My Common Critic, Part II

Let's address some of the criticisms Matthew Krell raises in his post at Cottonmouth.

First, Mr. Krell says I incorrectly stated the holding of U.S. v. Mariano, 983 F.2d 1150 (1993), which states that a bribery conviction requires a quid pro quo, a something-for-something transaction. Actually, Mr. Krell says that I stated the holding in Mariano correctly, but he notes that it is a First Circuit case and thus is merely persuasive authority, not controlling authority, over Judge Henry Wingate in the Fifth Circuit.

Fair enough. But Mr. Krell goes on to say that "Judge Wingate was bound only by United States Supreme Court and Fifth Circuit precedent; neither of which have passed on this issue."

That statement, it turns out, is incorrect. At the time I wrote my post to which Mr. Krell was responding, I was not aware of a Fifth Circuit case that required a quid pro quo for a bribery conviction. But since then, I have discovered such a case--U.S. v. Duvall 846 F.2d 916 (Fifth Circuit, 1988). We discussed the Duvall case in detail here.

Duvall was binding authority over Judge Wingate, and he chose to ignore it, instead cobbling together a jury instruction (that did not require a quid pro quo) seemingly out of Mississippi state law. This raises serious questions about the judge's biases, or his competence, in the Minor case.

Next, Mr. Krell says that I misunderstood the conviction, noting that it includes a lesser included offense of giving an illegal gratuity. I would be the first to say that, as a law student, Mr. Krell has more extensive knowledge than I do on technical issues such as this. But I don't think he is correct on this point. The official Department of Justice press release on the conviction says the jury convicted the defendants on bribery and honest-services mail fraud (plus the associated charges of wire fraud, racketeering, and conspiracy). I see no mention of a conviction on the illegal gratuity statute. And given the severity of Judge Wingate's sentencing--imposing a fine that is 15 times beyond what federal guidelines call for--I don't see how this was a case of conviction on a lesser offense.

Mr. Krell and I part ways most strongly on two key points:

* Mr. Krell says: A canon of appellate review holds that an appellate court will affirm a lower-court's decision for any reason in the record, even a reason the lower court did not follow. The key, he states, is that the lower court got the right answer, regardless of the method it used to get there. From there, Mr. Krell addresses Judge Wingate's rulings to exclude expert testimony for the defense. Even assuming the rulings were erroneous, Mr. Krell says, he suspects the Fifth Circuit appellate court will find it to be harmless error.

Legal Schnauzer says: First, the lower court did not get the right answer, not even close. Both the bribery and the honest-services convictions were grounded on jury instructions that were way off base. Which reminds me of the old adage: You put junk in, you get junk out. The jury almost had to convict, based on the erroneous jury instructions. So that is hardly harmless error. And the exclusion of expert witnesses goes way beyond harmless error, too. Wingate's ruling was contrary to law, and it essentially kept Minor & Co. from putting on a defense. No wonder they were convicted!

(Note: I have an advantage over Mr. Krell because I have a copy of the trial transcript. It's a voluminous document, and I haven't read all of it. But I've read key parts of it, and I know what Wingate based some of his rulings on. I lay out here the reasons his expert-witness rulings were so wrongheaded.

* Mr. Krell says: "Courts make errors all the time. A judge misreads the law or just never understood it, an ambiguous decision is poorly interpreted, or the lawyers screw up and the judge doesn't catch it, and that's why God made appellate courts." This is the kind of attitude you hear a lot if you have much experience around the law. In fact, I've had more than one judge say, "If you don't like it, appeal it." That kind of cavalier approach should have no place in our courts. Yes, judges are human and can make mistakes. But judges also are very well paid, and they have plenty of staff to help them. We're talking about people's freedom here; one man is in federal prison and two more are headed there because of Judge Wingate's rulings. He took an oath to uphold the law, and that's serious business. If I can figure out what the law is--with zero days of law school behind me--a federal judge should be able to figure it out. The Minor case involved some fairly complex law. But a federal judge should be pretty well acquainted with this stuff, or he should know how to find the applicable law. There's no place for a "hey, the appeals courts will fix it" approach. Finally, the evidence is overwhelming that Wingate intentionally butchered this case. I don't see how he could accidentally make the unlawful rulings he did regarding expert witnesses and jury instructions.

A couple of other points about Mr. Krell's piece. He states: "I admit there are things about the trial that seem fishy." But he also states: "I am loathe to assume that a federal judge got it wrong."

I think that's the main difference between us. I think Mr. Krell knows something doesn't add up about the Paul Minor conviction. But Mr. Krell has his future to think about, and for a young law student to write that a federal judge screwed up a high-profile case . . . well, I doubt it would be a wise career move.

