Legal Schnauzer passes 4 million page views and reaches its 13th anniversary, two major milestones in our effort to unmask legal and political corruption

 

 Legal Schnauzer recently reached two milestones, and I never dreamed we would approach either one. First, we passed 4 million page views. Then, we reached the blog's 13th anniversary.

Both are pretty neat when you consider that I started this little enterprise with the idea that it probably would last a year or so.

Along the way, we have . . .

* Been named among the top 50 law blogs in North America, the only truly independent blog on the list. All the others are connected to law firms, law schools, legal associations, media groups, or public-affairs organizations.

* Played a lead role in the ousting of corrupt political figures, such as Alabama "Luv Guv" Robert Bentley and his mistress "Home Wrecky Becky" Caldwell Mason, plus former U.S. Judge Mark Fuller. We played a supporting role in the investigative journalism that led to the conviction of former House Speaker Mike Hubbard. Most recently, we played a supporting role in the journalism that apparently led to the retirement of Jefferson County Probate Judge Alan King and the surprise resignation of U.S. Attorney Jay Town -- with Ban Balch playing a lead role on both stories.


* Perhaps more than any other news site in Alabama, we've exposed the hypocrisy of "family values" conservatives, reporting on the extramarital activities and financial shenanigans involving U.S. Sen. Luther Strange and Jessica Medeiros Garrison; former GOP Gov. Robert Bentley, and the fully nude, gay-porn photographs of U.S. Judge Bill Pryor,

* On a story that has international implications, we've reported on former Trump Attorney General Jeff Sessions and his history of corrupt actions dating back more than 20 years in Alabama.Substantial evidence suggests Sessions was in the middle of the KremlinGate scandal, which should surprise no one who knows about Sessions' background in "The Heart of Dixie, including his ties to the scandal-plagued Balch Bingham law firm.

When we gave birth to Legal Schnauzer back in the George W. Bush era, we did not have many other muckraking  enterprises in the Alabama blogosphere. I'm pleased to report that we have some excellent company these days. Of particular note is banbalch.com, which came on the scene roughly four years ago and has become a highly influential blog in a relatively short time. Publisher K.B Forbes. is an aggressive investigator, with a colorful writing style, and we suspect that has made Ban Balch must reading for many in the Birmingham legal community.

As for our milestones, they start with our first post, which was titled "Is 'Your Honor' Really Honorable?" and published on June 3, 2007. Some 4,164 posts later, we are still cranking out the kind of investigative journalism that is found at very few news outlets in Alabama, or anywhere else.

We're not certain when we passed 4 million page views, but the current number from the primary statistics service that we use (as I write this) is at 4,339,434. Our all-time unique visits are at roughly 3  million.

For reasons I don't fully understand, our second stat service (which is Google based) provides significantly different numbers. It has our all-time page views at 8.4 million, which means we passed 4 million there a long time ago. I didn't sign up for the first stat service until I had been blogging for several months, while the second one is attached to the blogging platform itself, and that might explain part of the difference. But on a daily basis, the Google-based counter provides a number that is roughly twice that of  the independent counter.

Never have figured out why that happens. I like the Google numbers better, but I tend to look at the independent numbers as the official count for Legal Schnauzer.

The numbers show that our readership has steadily grown. After starting the blog on June 3, 2007, we reached 1 million page views on or about July 15, 2011. We reached 2 million page views on or about February 25, 2015. We' published a post about hitting 3 million page views on July 5, 2017.  This post, about passing 4 million comes on Nov. 11, 2020.

That means it took a little more than 4 years to reach 1 million, another 3 1/2 years to reach 2 million, another 2 1/2 years to reach 3 million, and another 3 years to reach 4 million. That indicates there is a serious appetite for the kind of journalism we produce at Legal Schnauzer -- and I would say that's a good thing, especially given that we have been in an era of public corruption unlike anything this country ever has seen. And much of it likely has ties to Alabama.

Legal Schnauzer clearly has made an impact, largely because of readers who follow and support us, and sources who help inform us. Regular readers know that our kind of unbridled journalism comes with a price, especially in red states like Alabama and Missouri, where corruption flows like a river.

In October 2013, I was kidnapped by "law enforcement" from inside our home in Birmingham and tossed in jail for five months. In essence, I was "arrested for blogging," reporting on the gross corruption that only recently has caught the attention of the state's somnolent mainstream press. In summer 2014, forced from our home by a wrongful foreclosure, Carol and I landed in Springfield, Missouri, where I grew up. In September 2015, we were the targets of an unlawful eviction, which included cops pointing assault rifles at my head and shattering Carol's left arm so severely that it required trauma surgery.

It seems clear that both of these events were attempts to shut down Legal Schnauzer. But we are still here, and our readership is growing. The thugs have failed, in the face of devoted, intelligent, and thoughtful readers.

For your gracious support, we offer our most sincere thanks. And we invite you to stick around for the next 4 million page views.

