a white officer in Ferguson, Missouri--and the chokehold death of a black adult named Eric Garner in New York City.

It also happened before an Alabama police officer's assault on an Indian grandfather named Sureshbhai Patel; before an officer's fatal shooting of Walter Scott in South Carolina; and before the shooting of Eric Harris in Oklahoma, by an officer who apparently meant to tase Harris but shot and killed him with a pistol instead.

Did Blevins' unlawful entry into our home serve as a precursor to what has become, in 2014-15, "The Year Police Officers Were Unmasked As Thugs"? It's starting to look that way.

The Brown, Garner, Patel, and Harris debacles unfolded in public places. The thuggish behavior I experienced--which, thankfully, only roughed me up and did not kill me--took place in private, inside my own home. When officers start entering homes to rough up citizens who have been charged with no crime . . . well, our democracy might be showing serious wear and tear.

From Blevins' failure to show me a warrant or state that he had one, plus the failure of prosecutor Tonya Willingham to later produce a warrant when ordered to do so in court, makes a reasonable person think any warrant was defective for some reason--or there was no warrant at all.

This we know for sure: The law takes a dim view of law-enforcement officials entering a private dwelling without a valid warrant. Here are words from Payton v. New York:

The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. To be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is present. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

How traumatic was it for my wife Carol and me to have a law-enforcement thug unlawfully enter our home and wreak havoc? The following interview with Carol, on Bob Kincaid's Head On Radio Network (HORN), gives an idea.


(To be continued)

Did Alabama Sheriff Deputies Violate U.S. Supreme Court Precedent In Making Legal Schnauzer Arrest?

An Alabama police officer recently body slammed a grandfather from India named Sureshbhai Patel, and video of the assault helped shine an international spotlight on law-enforcement abuse in the Deep South. The spotlight became even brighter last week when a South Carolina officer fatally shot a fleeing Walter Scott in the back, over a non-operating brake light on Scott's vehicle--and then lied that he was being threatened at the time of the shooting.

How bad can some rogue officers be in the South, especially in the state I know best--Alabama? How deep is their disregard for the law? To help answer those questions, we can turn to my own arrest on October 23, 2013, which led to five months in jail. What was my crime? As with the Walter Scott case, there weren't even allegations of a crime; I was arrested for blogging--and I'm not making that up.

How absurd did it get? Courtroom evidence suggests that Alabama deputies arrested me without a warrant, making the arrest "unauthorized and illegal" under the law. If that was the case, the deputies likely ran afoul of a landmark U.S. Supreme Court case that generally prohibits warrantless entry into a private home to make an arrest.

Payton v. New York, 455 U.S 573 (1980) specifically forbids such entry in most cases involving felony arrest. My arrest was for civil contempt in a defamation lawsuit and did not involve a crime at all.

Shelby County deputy Chris Blevins entered my home on October 23, 2013, walking into our basement garage to knock me down three times and Mace me before telling me that I was under arrest. It's all caught on a videotape that later was played in open court.

At no point, in a video taken from his police cruiser, does Blevins show an arrest warrant. When the prosecution was told to turn over copies of any warrants at my resisting-arrest trial in January, prosecutor Tonya Willingham replied that she did not have any warrants.

All of that suggests there was no warrant for my arrest, and that raises the issue of Payton v. New York. Here is the key finding in that case:

The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest.

I can be heard on the video telling Blevins to get out of my house, so his entry was nonconsensual. What are some of the primary legal points in Payton and how might they apply to the Legal Schnauzer case? We will take a look at those questions in upcoming posts.

Those questions become particularly compelling in the aftermath of the assault on Suresehbhai Patel--not to mention the Michael Brown shooting in Ferguson, Missouri, and the Eric Garner chokehold death in New York City and the Walter Scott shooting in South Carolina . . . and the list seems to grow by the day.

Meanwhile. we've already shown that Officer Blevins violated Alabama statutory law by entering our house to make an arrest without stating his purpose for being there. And he violated federal law by unlawfully using pepper spray, constituting excessive force.