So I can't blame Mr. Krell for equivocating in his analysis of the Minor case. I'd probably do the same thing if I were in his shoes. But I don't have to worry about trying to find a place in the legal profession. So I can say, unequivocally, that Judge Henry Wingate screwed up the Minor case, probably because the judge was eyeballing a seat on the Fifth Circuit Court of Appeals and wanted to curry favor with the Bush crowd.

That brings us back to Scrubs and those "bastard-coated bastards with bastard filling." Hopefully, Mr. Krell hasn't had to encounter too many of these types yet. But I have. And when Mr. Krell moves into the legal profession he is sure to encounter them. He will find that some of them have J.D. after their names. And some of them wear robes.

Here's where Mr. Krell and I certainly agree. He writes: "What has happened when officeholders on trial for corruption can claim that their opponents are attempting to bring them down, and have it actually be plausible?"

Then he says it all goes back to the "culture of corruption."

"How can we trust any officeholder that was complicit in the development of this system, where we can believe that our judges aren't impartial and neutral? And that's the most frightening thing: That we can believe that this is no longer a nation of laws, but of men."

I hear you, brother. I hear you.

Important Case, Questionable Judge

An important legal case is taking place in Birmingham, and it hits close to home on several fronts here at Legal Schnauzer.

Mayor-elect Larry Langford faces a challenge of his qualifications for the office, which require that he be a resident and registered voter in the city. Patrick Cooper filed the lawsuit after finishing second in the October 9 election. Langford won by a large enough margin to avoid a runoff.

Langford contends that he changed his official home to a downtown Birmingham loft last summer. Cooper says Langford continues to live in the house he bought in 1982 in Fairfield, a Birmingham suburb.

If Langford is found to be a Fairfield resident, he would not qualify to be mayor.

One interesting aspect of the case is the judge, Jefferson County Circuit Judge Allwin Horn. I've had occasion to see Judge Horn in action a time or two in the past year, in a case related to the Legal Schnauzer case featured here. So far, I've been extremely unimpressed with Judge Horn, and if my experience is an indicator, I question whether justice will be done in the Cooper/Langford lawsuit.

Horn is a Republican, and evidence I've seen suggests he is more interested in toeing the party line than in administering justice. I'm not familiar with the law in the Cooper/Langford case, so I have no idea how it should turn out. But with Horn in charge, regardless of the outcome, I would have concerns that politics played a major factor.

I don't live in the Birmingham city limits, but I did live there for almost 12 years and I work there. So I very much want to see the city prosper. Like so many events in our community, the mayoral election was touched heavily by race. Both Langford and Cooper are black. But Langford drew strong support from the city's black voters, while Cooper was seen more favorably by whites.

It's a non-jury trial, so it all comes down to Horn. Based on personal experience, I don't feel real comfortable about that.

Dubya's downward spiral

Even Alabamians, supposedly a pretty right-wing bunch, have little confidence in President George W. Bush.

Only 12 percent of respondents said they had confidence in Bush, according to a survey by the Alabama Education Association's Capital Survey Research Center in Montgomery. Another 47 percent said they had lost confidence in the president and another 31 percent said they had "doubts" about his ability.

The survey also showed that 53 percent of Alabamians said the Iraq war is "not worth it."

"Alabama may be a red state in national politics in the voting booth, and to read most of the Alabama press and watch local television news, you would think everybody in Alabama is a pro-Bush, religious conservative," writes Glynn Wilson at Locust Fork News. "But when asked their opinions by survey researchers, that's not what you find at all."

On the national front, a new opinion survey released this week shows a significant percentage of American voters believe Bush and Vice President Dick Cheney have abused their powers to an extent that warrants impeachment.

The poll by American Research Group shows that 64 percent of American voters say Bush has abused his powers as president. Of those 64 percent, 53 percent (34 percent of all voters) say the abuses rise to the level of impeachable offenses, and Mr. Bush should be impeached and removed from office.

On Cheney, 70 percent of American voters say the vice president has abused his powers. Of those 70 percent, 61 percent (43 percent of all voters) say the abuses rise to the level of impeachable offenses, and Mr. Cheney should be impeached and removed from office.

The same poll shows Hillary Clinton (46 percent) leading Barack Obama (21 percent) and John Edwards (11 percent) in a national primary. On the GOP side, Rudy Giuliani (25 percent) leads Mitt Romney (21 percent), Fred Thompson (17 percent), and John McCain (12 percent).

