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Tuesday, August 23, 2016

Tuscaloosa lawyer John Fisher Jr., arrested on charges of trafficking methamphetamine, had gone on Facebook to trash people who use illegal drugs


John Fisher Jr.
(From nydailynews.com)
The Alabama lawyer who was arrested Friday for methamphetamine trafficking had used Facebook to rant against those who use illegal drugs.

That is one of the nuggets we learned yesterday as the story of Tuscaloosa attorney John Fisher Jr. made national, even international, headlines -- including commentary from one of America's best-known legal analysts.

The New York Daily News portrayed Fisher, who was arrested with Christopher Shane Rushing, as a colossal right-wing hypocrite. The Daily News focused on comments Fisher had made at the Facebook page for his radio show. Writes reporter Alfred Ng:

Fisher has publicly spoken out against illegal drug use in the past on his radio show’s page.

In one post defending gun owners, he called himself a “law abiding citizen” and criticized the government for not spending more resources on taking drugs off the streets.

“Illegal drug use is a MUCH more expensive drain on society in terms of healthcare and work issues,” he wrote in his rant.

Fisher is a "law abiding" guy -- at least if you don't count meth trafficking? Geez, this guy takes conservative hypocrisy to galactic levels. And like many conservatives, he doesn't seem to show the slightest concern for the misfortunes of others -- in fact, he mocks them. Fisher went out of his way to knock an Alabama family that had wrestled with substance abuse. Writes Ng:

In 2013, he also called out Alabama’s then-secretary of law enforcement Spencer Collier after his son Christopher Collier was arrested for selling Oxycodone pills.

The UK Daily Mail took the Fisher story to international levels. Reporter Ariel Zilbert shines light on Fisher and Rushing's behavior:

The two men were alleged to have been in possession of 'one-pot' meth labs.

One-pot labs are methods by which individuals can manufacture the drug with chemicals and a plastic bottle, thereby making it harder for authorities to track down offenders who eschew the large, traditional drug laboratories.

The men apparently were well versed in techniques for avoiding the attention of authorities. Sounds like somebody was a veteran at this game. But Zilbert describes how they came to draw attention anyway:

Law enforcement officials zeroed in on the suspects after receiving a tip indicating that Rushing was dropping off a backpack containing drug-making paraphernalia at an unspecified location.

According to The Tuscaloosa News, Fisher took the backpack and drove it back to his office nearby. The West Alabama Narcotics Task Force followed Fisher to his office. Soon after, Rushing was seen walking into the location and then walked out with the backpack. That was when authorities arrested both men.

George Washington University law professor Jonathan Turley -- the veteran of numerous appearances on Meet the Press, Face the Nation, and other public-affairs TV programs -- addressed the Fisher case on his blog. The piece included a photo of Fisher, under a headline reading "Can You Guess What This Person Was Charged With?" In other words, Fisher doesn't look much like the guy you would expect to be charged with meth trafficking. Writes Turley:

The police followed a tip and tracked what they believed as a backpack containing items believed to be components of a methamphetamine lab to an unreleased location. The backpack was then picked up by a second man. That man then went to an office located in the 1600 block of Greensboro Avenue in Tuscaloosa. Fisher’s law office is located at 1609 Greensboro Avenue. They then saw the first man arrive at the office and walk out with the same backpack. They arrested both Fisher and Rushing. Later they found what police described as an active “one-pot” meth lab in one of their cars.

Turley then looked at the case with the eye of a big-time lawyer, the kind we rarely write about here:

We have not heard Fisher’s side of this arrest. Fisher may claim that Rushing is a client and that this was evidence, but it is not clear whose car contained the meth pot. Moreover, absent an effort to turn over evidence to police or prosecutors, the holding of criminal components is not something that is likely to convince a court. Conversely, it may be argued that he was working with Rushing to shutdown his operation. However, again, the possession of such material is problematic for a lawyer. As a conservative radio host, Fisher promised “Plain Talk, Easily Understood with NO Political Correctness.” This may be his greatest challenge yet.

Perhaps Fisher will need an attitude adjustment to work his way out of this mess. Some people likely have worked up a certain level of sympathy for Fisher, but I'm having a hard time doing that. To me, he comes across as a world-class, right-wing hypocrite and . . . well, an a-hole. Consider his own words from Facebook:


America has become a country of people who believe as a whole that no one has any personal responsibility for their reckless, careless, ignorant, callous, incorrect choices in life. You will never legislate personal responsibility into anyone. This must be instilled in each person through family, and societal values and education. Unfortunately America has moved away from instilling such values in our citizens and now favor a blame someone or something else mentality.

Will Fisher take "personal responsibility" for his actions or will he look to blame someone or something else? That might be the biggest question at the heart of a case that raises many questions.

Chilton County Judge Sibley Reynolds ordered Jemison man sent to jail for posting critical remarks on social media about the handling of his divorce case


Chilton County Judge Sibley Reynolds
(From Montgomery Advertiser)
A central Alabama man recently was thrown in jail for using social media to post critical comments about the judge in his divorce case.