Is our nation turning into a police state that is spinning out of control? A growing body of evidence suggests the answer is yes.

How disturbing is this? Well, we learned yesterday via The New York Daily News that Officer Michael Slager laughed to a coworker about "pumping adrenaline" after shooting Walter Scott to death.

We have some disturbed individuals wearing law-enforcement uniforms right now. I saw that firsthand when Chris Blevins committed an assault and battery against me--inside my own home.

How bad was it? The video below features an interview with my wife Carol just a few days after I had essentially been kidnapped, and the footage shows the havoc that Blevins wreaked in our garage--all apparently without the benefit of having a warrant. (Hat tip for the video to Matt Osborne, editor of Breitbart Unmasked.)


(To be continued)

U.S. Supreme Court largely is responsible for the environment that led cop to fatally shoot Walter Scott

South Carolina Officer Michael Slager shoots a fleeing
 Walter Scott in the back.

Video of a South Carolina police officer fatally shooting a fleeing and apparently unarmed black man has gone viral. The death of Walter Scott, at the hands of Officer Michael Slager, probably is the No. 1 news story in the country right now--and it's the latest in a long line of stories over the past eight months involving police misconduct.

The public understandably is focused on the brutality that is apparent in the video, plus the fact that Slager has been fired and charged with murder. (See full video at the end of this post.) But the key to the story might lie in the moments before a bystander started shooting video of Scott and Slager struggling in an open, grassy area.

That's because Scott and Slager first encountered each other via a traffic stop. And a 1996 U.S. Supreme Court case on traffic stops might explain why Slager acted with such impunity toward Scott. It also might explain why Slager lied about his actions, claiming he shot Scott because he felt threatened--and apparently planting his taser to make it appear that Scott had taken it from him.

The U.S. Supreme Court (SCOTUS) case in question is styled Whren v. United States, 517 U.S. 806 (1996), in which the high court gave its OK for pretextual traffic stops. No one should be surprised that right-wing ideologue Antonin Scalia wrote the opinion in Whren.

What is a traffic stop based on pretext? Here is how one legal Web site describes it:

A "pretext" or "pretextual" stop is a stop in which the officer detains the citizen for a minor crime (i.e. traffic offense) because the officer actually suspects the person of involvement in another, more significant crime (i.e. drug possession).

In other words, a pretext stop involves deception. A law enforcement officer tells a citizen he is being stopped for one thing, when he's really being stopped for something else. And the nation's highest court, in Whren, has said this is perfectly fine.

According to news reports, Slager stopped Scott because he had a broken brake light on his vehicle. Reports also indicate Scott was wanted on a family-court warrant because he was behind on child-support payments.

Did Scott really have a broken brake light? It's possible that he did not, and Slager actually stopped him because he had looked up information about the child-support case. It's also possible Slager stopped Scott simply because he was "driving while black." Whren is almost 20 years old, but petitioners in the case foresaw the kind of tragedy that could happen to someone like Walter Scott. From the Whren opinion:

(Petitioners) argue . . . that "in the unique context of civil traffic regulations" probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given.

The petitioners, in other words, wanted SCOTUS to force officers to be honest in their reasons for conducting traffic stops. But the high court rejected that argument, and in our view, that led to the kind of brutality and dishonesty Officer Slager exhibited during and after the killing of Walter Scott.

Whren is a case where one party before SCOTUS had more foresight and intelligence than the justices themselves. If Scalia and his colleagues had paid attention to a valid argument, Walter Scott might be alive today--and Officer Slager might not stand accused of murder.



Walter Scott shooting from The Post and Courier on Vimeo.

The New York Times displays flagrant hypocrisy when it comes to reporting with anonymous sources

Campbell Robertson

Just more than a year ago, The New York Times reported on my incarceration for blogging in Shelby County, Alabama. It proved to be one of those good news/bad news situations.

For the good news, perhaps the best-known brand in American journalism was shining light on an issue of constitutional importance in the Deep South. For the bad news, reporter Campbell Robertson produced perhaps the most poorly written and researched article I've seen on my case--and I've seen probably more than 100 stories in both mainstream and Web publications, national and international. We recently passed the one-year anniversary of my release from jail, and I'm still finding coverage that I didn't know was out there.