It would be interesting to see the results of a poll about the Bush Department of Justice (DOJ). Given that large chunks of the American population either have lost confidence in Bush or believe he should be impeached, you wonder what they think about the notion that the Bush DOJ pursues politically motivated prosecutions. And closer to home, what do Alabamians think about their state courts? Do they have confidence in them? Seems an appropriate question to ask, considering that the same man who put Bush in the White House (Karl Rove) also shaped Alabama's Republican-packed state courts.

Cat People Vs. Bird People

As you probably can tell from the title, our blog is driven largely by an interest in the law and a love for pets. So we couldn't help but notice a story that mixed those two subjects.

Unfortunately, the story has a disturbing result.

A bird-watching enthusiast is on trial in Galveston, TX, for fatally shooting a cat with a 22-caliber rifle. Defendant James M. Stevenson is the founder of the Galveston Ornithological Society. If convicted on animal-cruelty charges, he faces up to two years in jail and a $10,000 fine.

The cat lived under a toll bridge and was fed and cared for by a toll collector. Under Texas law, the case hinges on whether the jury finds the cat was feral. Stevenson was indicted under a state law that prohibits killing a cat "belonging to another." Prompted by this case, the law was changed on Sept. 1 to include all cats, regardless of ownership.

The case is expected to conclude any day.

Legal Schnauzer is inspired by, and dedicated to the memory of, our beloved miniature schnauzer, Murphy, who died in 2004 at age 11.

About six months or so after Murphy's death, two Siamese cats (a brother and sister named Baxter and Chloe) sort of fell into our laps. One of my wife's friends knew about them. They had a good home, with a husband-wife and two young children. But the husband developed allergies, so the family wanted to find Baxter and Chloe a new home.

We wound up being their new home, and we are grateful every day that they came into our lives. At the same time, we love the many birds who make regular stops at our place, particularly in our wooded backyard. We are aware, from reading news reports, of the terrible toll domestic cats take on the bird population. In fact, I seem to recall reading somewhere that the most efficient predator on the planet is the domestic cat. And their usual target, of course, is the wild bird.

This problem could be pretty much solved if people were responsible with their domestic cats. Get them spayed and neutered and keep them mostly inside. I have no idea why people have this notion that cats need to roam outside unattended.

A woman actually told my wife one time that cats are "street savvy." I saw what happened to a "street savvy" cat one morning as I was driving to work. A black-and-white cat, apparently being chased by another cat, ran headlong into the side of a passing mini van. The driver probably never knew what caused the thump on the side of his vehicle. I saw the cat's body twitch by the side of the road as I drove by helplessly.

I think it was game-show host Bob Barker, a well-known animal lover, who said that at his funeral he plans to rise up in his coffin and say, one last time, "Spay and neuter your pets."

Amen, brother.

Assault on the Law

A story in the sports section one day recently caught my attention and caused me to jump ahead a bit in our story of legal intrigue.

The story was about baseball player Jose Offerman, who during a minor-league game last summer in Hartford, Conn., rushed the mound and attacked the opposing pitcher with a bat. The attack came after Offerman had been hit in the leg with a pitch and left both the pitcher and the catcher injured.

Offerman's punishment came down recently, and he received probation and was ordered to undergo anger-management treatment. The 38-year-old Offerman was a longtime major leaguer and was an all-star infielder with the Los Angeles Dodgers in 1995 and the Boston Red Sox in 1999.

Here's where the Offerman story connects to our Legal Schnauzer tale: Offerman had faced up to 10 years in prison on two felony assault charges.

The key word here is felony. The AP story doesn't go into this, but my guess is that Offerman was charged with second degree assault, a felony, because he used his bat in the attack.

You can read Alabama assault law here. Criminal law in most states is based on the Model Penal Code, so Connecticut law probably is the same as Alabama's.

Why does this matter to your humble blogger? I was the victim of a felony assault in October 2006. My troublesome neighbor, Mike McGarity, essentially stalked me and then hit me in the back with a roadside sign, leaving a bleeding abrasion. There was an eye witness to the attack.

As I've noted in other posts, McGarity has the trappings of a normal suburban soccer dad--wife, two kids, nice house, job at Blue Cross and Blue Shield of Alabama. But after he filed a bogus lawsuit against me, I conducted a little research on his background and discovered that he has at least eight criminal convictions in his background. (How in God's name do you get and keep a job at a reputable employer like Blue Cross and Blue Shield with a record like that?)

We will go into considerable detail later on the assault itself and actual Alabama law that governs such offenses. (We also will look into how BC/BS came to hire someone with a big-time criminal record.) But for now, suffice to say that this assault clearly was a felony.

