E-mails between Mike Hubbard and Bob Riley shine light on the "politics of destructive personalities"

Bob Riley

E-mails between House Speaker Mike Hubbard and former Governor Bob Riley provide circumstantial evidence that someone connected to the Riley administration caused my wife and me to be cheated out of our jobs in 2008-09. The e-mails and their timing also suggest that Hubbard, or an ally of his, helped cost one of the state's most experienced and respected journalists his job.

All of it hints that perhaps the state's two most powerful conservative political leaders have warped personalities.

The notion that someone on Team Riley caused me to be cheated out of my job as an editor at UAB in May 2008 is not new. I long have suspected that, mainly because a UAB human-resources official admitted that I was targeted because of my reporting about injustice in the Don Siegelman prosecution. No one has benefited more from the political destruction of Don Siegelman than Bob Riley and his children, especially the Birmingham lawyer duo of Rob Riley and Minda Riley Campbell.

When I tried to interview Rob Riley via phone in early 2013, his comments made it clear that he and "The Family" do not appreciate my reporting, to the point that Riley Jr. concocted a dubious defamation lawsuit that caused me to be unlawfully incarcerated in October 2013. (By the way, I tape recorded the conversation with UAB's Anita Bonasera, and the audio can be heard at the end of this post; I also have audio of the Riley interview, but it might collide with an unlawful permanent injunction that I'm under, so I will hold off on posting it for now.)

The Hubbard/Riley e-mails don't provide absolute proof about anyone's job loss. But they reveal a mindset where the speaker and former governor seem to have no qualms about ruining careers, almost as a form of political sport.

Bill Britt, of Alabama Political Reporter, provides insight on the Hubbard/Riley mindset in a new article titled "Email Sheds Light on Clerk's Removal and New Sheriff's Methods." Britt comes close to labeling Hubbard and Riley as sociopaths, a diagnosis that I would say is pretty much on target.

The primary lesson from the e-mail exchange, Britt reports, is that "Hubbard wants to protect Riley’s State contracts, and demonstrate his personal toughness to State House staff." Britt points to the ouster of Dianne Harper, long-time clerk of the joint Legislative Contract Review Committee, as an example of Hubbard's "tough guy" approach.

Britt also notes Hubbard's reference to an article about Harper's exit, by former Huntsville Times reporter Bob Lowry. It seems clear from the e-mail, dated February 11, 2011, that neither Hubbard nor Riley appreciates Lowry's ability to investigate such matters. In September 2011, roughly seven months after the Hubbard/Riley communication, Lowry was forced out of his job. Is that coincidence? We doubt it.

Let's take a closer look at the e-mail in question. It begins with Hubbard touting the joyful news that he has just turned 49 years old. The speaker quickly turns to more serious topics:

We are shaking things up at the State House, that's for sure. I need to fire about 4 or 5 people pretty soon to really set the tone that new sheriffs are in town and in control.

Notice that Hubbard does not indicate any of these people are doing a poor job and deserve to be fired. He just likes the notion of others suffering so that his "tone" can be set. Perhaps they will have wonderful birthdays while standing in unemployment lines.

Mike Hubbard

How does Riley react? The former governor doesn't seem to bat an eye. A relatively thoughtful person might say, "Mike are you sure that's a good idea to fire these people? Is it fair, is it necessary?" Or such a person might say, "You know, Mike, you can set the tone by doing a good job as speaker and demanding good work from those around you. You can set the tone by earning respect and treating others with respect. Wouldn't that make more sense than firing people who might not deserve to be fired?"

What was the chance of such a response from Bob Riley? It probably was zero. Here is part of what he said, and there is no indication he has any problem with Hubbard's plans to fire people:

Happy Birthday, Mike. . . . You are setting the agenda and getting more coverage than anyone! Keep it up!

In other words, "Fire even more people if you want to. It's working!" Why would Hubbard mention the firing plans to Riley? Probably because he learned such tactics from the governor himself. You can almost hear Hubbard waiting for a pat on the head from his mentor, like a dog who has brought in a wet newspaper from the sidewalk.

That brings us back to the warped psychology behind the Hubbard/Riley missives. Britt tries to explain it by pointing to a Psychology Today article titled "The Narcissistic Boss." That caught my attention because my former UAB boss, who played a significant role in my unlawful termination, displayed almost all of the following characteristics:

1. has a grandiose sense of self-importance

2. is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love

3. believes that he or she is "special" and unique

4. requires excessive admiration

5. has a sense of entitlement

6. is interpersonally exploitative

7. lacks empathy

8. is often envious of others or believes others are envious of him or her

9. shows arrogant, haughty behaviors or attitudes

As for Hubbard and Riley, I would suggest that they show major signs of sociopathy, with significant narcissistic traits. The main characteristic of sociopathy (also known as antisocial personality disorder) is lack of a conscience, a callous unconcern for the feelings of others. Interestingly, both sociopathy and narcissism are considered among 10 known personality disorders, and the two conditions share quite a few traits. In fact, psychologists place both of them in Cluster B of personality disorders, which are marked by erratic and dramatic behavior.

Both disorders are considered almost impossible to treat, and those who have them can inflict significant emotional damage on others.

This is from "Sociopath Next Door," an article by Allan Schwartz, Ph.D., at mentalhelp.net:

Perhaps the most difficult for the rest of us to understand is that the sociopath has absolutely no conscience. In other words, they are without any sense of morality or guilt. The cannot and do not empathize with others and how they feel. When most of us look at other people we feel a sense of commonality and shared humanity. That is why we find it difficult to believe that there is a type of person who does not share the kind of compassion and connectedness that characterizes most of humanity. . . .

No one knows what causes sociopathy except that there is accumulating evidence that it stems from parts of the brain that are abnormal. In other words, it's a biological problem that may be inherited. Early life experiences, such as having been abused, may contribute to worsening the sociopathy.

Hubbard has been indicted on 23 corruption charges, and the e-mails with Riley could become central to a criminal trial. But the psychological component of the communications might be of most interest to the public right now--and it paints a very ugly picture of politics in Alabama.

Al.com's Kyle Whitmire proves his ignorance about the law surrounding the Don Siegelman prosecution

Kyle Whitmire

Al.com's Kyle Whitmire, in the midst of a column yesterday urging President Obama to pardon NSA whistleblower Edward Snowden, declared that the prosecution of former Alabama Governor Don Siegelman was "fair."

The premise was that Snowden has been wronged and is deserving of a presidential pardon while Siegelman got what he deserved. We agree with Whitmire about Snowden, but the reporter simply reveals his ignorance about the Siegelman case. He also proves that just because an individual attends a court proceeding, it does not mean he has a clue about what went on.