Perhaps most troubling about the Times is its flagrant double standard when it comes to the use of anonymous sources. More on that in a moment.

As for shoddy reporting in the Times' article, "Blogger's Incarceration Raises First Amendment Questions," I could write a treatise on all that's wrong with it. For starters, the headline is not accurate. Every expert quoted in the story says I was wrongfully jailed contrary to long-settled First Amendment law. In fact, the situation did not raise any questions about the First Amendment. The only question was: How could Alabama have such a corrupt judicial system that it screws up straightforward, fundamental issues? The Times' solution to that issue was to acknowledge that the judge had made numerous rulings that were "unconstitutional" and "way out of bounds," but it did not publish his name (Claud Neilson).

I see no reason for me to provide a detailed critique of Robertson's work because Andrew Kreig, of the Justice-Integrity Project, already has done an excellent one. Kreig's report is titled "Alabama Court Hammers Blogger Again As NY Times Flubs Libel Story," and here is perhaps his key finding:

In view of the apathy of much of the media regarding Shuler's dire circumstances, New York Times coverage in the Sunday edition of the nation's most influential newspaper was a slight net positive for Shuler and other advocates of the First Amendment.

But neither the reporter Robertson, a native of a nearby Alabama community just south of the courthouse, nor his selected experts featured in the article conveyed to the public the appalling danger of a court system operating so lawlessly.

What about the Times' hypocrisy on the use of anonymous sources?  Robertson refers to Legal Schnauzer as a "hothouse" of "fuzzily sourced allegations," an apparent reference to my use of unnamed sources in reporting on Alabama GOP politico Rob Riley and lobbyist Liberty Duke. It also might be a reference to my use of unnamed sources in reporting about Attorney General Luther Strange and his former campaign aide, Jessica Medeiros Garrison.

Both of those stories led to defamation lawsuits, the first two in my almost 37 years as a professional journalist. They came within roughly a month of each other, from pretty much the same source--Alabama's cadre of right-wing elites, who tend to talk one way about "family values" and act another. So far, my reporting never has been found to be false or defamatory at trial.

I've written more than 2,800 posts here, and I can recall using anonymous sources in only three storylines--the two GOP-related stories noted above, plus one about Bush-appointed federal judge Bill Pryor and his ties to 1990s online gay pornography. It's common practice in journalism to use anonymous sources when the provided information is sensitive and could lead to blowback, even harm, for the source. Given that I was unlawfully thrown in jail not long after writing the Riley/Duke, Strange/Garrison, and Pryor/porn stories, it seems clear that my sources, indeed, would have faced serious repercussions if they had been named.

Vicki Iseman

Does The New York Times use "fuzzy sourcing" in its own reporting. The answer is yes, and it also has found itself facing litigation. One of the best examples comes from coverage of the 2008 presidential election and a story titled "The Long Run: For McCain, Self Confidence on Ethics, Poses Its Own Risk."

The story centered around an alleged "inappropriate relationship" involving GOP candidate John McCain and a lobbyist named Vicki Iseman. Here is the heart of the story:

Early in Senator John McCain’s first run for the White House eight years ago, waves of anxiety swept through his small circle of advisers.

A female lobbyist had been turning up with him at fund-raisers, visiting his offices and accompanying him on a client’s corporate jet. Convinced the relationship had become romantic, some of his top advisers intervened to protect the candidate from himself — instructing staff members to block the woman’s access, privately warning her away and repeatedly confronting him, several people involved in the campaign said on the condition of anonymity.

When news organizations reported that Mr. McCain had written letters to government regulators on behalf of the lobbyist’s client, the former campaign associates said, some aides feared for a time that attention would fall on her involvement.

Mr. McCain, 71, and the lobbyist, Vicki Iseman, 40, both say they never had a romantic relationship. But to his advisers, even the appearance of a close bond with a lobbyist whose clients often had business before the Senate committee Mr. McCain led threatened the story of redemption and rectitude that defined his political identity.