Just as in the Offerman case, McGarity used a "dangerous instrument" and caused "physical injury." Under the law, that's a felony.

But not in the corrupt little kingdom of Shelby County, Alabama. The magistrate's office there has insisted on calling it a misdemeanor. When I complained and showed them the actual law, they said I would need to speak with the district's attorney office. I tried to reach DA Robby Owens, but he won't respond to e-mails or a snail-mail letter.

The statute of limitations on a felony offense is three years in Alabama, so there is still time for justice to be done. But evidently if Robby Owens has his way, Mike McGarity (an eight-time criminal, at least) will get away with a felony. And Owens has the audacity to run for office on a tough-on-crime stance.

Owens recently has received all kinds of public support over his rift with Alabama Attorney General Troy King. I'm no fan of Troy King, but Robby Owens does not deserve public support. From what I've seen, the Shelby County DA's office is a disgrace, and I will be laying out my experiences with Owens' bunch in detail.

This is another example of what can happen when, through no fault of your own, you become entangled with corrupt lawyers, judges, and prosecutors.

How did two innocent people, my wife and me, become involved in this? We were the victim of a crime. Mike McGarity trespassed on multiple occasions, after being warned repeatedly to stay off our property. When we sought to have him prosecuted for criminal trespass, third degree, he was acquitted by Shelby County District Judge Ron Jackson (even though, according to the trial transcript, McGarity inadvertently confessed to the crime; Jackson made up law from the bench in order to justify his acquittal).

The acquittal allowed McGarity to sue me for a tort called malicious prosecution. And that's what started my nightmare in Alabama's civil "justice" system. By law, McGarity's bogus lawsuit had to be dismissed (summary judgment) in six to eight months time. (Almost all lawsuits, even the worst ones, take at least that much time to be resolved.) But thanks to repeated unlawful rulings by Republican judges in Shelby County (J. Michael Joiner and G. Dan Reeves), the case dragged on for five-plus years, costing me and Alabama taxpayers thousands of dollars.

What do I mean by unlawful rulings? Well, Joiner and Reeves probably combined to rule contrary to law on 30 to 40 occasions in my case. But the key rulings involved summary judgment, and this is real simple stuff.

If one party files a properly executed and supported motion for summary judgment (MSJ), the opposing party must file a response and present evidence to counter the MSJ, showing that there are reasons for the case to go to trial.

My MSJ was properly supported because it provided evidence in the form of multiple affidavits, showing that we had "probable cause" to seek McGarity's prosecution for criminal trespass and we moved forward on the case without "malice." (In fact, our evidence showed that we had more than probable cause on the criminal complaint; we presented evidence from the criminal trial transcript showing that McGarity inadvertently confessed to the crime, so we had "actual cause.")

My first two of three MSJs were prepared by high-priced attorneys from a well-known Birmingham law firm. The third was prepared by yours truly and came after I was acting pro se (representing myself in court). The three MSJs all presented distinct issues of fact and law--in other words, the case had to be dismissed on so many grounds that multiple MSJs were possible; we weren't just regurgitating the same stuff over and over. (In fact, I probably could have done a fourth or fifth MSJ, but it became pretty clear after a while that would be a waste of time.)

The nonmoving party to an MSJ is required by law to respond in a certain way and within a certain timeframe. McGarity's responses failed on every count. On the first MSJ, his attorney filed a timely response, but evidence was filed eight days late. My attorney moved to strike the response, but the judge never ruled on it. (It shouldn't have mattered because McGarity's affidavit was a bunch of inadmissible gibberish anyway. He couldn't deny trespassing because he had already confessed to it in the criminal trial. A denial would have put him at risk of a perjury charge.)

Joiner denied the first MSJ, even though McGarity had presented no timely evidence to counter my motion. Joiner denied the second MSJ, even though McGarity made no response at all. By the time of the third MSJ, Reeves was the judge (Joiner having recused himself for an obvious conflict that should have disqualified him from the outset), and he denied the MSJ, even though McGarity again made no response at all.

A key point: Under Alabama law (and probably law in all 50 states), a motion for summary judgment calls for a "nondiscretionary" ruling. In other words, a judge can't just do whatever he wants to do. To paraphrase Alabama law, if the filings show there is no reason for the case to go to trial, summary judgment MUST be granted, "forthwith." And if the nonmoving party presents no countering evidence, the moving party's evidence must be considered "uncontroverted," and summary judgment MUST be granted.

See how easy this law is? I've got a stump in my backyard that could have decided this case correctly.

