U of Illinois begins dismissal proceedings against ex-chancellor amid reports about warnings of criminal sanctions for hiding e-mails in Stephen Salaita case

Phyllis Wise

The University of Illinois began dismissal proceedings yesterday against former Chancellor Phyllis Wise amid online reports that members of the Wise administration had received warnings about possible criminal penalties for hiding e-mails related to withdrawal of a job offer to a controversial scholar.

Wise announced last week that she was resigning as chancellor, while accepting a teaching assignment and a $400,000 payment. UI the next day released e-mails showing that Wise and other top administrators had tried to hide their communications about Steven Salaita and other sensitive campus issues. But a committee of the UI board of trustees, apparently under pressure from Governor Bruce Rauner, yesterday said it would reject the resignation agreement and begin the process of firing Wise.

Does that mean the university is trying to distance itself from Wise because of fears about a possible criminal investigation? That is not clear at the moment, but online reports show Wise had been warned that civil and criminal penalties were a possibility if she and other administrators tried to conceal their official communications by using private e-mail accounts.

The latest revelations from Illinois raise questions about the possibility that someone engaged in criminal conduct related to my termination in 2008 at the University of Alabama at Birmingham (UAB)--either by concealing evidence, influencing U.S. Judge William M. Acker Jr. to unlawfully deny discovery in my discrimination/First Amendment lawsuit, or both.

What about warnings regarding possible criminal sanctions at UI? Wise and other top administrators received such a warning last September, according to a report from Ali Abunimah at the blog electronicintifada.net. From Abunimah's report:

In an 18 September 2014 email related to Salaita, Chancellor Wise wrote from her private account that university spokesperson Robin Kaler “has warned me and others not to use email since we are now in litigation phase. We are doing virtually nothing over our Illinois email addresses. I am even being careful with this email address and deleting after sending.”

The very next day, university employees connected with the Salaita matter, undoubtedly including Wise and others participating in the secret email exchanges, received a warning called a legal hold from the university’s external law firm Perkins Coie.

The Electronic Intifada obtained a copy of the legal hold and ran it in full at the bottom of its August 11, 2015, post. Here is more from Abunimah:

A legal hold is standard practice any time litigation is expected and its existence indicates that the outside counsel were being diligent.

Headlined in capitals, “Important legal notice for your immediate attention,” it warns that “Failure to comply with this Notice could subject you and the University to civil and criminal penalties.”

The document reveals that Salaita’s lawyers informed the university’s counsel on 16 September 2014 of their intention to file a lawsuit.

The detailed four-page memo warns emphatically: “Under no circumstances should you delete potentially relevant emails from your computer or from the network server.”

UI released 1,100 previously hidden e-mails last Friday, indicating Wise and others ignored the warning.

Another report comes from Andrew Scheinman, Ph.D., J.D., an attorney who has played a pivotal role in the Freedom of Information Act (FOIA) requests that brought the UI e-mail scandal to light. At his investigative online site Samizdat-Startups.org, Scheinman presents evidence that Wise likely was advised of her duty to preserve evidence even earlier than September 2014. Explains Abunimah:

[Scheinman] notes that soon after a 24 July 2014 board meeting at which Salaita was discussed, the name of Scott Rice, the university’s in-house counsel, begins appearing in Salaita-related emails previously released to him under FOIA. Everything in the emails is redacted except for Rice’s name.

“This kind of redaction – nothing but the attorney’s name – indicates UIUC is likely claiming attorney client privilege, which it would only do if they were discussing, e.g., a litigation matter such as likely litigation by Salaita,” Scheinman told The Electronic Intifada.

The fact that Wise and other officials expected, or should have expected, litigation long before the formal legal hold was sent out suggests they already had a legal duty to preserve evidence during a period when Wise admitted to deleting emails.

“I would think Rice would have taken great pains to point out to Wise early on his – Rice’s – duty to UIUC – his client – to prevent any UIUC employees including Wise from destroying documents,” Scheinman said.

“My conclusion is that Wise was likely advised of possible or likely litigation as early as 25 July 2014,” Scheinman added.

What does this tell us about the situation at the University of Illinois? It could mean that the ugliness related to a cover-up in the Stephen Salaita case is just beginning, with the looming possibility that the campus' former chief executive will face criminal charges.

What does it tell us about my experience at UAB? It's too early to say for sure, but we will show in an upcoming post that the UAB administration, led then by President Carol Garrison, received notice that I planned to file a lawsuit, that it should ensure related evidence was preserved. We also will show that UAB balked at my notice, even though it ultimately did not have to turn over any evidence because Judge Acker unlawfully granted the university summary judgment without allowing any discovery.

The Salaita case shows that higher-education officials can take extraordinarily dumb, unethical (and maybe unlawful) steps when they are dealing with an employee they knowingly have cheated out of a job. What happened to the evidence that UAB should have been forced to turn over in my lawsuit? What would a FOIA request show about UAB officials and their behind-the-scenes actions in my case? Were UAB officials involved in a possible criminal conspiracy to obstruct justice and encourage Acker to make unlawful rulings in my case?

In other words, did UAB officials engage in a cover-up similar to the one at the University of Illinois? Is it possible that a UAB scheme was even more evil than the one at UI because it led all the way to a federal judge?

U.S. Judge William M. Acker's own words and actions show he intentionally cheated me in employment case

William M. Acker Jr.
(From al.com)

Have you ever wondered what it would be like to catch a federal judge, red-handed, cheating a litigant before him? Stick with us, and we will show you exactly how it happened in one case.

The judge in question is William M. Acker Jr., an 87-year-old Reagan appointee in the Northern District of Alabama. Acker presided over my discrimination/First Amendment complaint against the University of Alabama Board of Trustees after I had been fired at UAB for reporting accurately (on my own time, with my own resources) on the corrupt actions of disgraced federal judge Mark Fuller in the Don Siegelman case.

Acker violated simple procedural law and black-letter, Eleventh-Circuit case law to grant the university summary judgment without allowing any discovery in the case--without even setting a discovery schedule, as required by law.

Given Acker's age, some might explain this ruling as a sign of senility or some form of advancing dementia. But court records show that Acker knows the law requires discovery before summary judgment can be considered, much less granted. Records show that Acker, over and over, has ordered discovery, even in employment cases very much like mine.

So this wasn't an accident, or the result of an impaired judge. This was the result of a judge who is morally and ethically bankrupt, and his own words and actions prove it.

Let's first consider a case styled EEOC v. McPherson Companies, 914 F. Supp. 1234 (2012). It's an intriguing case involving alleged same-sex harassment on the job. In his memorandum opinion on summary judgment, Acker sets the scene as follows:

This Title VII case revolves around repeated churlish, childish, gross, sordid, vulgar, foul, disgusting, profane utterances in the workplace. The question in the case, however, is not how vile and obnoxious this workplace language was. It was vile and obnoxious enough to score nine on a scale of ten. This will become apparent as the story unfolds. The question for the court is rather whether this verbal mayhem morphed from a competition to see who could beat whom in the foul-mouth game into a cause of action under Title VII by an offended employee for same-sex sexual harassment.