On a final note, we reached one other milestone recently. On May 31, 2020, we had 65,199 page views -- a one-day record for the blog. The next day, June1, 2020, we had 59,163 page views -- for a two-day total of  124,362, another record.

As David Roberson's civil case against Drummond Company kicks into high gear, the immunity deal he rejected in criminal case is beginning to smell funny

Drummond Coal

 

Something is starting to smell funny about the immunity deal former Drummond Company executive David Roberson rejected in the North Birmingham Superfund case, according to a report at banbalch.com. Reports Publisher K.B. Forbes:

In 2017, the criminal defense team of ex-Drummond Executive David Roberson allegedly flat-out rejected a full immunity deal with the U.S. Attorney’s Office.

And what would David Roberson have done for that immunity deal?

According to sources, the federal government wanted Roberson to honestly testify about the alleged bribes from Drummond Company to politicians.

The testimony the feds also sought included details of an alleged bribery ring of “do-not-ask” but “just-send-the-check” co-conspirators.

But Roberson’s criminal attorneys allegedly rejected the deal.

With the criminal attorneys being paid generously (to this day) by Drummond Company, some observers wonder:

Was the rejection of the immunity deal done solely for Drummond’s benefit at Roberson’s expense?

The issue is coming back to life in Roberson's $75-million fraud lawsuit against Drummond and the Balch Bingham law firm, and the company's general counsel is coming under enhanced scrutiny. Writes Forbes:

Blake Andrews, General Counsel of Drummond Company, was allegedly so “confused” by the invoices in the North Birmingham Bribery Scheme, he allegedly had Roberson sign off on them as the “fall guy.”

Was “Confused” Andrews involved in any way with the rejection of this immunity deal?

Roberson’s civil litigation team is dispatching discovery requests and video deposition subpoenas.

Roberson’s civil attorneys should dig deep into Andrews' communications with Roberson’s criminal defense team and make sure there were no alleged strings-attached,  to his detriment.

What was Roberson’s reward for keeping his mouth shut and being loyal?

Drummond allegedly vowed to keep him on the payroll, pay for his criminal litigation costs, and take care of Roberson and his family.

Yet six months after his conviction, Roberson was terminated. He lost his home, his possessions, and barely can pay for the prescription drugs of his family members.

Will the prospect of intense discovery make some Drummond officials, and their Balch allies, uneasy? Writes Forbes:

Now, Roberson’s $75 million civil lawsuit against Drummond and Balch & Bingham is moving forward.

The judge refused to dismiss the promissory fraud count where the Robersons asserted they both turned down employment opportunities and the selling of their home for a profit based on Drummond’s assurances that appear to have been lies.

Drummond always has declared loyalty, absolute loyalty to their employees.

Regardless of the morality of the matter, David Roberson saved Drummond Company $100 to $150 million in costs in the North Birmingham CERLA matter.

And now some folks at Drummond appear to be “dazed and confused.

"Let's get Mikey! He likes it!" Did a classic TV commercial from the 1970s play out among top officials at Drummond Co. in Superfund scheme?

 

An anonymous comment here at Legal Schnauzer, about a beloved cereal commercial from the 1970s and '80s, has turned into a splendid post -- both amusing and insightful about the David Roberson lawsuit against Drummond Company -- at banbalch.com. 

Publisher K.B. Forbes hits just the right tone under the headline “'Let’s Get Mikey! He likes it. Hey Mikey!” Drummond’s General Counsel Blake Andrews Under Fire." The post is light-hearted because . . . well, it's about one of the most clever, long-running (14 years) commercials in television history. But there is a serious undertone because the commercial seems to actually reflect the mindset of Drummond officials who allegedly set up Roberson as the fall guy in the North Birmingham Superfund bribery scandal. 

Here is the comment-- published 11/5/20 -- that set Forbes' post aflight:

Anonymous said...

This routine reminds me of the great cereal commercial from back in the day, where the kids said, "Hey Mikey, you try it." Except this is, "Hey Roberson, you pay the invoice."

November 5, 2020 at 12:07 PM

Writes Forbes:

We have no bones to pick with Drummond Company whatsoever. None.

But walking goosestep with embattled law firm Balch & Bingham is detrimental to one’s health, livelihood, and reputation.

Just ask Jeff Sessions, Luther Strange, or disgraced ex-U.S. Attorney Jay E. Town among others.

Even former Drummond CEO Mike Tracy abruptly “retired” last year after cuddling up with Balch, and after the alleged set-up of “fall guy” ex-Drummond executive David Roberson was exposed.

Now, Blake Andrews , General Counsel of Drummond Company is under fire for allegedly conspiring with Tracy to allegedly have Roberson sign off on all invoices and payments involved in the North Birmingham Bribery Scheme.

Andrews appears to have been so “confused” by the invoices from the money laundering operation, Andrews allegedly had Roberson take the fall.