By the way, this is the same Kyle Whitmire who admitted a few weeks back that he possessed court documents showing Republican political figure John Merrill had engaged in an extramarital affair and chose to hide them away in a drawer. That snafu became a statewide story when we broke the news that Whitmire ignored, publishing documents that exposed Merrill's dubious actions in a Tuscaloosa County divorce case styled Brinyark v. Brinyark.

Whitmire's actions in the Merrill case, plus his statements yesterday about the Siegelman case, add to the mountain of evidence that Alabama's largest news organization has a wildly biased viewpoint that favors the GOP. Did Whitmire feel the need to slam Siegelman in order to get back in good graces with his editors after bringing public embarrassment to al.com? I can see how a reasonable person might think that.

How does Whitmire sum up the Siegelman case? From yesterday's column:

Siegelman's sentence was stiff, and the man who delivered it, U.S. District Judge Mark Fuller, has proven himself to be a hypocrite. However, the former Alabama governor is right where he belongs.

Why should we put any stock in that assessment? Well, because our guy Kyle--by God--was at the trial:

The Free Don Siegelman narrative has been repeatedly proven to be fiction. . . .

I was there for Siegelman's trial, and it was fair. The former governor personally secured campaign loans. He all but extorted Richard Scrushy, among others, for money to pay them off. Scrushy obliged, and in return Siegelman reappointed him to the Alabama Certificate of Need Review Board, an appointment that was crucial for HealthSouth.

What good is it to attend a trial when you don't understand the law relevant to the case? Even worse, what kind of reporter are you if you apparently are too lazy to bother looking up the actual law? The answers to those questions place Mr. Whitmire in an unfavorable light--as do his words from Thursday's column. A brief dissection leaves Kyle standing naked in the public square:

* Who has repeatedly proven that the "Free Don Siegelman narrative" is a fiction? Whitmire doesn't say--and that's likely because no knowledgeable reporter or analyst has done it.

* How does Whitmire know the Siegelman trial was fair? He doesn't because he clearly has no understanding of the relevant law. The central charge was federal funds bribery under 18 U.S. Code 666. That statute is so muddled that many public officials have no idea whether they are following the law or not. That's why case law, in the form of McCormick v. United States, 500 U.S. 257 (1991), was central to the case.

Both sides agreed that McCormick was controlling law, and it's central finding is this:

. . . only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.”

This summarizes what commonly is called a "quid pro quo" (something for something) transaction. It is illegal, and if the prosecution proves beyond a reasonable doubt that two parties reached an "explicit" agreement on such a deal, it is grounds for a conviction.

If you want to find the guts of the Siegelman case, it's right there in McCormick. But you notice that Kyle Whitmire in his column never mentions McCormick or any of its provisions. He also never mentions that no "explicit agreement" was proven at trial, and no such instruction was given to the jury. In essence, the unlawful jury instruction provided by Judge Fuller (who is likely to face impeachment proceedings related to an assault on his wife) means that Siegelman and Scrushy were convicted of a "crime" that does not exist.

For anyone who wants to understand how the Siegelman case was, in fact, grossly unfair, we encourage a close reading of our post titled "How the 11th Circuit cheated Don Siegelman: A summary." It spells out five key mistakes that an appellate panel made in failing to overturn the Siegelman convictions.

Most alarming is this: By law, Siegelman and Scrushy could not even stand trial. That's because the alleged misconduct at the heart of the case took place almost one full year outside the five-year statute of limitations (SOL). Here's how we explained the facts and law related to the SOL:

So how did the government get away with bringing this case, much less winning it? It drafted an indictment that was vague, and when Siegelman/Scrushy moved for a bill of particulars that would have required a few specifics, the judge denied it. Defense attorneys raised the limitations defense in a proper manner for a case involving a vague indictment. But the trial court, and the 11th Circuit, wrongfully ruled that they had waived the defense.

It's public record that the alleged transaction took place in summer 1999, and the indictment came in May 2005. That's more than five years, so by law, the government had no case--but Fuller let them bring it, and the 11th Circuit allowed unlawful convictions to stand.

Kyle Whitmire would have us believe that such a wildly corrupt process was "fair"? No one with functioning brain cells should buy that.

The Unfrozen Caveman Lawyer is one of many comedic gifts that brilliant Phil Hartman left behind

Unfrozen Caveman Lawyer

As a journalist who seeks to expose court-related corruption, I've been accused of hating all lawyers. But that is not true. For example, I'm a huge fan of Cirroc, the Unfrozen Caveman Lawyer of Saturday Night Live (SNL) fame.

That especially is the case since I recently finished reading You Might Remember Me: The Life and Times of Phil Hartman, by former Chicago Sun-Times arts and entertainment writer Mike Thomas.

Hartman was the veteran comedic genius who brought the Unfrozen Caveman Lawyer to life. If you have been an SNL fan during its extraordinary 40-year run, you probably remember Cirroc's story:

A hundred thousand years ago, he was out hunting on the "frozen wastes" when he slipped and fell into a crevasse. In 1988, he was discovered by some scientists and thawed out. He then went to law school and became . . . Unfrozen Caveman Lawyer.

It was a goofy set-up right out of a comic book, and Hartman played it to perfection. He specialized in oily, ethically challenged characters who displayed a peculiar charm, such as B-list actor Troy McClure and ambulance-chasing lawyer Lionel Hutz on The Simpsons. Hartman's portrayal of former President Bill Clinton, stopping in a McDonald's while out on a run with Secret-Service agents, remains one of the great bits in SNL history.

A lot of comedians have done Clinton, but Hartman's will forever be the gold standard. Hartman's impersonation of Frank Sinatra is another that reached classic status.

As for the new biography, Thomas does a top-notch job of telling the bittersweet story of Hartman's life. Thomas takes us along for Hartman's youth in Canada, where he was known to entertain neighbors by walking in with a hearty "Hello, happy people!" We have a front-row seat for Hartman's days as a graphic artist, designing album covers for groups like America; Poco; and Crosby, Stills, and Nash. We learn about Hartman's formative years as a member of LA's renown improv group, The Groundlings.

While Hartman was known as the adult in the chaotic world of SNL--fellow cast member Jan Hooks nicknamed him "The Glue"--he struggled with a number of issues when out of the spotlight. He had a heavy appreciation for weed, a weakness for beautiful but often mercurial women, and a tendency to close himself off emotionally from those closest to him.

One of those beautiful women, his third wife Brynn, was wrestling with drug and alcohol addictions when she shot and killed Hartman in his sleep--and then turned the gun on herself, in a murder-suicide that rocked the entertainment world in 1998 and left Hartman fans in shock and grief.