How did Acker know the language was "vile and obnoxious enough to score nine on a scale of ten"? The parties conducted discovery, and facts obtained during the process show the language was, indeed, nasty. In fact, in footnote 6 of his opinion, Acker quotes directly from several depositions taken during discovery.

That establishes the obvious--discovery is necessary before a determination on summary judgment, even in an employment case, with William Acker as judge.

Now, let's consider Hunt v. 21st Mortgage Corporation (2013), a debt-collection case where Acker was asked to compel the defendant to turn over certain information in discovery. Acker granted plaintiff Charese Hunt's Motion to Compel, stating:

It is a widely known (and widely quoted) maxim that “the deposition-discovery rules [under the Federal Rules of Civil Procedure] are to be accorded a broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). “[E]ither party may compel the other to disgorge whatever facts he has in his possession.” Id. Thus, plaintiff’s motion must be granted so long as he meets the low bar set out for him in Rule 26: his request must be for “nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(2).

In the context of my case against UAB, I was entitled to "broad and liberal" discovery. Instead, I was denied discovery altogether.

Acker goes on in Hunt to explain why the plaintiff not only must be allowed discovery in general, but why he is due to receive particular items in discovery:

The analysis of this low bar is uncomplicated. Among plaintiff’s claims is that defendant called him using an illegal automatic dialer, and among defendant’s defenses is that, on the contrary, it used manual dialing in all of its communications with plaintiff. Obviously, plaintiff is not required to take defendant’s word for it; it is precisely these types of factual disputes for which discovery exists.

Acker then chastises the defendant for claiming the "evidence is undisputed":

Second, defendant’s claim that “the evidence is undisputed” is one it must save for summary judgment or some other later stage of this litigation. Indeed, the very purpose of the instant motion is to make the evidence disputed. Plaintiff is not required to accept defendant’s claims that all calls were made manually; in short, he is free to argue before a jury, whether rightly or wrongly, that defendant’s assertion is a lie or an error, and that in fact defendant did make “numerous calls by illegal automatic dialers and/or predictive dialers . . . at all hours of the day and night. . . .” Should he choose to do so, he is permitted under the federal discovery rules to obtain information from defendant with which to support his argument.

This all raises some obvious questions: Why didn't discovery exist to address factual disputes in my case against UAB? Why was I not allowed, via discovery, to show that UAB's assertions were lies or errors? Why was I not allowed, via discovery, to obtain information to support my arguments?

The likely answer? Hunt was not facing powerful political defendants. I was, in the form of the Riley Machine, especially then "first son" Rob Riley, and Acker felt duty bound to protect his "conservative" brethren--no matter what the law says.

Finally, let's examine a case styled Huntley v. The Board of Trustees of the University of Alabama (2010). Like my case, this involves employment issues, discrimination, and UAB. The plaintiff, Dr. Horace Huntley, was a long-time history faculty member (now retired) who alleged he was denied tenure for discriminatory reasons.

University attorneys undoubtedly invoked some of the same arguments--qualified and sovereign immunity, etc.--that they used in an effort to avoid discovery in my case. Those arguments didn't work in Huntley because, as shown by Acker's own words in the Hunt case, the plaintiff was entitled to conduct discovery that would counter UAB's arguments.

Dr. Huntley was not successful in denying summary judgment to the university. But he was allowed to conduct discovery. From Acker's memorandum opinion in the case:

Additionally, Dr. Huntley admitted in his deposition that he is not a full-time faculty member: Q: Okay. So you are a part-time faculty member, correct? A: Well, I am – yes, I guess I am, you could say I am a part-time faculty member. (Doc. 35-1, at 26:3-7.)

How could Acker quote from Dr. Huntley's deposition? Because discovery had been conducted, and the deposition was entered into the record. That's the way a case against UAB must be conducted, under the law. But my case was not handled that way at all.

The concept of "equal protection of the laws" obviously means nothing to William Acker. I had to be singled out for a cheat job in court--on top of a cheat job in the workplace--because Acker's right-wing buddies from Riley Inc. were behind my termination at UAB.

No one connected to the Rileys was behind the alleged discrimination against Horace Huntley, so his lawyers were able to conduct discovery, as required by law. Acker wasn't concerned about what discovery might turn up in the Huntley case. But he sure as heck was concerned about what he knew discovery would turn up in my case. So he made sure that no discovery took place.

Is this infuriating for my wife, Carol, and me? Of course it is. With a termination on my employment record--not to mention a bogus incarceration, also driven by Rob Riley--it's been almost impossible for me to find a job. The ability to work, to support ourselves, essentially has been stolen from us--so that makes Acker's blatantly unlawful actions deeply personal.

But the thoughtful reader will realize this goes way beyond Carol and me. The right to "equal protection of the laws" supposedly is guaranteed under the due-process clause of the 14th Amendment to the United States Constitution. It might be the single most profound provision in the constitution.

But a corrupt judge like William Acker has no respect for the law--or the oath he took to uphold it. This post, based on public records, makes that abundantly clear. If Americans stay silent about judges like Acker--if we allow rogues like him to chip away at our constitutional rights--we eventually will find ourselves living in a country that does not resemble a democracy.

Did Maynard Cooper Gale law firm benefit in Cashion case from the Scott Vowell-Henry Lynn relationship?

Scott Vowell and Henry Lynn

How has the close relationship between former Presiding Judge J. Scott Vowell and Sterne Agee Chairman Emeritus Henry Lynn Jr. perverted justice in Jefferson County, Alabama? A case styled William B. Cashion and Western Steel Inc. v. Mark Hayden, et al might provide a prime example.

The record indicates Vowell took a number of steps to ensure the Cashion case would wind up before Circuit Judge Robert Vance Jr. on the Commercial Litigation Docket, which since has been discontinued after being found to be unconstitutional. Vance then made four critical rulings in favor of the Cashion plaintiffs, all before the case even was assigned to him. The plaintiffs--surprise, surprise--wound up prevailing on every issue in the case, but the real winners might have been the lawyers for Cashion.

Who were those lawyers? They were James P. Naftel, Tony G. Miller, and John D. Bethany Jr., from the Birmingham firm of Maynard Cooper and Gale. A shareholder, and one of 11 founding members of the Maynard firm, is George G. Lynn. With more than 40 years in the legal profession, Lynn holds senior status in one of Alabama's most prestigious firms--and it seems fair to say that he is a boss to the three lawyers in the Cashion case.

Who is George Lynn's brother? Why, that would be Henry Lynn Jr., the high-level executive at Sterne Agee who is known for his close ties to Scott Vowell. And Vowell, as presiding judge, helped ensure that George Lynn's law firm received extraordinarily favorable treatment--and lots of money--in the Cashion case. The record shows that Cashion prevailed in the case, but the big winners appear to be the lawyers from Maynard Cooper and Gale. (See document at the end of this post.)