An anonymous commentator on the well read legal blog Legal Schnauzer wrote:

Forbes then ties the comment, and the commercial, into the real world:

In the years that Roberson worked for Drummond, he never, ever reviewed or signed-off on any Alabama legal invoices. Ever.

Why then, did Blake Andrews allegedly have Roberson sign-off and approve all the legal invoices from Balch & Bingham seeking reimbursement for payments made by Balch on behalf of Drummond to the Oliver Robinson Foundation?

Was Blake Andrews indeed “confused” or did he willingly know that these payments were illegal?

Roberson is not a lawyer; he is a biologist.

Andrews appears to have been the same legal counselor who hired Roberson’s criminal defense team that rejected a full-immunity deal.

As we wrote in the summer of 2019:

NOW FOR THE SHOCKER: In the North Birmingham Bribery Case, Dave Roberson was offered an immunity deal if he had testified against Balch & Bingham, according to insiders.

Why didn’t he testify? Why didn’t he take the deal?

Roberson had faith in Drummond Company. He was loyal, and Drummond declared their support after his criminal conviction [in July of 2018], calling him a “man of integrity.”

Six months later in February [of 2019], Drummond, showing little integrity,  reversed course and fired Roberson.

With a new Administration entering, a new group of U.S. Attorneys arriving, and aggressive talk against environmental racism, Drummond CEO Richard Mullen, who likes to save money or make money, should break the chains with Balch, put the North Birmingham matter behind him, and “retire” Blake Andrews.

Not only does it appear that Drummond Company received bad legal advice from Balch & Bingham, they also appear to have been led foolishly by their own General Counsel.

Mullen needs to mop up Andrews’ ugly mess and separate Drummond Company from Balch & Bingham once and for all.

How will Joe Biden react to the "hot American mess" he inherits after defeating Donald Trump in a drawn-out, disputed, and dramatic 2020 election process?

Joe Biden and Kamala Harris

 

A "hot American mess."

That's how Axios describes the situation confronting President-Elect Joe Biden as he prepares to take office from Donald Trump in January. Writes Mike Allen,:

Never before has a president-elect inherited a complex set of urgent — and epic — emergencies like the ones confronting Joe Biden and America. 

FDR, no doubt, inherited a hot American, Depression-era mess in 1932. President-elect Biden's spoils, in some respects, are similarly rotten: a spreading pandemic, sky-high long-term unemployment, stratospheric federal debt, an outgoing president claiming the Democrat stole the election, a nation bitterly divided, and misinformation and lies spreading at scale on platforms available to every citizen for free. 

Any one of these crises would take a presidential term to tame. Six, at once, seem almost incomprehensible in their scale and complexity.

Biden plans to focus first on the coronavirus and the economic devastation it continues to wreak. Getting the nation to feel secure about its physical and economic health will determine whether Biden is a success or failure. 

But the messes are many:

Here is how Allen breaks them down:

1. An average of 100,000+ people are getting the virus daily — a number expected to keep rising through the holidays. Biden has zero authority to attack it until late January. He'll get a head start Monday by appointing his own COVID task force. In his victory speech [Saturday] night, he promised a plan "built on a bedrock of science ... to turn this pandemic around."
   
2. Real unemployment is much worse than the headline figures and shows the true depth of the recession Biden will inherit. Modeling we unveiled in October on "Axios on HBO" shows that if you define an unemployed person as someone "looking for a full-time job that pays a living wage who can't find one," the effective unemployment rate in the U.S. is 26.1%.
3. The federal deficit topped $3 trillion in the year that ended Sept. 30, and it will haunt Washington next year, despite the bipartisan decision to ignore it. By some measures, it's the biggest budget gap since 1945 — a reminder that the U.S. is confronting crises on a scale it has encountered only a couple of times in 230 years.
4. Trump will torment Biden from outside the White House, and he could dominate Republican politics and media for years to come. Trump retains a psychic hold on a huge swath of America, making quick healing look out of reach.
5. Social media, which has connected the world and enabled so much creativity and so many new businesses, creates a distortion field that amplifies the worst in us, and it's an accelerant for lies and nonsense. This makes the White House's bully pulpit, once the most formidable communications platform in the world, just one more voice in the feed.

The bottom line: Biden confidants say he knows this weekend's halo is an aberration. His reality is a rising left in the Democratic Party that will constantly pressure him, a Republican majority in the Senate that will constantly constrain him, and a reality of a rattled world that will constantly haunt him.

Luther Strange, Robert Bentley, and Kay Ivey are among targets for data about payments in scheme to defeat EPA regulations at site in North Birmingham

 

Drummond Coal

Burt Newsome, attorney for former Drummond Company vice president David Roberson, is seeking documentation about payments to some of the biggest names in Alabama politics as part of the second set of discovery filed yesterday in Roberson's $75-million lawsuit against his former employer. The payments would be related to a scheme, allegedly orchestrated by Drummond and the Balch Bingham law firm, to defeat U.S. Environmental Protection Agency (EPA) cleanup regulations at a site in North Birmingham.