He also left a string of memorable characters. Why am I so fond of Cirroc, the Unfrozen Caveman Lawyer? Well, for one, he always wins his cases, using a combination of faux cluelessness, stealthiness, and prehistoric charm to win over juries in a big way. Heck, Cirroc might even be able to find justice for me after my experience of being the only journalist to be incarcerated in the western hemisphere in 2013--and the only one this century to be thrown in jail over a purely civil matter.

In Hartman's honor, I've developed a routine at home that borrows heavily on Cirroc. For years, I've been quite capable of making my own microwave oatmeal for breakfast. But for some reason, I recently discovered that the whole experience is more pleasant if Mrs. Schnauzer makes the oatmeal for me. Here's how the bit usually goes:

Mrs. Schnauzer: How come you aren't able to make your own oatmeal anymore?

Me: I'm just a caveman. I fell in some ice, and scientists thawed me out. Your modern world confuses and frightens me.

Mr. Schnauzer: You didn't seem frightened before?

Me: Well now, when I hear the beeps and buzzers on your modern conveniences, I want to hop in my BMW and run for the safety of my place at Martha's Vineyard.

Mrs. Schnauzer: You have a place on Martha's Vineyard, and I don't know about it?

Me: Why yes, and even there, microwaves scare me. I think, "Are little bats in there flapping their wings to warm up my oatmeal?" I don't know! My primitive mind can't grasp these concepts.

Mrs. Schnauzer: Well, you had better grasp this concept: If you don't remember how to make your own oatmeal soon, a frying pan is going to start flying by your caveman head.

Me: Oh no, you're frightening me again. Pans that fly? How can that be?

I've managed to pull off this routine for several weeks, ever since I checked out the Hartman book from the library. Mrs. Schnauzer has been a good sport so far, but if I push it too far, I'm liable to be back out on the "frozen wastes" in no time. I'll keep readers posted on how Mrs. Schnauzer's patience is holding out.

Meanwhile, here is Cirroc working his caveman magic on a helpless jury:






This wouldn't be a real tribute to Phil Hartman if we didn't include his bit as President Clinton, wooing the public in a D.C. McDonald's:

Supreme Court's ruling in Branzburg provides foundation for jailing of journalists in criminal matters

From freepress.net

Five of the six American journalists who have been jailed in the 2000s, had their freedom taken away based largely on a U.S. Supreme Court case styled Branzburg v. Hayes, 408 U.S. 665 (1972).

The sixth journalist is me, and my freedom was taken away for five months based on . . . nothing. No U.S. law supports it. In fact, a long line of U.S. Supreme Court and state high-court cases specifically state that a preliminary injunction in a defamation case is an unlawful prior restraint under the First Amendment--and yet, I spent five months in the Shelby County, Alabama, jail after Republican political figure Rob Riley and lobbyist Liberty Duke sought my arrest because I allegedly had violated a preliminary injunction in their defamation case, a civil matter that involved no criminal allegations of any kind.

Never mind that the material in question was not found to be defamatory at trial. That's because, under specially appointed judge Claud Neilson, there was no trial--only a hearing, with no discovery, no cross-examination, almost no evidence, no jury . . . well, you get the idea. It was, in fact, a joke--as I stated to the court that day.

What separates my case from the other five that involve incarceration of journalists? Numerous differences come to mind, but the main one is this: Branzburg was the primary governing law in the other cases, and while I don't agree with the finding in Branzburg, it means that the other incarcerations probably were legal. Mine clearly was not legal, and even knowledgeable legal analysts who differ with me politically, agree on that.

The key issue in the other five cases involved efforts by journalists to protect confidential sources in criminal matters. Here is the core finding from Branzburg:

The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.

I disagree with court actions that led to the incarcerations of editor/publisher Timothy Crews (2000), free-lance writer Vanessa Leggett (2001), broadcast journalist Jim Taricani (2004), New York Times reporter Judith Miller (2005), and free-lance blogger/videographer Joshua Wolf (2006). But the Branzburg case provided legal precedent that probably made those rulings lawful.

Rob Riley

While my incarceration clearly was unlawful, litigants like Rob Riley and Liberty Duke (and judges like Claud Neilson) can try to take advantage of an area of law that is more muddled than it should be. The Reporters Committee for Freedom of the Press (RCFP) published a 2002 article, in the wake of the Vanessa Leggett case, showing that Branzburg leaves many questions unanswered--even in criminal cases. From the article, titled "Branzburg Revisited? Landmark ruling limiting reporter’s privilege turns 30, but release of jailed writer sparks call for review":

The jailing of a Houston book author for 168 days drew the attention of the national media and free-speech groups because of the oddity of a writer spending more than five months in jail when she was not even accused of a crime. . . .

Could (Vanessa) Leggett's case compel the U.S. Supreme Court to reconsider a muddled 30-year-old ruling on whether a reporter has a First Amendment right to keep sources confidential, especially in criminal cases?

The question is a sensitive one among journalists. The Supreme Court held in its 1972 decision in Branzburg v. Hayes that reporters had no privilege to refuse to appear and testify before state or federal grand juries. But a concurring opinion in the case, coupled with dissents from four justices, has been construed to give journalists at least a qualified privilege to withhold information in other circumstances. The fractured opinion left lower courts to figure out when and how the reporter's privilege should apply, and those courts have not decided the issues consistently.

The Supreme Court never again accepted a case that required it to clarify when a reporter has a privilege to withhold information. Press groups recognize the imperfection of Branzburg, but they worry that this court's conservative justices would erode reporters' rights if those justices took another look at the issue.

The U.S. Supreme Court has not looked at a case similar to Branzburg since that article was written almost 13 years ago, so the rights of reporters to protect confidential sources in criminal matters remain unclear. But the law in my case, a civil matter involving an unlawful prior restraint, is crystal clear. Writes Ken White, a conservative lawyer at the Popehat blog:

The order underlying Shuler's arrest is unconstitutional.

There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation. It comes from two sources: equity and the First Amendment

Injunctions are an equitable remedy, with their origins in courts of equity. Courts of equity applied discretion in an attempt to achieve just results, as opposed to courts of law bound to rules set forth in statutes. Courts of equity and law have been combined since the 19th century, but equitable traditions remain. An injunction is an equitable tradition because it is only supposed to be imposed when legal remedies — like monetary damages — are unavailable or inadequate. American courts have long held that equity will not enjoin defamation — that courts may not issue an injunction to prohibit someone from committing libel or slander because the victim can always sue for damages.