The Times' reporting was wishy-washy, at best, never directly stating that McCain and Iseman had an affair. Iseman sued anyway, claiming the paper and several of its reporters and editors had "falsely created an impression that she had engaged in an improper romantic relationship with Senator John McCain." The Smoking Gun published a document that claimed the newspaper had "brazenly published" a piece about a "nonexistent tryst."

Who won the courtroom battle? That's hard to say, since the two sides reached a settlement. It seems clear John McCain was a big loser.

In the wider picture, The New York Times probably is the biggest loser of all. Based on personal experience, I would say a newspaper that once was considered great probably doesn't even rate as good anymore.

Joey Kennedy says former employer al.com is using his name in an effort to sell newspaper subscriptions

Joey Kennedy and three of his
animal friends
(From B-Metro Magazine)

Pulitzer Prize-winning journalist Joey Kennedy says al.com is using his name in an effort to sell subscriptions, just weeks after firing him.

In a post yesterday at his Facebook page, Kennedy said he is considering possible legal action. Al.com, the digital equivalent of The Birmingham News, fired Kennedy on February 19.
He reached a severance agreement with al.com on March 6 and signed on as a columnist for B-Metro Magazine. Also, Kennedy and his wife, Veronica, are launching Animal Advocates of Alabama, a Web site about animal-related news and advocacy.

Kennedy seemed stunned yesterday to learn that representatives for his former employer were using his name in an effort to sell newspapers--even hinting that he was about to return to the fold. Said Kennedy on Facebook:

Well, one tries to move on. The company that fired me for "making threats" and "being too personally involved in my stories" is now putting people out in stores around the city telling potential subscribers that they are negotiating with me to return to Alabama Media Group and The News. I've not been a party to these "negotiations," yet they're using my credibility and standing in the community to sell subscriptions to their 3-day-a-week paper.

How does Kennedy feel about this strange turn of events?

I'm insulted, offended and just plain angry. I've consulted with my lawyer and we're deciding what to do next. This is wrong on so many levels. I did nothing but exemplary work for this group for more than 33 years. They cast me aside, and now try to use me to sell subscriptions. How do you describe this?

Three terms come to my mind to describe it--"sleazy," "underhanded," and "dim-witted." Oh, and I mustn't forget "shameless."

How would you describe al.com's treatment of one of Alabama's best-known journalists? Please send your adjectives, adverbs, and other descriptive phrases to us via the comments section.

Former Governor Don Siegelman seeks support for "the movie that Karl Rove does not want you to see"

Former Alabama Governor Don Siegelman is seeking financial support for a proposed documentary about the political prosecution that caused him to unlawfully be sent to federal prison.

To be called Killing Atticus Finch, the film promises to expose Bush-era corruption in Alabama; Washington, D.C.; and around the country. The film's fund-raising site bills it as "the movie that Karl Rove does not want you to see."

From a federal prison in Oakdale, Louisiana, Siegelman sent a letter to the public, via Legal Schnauzer. The letter reads:

A LETTER FROM DON SIEGELMAN 

My Dear Friend:

Once again, I call on you to help me fight for justice, not for me, but for our criminal justice system. I thank you for helping with my personal fight to expose the truth about how Karl Rove used the Department of Justice as a political weapon, and to finally hold him accountable. Now I am seeking to make an important systemic change to help ensure fairness and reduce government misconduct. Please watch, share and support the Documentary Killing Atticus Finch. Help us tell my story!

All my best,

Don

http://www.gofundme.com/DonSiegelmanFilm

Here is a summary of the documentary project and the effort to get it filmed:

THE MOVIE KARL ROVE DOES NOT WANT YOU TO SEE!

This film will expose the dark underbelly of corrupt politics that has remained secret for far too long.

Just like America's favorite literary figure, Atticus Finch, former Alabama Governor Don Siegelman believed in a judicial system that completely failed him. Don Siegelman needs your help! We need you to back this project so that the world will know about this travesty of justice. It's that important!