The full discovery document is embedded at the end of this post.

Newsome asks for copies of any and all checks for payment to the following individuals and entities in the years 2014 and 2015 and the source documents sent to the Accounting Department and/or Controller to approve these payments:

(a) Congressman Bradley Byrne

(b) Congressman Mike Rogers

 (c) Congressman Mo Brooks

(d) Alabama Department of Environmental Management (ADEM)

(e) Former Governor Robert Bentley

(f) Former Attorney General Luther Strange

(g) Governor Kay Ivey 

Newsome also asks for documents related to payments to former Trump official Trey Glenn, Scott Phillips, and entities connected to them -- along with payments to Balch Bingham and the EPA.

 

North Birmingham Superfund investigation takes on new life as David Roberson's lawsuit against Drummond kicks into high gear with discovery phase

 

A probe into possible misconduct related to a U.S. Environmental Protection Agency (EPA) site in North Birmingham has been reborn, according to a report today at banbalch.com. From the report:

Blake Andrews and Mike Tracy, what have you done?

Drummond Company, who foolishly walked goose-step with embattled law firm Balch & Bingham, faces a new North Birmingham Bribery Investigation from the legal team of ex-Drummond executive David Roberson.

Well-read legal blog Legal Schnauzer reports that Roberson’s attorney, Burt Newsome, has dispatched initial discovery requests.

We understand that more discovery requests and video depositions are in the works.

Newsome, who has hired an around-the-clock private security firm and installed cameras and motion-detectors at his home and offices, was nearly killed in a head-on car crash in September that some speculate appears to have been intentional.

 

Could the U.S. Department of Justice renew its probe of the investigation, which apparently was compromised from the outset under former U.S. Attorney Jay Town? That remains unclear:

The rebirth of the North Birmingham Bribery Investigation comes just months after disgraced U.S. Attorney Jay E. Town resigned after we, the CDLU, spurred a U.S. Department of Justice probe.

The alleged secret deal between Town and Alabama Power to shield and not even mention the utility during the criminal trial is history. 

Alabama Power CEO Mark A. Crosswhite and other insiders at the utility will be subpoenaed for a video deposition and all their correspondence, memos and documents, including check copies and payments made to the money laundering entity, Alliance for Jobs and the Economy (AJE).

Mike Tracy, the former CEO of Drummond, and Blake Andrews, General Counsel at Drummond, who allegedly set up David Roberson as the “fall guy,” will be grilled for their alleged unconscionable conduct.

And all the entities who funded and partook in the Astro-Turf entity AJE will have to answer for their conduct. (Who told you to donate? Why did you donate? What were the goals according to those who solicited you?)

And those who testified or bore witness at the criminal trial in the summer of 2018 will have an all-star reunion show. Joel I. Gilbert, Steven McKinney, Oliver Robinson, Trey Glenn, Scott Phillips, Irving Jones, Jr., Chad Pilcher, and Lance LeFleur to name a few.

The Pandora Box is about to open and show who was really responsible for pulling the strings and engaging in the the bribery scheme spearheaded allegedly by Balch.

Attorney for Drummond suggests in-house counsel knew EPA scheme was illegal, so he had David Roberson process invoices that led to indictment

Burt Newsome

An attorney for Drummond Company, defendant in a $75-million lawsuit, seemed to acknowledge at oral argument that the firm's in-house counsel had determined a plan to circumvent expensive EPA regulations was illegal at the time he asked former executive David Roberson to process invoices related to the scheme. Roberson complied, and according to his civil complaint, that simple act played a central role in his indictment and conviction -- making him the fall guy -- in the North Birmingham Superfund bribery scandal.

Andy Campbell, attorneys for co-defendant Balch Bingham, had argued that Joel Gilbert, one of the firm's lawyers, had provided "legal services" when he made a false statement to Roberson about the legality of the Superfund plan. Circuit Judge Tamara Harris Johnson bought that argument (improperly, in our view), finding Gilbert's statement fell under the Alabama Legal Services Liability Act (ALSLA) and making Roberson's claim time-barred.

Trey Wells, from the Birmingham firm Starnes Davis Florie, appeared to be making a similar argument for Drummond.  But Johnson rendered a mixed-bag verdict, granting dismissal for Drummond on some counts, while denying it on others. That means Drummond stands as the lone defendant, while Johnson's total dismissal of Balch is on appeal to the Alabama Supreme Court.

Wells' statement regarding Drummond in-house counsel Blake Andrews was in response to claims from Roberson (and his attorney, Burt Newsome) that Andrews' actions did not constitute the provision of legal services. Here is Wells from a transcript of the recent oral argument via telephone conference:

Their theory is that Drummond's general counsel formed a legal opinion that this whole plan was illegal and did not tell Mr. Roberson about it, and in fact, told him things that would basically make him be the fall guy, I think is their theory. That is -- the formation of a legal opinion as to whether something is legal or illegal is the definition of what a lawyer does. . . . That is legal services.