Then there is the matter of the First Amendment. Writes White:

Preliminary injunctions against defamation are even more strongly disfavored under the First Amendment. Here's how United Sates Supreme Court Justice Harry Blackmun put it in staying an injunction that a lower court had imposed forbidding CBS from running undercover footage of a beef processing plant in CBS, Inc. v. Davis, 510 U.S. 1315 (1994):

Liberty Duke

"For many years it has been clearly established that “any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971), quoting Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). “Where … a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1329, 96 S.Ct. 237, 254, 46 L.Ed.2d 199 (1975) (BLACKMUN, J., in chambers). As the Court recognized in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976), prior restraints are particularly disfavored:

'A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted…. A prior restraint, by contrast, … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.'

Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96 S.Ct., at 2802, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.Ct., at 2804.

Rob Riley has a law degree from Yale, but he obviously must have skipped class when important constitutional issues were being presented.

Are law-enforcement officers trained to cover up abuse by slapping bogus resisting-arrest charges on citizens?

(From "Photography Is Not A Crime" Web site)

Do law-enforcement officers intentionally concoct bogus resisting-arrest cases against citizens? Are officers trained to make false statements during confrontations in hopes it might turn attention away from possible excessive force/police brutality? Are judges, prosecutors, and other members of the "justice infrastructure" inclined to side with officers--even when evidence indicates they were in the wrong?

Based on my own experience of being charged with resisting arrest in Shelby County, Alabama, I would say the answer to all three questions is yes.

Someone else must think so, too, because we found the above photo/graphic on the Web. It shows a training officer telling a group of police-academy trainees, "Remember class: Always say, 'Quit resisting,' and 'I feared for my life.'"

These issues particularly resonate now because of two important lessons from recent days:

(1) The case against Alabama officer Eric Parker, in the beating of Indian grandfather Sureshbhai Patel, has wrongly been classified as a misdemeanor (third-degree assault). Under Alabama law, it must be classified as a felony (second- or first-degree assault). This suggests that someone in the aforementioned "justice infrastructure" is trying to let Officer Parker off easy.

(2) No citizen can be charged with resisting an arrest that was unlawful in the first place. Alabama law says that citizens have no duty to submit to anything other than a lawful arrest--and, in fact, we have the right to use reasonable force to resist an unlawful arrest.

As for the questions at the beginning of our post, let's consider the words and actions of Shelby County Deputy Chris Blevins in my case. I saw video of the incident during my resisting-arrest trial in January 2014--and having lived through the incident and seen a replay of it--I can't help but almost double over with laughter at the photo/graphic above. It's as if Chris Blevins was one of the dudes sitting in that class.

On the video, Blevins enters our garage, even though he has not shown a warrant, has not said he has a warrant, and has not said why he is on my property. I clearly tell him to get out of my house, but he ignores that. As I get out of my car and try to get to some stairs to walk up to our kitchen, the dash camera in Blevins' vehicle loses sight of us. Blevins follows me, and the garage door closes behind us--I must have reflexively pushed a button that closed the door, although I don't remember doing it. In fact, I remember saying to myself, "Don't close the door because you want this guy out of here."

We lose video of what takes place inside the garage, but the audio picks up everything. We also have Blevins' own account of the event from his incident report. (See report at the end of this post.)

What do we learn? Here are a few things:

(1) Blevins repeatedly is heard saying "Don't fight me, don't fight me," even with all kinds of noise in the background--which is the sound of him pushing me up against a heavy dog pen, hard enough to move it several feet, and through two stacks of boxes. By Blevins' own words in his report, he initiated physical contact with me, not the other way around, and the only action I took was to raise my arms in front of my face, which I did mainly to keep my glasses and/or nose from being broken. Our photo/graphic above is supposed to be a joke, but it isn't; like most good humor, it's based in reality. Blevins used slightly different words--"Don't fight me," instead of "Quit resisting"--but otherwise, it's like he was sitting there taking notes from the training officer in our illustration.

(By the way, Blevins does state several times in his incident report that I 'resisted,' but he never says how. In fact, his own words show that I did nothing that amounts to resisting arrest. Also, Blevins admitted at my resisting-arrest trial that his actions amounted to a traffic stop, under the law--and that has profound consequences for what took place on the night of October 23, 2013, inside my garage. More on those two issues coming in a future post.)

(2) Is Blevins trying to create the tried and true "I feared for my life" scenario? It sure looks that way when you read his words in the incident report. First, he states that I put my "right hand in my right front pants pocket." This seems to hint that he feared I might have been reaching for a weapon in my pocket--perhaps an assault rifle was stored in there. What was the reality? I had just gotten out of my car so--surprise, surprise--I was putting my car keys in my pocket. (By the way, Blevins says he grabbed my arm as I put it in my pocket. And yet, he says I pushed a button to close the garage door. How did I manage to do that if he had grabbed my arm? Did he push the button to close the garage door? I don't know.)

Then, Blevins states that the garage was "darkened," with "only a dim bulb on the garage opener." Most garages, particularly those (like ours) that are partially underground, tend to be fairly dark. But ours has a large window on the side wall and six to eight small windows across the double garage doors. There was quite a bit of light coming in, and Blevins' vision should have been good enough to see that nothing in our garage posed a threat to him--and he never says I was trying to grab any object anyway.

I think Blevins and his colleagues intended to rough me up a good bit--Officer Jason Valenti can be heard on video threatening to break my arms while assisting in handcuffing me--and I think they also planned to set up a "resisting arrest" scenario, one that was contrary to facts and the law. A resisting-arrest charge, I'm guessing, takes the spotlight off their own misconduct and puts it on me.

As for the "justice infrastructure," prosecutor Tonya Willingham was instructed to turn over copies of any warrants, and she replied "Your Honor, we have no warrants." And Judge Ron Jackson, having just been told that this was not a lawful arrest, convicted me of resisting arrest anyway.

The trial was on January 14, 2014, and I had been in jail since October 23, 2013, with no opportunity to prepare a defense. Jackson denied my request for a continuance, so in essence, I was not allowed to actually prepare a defense on resisting arrest. Even so, I knew that resisting applied only to a lawful arrest, and I argued that this did not involve a lawful arrest--after all, it was a matter of court record that no warrant existed.

Jackson wasn't hearing any of it--his mind clearly was made up before the proceeding even began--so I was faced with an $845 fine, and I now have a criminal record. I also have had the pleasure of seeing my photo listed on "Shelby County's Most Wanted" for several months, long after the fine had been paid.

Last time I checked a couple of weeks ago, the "Most Wanted" photo finally had been removed--only after I alerted the sheriff's office that the fine had been paid for months.

I've written extensively about the emotional and physical trauma of being roughed up inside my own home and being incarcerated for five months. I'm still living with that, but the resisting-arrest case presents a more subtle form of damage that members of the "justice infrastructure" have inflicted on me--and I'm sure countless other citizens have had to deal with it.