Vowell apparently made sure the case would wind up in Judge Vance's court. Just how shady were Vance's actions and rulings? Consider the following, from the record:

* The case originally was assigned to Circuit Judge Houston Brown. Maynard lawyers went to Brown's chambers and asked him to transfer the case to Vance. Brown told them that such a request would have to go to the presiding judge, and he referred the matter to Vowell.

* Vowell was not immediately available for a ruling, but less than one hour after Brown entered his referral order, Maynard lawyers went to Vance and asked him to make a ruling in a case to which he was not assigned.

* Vance made the ruling as requested and went on to make three other rulings while the case was not assigned to him.

Here is how we described the dispute in Cashion, from an earlier post:

At the heart of the controversy is William B. Cashion, an 84-year-old businessman who is co-founder of Bessemer-based Western Steel Inc. (WSI) and a shareholder in several other Alabama corporate entities. In 2007, while in the midst of a divorce, Cashion executed a durable power of attorney, designating his nephew, Dr. Steven Mark Hayden, as his agent and attorney-in-fact. Acting in that capacity, Hayden established a Nevada trust to protect assets when his uncle began investing heavily in an Alabama gold mine.

Vance issued four rulings in the Cashion case, even though the matter was not assigned to him. All four rulings were favorable to Cashion and his attorneys from the Birmingham firm Maynard Cooper and Gale (MCG), which has contributed heavily to Vance's election campaigns. In fact, public records show that MCG lawyers gave at least $3,600 to Vance's most recent campaign, and that far exceeds the $2,000 threshold set by Alabama law, requiring Vance's recusal.

What about some of the key issues where Vance favored his financial supporters at Maynard Cooper and Gale?

* The case was filed in the wrong jurisdiction. None of the parties lived or maintained a principal place of business in the Birmingham Division of Jefferson County. Maynard lawyers apparently filed it in the Birmingham Division because they wanted the case under the control of Vowell and Vance.

*  Maynard lawyers promptly sought a transfer of the case to the Commercial Litigation Docket, which would put it before Vance.

* On the day the case was filed, Vance signed a Temporary Restraining Order (TRO) at the request of Maynard lawyers, even though the case was not assigned to him. The Hayden defendants alleged that the TRO, plus Vance's other extra-judicial orders (including a preliminary injunction), prevented them from nurturing the Nevada trust, causing a loss of more than $20 million.

* Vance denied the Hayden defendants their right to a jury trial, even though they timely made such a demand in their answer. That ensured Vance would control the case without interference from a jury.

* Vance denied multiple motions for his recusal, even though state records show he had received $3,600 in campaign contributions from the Maynard firm, well above the $2,000 threshold that requires his recusal under state law.

George Lynn of
Maynard Cooper Gale

In a document styled Response to Plaintiff's Post-Trial Filings, Hayden attorney Austin Burdick, of Bessemer, offered a scathing analysis of the Maynard attorneys' actions in the Cashion case. Here are some of Burdick's key points (the full document is embedded at the end of this post):

* On the Maynard lawyers' preparation of facts in Vance's final order--"Plaintiffs continue to provide pleadings to the Court that exhibit their unwavering commitment to bad faith arguments and frivolity. The courts have long frowned on orders prepared by parties for this very reason. The Supreme Court of the United States has criticized courts for adopting verbatim findings of fact prepared by a prevailing party. See Ex Parte Scott [MS. No. 1091275, 3/18/2011] __ So. 3d __ (Ala., 2011); Anderson v. City of Bessemer, 470 U.S. 546, at 572 (1985) . . .

* On Hayden's efforts to save Cashion from participation in a mining scheme, plus the abuse of Cashion by his own lawyers, from the Maynard firm--"Cashion was defrauded of at least $6 million by fraudulent mining schemes. Cashion has also been abused by the billing practices of his own attorneys. He was billed for nearly 200 hours of work to prepare a complaint and a TRO. The TRO was a verbatim cut and paste of an earlier filed TRO from the Nevada litigation. It is beyond absurd to think that the time spent preparing a complaint was justified. The plaintiffs' bills are filled with redundancies and outrageous charges. The idea of spending nearly 200 hours to produce a complaint to satisfy notice pleading is absurd, unconscionable, and abusive."

* On the mining project in which Cashion invested heavily--"It is also beyond belief that Cashion now wants the Court to enter an order referring to 10:16 Mining as an "allegedly fraudulent" mining project. Cashion has tested the site himself and found that there is no gold there, and never was. He has pulled the reclamation bond, shut down the mine and started to plant trees on the property. . . . The project is a surface mining project. Cashion's efforts to plant trees on the site leave no doubt that he has no intentions of mining the site. Cashion was so taken by the lust for gold that he may have bought out Hayden's shares, but no evidence was ever presented that Hayden profited from any such transaction."

* On the horrendous nature of Cashion's investment in the gold project--"Cashion's involvement is not just a 'bad investment.' Independent testing of the property was done, and Cashion was informed that there were no precious metals on the property. Despite this information, he invested at least $6 million in the project. In return, he received $10.00 worth of gold. . . . Even after being informed of the fraud and witnessing the results of his investment, he continued to insist that the 'investment' was the greatest gold find east of the Mississippi. He informed his family and friends that he intended to continue to invest. Only a delusional person would insist on continuing to 'invest' under such circumstances. . . . Hayden simply undertook responsible actions to protect Cashion. There is no question that Cashion was saved millions of dollars by the actions of Defendants."

* On the Maynard firm's claim for attorney fees in excess of $1.5 million--"Plaintiffs have requested that they be awarded fees for efforts expended in other matters, in other jurisdictions. . . . The rates charged to plaintiff are simply outlandish. The reasonable rates in the community are simply not what was charged in this matter. Counsel has charged $480.00 to $345.00 per hour for shareholders and $200,00 to $225.00 per hour for associates with five or less years experience. Counsel has also billed $400.00 for travel time, a rate nearly double that charged for in-court work. It is difficult to imagine how sitting on an airplane is more taxing than presenting evidence and arguments at hearings. Counsel has also charged $170.00 per hour for paralegal services . . . this rate again is double what is customary. Counsel's rates are abusive and unwarranted."

* On the Maynard firm billing almost 200 hours before even filing its complaint--"Counsel's billing in this regard is excessive, redundant, unnecessary, and trades the role of advocate for parasiti curiae. The complaint and the cut and paste TRO motion should have taken five hours or less to compose. Counsel requests hundreds of hours for talking amongst themselves about the case. Billing for three-hour phone calls, and conferences between themselves. This pattern is repeated week after week throughout the billing records. The records submitted to the Court are a case study in elder abuse through overbilling by attorneys. In short, the bills submitted to the Court are excessive if not fraudulent."