By law, I was due summary judgment in my favor. Joiner and Reeves didn't do what the law required them to do. And I was due summary judgment "forthwith." Well, it's seven years and counting, so I guess Shelby County, Alabama, has an interesting definition of forthwith.

But let's return to this notion of "malicious prosecution." One of the key goals of this blog is to teach Alabamians, actually all Americans who care to visit here, that the victim of a crime can be sued if the perpetrator is found not guilty.

You heard that right: You can be the victim of a crime, then you can be victim of a lawsuit. In many ways, you are better off letting the criminal get away with it. (In fact, I had a lawyer tell me I should have just let the trespassing go. He said he tells clients all the time to just look the other way when they are victims of crime.)

Under the law, a malicious prosecution lawsuit should almost never happen. Malicious prosecution is defined as a "disfavored tort." But such lawsuits happen all the time, mainly because dishonest lawyers abuse the system, with some improper purpose in mind (getting a little insurance money?) And corrupt judges, like the ones in Shelby County, let it happen. (Who knows, some corrupt judges might let it happen so that they can share the insurance proceeds with corrupt lawyers.)

What is the fallout of this corruption? I've already noted the severe financial and emotional toll that comes with being the victim of Alabama's corrupt justice system. Now, my physical safety has been put at risk, thanks to this assault.

Why has this happened? Because Judge Jackson decided to acquit a criminal defendant who admitted he was guilty as charged. Because attorney William E. Swatek decided to file a fraudulent malicious-prosecution case on behalf of a client with a criminal history. And because Shelby County judges J. Michael Joiner and G. Dan Reeves repeatedly made unlawful rulings that caused a bogus lawsuit--one that by law had to be dismissed (summary judgment) in 7-8 months time--drag on for five-plus years.

Why did Swatek (whose son, Dax Swatek, is a Republican "consultant"); and Jackson, Joiner, and Reeves (all Republicans) take these actions? And why did Alabama's Republican-dominated appellate courts allow unlawful trial-court rulings to stand?

Those are the central questions at the heart of this blog. We've recently seen the outrageous Alabama Supreme Court ruling in the ExxonMobil case, cheating Alabama citizens out of $3.5 billion in punitive damages in a contract/fraud case. But unlawful rulings from our Republican-packed appellate courts are old news here at Legal Schnauzer.

My case hardly involved the kind of money that was at stake in the Exxon case. But the Legal Schnauzer case illustrates the mindset that allows "conservative" judges to ignore settled law in order to favor certain parties, cheating everday citizens in the process.

As for our story about assault, I know what that minor-league pitcher must have felt like when he saw Jose Offerman coming after him with a bat. (Actually, that's not quite true; the pitcher could see Offerman coming, but McGarity hit me in the back, as I was walking away from him.) I do know what it feels like to be struck by a "dangerous instrument." It hurts--a lot. And it hurts even more to know that, in my case, the perpetrator probably is going to get away with it.

The Shelby County magistrate's office said I was free to file a misdemeanor assault complaint, and they would swear out a warrant for McGarity's arrest. But I refused to do it. First, I'm not going to sign a document under oath saying someone committed a misdemeanor when I know they committed a felony. Also, this case should not be based on a citizen's complaint. The usual procedure for a felony, as I understand it, is that the DA's office brings the case following an investigation. That's the way this case should be handled.

Finally, misdemeanors are heard in district court, before Judge Jackson in a bench trial. I've been down that road before. By law, as I understand it, the victim of a felony is entitled to have the case heard by a jury. I'm not about to have another case heard by a corrupt judge like Jackson.

We'll move away from the matter of assault for now. But consider this loaded social question: What if I had been assaulted by a black man? Or what if I had been assaulted by a poor man of any color? Or what if I had been assaulted by someone of Middle Eastern descent?

Think it would be considered a felony? I sure do.

My Common Critic

One of the "benefits" of having a blog is that you attract critics.

Some critics are what you might call trolls. They sit back and anonymously lob witticisms like "you're a moron" or "your blog sucks." No reason to spend much time thinking about those types.

But every once in a while, you come across a different sort of critic. This sort seems well-intentioned and thoughtful, perhaps even noble--if misguided. (Hey, if someone disagrees with me, they've got to be misguided, right?)

This kind of critic causes you to stop and think. And that's a good thing.

Legal Schnauzer recently attracted such a critic. He is Matthew Krell, writing at Cottonmouth, a progressive blog in Mississippi. Mr. Krell takes me to task for my reporting on the Paul Minor case in Mississippi.

Actually, "takes me to task" might be too strong a term. After all, Mr. Krell and I are on the same team (both progressives), and we seem to have the same goals (an honest and fair justice system).