Burt Newsome pounced on that statement:

You know, he just -- he did a great job summing up Balch and Drummond's legal-services argument in a nutshell. He just told you because Blake Andrews formed in his head that this lobbying scheme was illegal and decided, I better not pay these invoices to the [Oliver Robinson] foundation because I will go to jail, then I'm going to -- so I'm going to get David Roberson to pay these so he will go to jail, that that was providing legal services to Mr. Roberson. That is absurd. Blake Andrews making a legal opinion in his head that this is illegal, I better not pay these, I better get somebody else to do it, that's not giving legal advice to Mr. Roberson. That doesn't make David Roberson his client. That makes David Roberson him and Balch's fall guy.

It's just unbelievable how they construe what legal services are. Not telling somebody what you're doing is illegal and getting hem to do it so you won't go to jail, that's not providing a legal service to him. That's not a cause of action that arises out of legal service. I mean, that analogy is just over  the top. . . . 

Not only is Drummond and Balch's argument with regard to the legal services act appalling -- I mean, he's saying because Blake Andrews formed in his head that this scheme was illegal so I don't want to be the one paying these invoices in the line and scope of employment, that somehow this is providing a legal service to Roberson, this is somehow being Mr. Roberson's attorney, is a joke. And it's the same way with Balch. They did the same thing. This is illegal, but, you know, when he asked me the question, I'm going to tell him my compliance department said it was all okay. That's not providing a legal service to Mr. Roberson. That's not being Mr. Roberson's attorney.

. . . The legal services act does not apply to the causes of action in this complaint. You're not providing a legal service to somebody by not telling them that the payment of these invoices to this foundation is illegal and having them do it. That is nonsensical.

Judge Johnson, in her order on Drummond's Motion to Dismiss, stated she was accepting the following factual allegations as true at this early stage in the litigation:

12. Plaintiffs allege that Defendant Balch made payments to the [Oliver Robinson] Foundation pursuant to the contract and submitted invoices to Defendant Drummond for reimbursement. . . . Blake Andrews, General Counsel for Defendant Drummond, represented to the Plaintiff that he was 'confused" by having to process Defendant Balch's invoices for the Foundation as well as other Defendant Balch invoices, and Andrews "asked and directed" the Plaintiff David Roberson to process Defendant Balch's invoices for payments to the Foundation.

13.  At all relevant times until February 7, 2019, Plaintiff David Roberson was a vice president of Defendant Drummond, subordinate to Andrews and [CEO Mike] Tracy, and Plaintiff was required to perform duties and responsibilities assigned to him by Andrews and Tracy.

Trump-appointed federal judge authors appellate opinion that leads to grant of immunity for Missouri cop who fatally shot a black man in the back

Ryan Stokes and his daughter

 

As yesterday's presidential election wound down, it was unclear if Americans were finished -- let us pray -- with Donald Trump's nightmarish "Reign of Error." But this is clear: We will be living with his wretched appointees to the federal bench for decades to come.

Take a fellow named David Stras -- please! Stras appears to be loyal to the far-right Federalist Society, of which he has been a member since 2003. But a case that originated in Missouri suggests his loyalty to he rule of law is not so clear.

Stras, a Donald Trump-appointed federal judge, has written an opinion that essentially forced a lower court to reverse its earlier ruling and find that a Kansas City, MO, police officer enjoyed immunity for  fatally shooting an unarmed black man in the back.

Stras, appointed by Trump to the Eighth Circuit Court of Appeals in 2017, wrote the opinion for a three-judge panel, and it appears to conflict with established law for making determinations about immunity at the summary-judgment phase of a federal lawsuit. To make an ugly case even uglier, published reports indicate police officials lied about central elements of the case -- and even granted two officers (William Thompson and partner Tamara Jones) awards for their actions before later rescinding them.

The court case -- N.S., et al v. Kansas City Board of Police Commissioners, et al (8th Cir., 2019) -- grew from officer Thompson's fatal shooting of Ryan Stokes on July 28, 2013, in the Kansas City Power and Light District. N.S. is the only child of the decedent, and co-plaintiff Narene James is his mother. Here is how flatlandkc.org, in a 2015 article, describes events of that evening:

After midnight on July 28th, 2013, Ryan Stokes and Ollie Outley drove in Outley’s red Monte Carlo to the Power and Light District. They parked off of McGee St., which runs north and south between 12th and 13th streets.

Outley drove.

There they met up with friends and spent the next two hours walking the perimeter of Power and Light, hanging out, and talking with acquaintances. Friends describe the group as being in good spirits, having a good time.