William Cashion won the case, but it does not appear that he came out a winner. Public records indicate a gold-mining scheme took him for a ride to the tune of $6 million. When Cashion's nephew tried to put a stop to that scam, the elderly businessman found the Maynard firm to file a lawsuit--and they nailed him for more than $1.5 million in charges. The final judgment indicates Cashion did not receive anywhere near that amount in damages. (The final judgment is embedded at the end of this post.)

This seems to be a clear case of Maynard Cooper and Gale benefiting because one of its founding shareholders (George Lynn) has a brother (Henry Lynn, of Sterne Agee), who has an unusually close relationship with the man (Scott Vowell) who used to preside over the Jefferson County Courthouse.

God only knows how many other cases have been decided based on similar favoritism.

Cashion-Hayden Response to Findings of Fact by Roger Shuler

Cashion-Final Judgment by Roger Shuler

Efforts to hide e-mails lead to resignation of U of Illinois exec, drawing parallels to my firing at UAB

Phyllis Wise
(from USA Today)

The chancellor of the University of Illinois has resigned amid an investigation that revealed efforts to hide e-mails and withhold documents  about her decision to rescind a job offer to a would-be professor who had criticized Israel in statements on social media.

Chancellor Phyllis Wise's decision to step down last Thursday is the latest chapter in the story of Steven Salaita, who was offered a faculty position in UI's Department of American Indian Studies only to have it withdrawn when university boosters complained about his statements on Twitter regarding Israel's actions in the Gaza Strip.

UI released 1,100 e-mails last Friday involving the Salaita case and other sensitive campus matters. The evidence showed that senior university administrators, including Wise, had used personal e-mail accounts in an apparent effort to avoid public scrutiny.

Salaita, a Palestinian-American who previously taught at Virginia Tech, filed a lawsuit that now looks like it could be headed to a federal jury, possibly inflicting more embarrassment and financial pain on the university; UI already has spent $843,000 to defend the lawsuit. Professors around the country have criticized UI's actions in the Salaita case, calling it an infringement on academic freedom of speech. Now we have evidence that the university's chief executive and others were using private e-mail accounts to hide communications from those who might seek their release under public-records laws.

How ugly, and expensive, will this get for the University of Illinois? That remains to be seen, but the Salaita case is emitting the kind of foul odor that arose in May 2008 when I was unlawfully terminated from the publications office at the University of Alabama at Birmingham (UAB), after almost 20 years on the job. As I've reported numerous times here, e-mails and other forms of internal (and external) communications almost certainly would reveal who caused my termination and why.

The public record shows that I did not engage in any misconduct or policy violations that remotely would have merited termination--in fact, UAB's own grievance committee found I should not have been terminated, but former director of human resources Cheryl E.H. Locke and former president Carol Garrison upheld my firing anyway. This indicates someone--much like the Illinois boosters who complained about Salaita's tweets--was uncomfortable with my reporting on this blog about the prosecution of former Alabama governor Don Siegelman.

Steven Salaita
(from Chicago Tonight)

I'm not just guessing about that; the head of UAB's employee relations division admitted to me in a taped phone conversation that I was targeted because of my reporting on the Siegelman case. (A video that includes that phone conversation can be viewed at the end of this post.) Ironically, the sensitive Siegelman posts largely involved criticism of U.S. Judge Mark Fuller, who resigned on August 1 after revelations that, in an apparent alcoholic rage, he had beaten his wife last summer at an Atlanta hotel.

In other words, I was fired because my reporting, which proved to be accurate and way ahead of its time, showed that a federal judge was corrupt and unfit to sit on the bench. There is little doubt that someone connected to former Republican governor Bob Riley engineered my firing because Fuller's unlawful actions were designed to destroy Riley's chief political opponent, Don Siegelman.

The entire country now knows my reporting about Fuller--done on my own time, with my own resources--was on target. But I'm still out of a job. Never mind that I was a government employee, and my speech, like Stephen Salaita's, was protected under the First Amendment.

UAB "caught a break" when my federal lawsuit just happened to fall in the lap of U.S. Judge William M. Acker Jr., an 87-year-old Reagan appointee who told me in open court that he was going to cheat me. Acker then did just that by violating black-letter law to grant the university summary judgment, even though no discovery had been conducted in the case--and no discovery schedule had been set. I notified the court in three separate motions that discovery was outstanding (in fact, it hadn't been conducted at all), but Acker dismissed my case anyway--and that ensured any UAB e-mails that would have proven my case remained under wraps, not unlike the way Chancellor Wise tried to do it at the University of Illinois. The U.S. Eleventh Circuit Court of Appeals upheld Acker's bogus rulings in a "Do Not Publish" opinion that violated its own long-standing precedents.

U.S. Judge Harry D. Leinenweber is hearing Salaita's case, and Leinenweber apparently takes his oath to uphold the law at least somewhat seriously. He already has ruled that UI had contractual obligations when it offered Salaita a faculty position. That means Chancellor Wise's resignation could be just the first of many embarrassments for UI. It means large chunks of taxpayer dollars--plus funds from the university's insurers--could be paid to settle a dispute that never should have happened in the first place. And it means that Stephen Salaita, if he wants to, likely will be gainfully employed at UI long after the administrators and boosters who tried to cheat him have come and gone.

How have UI's actions against Salaita been viewed in academia? Not well, according to a report in the Chicago Tribune:

The harshest criticism against Wise focused on the decision last summer to withdraw a job offer to professor Steven Salaita after he made a series of critical and profane comments about Israel on social media. U. of I. rescinded Salaita's offer for a tenured faculty position in the American Indian studies department weeks before he was scheduled to start teaching.

That decision led to much fallout, including a recent censure by the American Association of University Professors, a prominent professors group, which said U. of I. violated the principles of academic freedom. More than a dozen U. of I. academic departments voted no confidence in Wise's leadership, and faculty across the country have boycotted the campus and canceled events there. Salaita has filed a federal lawsuit alleging breach of contract and violation of his free speech rights.

What does the Salaita case teach us about the UAB cheat job that cost me my career? It's too early to say for sure; the Salaita case remains a long way from a trial date. But this much seems clear: Chancellor Wise's downfall started when several unnamed individuals sought e-mails and other documents under Illinois' Freedom of Information law. In fact, Salaita has filed a state-court lawsuit alleging that UI violated the state's open records law.

Alabama has a similar law--the Alabama Open Records Law--and it's designed to shine light on the communications of public employees in their official positions. That would include UAB employees, perhaps including one or more trustees, who signed off on my termination.

Such an open-records request spelled doom for Chancellor Wise's administrative career at UI. Perhaps a similar request in my case will cause heads to roll at the University of Alabama.

The law sets ground rules for use of pepper spray, and Alabama deputies trampled those rules in my arrest

Alabama deputy Chris Blevins

A 2011 federal-court ruling, which originated from an excessive-force case in Florida, adds to the growing body of law that indicates Alabama deputies trampled my constitutional rights when they arrested me inside my home in October 2013.