It was bad enough that my picture was on the Shelby County Sheriff's Web site for the five months I was an inmate--on a contempt of court charge that is contrary to more than 200 years of First Amendment law. But imagine having your photo on a "most wanted" Web site for a "crime" you did not commit, even after the fine for said "crime" long has been paid.

What kind of smear job does that do to your reputation? Where does a law-abiding citizen go to get his reputation back?

Shuler Arrest-Incident Report by Roger Shuler

Alabama law makes it clear: You cannot be charged with resisting an arrest that was unlawful to begin with

Liberty Duke

Evidence strongly suggests that my October 2013 arrest, by an Alabama deputy who neither showed a warrant nor said he had one, was unlawful. So how on earth was I charged with "resisting arrest," and convicted, resulting in a fine of $845? For that matter, how did I wind up incarcerated for five months on an arrest that was conducted outside the law?

None of that can happen in a place where the actual law means anything. But we are talking about Shelby County, Alabama, and District Judge Ron Jackson--who I knew from previous experience has a tendency to pull "law" from some dark place underneath his robe. We also are talking about powerful conservative legal/political figures, led by Rob Riley and lobbyist Liberty Duke (and God knows who else behind the curtains) who wanted me in jail to stop my reporting on this blog.

Here is the fundamental question we asked in a recent post: Can you be charged with resisting an unlawful arrest? The answer is no, and here is why:

Code of Alabama 13A-10-41 (Resisting Arrest) states:

A person commits the crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from affecting a lawful arrest of himself or of another person.

Was my arrest lawful? No, it was not--on at least three grounds:

(1) Officer Chris Blevins entered our home without showing a warrant or saying he had one. At my resisting-arrest trial, prosecutor Tonya Willingham was instructed to turn over any warrants as evidence, and she said, "Your Honor, we don't have any." At this point, it's a matter of public record that there was no warrant for my arrest. Either that, or Ms. Willingham withheld evidence, which could cost her law license. Entering a dwelling without a valid warrant violates a landmark U.S. Supreme Court case styled Payton v. New York, 445 U.S. 573 (1979). (That case involves serious Fourth Amendment issues, and we will examine it further in upcoming posts.)

(2) Officer Mike DeHart "served" us with Rob Riley's lawsuit via an unconstitutional traffic stop. I contested service as improper and invalid, and that placed the burden on Riley and Duke to prove that service was conducted properly. No hearing ever was held on that subject once I filed a Motion to Quash Service. (I did not "ignore" the lawsuit, or a court order, as has been widely reported: I responded by challenging service, as any semi-competent attorney would have done under similar circumstances.) The plaintiffs never proved lawful service, so that means the court did not have jurisdiction over me. And that means both my arrest and incarceration were unlawful--ordered by a court and a judge (Claud Neilson) who had no authority over me. It's hard to imagine a more grotesque violation of constitutional rights than that.

Rob Riley

(3) My arrest was based on alleged violation of a temporary restraining order (TRO) and preliminary injunction in the Riley/Duke defamation case. But more than 200 years of First Amendment law prohibits such actions as "prior restraints" on free speech. In other words, they prohibit speech before it has been found unlawful at trial--and there was no trial in the Riley/Duke case, meaning my reporting still has never been found false or defamatory in any legitimate proceeding. All of this is governed by a landmark U.S. Supreme Court case styled Near v. Minnesota, 283 U.S. 697 (1931). My arrest might represent the most flagrant violation of Near in American history.

What is Alabama case law on the subject of resisting arrest. It's spelled out in a 2013 federal-court case styled Rigas v. City of Rogersville:

Under Alabama law, a person commits the crime of resisting a lawful arrest by preventing or “attempting to prevent a peace officer from affecting [sic] a lawful arrest of himself or of another person.” Ala. Code § 13A-10-41. An arrest without a warrant, as here, may be effected “if a public offense has been committed or a breach of the peace threatened in the presence of the officer.” Ala. Code § 15-10- 46 3(1). There is no Alabama law or practice criminalizing resistance of an unlawful arrest, however. See Shinault v. City of Huntsville, 579 So. 2d 696, 698 (Ala. Crim. App. 1991); see also id. at 699–700 (Bowen, J., concurring). Indeed, Alabama law has historically permitted use of reasonable force to resist an unlawful arrest. Ala. Code § 13A-3-28 Commentary (1975) (“Alabama law . . . allows a person to use reasonable force to resist an unlawful arrest.” (alteration supplied)) (citing Spooney v. State, 217 Ala. 219, 225 (Ala. 1928); Brown v. State, 109 Ala. 70, 91 (Ala. 1895); Tarwater v. State, 75 So. 816, 817 (Ala. Crim. App. 1917));see also, e.g., Brown, 109 Ala. at 91 (“It is not the duty of the citizen to submit to any other than a lawful arrest. It has been said the duty ‘is found in the law side by side with the right of resistance to an unlawful one . . . .’” (alteration supplied) (quoting Drennan v. People, 10 Mich. 169, 186 (Mich. 1862)).

Note the powerful language, that a citizen has no duty to submit to an unlawful arrest. Also note that this law has roots that date to at least 1862.

Is it any wonder that California lawyer and conservative legal analyst Ken White, of the Popehat blog, smelled something funny about my arrest and incarceration:

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

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

Popehat wrote four posts about my incarceration, and while I take issue with some of his statements, his analysis of the law is on target--both on the First Amendment and, as here, on the Fourth Amendment.

Below is the Motion to Quash Service that my wife and I filed in the Riley/Duke case. It is not time stamped because we filed it on a Wednesday, the day the clerk's office is closed in Shelby County. But it was timely and properly filed, shifting the burden of proving lawful service to the plaintiffs, which they never did because no hearing was held on the subject. In fact, I was awaiting notice of such a hearing when I was arrested on October 23, 2013.

Rob Riley Lawsuit--Quash Service by Roger Shuler

Investment group points to lavish spending on sports cars and private jets under Ted Rollins' leadership

Ted Rollins

A group of activist investors seeks to take Campus Crest Communities in a more professional direction following the ouster of founding CEO Ted Rollins amid allegations of profligate spending. News reports indicate New York-based Clinton Group Inc. might engage in a proxy fight to take over the company

A letter dated February 16, 2015, from a portfolio manager for Clinton Group, states that executives under Rollins made extensive use of luxury sports cars and private aircraft. Clinton Group has developed a partnership with Campus Evolution Villages (CEV) in an effort to reshuffle the management team and get Campus Crest on a profitable path.