Our differences, I think, are attributable to age and experiences. I gather that Mr. Krell is a law student, so I'm guessing he's in the 22-25 age range. That would make him about half my age. And by virtue of my age, I'm guessing I've developed a more hardened perspective on life than has Mr. Krell.

Ultimately, I'm not sure that Mr. Krell and I disagree all that much. He's embarking on a career in the law, and it's probably healthy for him to think that he's heading into a noble profession. Meanwhile, I've seen the darker side of the legal world.

Perhaps Mr. Krell and I can teach one another some valuable lessons. Maybe I can show him that sometimes reality really does bite. And maybe he can show me that, despite our occasional journey through darkness, we should strive to see light in the distance.

Mr. Krell presents a respectful critique, and I want to present a respectful response. But since he and I really are on the same team, I figure why not have a little fun?

So first, I want to say that I'm grateful for Mr. Krell's critique for two reasons. One, it made me think a little harder about what I'm doing on this blog. And two, it reminded me of one of my favorite episodes of Scrubs, which I think is one of the best shows in modern television history. I never thought I would think a TV comedy could rank with the brilliance of M*A*S*H. But I think Scrubs often rises to that level.

The episode I'm reminded of is called "My Common Enemy." It centers around Dr. Molly Clock, a young, idealistic, somewhat dingy (and very attractive) psychiatrist at Sacred Heart Hospital. Dr. Clock believes that people are essentially good. Even those with a "hard outer shell," she says, have a "creamy center."

Well, this is nonsense to two of the hospital's veterans--Dr. Perry Cox and Chief of Staff Bob Kelso. They agree that most people are "bastard-coated bastards with bastard filling."

Cox and Kelso normally loathe one another and disagree on most everything. But they agree on this: Dr. Clock, and her sunny, positive outlook, must be crushed.

They become particularly alarmed when they see Dr. Clock whistling the "Andy Griffith" theme song and getting patients, visitors and others to whistle along with her. "Dear God, she has an actual skip in her step," Cox says.

Something must be done! So Kelso asks Cox about their plan of attack. "When I crush a person's spirit," Cox says, "I like to use a combination of intimidation and degradation."

So they are off on a mission to teach Dr. Clock some lessons in hard knocks. But will the tables get turned? I won't ruin it for you. But for folks, who love to read great comedy, the script to "My Common Enemy" can be found here.

And before we go into my response to Mr. Krell, let's enjoy this video clip of highlights from "My Common Enemy."

Mississippi Churning, Part XXIII

Paul Minor and Dunn Lampton have been political adversaries for many years. In fact, their relationship sounds strikingly similar to that of Judge Mark Fuller and Don Siegelman in Alabama, which was presented in stark detail recently in an affidavit from Missouri attorney Paul Benton Weeks.

If anything, the Minor/Lampton relationship might be even more contentious than the Siegelman/Fuller pairing.

Before becoming a U.S. attorney, Lampton ran twice as a Republican for the U.S. Congress. Both times he lost, and both times his races were financed largely by companies that Minor had successfully sued. Included among these companies were firms owned or operated by members of Lampton's family.

Here is background on the history between Paul Minor and Dunn Lampton, pulled from public documents:

* Leslie B. Lampton is director, CEO, and chairman of the board of Ergon Inc., a Mississippi corporation that was No. 180 on the Forbes list of 500 top private U.S. corporations for the year 2003. Leslie Lampton is a relative of Dunn Lampton, and those closely connected to Ergon include Lee C. Lampton, William W. Lampton, and Robert H. Lampton. All made contributions to Dunn Lampton's political campaigns.

* Paul Minor successfully sued Ergon and recovered, or was awarded damages on behalf of his clients, in the millions of dollars. In July 2002, as the investigation in the Minor case was heating up, Minor entered an appearance for plaintiffs in a case against Ergon and one of its subsidiaries, Magnolia Towing, and was successful in having the litigation transferred to Oklahoma, where the matter settled for millions of dollars.

* During his campaigns for Congress, Lampton received campaign contributions from current Mississippi Governor Haley Barbour, then a professional lobbyist for Lorillard Tobacco Company. Lorillard is part of Loews Corporation, which owns 54 percent of Diamond Offshore Drilling. Diamond Offshore was the defendant in the Archie Marks case, in which Paul Minor represented the plaintiff.

* Lampton received a campaign contribution from Deloitte & Touche Federal PAC, an independent accounting firm that was employed by Diamond Offshore.