In Fils v. City of Aventura, 647 F. 3d 1272 (11th Cir., 2011), the appellate court that covers Alabama, Georgia, and Florida found that law-enforcement officers violated Fourth Amendment rights by using substantial force to arrest individuals who were not charged with a serious crime, posed no threat to the safety of officers, and did not actively resist arrest or attempt to flee.

The heart of the Fils case developed when the plaintiffs (Cindy Fils and Nemours Maurice) attended a party at a billiards club in Aventura, Florida. A commotion began inside the club, leading to two arrests and prompting Maurice and Fils to try to serve as peacekeepers. Those efforts apparently failed because Maurice wound up being tased, and Fils was knocked unconscious to the ground after taking a step toward an officer's back. Both Maurice and Fils were arrested, and both filed federal lawsuits, alleging use of excessive force under 42 U.S. Code 1983.

How do constitutional issues enter the picture? The Fils court explains:

The Plaintiffs' excessive force claims arise from the Fourth Amendment's protection "against unreasonable ... seizures." Graham v. Connor, 490 U.S. 386 . . . (1989). An officer's use of force is excessive under the Fourth Amendment if the use of force was "objectively [un]reasonable in light of the facts and circumstances confronting" the officer. . . .

When determining whether the force used to make an arrest was reasonable for purposes of the Fourth Amendment, "a court must carefully balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests. . . . " And we evaluate whether force was necessary by examining: "`(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight. . . . '" See also Graham . . . 

The Graham case, decided by the U.S. Supreme Court in 1989, obviously is central to this area of law. And it's three-pronged test takes us back to roughly 6 p.m. on October 23, 2013, when Shelby County deputy Chris Blevins entered the garage underneath our home--without showing a warrant, stating he had a warrant, or even stating his purpose for being on our property--and proceeded to knock me to a concrete floor three times and direct pepper spray into my face. All because I supposedly was wanted on a contempt-of-court charge related to a defamation lawsuit that Republican political operative Rob Riley and lobbyist Liberty Duke had filed.

We already have shown that Blevins' entrance into our home probably violated U.S. Supreme Court precedent in Payton v. New York, 455 U.S. 573 (1980). We also have shown that Blevins violated Alabama law by failing to state his purpose before entering our home--and this failure clearly is shown on the dash-cam video of my arrest.

Now, we have the Eleventh Circuit's Fils case, citing the U.S. Supreme Court's three-pronged test in Graham, and that adds to what is slowly becoming a mountain of case law that shows Blevins acted well outside the law. Let's examine the three-pronged test for excessive force and apply it to events in our garage:

(1) What was the severity of the crime at issue? Heck, there was no crime involved. I supposedly was wanted for contempt of court related to a lawsuit, a 100 percent civil matter.

(2) Did I pose an immediate threat to the safety of officers or others? According to Blevins' own incident report (which can be seen at the end of this post), the property on me at the time of my arrest consisted of "$1.43, three blank checks, chapstick, and keys." Sounds threatening, doesn't it? I guess I was going to attack him with a tube of chapstick and my monstrous stash of cash?

(3) Was I actively resisting arrest or attempting to flee? Well, I was inside my own home, and Blevins' own words give no indication I was trying to leave my home. Blevins charged me with resisting arrest, the same stunt officers in the Fils case pulled on plaintiff Maurice. And guess what? Federal judges don't necessarily buy any "resisting arrest" charge that a state deputy might dream up. Consider this from the Fils ruling, which more or less states that the resisting-arrest against Maurice was a steaming pile of horse feces:

Maurice was not resisting arrest or attempting to escape. Although he was charged with resisting arrest, Maurice's version of events shows that he did not ignore any verbal instructions, nor did he attempt to free himself from [the officer's] control once he was on the ground.

Our conclusion is in line with other excessive force cases from this court. Put together, these cases establish that unprovoked force against a non-hostile and non-violent suspect who has not disobeyed instructions violates that suspect's rights under the Fourth Amendment.

Blevins failed all three prongs of the Graham test, and his own words from the incident report show that he used "unprovoked force"--that I was non-hostile and non-violent, and I was inside my own home and charged with no crime. As for disobeying instructions, I wasn't given any instructions--I wasn't told to put my hands up, put my hands behind my back, none of that.

What about the use of pepper spray specifically? The Fils court addresses that by citing a case we already have covered here at Legal Schnauzer. It's styled Vinyard v. Wilson, 311 F. 3d 1340 (11th Cir., 2002), and it shows that the use of pepper spray amounts to excessive force in cases where the three-pronged Graham test is not met. From Vinyard:

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.

You might not know it from living in Shelby County, Alabama, but longstanding law is supposed to govern an officer's use of force, including his use of pepper spray. Chris Blevins ignored that law, and in the process, ripped my constitutional rights asunder--while I was inside my own home and not suspected of any crime.

Is that what civil rights have come to mean in the US of A? Are we going to allow "officers of the law" like Chris Blevins to behave like thugs and get away with it?

Shuler Arrest-Incident Report by Roger Shuler

Did probe of former judge Scott Vowell and Sterne Agee executive Henry Lynn help spark my arrest?

Scott Vowell and Henry Lynn
 at Birmningham's Lyric Theatre

How deep is corruption at the Birmingham investment firm Sterne Agee. Well, the company is going for what might be called a "trifecta of sleaze."

First, Sterne Agee and former Chairman/CEO James Holbrook Jr. are named in the 23-count indictment against Alabama House Speaker Mike Hubbard (R-Auburn).  Count 17 of the Hubbard indictment alleges that the speaker unlawfully solicited or received a $150,000 investment in his company, Craftmaster Printers, from Holbrook and/or Sterne Agee. Second, Holbrook is the subject of a federal investigation related to his "possible misuse of holding company assets," including airplanes, boats, hunting clubs, and condominiums. Third, evidence suggests that individuals connected to Sterne Agee might have played a role in bookend lawsuits, from Republican political operatives Rob Riley and Jessica Medeiros Garrison, that led to my unlawful five-month incarceration and a dubious foreclosure on our home.

How could Sterne Agee intersect with the Legal Schnauzer story? Well, it starts with an unusually close relationship between J. Scott Vowell, former presiding judge of Jefferson County, and Henry Lynn Jr., former chairman and current chairman emeritus at Sterne Agee. Lynn is one of the firm's longest serving employees. It also involves Birmingham attorney Bill Baxley, who has strong family ties to Sterne Agee and just happens to represent Garrison in her defamation lawsuit against me.

In fall 2013, I received tips from multiple sources that the nature of the Vowell-Lynn relationship was well known among members of the bar in Jefferson County, and it contributed greatly to the corruption that festered on Vowell's watch. Specifically, sources said, the Vowell-Lynn relationship was one reason hunting-club corruption was allowed to run rampant in Jefferson County's domestic-relations court. (Note that the federal investigation of Holbrook relates, in part, to hunting clubs connected to Sterne Agee.)