Carlos B. Ortigoza, of Jemison, served a day in the Chilton County Jail after Circuit Judge Sibley Reynolds found him in contempt of court for violating an order not to post on social media about a divorce case styled Renee Hicks Ortigoza v. Carlos B. Ortigoza. Reynolds originally ordered Carlos Ortigoza incarcerated for five days, but decided to free him after one day.

Reynolds has a history of unlawfully throwing people in jail. If his name sounds familiar, that's because you might have read about his abusive actions here against a female litigant. (More on that in a moment.)

In an order dated July 18, Reynolds stated that Ortigoza was "prohibited from posting on social media anything concerning issues that fall within the control of the Court Order of Final Decree." (See order at the end of this post.) On August 3, Ortigoza posted about the case at GoFundMe, with the post also appearing at Facebook, and described Reynolds as a "corrupt judge." At a court hearing the next day, the post was brought to Reynolds' attention, and he ordered Ortigoza to jail for five days. (See order at the end of this post.)

Does Reynolds have the authority to tell someone in advance that they cannot write on social media? I haven't been able to find such authority, and it's hard to imagine that any exists. Considering that I was thrown in jail for five months in Shelby County (just north of Chilton) because I write Legal Schnauzer, one must wonder if Alabama is about to become a First Amendment-free zone.

Screenshot from Carlos
Ortigoza's GoFundMe page
In my case, lawyer Rob Riley and lobbyist Liberty Duke sued me for defamation and sought a preliminary injunction, which has been forbidden under First Amendment law for more than 200 years. In other words, Riley and Duke wanted a judge to order me to quit writing about their extramarital affair prior to any finding that my reporting was false or defamatory. That, under the law, is called a "prior restraint" and it is unlawful. Ultimately, Riley and Duke failed to prove their case at trial -- because there was no trial, before a jury or anyone else -- and that means, by law, my reporting was neither false nor defamatory.

Reynolds' order forbidding Ortigoza to write about a certain subject on social media almost certainly is an unlawful prior restraint. And his order to have Ortigoza incarcerated for practicing free speech probably amounts to false arrest/false imprisonment.

It's almost impossible to successfully sue a judge for such violations of civil rights. But Ortigoza probably would have a civil case against anyone who participated with Reynolds in a false-imprisonment scheme. Also, Ortigoza could file a complaint with the Judicial Inquiry Commission (JIC), which currently is busy trying to get Roy Moore off the Alabama Supreme Court, although that august body is notorious for failing to discipline rogue judges.

Immunity, for the most part, protects judges from civil complaints, but they are not above criminal law. It's way past time for the U.S. Department of Justice (DOJ) to investigate Reynolds and the relationships he has with certain favored lawyers. Our guess is that a federal indictment against Reynolds could be quite lengthy.

Unlawfully tossing someone in jail is a familiar tactic for Reynolds; it's as if he takes a perverse delight in violating the rules he is sworn to uphold. In 2012, Reynolds kept Clanton resident Bonnie Calahane in the "Chilton Hilton" for almost five months over issues connected to her divorce from Harold Wyatt. Reynolds found Cahalane in contempt for failing to pay a debt of about $165,000 related to the divorce -- even though Alabama case law states that a party cannot be subject to contempt, and incarceration, for failure to pay a property-related debt from the dissolution of a marriage.

How does Reynolds get away with this stuff? Well, in our "justice system," no one oversees judges, especially if the DOJ has been sound asleep, as it has during most of President Barack Obama's tenure. Judges almost never can be sued; outfits like the the JIC tend to be worthless and spineless. Appellate courts are more likely to cover for a corrupt judge than to do anything about his crooked acts.

The only solution is for everyday citizens to become informed and outraged, demanding reform in a broken system. Pehaps the Carlos Ortigoza case will draw national attention and help unmask Sibley Reynolds, and others like him, before a wide audience.




Monday, August 22, 2016

Tuscaloosa lawyer John Fisher Jr. has deep connections in conversative political circles -- when he isn't busy allegedly trafficking in methamphetamine


John Fisher Jr. and family
(From Facebook)
A Tuscaloosa lawyer who was arrested on Friday for trafficking in methamphetamine has extensive ties in conservative legal, political, and media circles. In fact, John Fisher's Jr.'s Facebook friends include Gov. Robert Bentley, Sec. of State John Merrill, and just about every prominent right-wing blowhard that you've ever heard on Alabama radio.

Facebook and LinkedIn pages indicate Fisher, 48, has an attractive wife and a young daughter, plus multiple business interests, but he still found time to get trapped in a meth-trafficking investigation. How's that for "family values"?

When have you ever heard of a white-collar professional, especially one who is well connected in right-wing political circles, getting nabbed in a meth-trafficking operation? I can't recall ever hearing of such a case. That's what could make the Fisher arrest an extraordinary story, even though we only have bits and pieces of information at the moment.

Agents with the West Alabama Narcotics Task Force found Fisher and Christopher Shane Rushing (age 42, also of Tuscaloosa) with two active "one-pot" meth labs. Agents also seized 369 grams of meth oil during the investigation, according to police.