We have launched this GoFundMe Campaign to help produce a documentary that tells the whole story behind Don Siegelman's malicious prosecution and wrongful conviction. If you carry that same hunger for justice, please join us to shine a light on the truth.

http://www.gofundme.com/DonSiegelmanFilm

“Don Siegelman isn’t just fighting for his freedom; he’s fighting for the integrity of our democracy” – Al Gore, former vice president

Here is the trailer for Killing Atticus Finch:

Is Ryan Gerald Russell, like the now free Anthony Ray Hinton, wrongfully sitting on Alabama's death row?

Ryan Gerald Russell

Anthony Ray Hinton was freed last Friday after spending almost 30 years on Alabama's death row for two murders that new forensic evidence indicates he did not commit. We strongly suspect Hinton was not the only inmate wrongfully serving time on Alabama's death row. And we aren't just guessing about that; we have a specific case in mind.

It's the case of Ryan Gerald Russell, an Inverness man who was convicted in the 2008 shooting death of Katherine Helen Gillespie, his 11-year-old cousin. A Shelby County jury deliberated 35 minutes before convicting Russell and recommended a death sentence. Circuit Judge J. Michael Joiner, now on the Alabama Court of Criminal Appeals, sentenced Russell to death in December 2010. Russell is housed on death row at Holman Prison.

But was this a case of murder? And, as was the case with Anthony Ray Hinton, is there any evidence tying Russell to the shooting? Based on press reports at the time, the answer to the first question is "maybe not." The answer to the second question is "no."

Are there similarities between the Hinton case and the Russell case? Well, here is how al.com described the process that set Hinton free:

After nearly 30 years on Alabama's death row, Hinton this morning walked out of prison a free man and into the arms of his sisters and friends.

He was freed when prosecutors dismissed the charges for his re-trial in the 1985 deaths of two fast-food managers after new testing on Hinton's gun couldn't prove the crime scene bullets were fired from the weapon.

Bryan Stevenson, executive director of the Equal Justice Initiative (EJI) in Montgomery, served as Hinton's attorney and pushed for the evidence that finally freed his client:

EJI has been asking for more than a decade for prosecutors and the Alabama Attorney General's Office to have the gun re-tested because Hinton's original attorney did not hire a qualified gun expert.

"It should have happened many many years ago. . . . His case, in my judgment, is a case study in what's wrong with our system. He was convicted because he is poor. We have a system that treats you better if you're rich and guilty than if you're poor and innocent," Stevenson said.

There is no evidence that Russell's court-appointed trial lawyers hired a gun expert, qualified or not. In fact, Russell's lawyers, Mickey Johnson and Rick Vickers of Pelham, put on no defense at all. We can find no documents on Google Scholar that indicate Russell's conviction was appealed. News reports at the time raised questions about whether the prosecution even had the right murder weapon--and the reports offered no forensic evidence that showed Russell fired the gun.

What led to Katherine Gillespie's death? Here is how we summarized it in a November 2010 post:

The death of Katherine Helen Gillespie is a sad and tragic story. She was born through artificial insemination to a mother who died when she was 7 years old. She did not have a father, so she lived with her maternal grandmother until the summer of 2007. At that point, the grandmother developed signs of dementia, and Gillespie came to live in Inverness with the 37-year-old Russell, a distant cousin who was single and reportedly planned to adopt her.

Katherine Gillespie had been at summer camp on June 16, 2008, and it appeared Russell was going to be late picking her up. A camp counselor later testified that Gillespie was concerned as it got closer to 6 that evening, and Russell had not picked her up, but she was happy and smiled when he made it on time.

Three teenagers reported later that evening being rear-ended by an SUV. When they followed the SUV, it went to Russell's residence. Two of the teens, Andrew Stone and Robert "Bo" Montiel, later testified that a young girl, presumably Gillespie, got out of the SUV and asked them in a tearful voice not to call the police about the collision. They said Russell stayed in the vehicle and eventually backed it into the garage.

One of Russell's ex girlfriends went to the house after relatives told her they had not been able to reach him for several days. She discovered Katherine's body inside the SUV.