After retiring from the bench, Vowell helped start the firm of Vowell and Goldsmith, which focuses on alternative dispute resolution, mediation, arbitration, and private judging. Vowell's wife, Cameron McDonald Vowell, is part of the Spain family for which several buildings at UAB are named. Cameron Vowell long has been a booster and powerful player in UAB circles, and our sources say she, too, has a number of unusual relationships in the Birmingham area.

Based on tips from knowledgeable sources, I began to investigate the Vowell-Lynn story and called Henry Lynn at his Sterne Agee office on August 15, 2013. My line of questioning seemed to fluster Mr. Lynn, and he hung up on me several times. (I have audio of those conversations.) Within minutes after my aborted discussion with Henry Lynn, I checked my blog statistics site and noticed someone (or several someones) from Stern Agee poring over my blog.

James Holbrook Jr. at Sterne Agee
(from al.com)

Who might that have been? It could have been Henry Lynn himself, of course. But our guess is that a Sterne Agree broker named Louis W. Baxley was involved. Our research indicates Louis Baxley worked at Sterne Agee for roughly eight years and was there in fall 2013, before taking a position with Pincor Financial Services Corporation in January 2015.

Why does this matter? Louis Baxley is Bill Baxley's son. And on August 16, 2013, one day after my conversation with Henry Lynn, I received my first communication from Bill Baxley, threatening to sue me on Jessica Medeiros Garrison's behalf. Baxley alleged that I had published defamatory information about Garrison's relationship with Alabama Attorney General Luther Strange, for whom she had served as campaign manager. Baxley issued a followup letter dated August 19, 2013, so he was in rapid-fire mode for some reason. (See Baxley's August 16 and August 19 letters at the end of this post.)

Let's follow a brief timeline of events:

August 15, 2013--I conduct an aborted phone interview with Henry Lynn, of Sterne Agee, regarding his relationship with Scott Vowell and its impact on Jefferson County Court corruption.

August 16, 2013--Bill Baxley writes a letter threatening to sue me over alleged defamation of Jessica Medeiros Garrison. Baxley's son, Louis Baxley, works at Sterne Agee.

August 19, 2013--Bill Baxley writes a second threatening letter regarding Jessica Garrison.

August 27, 2013--According to a report at Alabama Political Reporter, Garrison files a lawsuit against me on this date.

Was the Garrison lawsuit really about "defamation," or did Bill Baxley file it in retaliation for my inquiries regarding Henry Lynn, Scott and Cameron Vowell, and others connected with Sterne Agee? Was Sterne Agee a particularly sensitive topic because, as we now know, the firm is part of multiple criminal investigations?

For the record, I also was investigating, at about the same time, Jessica Garrison's business connections to Erik Davis Harp, a Tuscaloosa native who was indicted as one of two ringleaders in an offshore sports gambling ring. Based in Panama, the ring reportedly was bringing in $20 million a month and had ties to the Gambino and Genovese crime families before authorities in Queens, New York, stepped in. Was my reporting on that subject making powerful Alabama interests nervous? Do some of those interests have ties to Bill Baxley, and is that why he was assigned to file a lawsuit that, on its surface is about "defamation" of Jessica Garrison, but really is about something else?

A source told me in fall 2013 that my inquiry into the Erik David Harp case, and his ties to Jessica Garrison, was causing alarm among certain Alabama elites--and that continued research on the subject could put my physical well-being at risk. Exactly seven weeks after that warning, an Alabama deputy beat me up in my own home, doused me with pepper spray, and hauled me to the Shelby County Jail for a five-month stay--supposedly because of contempt of court related to Rob Riley's defamation lawsuit.

Deputy Chris Blevins showed no warrant that night, did not say he had a warrant, and did not state his reason for being on my property. A letter from Birmingham attorney David Gespass, after he had reviewed the sealed court file in the Riley case, indicates we had not been served with either the Riley complaint or summons at the time of my arrest. That means the court had no authority to hear the case or issue any orders against me--in fact, there officially was no lawsuit, which makes my arrest a kidnapping.

How could this happen in a society that supposedly is governed by the "rule of law"? We are getting close to some answers about that, but this much is certain: My investigation into Henry Lynn, the Vowells, and Sterne Agee--and Erik Davis Harp-- is continuing. Audio of my conversation with Henry Lynn, plus digital records in the immediate aftermath of those calls, strongly suggest powerful interests found my reporting on sensitive matters to be alarming and most unwelcome.


(To be continued)

Bill Baxley Letter by Roger Shuler

Bill Baxley Letter2 by Roger Shuler

Lawyer David Gespass tells the nation that judge's actions were "insane," but changes his tune with me

David Gespass

An Alabama civil-rights lawyer, when speaking to national audiences, was sharply critical of the judge who caused me to be unlawfully arrested and jailed. David Gespass, of Birmingham, called Judge Claud D. Neilson's actions "way out of bounds," "insane," and "bizarre."

When twice meeting with me in the Shelby County Jail, Gespass sang from a different hymnal. He suggested to me that Neilson's actions were "questionable," at worst, never mind that they violated more than 200 years of First Amendment law. Gespass suggested that I needed to resolve the case with GOP operative Rob Riley and lobbyist Liberty Duke "as quickly as possible," even though it was their dubious defamation claim that caused me to be arrested in the first place. In fact, Riley and Duke specifically asked for the unlawful arrests of my wife, Carol, and me, but that didn't seem to bother Gespass in the least.

Why would Gespass say the actions against us were "insane" and "bizarre" to national audiences, but downplay them in his communications with us? I can think of only one answer: Gespass felt compelled to speak truthfully on the big stage, so he would not look like a fool to millions; but on the small stage, he wanted to protect Riley and the interests of the Alabama legal tribe,

We've already shown that, according to Gespass' review of sealed court records, we never were served with the Riley complaint and no summons was issued until after Neilson already had granted a preliminary injunction. In fact, the record shows that we never were served with a summons, meaning we never were lawfully called to court.

That's what we learned from page one of a letter that Gespass wrote to Carol and me, between his visits to the Shelby County Jail. Now, let's take a look at page two. (You can read the full letter at the end of this post.) By the way, you can compare the words of Gespass' letter to his statements in The New York Times and to San Francisco-based radio host Peter B. Collins:

* A trial, what trial? -- In the first paragraph on page two, Gespass writes: "I would think that, since there was no notice of the preliminary injunction hearing, we could ask for, and get, another. Alternatively, we could ask that the preliminary injunction and the final hearing be combined." Notice that Gespass is talking about a "hearing," before a solo judge, even though the law requires that a defamation case be heard at trial, before a jury. Gespass is drawing straight from the Riley/Duke playbook, ignoring First Amendment law and our right to a jury trial.