At 2:30 a.m. when the bars closed, patrons poured out onto the sidewalks. Stokes stood with Outley and others, all of whom are African-American, at the corner of 13th Street and Grand Blvd.

A group of five white males, including Jordan Miller, 21, emerged from a nearby bar at Power and Light.

Miller would later tell police he and his friends were extremely intoxicated.

“Hammered,” a friend told police.

They looked for a taxi cab big enough for all five, when Miller realized he had lost his cell phone. He accused Outley of taking it.

While Miller acknowledged later that he thought he must have dropped the phone on the sidewalk– and that he had never physically seen Outley holding his phone–he accused Outley at the time of taking it.

Miller yelled at Outley to give him his phone back. Outley denied having it. A shouting match ensued.

As the altercation escalated, surveillance video shows Stokes stepping in to act as peacemaker. No punches are thrown, but the yelling and shoving attracts the attention of Police Officer Albert Villafain.

Villafain, who was working Bike Patrol that evening, called for order. When the fight continued, he pepper sprayed the crowd, and people took off in all directions.

According to Outley and other witnesses, pepper spray got into Outley’s eyes. He gave the keys to his Monte Carlo to Stokes and told him to go get the car.

Video surveillance shows Stokes and his friend, Kenneth Cann, jogging east up 13th St. towards McGee St. and the parking lot.

The video shows both of Ryan Stokes’ hands, and they appear to be empty.

According to police reports and surveillance video, Jordan Miller starts following Stokes. He then tells Villafain that Stokes or someone with him took his cell phone.

Villafain asked Miller if he could make a positive identification of the thief. Miller said he could. Villafain signaled another Police Officer, Daniel Straub, to assist in the pursuit of the two suspected phone thieves.

All three took off after Stokes.

The pursuit ended when Stokes reached a parking lot, encountered officer William Thompson, and opened the door to his friend's Monte Carlo. Thompson fired three shots, hitting Stokes twice in the back. The Stokes family, represented by Kansas City attorney Cynthia L. Short, sued for excessive force under federal civil-rights law and wrongful death under Missouri state law.

Officer William Thompson and his partner, Tamara Jones

At the trial-court level, Judge Brian Wimes (Western District of Missouri) denied immunity for Thompson and his police co-defendants. They sought review at the Eighth Circuit, where immunity issues properly can be considered on interlocutory appeal. They found a welcoming set of ears from the Stras panel, which overturned Wimes' ruling and remanded the case to the Western District, where Wimes had little choice but to write a second opinion, this time granting immunity to the cops.

By all accounts we've found, it was a chaotic scene on the night of Ryan Stokes' death. Here are the uncontroverted material facts, as stated by both the trial and appellate courts:

Officer Thompson is a KCPD police officer, employed by the Board, who has been a KCPD officer for more than 20 years. In the early morning hours of July 28, 2013, Officer Thompson and his partner Officer Tamara Jones were on foot patrol in the parking lot located at McGee and 12th Streets in Kansas City, Missouri. Officers Thompson and Jones were assigned to clear the lower parking lot along the west side of Grand Boulevard between 12th and 13th Streets. Eventually, Officers Thompson and Jones moved to the upper level of the parking lot where the shooting at issue occurred.

Over dispatch radio, Officer Thompson heard from Officer Albert Villafain that a foot chase was headed in his direction. Officer Thompson heard the description of two suspects (black males wearing white T-shirts and shorts), the direction of the two suspects' travel, and the crime that had allegedly been committed, which was stealing. Seconds after Officer Thompson heard this information over the radio, he saw a black male, wearing a white T-shirt, come running around the corner of a building in the parking lot. This individual was Ryan Stokes.

At the time of the incident, Stokes held his right hand closed, in front of himself, at waist level. Stokes jogged in Officer Thompson's direction, toward a red Monte Carlo that was parked just past the corner of the building in the parking lot. Stokes held his hands and arms close to his body as he ran, with his elbows bent, stationary, and close to his body.

Officer Thompson testified he saw a gun in Stokes' right hand, and Stokes looked at Officer Thompson and knew of his presence. Officer Jones testified she did not see Stokes with a gun, but she did not see Stokes' hands. Liberty, Missouri Police Officer Greg Powell testified he did not see a gun in Stokes' hand, but it was dark, and he could not see Stokes' hands. KCPD Officer Gregory Williams testified he did not see Stokes with a gun or anything that would have appeared as a gun. KCPD Officer Straub testified he did not see Stokes with a gun, but he also did not see Stokes' hands. Other witnesses testified Stokes was holding up his pants. Other witnesses testified they did not see Stokes with a gun at any point earlier that evening, including immediately before Officer Thompson saw Stokes.