Was there reasonable doubt in the Russell case? Evidence showed that Russell had financial problems and a serious drinking problem, but reasonable doubt about murder--and whether he committed it--was everywhere. Consider just a few issues raised at trial:

Katherine Helen Gillespie

* Don Gould, a retired evidence technician, admitted under cross examination that his team left behind four guns at the scene, including the one they eventually considered to be the murder weapon. That gun, a .40-caliber Glock, was found months after evidence recovery, hidden under a couch when a family member of Russell's removed his belongings from the house.

* Ed Moran, a forensics expert, could not connect the bullet from the body to any gun that he examined. From a January 2011 post and an article in the Shelby County Reporter:

Moran said the bullet jacket recovered from the body could not be marked back to any of the guns he examined. He said there was not enough microscopic markings on the jacket for him to make a conclusion.

* Katherine's body was found in Russell's house, where she lived, and he was her legal guardian. The supposed murder weapon was found there--one of 37 guns recovered at the scene. But that's pretty much where the evidence against Russell ends. We see no sign that he intended to kill Katherine, nothing tying him to the murder weapon. Does this evidence even rise to the level of "flimsy"? But a man sits on death row because of it? Here is how we summarized it:

Here is perhaps the most stunning element of this case: Based on press reports, from both The Birmingham News and the Shelby County Reporter, no evidence was presented that tied Russell to the actual act of shooting Gillespie. Articles about the testimony of a forensics expert made no mention of fingerprints, powder residue, or any other evidence that proved Russell fired the weapon. Yes, the gun was found in Russell's house. But proof beyond a reasonable doubt that he fired the gun? If any was presented at trial, it was not reported in the press.

Russell and Gillespie hardly were alone on the property that night, as we reported:

Based on press reports, we know that at least six other people--a former girlfriend, three teenagers, and at least two sheriff's deputies (called first by the teens, then by the former girlfriend)--were on or near the Russell property that night. . . . Is it possible that someone else on the scene that night had a gun and accidentally shot Katherine? It appears that authorities never seriously considered that possibility, and of course, that scenario would not go to murder either. It might, however, go to a massive wrongful-death lawsuit against the persons or entities responsible.

It took the Alabama "justice system" 30 years to get the Anthony Hinton case right. The Ryan Russell case emits many of the same foul odors. How long will it take for someone to take a second look? Has there even been a legitimate first look yet?

Actions of Alabama deputy, including use of pepper spray, constitute unlawful arrest and excessive force

It has been just more than a year since my five-month incarceration for blogging ended in Shelby County, Alabama. We already have shown that the arrest was unlawful on at least three grounds, but the list of abnormalities in the case seems to keep growing.

That's because the actions of Deputy Chris Blevins in "effectuating" my arrest so clearly fall outside the boundaries of the law. Blevins' unlawful actions fall into at least four categories: (1) His failure to state his purpose for being at our home; (2) His failure to state his mission before entering our home; (3) His use of excessive force, as defined by law; (4) His use of pepper spray in a situation where the law does not support it.

Let's examine each of these issues closely:

(1) Failure to state his purpose--Under Alabama law, an officer making an arrest must give notice of his authority. From Code of Alabama 15-10-2: "An officer may execute a warrant of arrest on any day and at any time; but in doing so, he must inform the defendant of his authority and, if required, must show the warrant."

In other words, an officer must tell you why he is in your presence, he must describe his purpose for being there. We've already established that Blevins did not show a warrant, but perhaps more importantly for our purposes now, he never stated that he was at our home to arrest me--until after he had already knocked me to a concrete floor three times and directed pepper spray into my face.

That makes the arrest unlawful, especially when you consider that it took place inside our home. That takes us to item No. 2.

(2) Failure to state his mission before entering our home--Both statutory law and case law in Alabama show that an officer has important responsibilities before entering a home. To quote further from Code of Alabama 15-10-2: "If [an officer] is refused admittance, after notice of his authority and purpose, he may break an outer or inner door or window of a dwelling house, in order to make the arrest."