* Why such a rush? -- Gespass writes: "I do not think the petitioners are expecting money damages, as the complaint alleges you have no resources, but they are asking for costs and attorney fees for the injunctive relief and that can end up being tens of thousands of dollars. Thus, there is something to be said for having this case resolved as quickly as possible at the trial level and appealing the constitutional issues." Now, wait a minute. Riley and Duke could receive tens of thousands of dollars in costs for seeking injunctive relief to which they are not entitled? Gespass told Peter B. Collins' audience that the prior restraint Riley and Duke sought was "insane." But he's telling Carol and me that we could be forced to pay for their "insane" effort to circumvent the law.

And how are we supposed to resolve the case as quickly as possible at the trial level, while appealing the constitutional issues? The general rule is that an issue not raised at trial cannot be reviewed on appeal. Plus, if the case is resolved at the trial level, what is there to appeal? Was Gespass setting us up to get screwed on violations of our constitutional rights? A reasonable person certainly could reach that conclusion.

* Let's skip over discovery -- In the second paragraph, Gespass writes: "Another consideration is how much discovery do you want to engage in. If discovery is conducted, they will want you to identify your source, which I would assume you would not be willing to do unless they were willing to come forward on their own. Obviously, if you do not reveal them, that will weaken your ability to defend the case, and that, too, argues in favor of getting it done quickly, and making constitutional arguments, rather than defending on the grounds that the statements were all true."

Gespass seems to be leaving out a few considerations here:

(a) The burden of proof would be on Riley/Duke to prove my reporting is false, not the other way around.

(b) Gespass talks only of us "defending" the case. He never mentions that Carol and I have valid counterclaims for abuse of process, false arrest, false imprisonment, (all against Riley/Duke) excessive force, false arrest, false imprisonment (against Shelby County law enforcement), conspiracy, and maybe more.

(c) Gespass focuses on supposed threats I might feel from discovery, but how would Riley and Duke fare? How would they handle questions under oath during depositions about their relationship? How would they handle requests for production of documents, such as e-mails, text messages, letters, phone records? How would they handle depositions from third parties, such as Duke's former husband, who filed for divorce from her? Who really had the most to fear from discovery?

* The constitutional violations here are "highly questionable"? Oh, really? -- Gespass writes, in the third paragraph: "Whether a court can prohibit you from saying anything defamatory about Riley (which the preliminary injunction does), is a prior restraint and highly questionable constitutionally." It's "questionable," Mr. Gespass? You told Peter B. Collins audience that it was "insane"--and we know your characterization then was correct. So why did you chose to dance a soft shoe with me?

* No trial, no jury? -- In the fourth paragraph, Gespass more or less concludes by stating: "I do think that, before any appeal, it is probably necessary to file a motion in the trial court seeking another hearing, asking for the injunction to be lifted or narrowed and alleging that you have not had a fair opportunity to contest the findings. Otherwise, the appellate court may well just say that issues had not been properly raised."

Gespass contradicts himself--and confirms my concerns about not raising constitutional issues at trial. More importantly, he raises the issue of whether I'd had "a fair opportunity to contest the findings." Heck, I had no opportunity to contest the findings at trial. That can only be done in a defamation case via a jury trial, which Riley and Duke did their absolute best to avoid. Gespass does not mention that Neilson's "findings" amount to one-man censorship, which is specifically forbidden under years of First Amendment law.

What overall tone does Gespass set in his letter?

(1) He completely glosses over wrongdoing from law enforcement, including an unconstitutional traffic stop and the fact officers entered our home without a warrant, beat me up, doused me with mace, and threatened to break my arms--all without legal justification.

(2) We are supposed to "defend" the case, but seek no "offensive" strategy to compensate for our injuries.

(3) We are supposed to hurry through trial-court activities, including discovery--which likely would place Riley and Duke in the extremely difficult position of trying to prove my reporting was false, when it never has been proven false at trial.

(4) Actions taken by Neilson--and requested by Riley/Duke--are merely questionable, as opposed to "insane."

(5) Gespass makes no mention that my arrest and incarceration were grossly unlawful, that Riley and Duke sought remedies that are not authorized by law--in fact, they sought remedies that are specifically forbidden under the law.

(6) Gespass does not even offer a clear-cut way to get out of jail. It should have been simple, and appropriate, to say something like, "You are being held contrary to law, and I am going to file an emergency motion to seek your release, so you will have a fair opportunity to both defend yourself and seek damages for the wrongs committed against you and your wife. At this moment, you are a kidnap victim, and the court must release you immediately."


Was David Gespass trying to pull a con game on me, while I was under the duress of being incarcerated, wearing shackles and handcuffs during our meetings? I will allow readers to reach their own conclusions, but you probably can guess what conclusion I've reached.

David Gespass Letter by Roger Shuler

Federal authorities arrest Alabama deputy in case of unlawful traffic stop and brutal beating of handyman

Robert Bryant, after beating by Alabama deputies
(from al.com)

An Alabama deputy was arrested today for his role in the 2012 "revenge beatdown" of a Tennessee handyman. The case has ties to a grisly unsolved murder and is the latest in a long line of police misconduct cases that started with the shooting death last August of Michael Brown in Ferguson, Missouri. In fact, a number of events have been announced to mark the first anniversary of the Brown shooting, which is August 9.

A federal indictment charges Deputy Justin Watson with five criminal counts, including two for deprivation of rights under color of law (18 U.S. Code 242) related to an unlawful traffic stop of Robert Bryant and the beating that followed. Watson faces one count of lying about the incident under oath and two counts of intimidating witnesses, including aiming an unloaded gun at a fellow deputy and pulling the trigger. (See FBI press release at the end of this post.)

The Bryant beating came to light after the murder of Jason Klonowski, who found lawyers and helped pay for Bryant's legal bills. Klonowski also paid for signs and T-shirts to support Bryant and raise questions about the Madison County Sheriff's Office. Klonowski said at a public event in late September 2013 that he would not stop until at least two officers, Watson and Jake Church, were in prison. Less than one month later, Klonowski was found dead on his property, with three bullet wounds to the back of his head. The murder case remains under investigation.

Bryant's beating hits close to home here at Legal Schnauzer for a number of reasons. For one, it started with a traffic stop, for an alleged improper lane change, which federal authorities now state in the indictment was conducted "without probable cause and without reasonable suspicion."

My wife, Carol, and I were subjected to a similar stop in Shelby County. Officer Mike DeHart pulled us over for allegedly rolling through a stop sign, but after giving me a warning and returning my license and insurance documents (indicating the traffic stop, by law, was over), he unlawfully extended the stop by handing me court papers in a defamation lawsuit brought by Republican political operative/lawyer Rob Riley and lobbyist Liberty Duke. DeHart's actions violated a long line of Fourth Amendment case law, most recently spelled out in a U.S. Supreme Court case styled Rodriguez v. United States.