The wild spending under Rollins came as his ex wife, Sherry Carroll Rollins, and their two daughters were forced to periodically live off food stamps in Birmingham. That's because of a grossly unlawful divorce decree issued in Shelby County by Circuit Judge Al Crowson. The judgment was wildly one-sided in Ted Rollins' favor, especially when you consider that Sherry Rollins initiated divorce proceedings in Greenville, South Carolina, where the family lived--meaning jurisdiction was established there, and the case could not lawfully be heard in Alabama.

On top of his personal ties to Alabama, Rollins has strong business connections to the state. His corporate law firm is Birmingham-based Bradley Arant, and Campus Crest developed student-housing properties at four state universities (South Alabama, Troy, Auburn, and Jacksonville State). A project at the University of Alabama was canceled when Rollins was ousted last November.

Recent articles in the business press use terms like "blunders" and "loss of credibility" to describe Rollins' performance. But the issues were much uglier than that.

As Rollins convinced Wall Street to heap more than $800 million on his company, we were reporting about his conviction for assault in the brutal 1995 beating of his stepson in Franklin County, North Carolina. (See documents at the end of this post.) We also reported that Rollins had been the subject of a social-services investigation, based on a citizen complaint in North Carolina about possible sexual abuse of the same stepson.

Wall Street was well aware of the messiness in Rollins' personal life. Paula Poskon, an analyst with Robert W. Baird and Company, learned in October 2012 about Rollins' criminal record and the child sexual-abuse allegations. Poskon's reaction to this news? "Oh, my God, I was not aware of any of that. . . . It certainly sounds like I need to do a lot more digging."

Did Poskon do more digging? Apparently not. A few months later, she tried to strong arm me into retracting her statements about Ted Rollins.

Wall Street did not get alarmed, it seems, until Campus Crest Communities took a financial nosedive under Ted Rollins' leadership.

It's unclear if Clinton Group knows, or cares, about the ugliness in Ted Rollins' past. But the investment group clearly is unhappy with the way Rollins conducted his business affairs. From the aforementioned letter, written by senior portfolio manager Joseph A. De Perio:

In forthcoming proxy materials, we will expound in great detail on all the missteps of the Company overseen by the Board of Directors. And we will expose what we see as a lack of leadership and strategy both in the executive suite and at the Board of Directors itself, severely lacking management and board governance and approval processes (as evidenced by questionable site selection and construction practices), weak operating procedures, all of which (and much more) has led to operating results that fall well behind the Company's peers.

The Board of Directors, the majority of which has been in place since the IPO in October 2010 has overseen shareholder value destruction of 43% since the IPO. All the while, the Board has lavished the Company's executives with luxury sports cars (the Maserati and the Tesla are the ones we know about) and excessive use of private aircraft from a related party. In addition, we will raise questions about the other related party insurance transactions between Fortegra and CCG, the low stock ownership of the Board, and lavish corporate spending.

That's tough talk, and De Perio was just getting warmed up. He and his partners clearly plan to take the company in a new direction, one way or another:

We are sending this letter to the incumbent Board of Directors now as we believe a costly and distracting proxy contest should be avoided for the benefit of Campus Crest's shareholders. In our last two proxy contests in which we sought and prevailed in replacing a majority of directors, Stillwater Mining, Inc. and EVINE Live, Inc. (fka ValueVision Media, Inc.), management and incumbent directors spent $4.3 million and $3.5 million, respectively, on defensive and entrenchment endeavors. Our expenditures were a fraction of those amounts, as we were spending our own money and not the shareholders', and the proxy contests ended in decisive votes in favor of Clinton Group's nominees.

We are available if the incumbent Board of Directors would like to have a meaningful discussion, but we continue to ready our proxy materials and shareholder communications. We plan to encourage other shareholders to contact us to find out more about the details of our plans and the expertise of the players involved and will further encourage them to speak their minds to the Company's existing leadership.

We've shown that Ted Rollins tends to create messes in his personal life--the documents below are proof of that. Now we know that he also creates messes in his business life.

It looks like Clinton Group is determined to clean this mess up.

Ted Rollins Arrested for Assault by Roger Shuler

Ted Rollins Convicted of Assault by Roger Shuler

The level of violence that was inflicted on Sureshbhai Patel also was used on me--inside my own home

Sureshbhai Patel

By now, millions of readers around the globe have seen the photo of Sureshbhai Patel in a Huntsville hospital bed, with a spinal injury that an Alabama police officer inflicted.

Like many people, I view the picture with a mixture of anger and disgust. I also look at it and think, "That could have been me."

I've viewed the video of Officer Eric Parker body slamming Patel probably two dozen times, and each time I feel like wincing. That's because law enforcement has used a similar level of violence against me.

According to the words of Shelby County deputy Chris Blevins (see incident report at the end of this post), he threw me to the concrete floor of my garage on October 23, 2013. A more accurate description would be to say that Blevins shoved me as hard as he could--I weigh about 90 pounds more than Patel, but Blevins is significantly bigger than Officer Parker.

Patel was thrown down one time, and I went down three times. He went down on grass, and I went down on concrete. Like Patel, my hands were in a position (trying to protect my face) where I could not use them to break my fall. (Ironically, Patel has been described in several accounts as "elderly," but he's a year younger than I am.)

I did not escape injury--I had cuts, bruises and abrasions up and down my legs, back, and arms. In some cases, I still have the scars--and they probably will always be with me. I now have chronic shoulder pain, which probably started the night of my arrest and got worse from sleeping on metal/iron beds, with almost no cushioning, for five months in jail. (Deputies twisted my arms behind me to apply handcuffs, and Officer Jason Valenti can be heard threatening to break my arms on the video of my arrest. My shoulders are so sore and stiff right now that I struggle to put on a coat.)

How did I manage to not wind up in a hospital bed like Sureshbhai Patel? At the time, I was in fairly good shape for my age, and that probably helped. But mainly, I got lucky because several objects in our garage broke my falls.

First, was a heavy dog pen that belonged to our late miniature schnauzer, Murphy, for whom this blog is named. The pen is solid, to the point that you need to use your shoulder and grunt to move it. Blevins shoved me into it hard enough to move it about three feet. The force left a nasty welt on my back.

On two other occasions, Blevins shoved me into a stack of boxes, which I long had been planning to throw away. This was a case of procrastination paying off because the boxes probably kept my head from hitting the concrete with significant force. Just behind the boxes were a set of free weights, made of solid metal. Had my head hit those . . . well, I might not have survived long enough to make it to a hospital--or to jail.

The video from Huntsville shows that Officer Parker had utter disregard for the well-being of Patel, even though there was zero evidence that the grandfather from India had been involved in a crime. Officer Blevins showed the same disregard for me--and he knew for sure I hadn't committed a crime. Blevins supposedly was acting on a warrant for contempt of court in a civil case, but video of my arrest shows he never told me he had a warrant and never showed a warrant.