Blevins was refused admittance to our home--I told him to get out of our garage--but he had given no "notice of his authority and purpose" for being there. A videotape of the arrest shows Blevins walking into our home without stating why he is there. Under Alabama statute, this is unlawful.

Case law, in the form of Livingston v. Browder, 285 So. 2d 923 (Ala. Civ. App., 1973), provides additional insight on this point:

Importantly, in most circumstances, a person must make known his purpose and demand admittance before breaking into and entering the house of another to make an arrest. 5 Am.Jur.2d Arrest § 93. Mr. Justice Bouldin, in Gray v. Williams, 230 927*927 Ala. 14, 18, 160 So. 715, 718, spoke to this point when he stated:

"In entering the dwelling of a third person, especially at night, the officer is under duty to apprise the head of the family of his mission and authority. No particular words are necessary, but, coming in the name of the law, he should make known such fact."

The arrest videotape shows that Blevins failed to fulfill his duty before entering our home, and that is one more ground for making my arrest unlawful.

(3) Use of excessive force, as defined by law--When an arrest is unlawful--as this one was on almost a half dozen grounds--a law-enforcement officer is not authorized to use force. As stated in Jackson v. Sauls, 206 F. 3d 1156 (11th Circ., 2000): 

" . . . if a stop or arrest is illegal, then there is no basis for any threat or any use of force, and an excessive force claim would always arise but only collaterally from the illegal stop or arrest claim."

As we've shown, Blevins' actions were illegal from the moment he stepped into our garage without stating his purpose for being there. Under Jackson, all of the force that Blevins subsequently used was unlawful.

(4)  Improper use of pepper spray--Courts have found that the use of pepper spray is reasonable under certain conditions. But those conditions were not present in my case. The U.S. Eleventh Circuit Court of Appeals addressed the issue in a case styled Vinyard v. Wilson, 311 F. 3d 1340 (11th Circ., 2002). The court in Vinyard borrowed heavily from two major excessive-force cases: Graham v. Connor, 490 U.S. 386 (1989) and Lee v. Ferraro, 284 F. 3d 1188 (11th Circ., 2002).

From the Vinyard ruling:

As this Court also recently explained in Lee, "Graham dictates unambiguously that the force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight. . . ."

Courts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.

In my case, there was no crime at all, severe or otherwise. I was being arrested for alleged contempt of court in a civil matter--one where I could not lawfully be subjected to a contempt finding. By Blevins' own words in his incident report, he was the one acting violently, throwing me through boxes (twice) and up against a sturdy, metal dog pen. By Blevins' own account, all I did was put my arms in front of my face to protect myself from his blows. When finally informed that I was under arrest, I was lying on the floor of my own garage--with the doors closed--so it seems clear I was not a flight risk. (See incident report at the end of this post.)

Reporting on my story has focused largely on clear violations of the First Amendment. In my view, however, the story goes way beyond that. Discussions of the First Amendment tend to be nuanced and theoretical. But there was nothing nuanced about Chris Blevins' actions in our garage--or about the five months I spent in jail.

Police abuse has been one of the leading stories in the United States over the past eight to 10 months;  my story is just one more example of it. I managed to live through it, but the closer you look at the details, the uglier it gets.

Shuler Arrest-Incident Report by Roger Shuler

Could Paul Bryant Jr. get in trouble for a second time from trying to play fast and loose with the IRS?

Paul Bryant Jr.
(From Bloomberg Markets

The incestuous nature of the University of Alabama Board of Trustees was in the spotlight last week, thanks to an al.com article that outlined connections several board members have to Bryant Bank, where fellow trustee Paul Bryant Jr. serves as chairman. Perhaps the most important news from the story involves Bryant's tendency to try end runs around the Internal Revenue Service (IRS), and we suspect many readers might have missed that.

It's important because Bryant stepped in a major pile of doo-doo once before from his efforts to evade the tax man. Could it happen again? Time will tell, but reporter John Archibald makes clear that perhaps Bryant hasn't learned his lesson about the IRS.