DeHart's actions are particularly egregious because he clearly stopped me to "serve" papers in the Riley/Duke lawsuit, meaning he had no probable cause to make the stop based on a rolling-stop violation that never happened. Also, we now know, thanks to a letter from Birmingham attorney David Gespass, that no summons had been issued in the case at the time of DeHart's bogus stop. That means the court had no authority to hear the case, and DeHart's actions were completely outside judicial boundaries.

The Bryant case also hits home because I, too, wound up being beaten by an Alabama deputy. I wasn't bloodied and beaten with a baton, as Bryant was. But Deputy Chris Blevins knocked me to the concrete floor of my own garage three times and doused me with pepper spray before hauling me to jail for a five-month stay--all from a civil case, based on a preliminary injunction that violates more than 200 years of First Amendment law, apparently without a warrant and without service of a summons in the case.

We also have seen evidence that DeHart and Blevins, like Watson, lied under oath about their actions.

Justin Watson's bogus traffic stop and brutal beating of Robert Bryant is unconscionable. But I would argue that the actions of DeHart and Blevins against me are in the same ballpark. Which is worse, to be bloodied by the side of the road and sent to a hospital, or to be beaten in your own home, sprayed with mace, and sent to jail for five months? We see no reason to arrive at an answer to that question--after all, it's like comparing an airplane crash to a train wreck. Both are horrific.

Here is one major difference between the Bryant beating and my case: We see signs that justice might be done in the Bryant case. And ironically, it largely is being sought for the criminal "deprivation of rights under color of law," a subject we addressed here about six weeks ago.

We see no signs of justice, so far, in my case. Is that because a lawyer (Rob Riley) orchestrated the whole charade and another lawyer (Judge Claud Neilson) served as Riley's personal rubber stamp? Are federal authorities less likely to pursue a case where members of the legal tribe are at the heart of wrongdoing?

My answer to those questions is a resounding yes. That doesn't mean, however, that Carol and I will be denied justice. But it might take longer than it should, and we might have to consider remedies outside a court system that has consistently cheated us for 15 years.


FBI press release on the indictment of Alabama deputy Justin Watson

Even as Mark Fuller steps down, William Acker Jr. proves federal bench in Alabama is a corrupt sewer

William M. Acker Jr.
(From al.com)

The resignation of U.S. Judge Mark Fuller took effect on Saturday (August 1), in the wake of a wife-beating scandal that erupted last summer. Fuller's exit might cause some citizens to think that the federal bench in Alabama suddenly has become pristine, filled with enlightenment and integrity.

Nothing could be further from the truth. In fact, it's debatable whether Fuller is the worst federal judge in Alabama. There is a lot of competition for that "honor," but it might have to go to William M. Acker Jr., an 87-year-old Reagan appointee who has the charming habit of telling parties to their faces, in open court, that he is going to cheat them--and then he does it.

During my employment case against the University of Alabama Board of Trustees and a number of individuals at UAB--where I was fired after almost 20 years on the job for reporting accurately on this blog about Judge Fuller's unlawful actions in the Don Siegelman case (see here and here)--Acker cheated me in a variety of ways.

But No. 1 on the list was his denial of discovery--and failure to set a discovery schedule--even after he had converted the university's motions to dismiss to a motion for summary judgment. Black-letter law shows that Acker corruptly denied discovery, but his actions in other cases prove that he knows his obligations under the law, but intentionally failed to abide by them in the UAB case.

Why is that? For one, discovery probably would have unearthed a treasure trove of e-mails, text messages, and other communications that would have proven I was the victim of discrimination--and I was fired in violation of my First Amendment rights. Two, my termination clearly was driven by someone connected to the administration of then Governor Bob Riley--probably former "first son" Rob Riley--and we've seen evidence that Acker has a history of protecting Rob Riley against allegations of fraud and other malfeasance. (See here and here.)

It's not as if Acker was dealing with complicated law in my UAB case. Rule 56 of the Federal Rules of Civil Procedure (FRCP) requires that discovery be conducted before summary judgment is considered. Controlling case law in the Eleventh Circuit--via a case styled Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988)--makes the same holding. Snook nicely sums up the law as follows:

This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.

How blatant were Acker's actions in granting the university summary judgment without allowing discovery? Rule 26(f) FRCP requires the parties to conduct a discovery-scheduling conference, submitting a written report to the court. Under Rule 16(b) FRCP, the trial judge must issue a scheduling order, setting dates when discovery is to begin and end.

Acker admitted in open court that the case was at summary-judgment stage, and there had been no discovery schedule and no discovery. (Anyone can call up PACER or check the file on public computers at the Hugo Black Courthouse in Birmingham and see that no discovery took place.) This is straight from a court transcript, which can be viewed at the end of this post, as Acker addresses university lawyer Lisa Huggins, on pages 15 and 16:

THE COURT: In your case, I'm going to convert it to a motion for summary judgment and put a submission order out, which would require him to controvert anything that you say in your motion for summary judgment that is dispositive in the way of present condition. He is right that there has been no scheduling order, there has been no discovery.

In the same transcript, Acker admits that I had a right to conduct discovery--in fact, the law says the court is required to grant discovery:

I think he has a point, that the alternative motion to dismiss should be converted to a motion for summary judgment, which might occasion some right by him to invoke Rule 56(f)--I don't know whether he is familiar with that or not; I think maybe he is--which would allow him to poke around into your people to some degree before we get to that.

These two exchanges show that Huggins is as corrupt as Acker. She's acting like it's a debatable point that the law requires discovery, when it isn't. Even Acker, at that point in the proceedings, more or less tells her that she's full of feces. But this gives you a sense of how desperate Huggins and university officials were to make sure I was not allowed "to poke around into (their) people."

Acker made statements in open court that indicate he had communications with individuals connected to UAB. Someone must have convinced him, at some point, it was best to violate the law and deny me discovery--probably because depositions and requests for production of documents would have shown that Rob Riley, or someone connected to him, was responsible for my termination.

How serious is this? The evidence points to obstruction of justice, conspiracy, and perhaps enough criminality to justify an investigation under the Racketeer Influenced and Corrupt Organizations (RICO) statute. In other words, this gives off a strong whiff of organized crime.

Acker ultimately granted summary judgment to the university, without discovery, and tried to justify it with an order that is shameless and absurd to the point that it would be comical--if it weren't so corrupt. I replied with a Motion to Alter, Amend or Vacate Judgment, citing the exact law that Acker had butchered. (Both documents can be viewed at the end of this post, along with the hearing transcript.) Acker, of course, ignored my efforts to get him to follow the law.

But here is something fascinating: We've examined documents related to other cases Acker has handled, even employment cases similar to mine, and he has consistently ordered and allowed discovery. This provides clear evidence that he knowingly violated the law in my case, and we will spell it out in an upcoming post.


(To be continued)

UAB Acker Transcript by Roger Shuler

UAB-Acker Summary Judgment by Roger Shuler

Acker Motion to Amend by Roger Shuler