Based on courtroom evidence in my "resisting arrest" trial, there was no warrant. And that means my arrest and five-month incarceration essentially were a state-sanctioned kidnapping.

I'm sure Mr. Patel is able to see only a limited number of visitors right now, but I would love to meet him someday. First, I would like to apologize on behalf of my country. I would like to let him know that Alabama has long been a deeply troubled state, even though it has many positive qualities to recommend it. But mostly, I would like to let him know that he isn't alone, that something similar happened to me--and if he and I have the will to stand up against law-enforcement abuse, maybe it will cease someday in the USA.

Shuler Arrest-Incident Report by Roger Shuler

Are the criminal investigation of Mike Hubbard and my unlawful incarceration somehow connected?

Rob Riley

Many Alabamians probably are still trying to pick their jaws off the floor following reports Friday about evidence in the prosecution of House Speaker Mike Hubbard (R-Auburn). The material includes Hubbard e-mails--many of them to and from former Governor Bob Riley--that spotlight the speaker's financial woes, his whiny demeanor, and his utter disregard for the rights and feelings of others.

A report from John Archibald, of al.com, carried an appropriate headline: "Stunning e-mails paint Alabama House Speaker Mike Hubbard as desperate for money, favors." The conservative news outlet found Hubbard's words so embarrassing that it followed up with an editorial calling for his resignation. From the editorial: "His own emails show [Hubbard] to be venal and grasping and unconcerned with boundaries between public business and his private interests."

The worst for Hubbard might still be out there. According to the state's response to Hubbard's Motion for a More Definite Statement, it turned over more than 2.5 million pages of documents on February 17, 2015, outlining the case against the speaker. That apparently means the documents made public last Friday are a small sampling of the material gathered against Hubbard. What other embarrassing and illuminating documents might become known at trial?

All of this, plus another recent news article that received relatively little attention, raise the following question: Was my unlawful arrest and incarceration somehow connected to the grand-jury investigation of Hubbard and others in Lee County? Let's follow the evidence that we have so far:

Former Deputy Attorney General Sonny Reagan retained lawyers Rob Riley and Bill Baxley in fall 2013, according to a recent report at Alabama Political Reporter (APR). What else happened in fall 2013? I was arrested and spent five months in the Shelby County Jail on the heels of defamation lawsuits filed by . . . Rob Riley and Bill Baxley.

Is all of this somehow connected? Since I was released on March 26, 2014, several knowledgeable individuals have told me they believe my incarceration was connected to the ongoing grand-jury investigation in Lee County, Alabama. I've never been sure about that, but the new report from APR's Bill Britt shows that Riley, Baxley, and Reagan were joining forces at pretty much the same time of my arrest.

Was my incarceration designed to ensure I was not available to report on news that might come out of Lee County? Were Rob Riley, Bill Baxley, Mike Hubbard, and others concerned that my sources would provide damaging information about the Riley political machine? I'm starting to think the answer might be yes--although I doubt the Lee County probe was the only motivating factor.

We do know this for sure: Rob Riley's lawsuit led directly to my incarceration, and his case bears little or no resemblance to a normal defamation complaint--in fact, it repeatedly seeks remedies that are not sanctioned by law. That strongly suggests an ulterior motive was in play.

How might all of this fit together? Well, it's complicated. Hubbard, the primary target of the Lee County investigation, has been indicted on 23 criminal counts--and Britt reports that Riley long has represented Hubbard. Reagan testified before the grand jury and wound up being forced to resign from the Attorney General's Office following charges that he leaked information to possible targets of the investigation. To whom did he leak the information? We do not know.

But thanks to Britt's reporting, we know Reagan must have smelled trouble brewing for quite some time because he retained Baxley and Riley as far back as fall 2013. Let's follow this curious timeline:

Mike Hubbard

According to published reports, the Lee County grand jury convened in August 2013 and started calling witnesses in October of that year. When was I arrested? That came on October 23, 2013--supposedly because I violated a preliminary injunction in Riley's defamation lawsuit. Never mind that more than 200 years of First Amendment law says such an injunction in a case of alleged defamation represents an unlawful prior restraint. Never mind that even right-wing legal analysts, such as Ken White at the Popehat blog, have written that my arrest was wildly unlawful and contrary to long-settled First Amendment law. Never mind that none of my reporting ever has been found false or defamatory at trial, but I wound up in jail, with a judgment against me, anyway--thanks to retired judge and Riley sycophant Claud Neilson.

We already have pointed to evidence that Riley's lawsuit was not really about defamation. From a post dated October 7, 2014:

Let's consider a few elements of Riley's claim--and contrast them with actual defamation law:

* Riley immediately asked for a temporary restraining order (TRO), followed by a preliminary injunction--A long line of state and U.S. Supreme Court cases show that TRO's and preliminary injunctions are barred as unconstitutional prior restraints in defamation cases. One of the most recent examples is a Virginia case styled Dietz v. Perez, which involved a woman writing a negative review about a construction contractor on a couple of Web forums. The foundational case on the subject is a 1931 U.S. Supreme Court case styled Near v. Minnesota, which was built on roughly 200 years of First Amendment law.

* Riley did not ask for a trial--Longstanding law holds that an injunction in a defamation case is proper only after a full adjudication on the merits, at trial. This principle is spelled out in a 1973 U.S. Supreme Court case styled Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376. It is discussed in more full detail in a 2007 California case styled Balboa Island Village Inn v. Lemen, 156 P.3d 339 (Cal. 2007).

* Riley asked for a judge to rule on the case, not a jury--The law holds that the First Amendment enjoys an exalted place in our democracy, and such cases are to be decided by a jury. To allow bench trials on such matters is to invite censorship by a single judge. Juries are deemed necessary to protect the cherished right to free speech. This principle is perhaps best discussed in Bernard v. Gulf Oil Co., 619 F. 2d 459 (Fifth Circuit, 1980).

Rob Riley sought an unlawful TRO and preliminary injunction, he did not seek a trial, and he did not ask for a jury. All of this violates clear law, and indicates his lawsuit was really about something other than defamation. In fact, his case never even looked like a defamation claim.

The recent APR report tells us that Rob Riley's mind very much was on the Lee County investigation at the time he asked Judge Claud Neilson to order my arrest--a move that has zero support under the law. In essence, Rob Riley asked for me to be kidnapped--and he also asked for my wife to be kidnapped, even though she had nothing to do with my blog at the time.