Officer Thompson pointed a gun at Stokes as Stokes ran to the driver's side door of the Monte Carlo. Stokes' back was to Officer Thompson, at which point Officer Thompson could not see Stokes' hands. Stokes stepped away from the door of the vehicle. In his peripheral vision, Officer Thompson saw another police officer running around the same corner of the building around which Stokes had run. Stokes ran in the direction of the approaching officer, Officer Straub. Officer Straub saw Stokes stepping away from the Monte Carlo, and believed Stokes was obeying Officer Straub's commands to stop running and show Officer Straub his hands.

As Stokes moved away from the Monte Carlo, his back was to Officer Thompson, who could not see Stokes' right hand. However, Officer Thompson believed Stokes was armed and intended to ambush and shoot Officer Straub.

Officer Thompson shot Stokes from behind, and saw Stokes fall to the ground. Officer Thompson stopped shooting once he saw Stokes falling. About seven to ten seconds elapsed between when Officer Thompson saw Stokes and when Officer Thompson shot Stokes. Stokes was unarmed at the time of the shooting.

Thereafter, a gun was discovered on the driver's seat of the Monte Carlo. The gun belonged to Stokes' friend and owner of the Monte Carlo, Ollie Outley.

How do we know the Eighth Circuit panel got it wrong on the immunity issue, that the case should have moved past summary judgment to settlement or trial? The words of Stras, the Trump appointee, tell us so. From our post of 9/16/20:

How gross was the Stras panel's butchery of the N.S. case? To arrive at an answer to that question, we first need to consider the proper steps for considering summary judgment, as spelled out in case law and Rule 56 of the Federal Rules of Civil Procedure (FRCP). Here are three key elements:

(1) The evidence of the nonmovant (the Stokes family, in this case) is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986).

(2) Summary judgment is appropriate where there is no genuine issue of material fact, and “the moving party is entitled to a judgment as a matter of law.” Celotex Corp v. Catrett, 477 U.S. 317 (1986).

(3) In passing upon a motion for summary judgment, the court is required to view the facts in the light most favorable to the party opposing the motion and to give to that party the benefit of reasonable inferences to be drawn from underlying facts. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F. 2d 207 - Court of Appeals (8th Circuit, 1976). Adickes v. SH Kress and Co., 398 US 144 
 (Supreme Court 1970).
  
Did the Stras panel follow these straightforward provisions of summary-judgment law? Not even close. Let's consider Stras' own words from the N.S. opinion:

Some evidence supports Thompson's account. The police discovered a handgun on the driver's seat of the car, which could mean that Stokes was armed when he entered the parking lot but then tossed the gun into the car. And witnesses who saw Stokes running said that he appeared to be "holding up his pants as he ran," which is arguably consistent with Thompson's perception that Stokes was holding a gun. Finally, Thompson's partner claims to have heard Thompson order Stokes to "get on the ground."

Other evidence supports the family's account. No one besides Thompson observed Stokes with a gun, nor was any gun found on or near his body. The car's owner, who was Stokes's friend, claimed that the gun recovered from the car belonged to him and that it had been there all night. Moreover, some officers did not recall hearing Thompson shout anything during the encounter, and at least one officer thought Stokes was trying to surrender when Thompson shot him.

Stras admits right up front that the evidence is mixed, with some of it favoring Officer Thompson's account, and some favoring the Stokes family's account. As the non-moving party, the Stokes family was entitled to have their factual allegations believed and "all justifiable inferences drawn in their favor." So, how could the Stras panel essentially force the trial court to grant summary judgment against them?

In Stras' own words, there were "multiple genuine issues of material fact," so summary judgment could not lawfully be granted. Why did the panel force summary judgment anyway? Is David Stras a rubber stamp for law enforcement? That's how it looks from here.

 

David Stras

Attorney Burt Newsome launches discovery effort on behalf of former Drummond exec David Roberson in $75-million lawsuit related to Superfund scheme

Drummond Coal

 

Burt Newsome, attorney for David and Anna Roberson, filed a notice of discovery yesterday, launching the evidence-gathering phase in a $75-million lawsuit against Drummond Company, for which Mr. Roberson served as vice president before becoming entangled in the North Birmingham Superfund bribery case.

The initial discovery includes interrogatories (written questions and answers) and requests for production of documents (memoranda, letters, electronic files, etc.) Here are some of the requests that stand out to us. The full discovery document is embedded at the end of this post.

* Produce all documents and electronically stored information (including emails) referring or referable to the North Birmingham Superfund Site . . . 

* State the date on which Drummond Company first discovered any legal problems with the scheme and/or Balch's plan to beat the EPA with regards to the North Birmingham Superfund Site.

* State the name, place of employment, and relationship to Drummond Company of the person or persons who first learned of this discovery, and state the means by which the discovery was made.

* Produce all documents and electronically stored information (including emails) relating to that discovery.

* Describe in detail the efforts made by Drummond Company to inform the Plaintiff of this discovery, including the date of each such effort, the nature of the effort, and the persons involved.

* Produce all legal memoranda and/or electronically stored information (including emails) relating to the issue of the legality of the scheme and/or Balch Bingham's plan to defeat the EPA.