* Lampton received campaign contributions from Brown and Williamson Tobacco. Minor was a trial lawyer in lawsuits against tobacco companies and was awarded millions of dollars in attorney fees for his efforts in the litigation.

Think Lampton might salivate at the thought of Paul Minor being in prison? Think Lampton would uphold the public trust a prosecutor holds (as outlined here by Scott Horton of Harper's) in a case involving Paul Minor?

Our Corporate Courts

Speaking of the ExxonMobil case, Left in Alabama has an excellent post about our pro-business Supreme Court. Two Alabama newspapers have reported that the ExxonMobil ruling is not the only heavily pro-business judgment to come down recently from Alabama's highest court.

Not long ago, right-wing types called Alabama "tort hell" because of large jury awards to victims of corporate wrongdoing. The Tuscaloosa News reports that Alabama now might be called "tort heaven." In addition to the ExxonMobil case, the court reversed a Public Service Commission regulatory decision and favored BellSouth Telecommunications.

Terry Butts, an attorney for the PSC who served on the Supreme Court from 1995-98, flat out says the court screwed up on the BellSouth case. "Perhaps the dangerous precedent here is that the court is substituting their judgment over the regulatory agency," Butts said. "And that essentially is not the law in Alabama because, historically, regulatory-agency decisions are given great deference by the courts."

The Florence Times Daily reports that the BellSouth ruling was worth about $18 million, which the PSC had ordered refunded to independent pay-phone companies.

David Lanoue, chair of the political science department at the University of Alabama summed it up: "If you elect Republicans to the court, then you can expect your ability to punish corporations for wrongdoing will be diminished. If you elect Democrats, then you can expect that people will have recourse when they're harmed, but some (lawsuits) will also be abused."

I applaud Butts and Lanoue for their public statements on this issue. But they don't go far enough. Here's the blunt truth: Our Republican-dominated appellate courts are corrupt. I will show it firsthand, in bold detail, in the Legal Schnauzer case. And it doesn't just involve big-money cases and corporate behemoths like Exxon and BellSouth. I got cheated on a case that didn't involve big money or a large corporation. But it involved an attorney who was tight with the state's GOP hierarchy, so justice took a distance backseat to "good ole boy" practices."

I strongly suspect that when we begin our review of the ExxonMobil case, we will find there was more going on than slightly favoring one party over the other. I suspect the ExxonMobil case wasn't even a close call; the trial-court ruling had, by law, to be upheld. But the law was not followed. And it certainly wasn't followed in my case.

Our appellate courts have left a trail of cheating the public, of violating their oath to uphold the law. And we will follow that trail and lay it out for all to see here at Legal Schnauzer.

ExxonMobil and Don Siegelman

We noted recently the curious fact that Don Siegelman (in Alabama) and Paul Minor (in Mississippi) had successfully fought the tobacco industry, and both now are in federal prison.

Let's follow that line of thinking to the recent Alabama Supreme Court ruling throwing out $3.5 billion in punitive damages against ExxonMobil. A trial court had found that the oil giant committed fraud that would have cost the state of Alabama about $1 billion in fees for natural-gas rights. The pro-business supreme court found that no fraud had been committed, so Alabama citizens saw $3.5 billion fly right out the window.

What about the history of this case? According to the Associated Press, the royalty dispute started with former Governor Fob James' second term (1995-99) when state conservation officials began to suspect oil companies weren't paying as much as they should be under the leases. James agreed to hire auditors to look into the issue.

But who really pushed the issue upon becoming governor in 1999? None other than Don Siegelman. He hired the Mobile law firm of Cunningham Bounds Yance Crowder and Brown to represent the state in lawsuits involving oil companies. The firm must have done a pretty good job because it won at trial--twice. And both times the verdicts were overturned by the Republican-packed Alabama Supreme Court.

What was Siegelman's response upon learning of the jury's verdict in the first trial? "This verdict is appropriate because it is against a company that tried to cheat the people out of more than $1 billion," he said.

Think the boys of big oil enjoyed hearing those words? I don't think so either.

So Siegelman was in the face of both the tobacco and the oil companies. And what about Minor? Well, I know one of his cases, Archie Marks, involved a company that operated oil rigs. And given the importance of oil and natural gas in Mississippi and Louisiana, I suspect Minor has tussled with "big oil" on more than one occasion.

Is there a lesson to be learned here? Perhaps it's this: You fight the oil and tobacco industries, and a pro-business justice department will put you in federal prison?

Is that what we've come to in George W. Bush's America? Those are the signals I'm picking up. We are going to be taking a close look at the ExxonMobil case shortly. Haven't gotten all the way through my review yet, but the stench already is starting to get strong. Stay tuned.