Near the end of his article, Archibald drops a bomb about the Crimson Tide Foundation, a nonprofit fund-raising organization for UA athletics. Bryant has been chairman since its inception in 2005, and Archibald writes the following about the foundation, using it as an example of UA leaders' tendency to seemingly feel basic rules and courtesies don't apply to them:

When UAB supporters went to Tuscaloosa in support of a Southside stadium, trustees did not even give them the courtesy of a hearing. They simply ignored the students from Birmingham and killed the plan without a word.

Because they don't believe they answer to anyone.

The Crimson Tide Foundation - which two years ago bought Nick Saban's house for almost $3.1 million -- is a perfect example. In February AL.com sought IRS filings on that foundation as well as Auburn's similar Tigers Unlimited Foundation. Auburn complied, but Alabama said they no longer file IRS 990s.

How did a UA representative respond when confronted with questions about this issue? Archibald tells us:

When Deborah M. Lane -- assistant to the president and associate VP for University Relations - finally explained that decision this week she said the group believes it does not have to file the form because it is affiliated with a government entity: The UA Board of Trustees.

Which would make that foundation's books ... public. Yet the dance goes on, as the family tries to keep it all in the family.

They have been allowed to do it so long, by politicians and by media too scared, too cheap, or too homer to challenge it.

Could this be an instance of history repeating itself? It's possible, because we've seen signs that no one has much challenged the way Bryant manages his private business entities under the Greene Group banner. Bryant apparently likes to surround himself with "yes men and women," a trait that almost landed him and several associates in federal prison back in the late 1990s. In fact, it almost certainly would have if Birmingham lawyer Doug Jones, then U.S. attorney for the Northern District of Alabama, apparently had not called off a planned investigation of a Bryant company (Alabama Reassurance) in the wake of a major white-collar prosecution in Philadelphia.

The Pennsylvania case ended with convictions across the board and a 15-year prison sentence for a lawyer/entrepreneur named Allen W. Stewart. In the course of the prosecution, Alabama Re was implicated in a $15-million insurance fraud scheme--and that was to be the focus of an Alabama investigation until someone (likely Doug Jones, a long-time Bryant associate) stepped in and called off the probe.

How does this involve the IRS? In fall 2013, Bloomberg Markets magazine picked up on our reporting about the Alabama Re case and turned it into a national story for its January 2014 print issue. (See print article at the end of this post.) An early version of the story appeared at Bloomberg's Web site on November 25, 2013.

Reporters Anthony Effinger and John Helyar show that Bryant got in trouble because of a scheme to avoid taxes. In fact, the whole purpose of Alabama Re was to hide dog-track profits from the IRS. This is what Bloomberg reported about a Mississippi Department of Insurance examination of Alabama Re in the 1990s: :

“They were propping up broke companies for a fee,” says Tom Gober, who was examiner-in-charge at the Mississippi Insurance Department in the early 1990s. “Companies knew they could call on Alabama Re because Alabama Re had to offset dog track profits.”

Bryant’s enterprises are all units of a holding company called Greene Group Inc., which Gober says allows the firm to consolidate its tax liabilities and offset profits from other enterprises with insurance write-offs.

Experts in Alabama knew that Bryant's company intentionally worked with troubled insurers in a way that deceived the public--and the markets. From Bloomberg:

The company made a business out of propping up troubled insurers with reinsurance that appeared to reduce liability, says W.O. Myrick, a retired Alabama state insurance examiner. The contracts carried little, if any, risk to Alabama Re, he says. One client, Inter-American Insurance Co. of Illinois, went into liquidation in 1991, according to Cook County court documents.

“Historically, Alabama Re has entered into contracts to assume liabilities from problem insurers to help them appear to be in better financial condition than they actually are,” Myrick says in a telephone interview.

In other words, Alabama Re, under Bryant Jr.'s "leadership," was a scam from the get-go. What about the Crimson Tide Foundation, another of Bryant's creations? Why is it not filing IRS documents that similar foundations seem to file?

Bryant flirted with IRS-related disaster once before--and managed to get away with it. Is he heading down that path again?

ROLL MONEY ROLL by Roger Shuler