* Produce all Board minutes reflecting or referable to any discussion regarding the North Birmingham Superfund Site in Jefferson County, and/or the scheme, Joel Gilbert, and/or David Roberson.

* Produce any and all communications of any type whatsoever from any employee or representative of Drummond Company to Jay Town and/or the U.S. Attorney's office regarding the scheme and/or the criminal proceedings associated with the scheme. . . . 

* Produce any and all communications of any type or form whatsoever with Mark Crosswhite, Southern Company and/or Alabama Power, Balch Bingham, the Alliance for Jobs and the Economy, Oliver Robinson, the Oliver Robinson Foundation regarding the scheme. . . . 

* Produce any and all communications of any type whatsoever dealing with Blake Andrews directing David Roberson to pay the invoices from Balch Bingham associated with the payments being made . .  to the Oliver Robinson Foundation.

Judge Tamara Harris Johnson denies chunks of Drummond's Motion to Dismiss, meaning $75-million lawsuit from former exec David Roberson is alive

Tamara Harris Johnson

 

Drummond Company's Motion to Dismiss in a $75-million lawsuit involving former executive David Roberson has been granted in part and denied in part. That means the case will move forward to summary judgment, and perhaps, trial. Likely of most importance for the plaintiffs (Roberson and his wife, Anna), a stay on discovery has been lifted, meaning their attorney, Burt Newsome, can begin to collect evidence designed to prove their case. 

The mixed result for Drummond came from Tamara Harris Johnson, the same Jefferson County circuit judge who granted a full dismissal for co-defendant Balch Bingham law firm -- and in the process, came under heavy criticism here last week for failing to abide by Alabama law on the handling of a Motion to Dismiss.  

Johnson's order on Drummond reads like a different judge wrote it. The document appears to be well-reasoned and within the boundaries of Alabama law. Why Johnson reached such a wildly different result on two motions that are governed by the same straightforward law remains a mystery. But it means the Robersons' case is very much alive -- and the Balch appeal is under appeal to the Alabama Supreme Court, and it should be reversed, meaning the law firm is not out of the woods yet.

The Drummond order was electronically filed at 4:04 p.m. last Friday (10/30/20), the same day news broke that Balch partner and general counsel Schuyler Allen Baker Jr. had died. 

Early in the Drummond order, Johnson states:

This Court, in deciding the herein Defendant Drummond's Motion to Dismiss, has accepted as true all well-pleaded factual allegations contained within the Plaintiff's Third Amended Complaint. The Court acknowledges that Plaintiffs, in the aforementioned Complaint, have alleged factual allegations and conclusory statements; however, the Court will accept as true all well-pleaded factual allegations and view them in a light most favorable to the non-moving Parties, the herein Plaintiffs.

That is a correct statement of Alabama law, and Johnson appears to follow it throughout the Drummond ruling, listing 25 allegations she accepts as true -- as required at the Motion-to-Dismiss stage.

Here is a breakdown of Johnson's order on the various counts in Drummond's Motion to Dismiss:

Count I: Indemnification --  Roberson alleged Drummond owed a duty to indemnify him for all losses and damages suffered from performing duties assigned to him by Drummond and General Counsel Blake Andrews. Johnson found no such duty. Dismissal granted.

Count II (Misrepresentation) and Count III (Concealment) -- Roberson alleged Andrews made a number of misrepresentations regarding processing of legal bills from the company's outside counsel (Balch). Roberson further alleged Andrews claimed to be "confused" by Balch's invoices, so Roberson processed them, leading to his indictment and conviction. Johnson found Andrews was not providing legal services and Drummond was not a legal services provider, so the counts did not fall under the Alabama Legal Services Liability Act (ALSLA) and were not time-barred. Dismissal denied. 

Count IV, Conversion -- Roberson alleged Drummond took and removed from his office several items of personal property after his termination. Johnson could not find beyond a doubt that Drummond did not engage in an unauthorized wrongful taking of Roberson's property. Dismissal denied.

Count XI, Concealment by Drummond [and Balch] -- Roberson alleged that Drummond concealed it had hired a lobbyist via a contract with Balch, forming an agency relationship and making Drummond vicariously liable. Johnson found Drummond was not liable under an agency theory. Dismissal granted.

Count XI, Concealment by Drummond -- Roberson alleged Drummond had a duty to notify him that certain payments were being made to lobby the Alabama Department of Environmental Management (ADEM) to oppose the EPA listing a North Birmingham site on its National Priorities List. Johnson could not find beyond a doubt that Roberson could not prove he was owed this duty. Dismissal denied.  

Count XII, Promissory Fraud -- The Robersons alleged they relied on a representation by CEO Mike Tracy regarding David Roberson's employment, and Drummond never intended to perform the act promised. Johnson could not find beyond a doubt that Roberson could not prove all the elements of promissory Fraud. Dismissal denied.