Why would a major Republican political figure take such desperate and wildly unlawful steps? We don't have a definitive answer, but we do have other questions: Will Alabama Republicans start to drift away from Mike Hubbard in the wake of his embarrassing e-mails? Will Sonny Reagan face criminal charges and possible disbarment for leaking grand-jury information, along with those to whom he leaked?

If we get to that point, the Lee County story will really heat up--and the mask might get pulled off some of the bad actors who have turned Alabama into one of the nation's most corrupt states.

Is an Alabama cover-up under way to wrongly classify the Sureshbhai Patel assault as a misdemeanor?

Sureshbhai Patel

Who made the decision to charge Officer Eric Parker with a misdemeanor in the body-slamming assault on Sureshbhai Patel, a 57-year-old grandfather from India? We have yet to find anyone who wants to take "credit" for the decision--and maybe that's because the decision is wrong.

Under the facts and law of the case, Parker should be charged with a felony. That he isn't suggests someone in authority is trying to protect law enforcement in Madison, Alabama, from even more embarrassment than it's already received because of the Patel incident.

Who might be trying to cover up for Officer Parker? Well, news reports indicate Lt. Terrell Cook, of the Madison Police Department, had something to do with the charge of third-degree assault, a misdemeanor. We contacted Lt. Cook via e-mail to ask if he made the determination that the assault on Patel should be classified as a misdemeanor--and if he didn't, could he refer us to the individual who did? Lt. Cook has not responded to our query.

Meanwhile, al.com seems to be indirectly participating in a cover-up, with assistance from a University of Alabama law professor. That comes in a February 20 article titled "Why wasn't Madison police officer charged more harshly in Indian grandfather assault case? A former judge explains," by Anna Claire Vollers.

There is a slight problem with the article. Vollers chose as her "expert" a former circuit judge and current UA law professor named Joseph Colquitt--and he doesn't know what he's talking about, or he's intentionally trying to mislead the public.

Colquitt proves an adage I've known for some time--if you want to know the actual law in a particular situation, the last person to ask is a judge or former judge.

To be sure, Colquitt does a good job of sounding authoritative, as Vollers writes:

"We aren't dealing with what we think the law should be or ought to be, but what the law is," says Judge Joseph Colquitt, who spent 20 years as an Alabama circuit court judge and is now a law professor at the University of Alabama School of Law where he teaches criminal law, capital litigation, criminal procedure and criminal sentencing.

"You have to analyze the facts you have, and see where those facts could fit amongst the charges."

At this point, Colquitt is on solid footing, and his statement supports what I did in preparing my post (see link in first paragraph) that shows the misdemeanor charge is wrong--under the law, as it is.

Where does the al.com article go wrong? Well, the article is written in a peculiar manner, but it seems to go off track in two ways:

(1) The issue of "serious physical injury"-- Under Alabama law, misdemeanor assault (third degree) applies only in cases involving "physical injury," which can be as minor as a cut, bruise, or abrasion. Patel sustained a spinal injury that required surgery and caused partial paralysis. Based on the most recent reports, his condition is improving, but it's still not clear he will regain full use of all his limbs. Under Alabama law, that easily fits the definition of "serious physical injury"--and that means a third-degree, misdemeanor charge does not fit.

(2) The issue of "intent"-- Colquitt correctly states that a felony assault (second or first degree) requires a showing of intent--and, per Vollers, he states:

"The difference (between second- and third-degree assault) is in the nature of the injuries," said Colquitt. "Assault in the second degree is not only that a person suffered serious physical injury, but it has to be proved that the (perpetrator) intended serious physical injury. That's a little more difficult to prove."

Actually, it's not that difficult to prove in this case, or any other case, under Alabama law. And even if it were, that's not grounds for classifying the Patel case as a misdemeanor. In fact, a third-degree charge automatically is excluded because we are dealing here with a "serious physical injury." Colquitt seems to be violating his earlier statement about dealing with what the law is. At this point, he seems to say we should go with the charge that's easiest to prove, regardless of what the law says.

As for what the law says about intent, it is spelled out in a case styled Wells v. State, 768 So. 2d 412 (Ala. Crim. App., 1999). From the Wells decision:

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

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

Under Alabama law, various body parts, such as hands and fists, can be classified as deadly weapons. (See Hollis v. State, 417 So. 2d 617 (Ala. Crim. App., 1982.) That would seem to be especially true in this case, where Officer Parker apparently was trained in self defense and martial arts.

Intent can be proved in two ways:

(1) Use of a deadly weapon--Parker's hands qualify under the law, and those are what he used to inflict "serious physical injury" upon Patel.

(2) The character of the assault--The video makes it clear that Parker said he was going to "put you on the ground" if any jerking action continued. The video does not show Patel jerking away, but Parker body slammed him head-first to the ground anyway. It can be inferred from those facts that Parker planned in advance to use a violent technique on Patel--and it resulted in "serious physical injury."

Back to our original question--who made the decision to classify the Patel assault as a misdemeanor? A February 17 article at al.com points toward Lt. Terrell Cook:

In the criminal complaint against Parker, Lt. Terrell Cook of the Madison Police Department states there is probable cause for believing that Parker "recklessly caused physical injury" to Patel by slamming him to the ground.

Based on that article, I sent the following e-mail to Lt. Cook

Lt. Cook:

I am a journalist with the Alabama-based blog Legal Schnauzer. Al.com yesterday (2/17/15) quoted you as stating there is "probable cause for believing Parker recklessly caused physical injury" to Mr. Sureshbhai Patel, from India.

Did you make the determination that Officer Parker should be charged with a misdemeanor, as opposed to a felony? If not, do you know who made that determination?


Thank you,


Roger Shuler

If Cook had responded and said he made the decision to charge a misdemeanor, I was going to ask if he was aware of the difference under Alabama law between "physical injury" and "serious physical injury." I also was going to ask if he seriously thought Patel's spinal injury was equivalent to a cut or bruise. Alas, I have not heard back from Lt. Cook.

As for the Anna Claire Vollers article, it's . . . well, it's strange. Prof. Colquitt never actually says the misdemeanor charge is correct; he performs a peculiar dance around the subject and more or less says, "Well, it would be easier to prove the misdemeanor, so that's the way to go."

But that's not what Alabama law says. It says that a misdemeanor charge is proper only in a case resulting in "physical injury." A case involving "serious physical injury," as both Vollers and Colquitt seem to admit is present in the Patel case, must be charged as a felony, either second- or first-degree assault.

On top of that, actual Alabama law makes it clear that intent is not particularly difficult to prove.

The Vollers/Colquitt article mainly serves to muddy the waters on an issue that is not all that complicated--Eric Parker cannot lawfully be charged with a misdemeanor; he left a man with "serious physical injuries," so the charge has to be a felony.