By the way, the ExxonMobil case illustrates a key theme here at Legal Schnauzer. When folks hear someone claiming they were wronged by a trial court, the response often is something like, "Stop whining, take it to appeal." Well, that assumes the appellate courts are honest. And they aren't. (That also assumes you can afford to take it to appeal; the appellate process is extremely expensive.)

We will show in the Legal Schnauzer case that Alabama's appellate courts are not honest. And I strongly suspect my review will show that to be the case with the ExxonMobil ruling.

Mississippi Churning, Part XXII

Our coverage of the Paul Minor case in Mississippi has focused on the facts, the law, the judge (U.S. District Judge Henry Wingate), and the defendants (attorney Paul Minor and judges Wes Teel, John Whitfield, and Oliver Diaz).

But what about the prosecutor? That would be Dunn Lampton, U.S. attorney for the Southern District of Mississippi. He was appointed to that position in September 2001 by President George W. Bush.

In examining Lampton's central role in the Minor case, one cannot help but recall some of the clear conflicts and bizarre public statements involving key figures in the Don Siegelman case in Alabama. In terms of conflicts, we think of the judge in the Siegelman case, Mark Fuller. And in terms of bizarre public statements, we think of Louis Franklin, acting U.S. attorney for the Central District of Alabama.

Want to hear a bizarre public statement from Lampton? Try this one after the first Minor trial, which ended with acquittal for Diaz on all charges and acquittal for the other three defendants on some charges and a hung jury on others. (The jury's failure to reach unanimous verdicts on some charges led to a second trial for Minor, Teel, and Whitfield, and they were convicted on all charges.)

Lampton was asked about evidence showing that Diaz had recused himself from cases where Minor was an attorney. In other words, Diaz had not participated in the cases, but he faced corruption-related charges on them anyway. "I knew there would be a problem on Diaz because he didn't vote on anything," Lampton said.

You heard that correctly. The prosecutor knew the case against Diaz was weak--actually the case against Diaz was nonexistent--and he brought it anyway. And we have shown that the cases against Minor, Teel, and Whitfield weren't much stronger, and Lampton chose to try them--twice.

A jury found Minor, Teel, and Whitfield guilty, you might say, so the case must not have been too weak. But we've shown that the jury almost had to produce a guilty verdict because Judge Henry Wingate butchered the case--unlawfully excluding expert witnesses for the defense and and giving jury instructions on bribery and honest-services mail fraud that were blatantly at odds with actual federal law.

But enough about Wingate. Our focus now is on Lampton and his motivations for bringing a case that was spectacularly weak.

It's not hard to see where Lampton had conflicts--and probably raging biases--connected to the Minor case. Consider:

* Lampton is close friends with Keith Starrett, who once ran a losing campaign against Diaz for a seat on the Mississippi Supreme Court. But Starrett wound up with a nice consolation prize: an appointment to a federal judgeship in the Southern District of Mississippi. And who should preside over the swearing-in ceremony for Starrett? Why none other than Henry Wingate. And according to the Brookhaven Daily Ledger, Wingate had effusive praise for Starrett, calling him a "true star" in the judicial constellation and saying there is "no finer man in Mississippi." Lampton attended the ceremony and praised Starrett, whom he's known since they played Little League baseball together. How sweet.

* This is not so sweet. The Jackson Clarion-Ledger reported that the U.S. Chamber of Commerce injected about $1 million into Mississippi judicial races in 2000, some of which went to ads attacking Diaz (who was supported by Minor) and promoting his opponent, Starrett (who was supported by Lampton). And we're supposed to believe that Lampton was an objective, disinterested observer when he brought charges against Minor and Diaz?

* Here's something else that's not so sweet. At the beginning of the investigation into Minor's campaign-finance activities, special FBI agent Matthew Campbell, a forensic accountancy expert, was in charge of the investigation. When he questioned why Mississippi trial lawyer Richard "Dickie" Scruggs (brother-in-law of Senator Trent Lott, R-MS) was not being investigated, Campbell was removed from the investigation and transferred to Guantanomo Bay. (I'm sure there must be a strong need for forensic-accounting experts there.) The new FBI agent on the Minor case was Kevin Rust, who had made personal contributions to Starrett's failed campaign against Diaz. So both the lead investigator and the prosecutor have major reasons to be biased against both Minor and Diaz. But they are leading the charge.

You might think that this alone would call into question the objectivity of the Minor prosecution. But you would be wrong. We are just getting warmed up in our examination of Dunn Lampton's conflicts in the Minor case. More to come.