Based on press reports, the exact charges against Fisher are unclear. An al.com report says Fisher was released from jail after posting a $250,000 bond, while Rushing remains in jail on a $250,000 bond.

At mugshots.com, the charges against Rushing are listed as follows:

Agency    Bond Type                           Bond Amount     Count Charge
(1) TCSO      BONDSMAN/SECURED   $250,000.00       1 TRAFFICKING METHAMPHETAMINE 
(2) TCSO      BONDSMAN/SECURED   $500,000.00       1 UNLAWFUL MANUFACTURE OF CONTROLLED SUBSTANCE 
(3) TCSO      BONDSMAN/SECURED   $15,000.00         1 UNLAWFUL POSSESSION W/ INTENT TO DISTRIBUTE

The Web site does not appear to include information about charges against Fisher. The information above appears to conflict with that found at al.com. Mugshots.com shows Rushing facing three charges with a total bond of $765,000, which is more than twice the amount listed at al.com. Our understanding is that those arrested normally can be released by paying 10 percent of the total bond, which would be $76,500 in this case.

Does Fisher face the same charges and the same total bond amount. That is not clear at this point.

At the Tuscaloosa News, a police spokesperson said more arrests are expected in the case. That raises this question: How big a meth-trafficking operation is this and were other conservative legal/political figures involved?

Christopher Shane Rushing
According to his LinkedIn page, Fisher is owner and administrator of Adams Independent Living Home in Tuscaloosa. He has owned the Fisher Law Firm P.C., which is at 1609 Greensboro Avenue in Tuscaloosa, for 17 years. And he is host of the John Fisher Talk Show on WTBC (AM-1230). Before that, Fisher was an attorney with Rosen Harwood, one of the most prominent law firms in west Alabama.

The Web site for John Fisher Law Firm says it focuses on personal injury, criminal defense, business law, family law and mediation, estate planning, and probate.

A report at Raw Story, by reporter David Ferguson, states that Fisher is active in Alabama's Tea Party movement. In 2010, Fisher ran for a seat in the state legislator and appeared at multiple Tea Party rallies with Alabama Supreme Court Chief Justice Roy Moore. Fisher lost the primary election to Republican Bill Poole. Ferguson notes that Fisher's show claims it is known for "“Plain Talk, Easily Understood with NO Political Correctness.”

Is Fisher well connected in conservative circles? In addition to Bentley and Merrill, consider just a few prominent figures who appear on Fisher's Facebook friends list:

* Jessica Mederios Garrison -- lawyer, GOP operative, closely aligned with AG Luther Strange and U.S. Rep. Gary Palmer. (Palmer has spent a significant amount of cash for Garrison's consulting services. More on that in an upcoming post.)

* Lee Garrison -- Jessica's former husband and president of the Tuscaloosa City School Board

* Cliff Sims -- publisher of Yellowhammer News

* Leland Whaley -- right-wing talk host

* Matt Murphy -- right-wing talk host

* Chip Beeker -- Alabama Public Service Commission

* Gary Palmer -- member of U.S. House of Representatives

* Brandon Falls -- district attorney, Jefferson County

* Cam Parsons -- attorney for real-estate magnate Stan Pate

* Allen May -- veterinarian and director at Paul Bryant Jr.'s Greene Group


Where is this meth-trafficking investigation headed, and who else might be arrested? Stay turned. It could get extremely interesting.

Friday, August 19, 2016

A jury could have found that Officer Eric Parker willfully violated Sureshbhai Patel's civil rights, but Judge Madeline Haikala took it out of jurors' hands


Sureshbhai Patel
(Fifth post in a series)

Why did U.S. District Judge Madeline Haikala throw out criminal charges against Alabama police officer Eric Parker in the vicious body slamming of Sureshbhai Patel, a grandfather from India? It certainly is not because Haikala's finding is well grounded in the law; we've shown in multiple posts that it isn't. (See previous posts at the end of this post.)

The law strongly suggests this case should have gone to a third jury after the first two deadlocked, that the key issue was a matter for jurors to decide. But Haikala did not allow that to happen.

Our research suggests Haikala's reasoning might best be summed up this way: Parker had to make a split-second decision about how to handle Patel, and his actions therefore could not meet the willful component required in a criminal civil-rights-case under 18 U.S.C. 242. The government had to show that Parker acted willfully -- that he had a specific intent to deprive Patel of his right to be free from excessive force --  and the split-second nature of the interaction between Parker and Patel makes it impossible for the government to meet that burden.

Here are Judge Haikala's own words on the subject, from page 90 of her 92-page opinion:

The evidence here reveals that Officer Parker made a split-second decision in a rapidly evolving situation rather than a premeditated decision to use violent force. . . . The Court does not mean to suggest that a single, split-second decision can never arise to the level of a constitutional violation so egregious that it supports a finding of intentional conduct. The record in this case simply is not strong enough to eliminate reasonable doubt. For that reason, the Court grants Officer Parker’s renewed motion for judgment of acquittal.

Haikala is being disingenuous here; she actually IS suggesting that an officer almost never can be held criminally accountable, at the federal level, if he acts in a stressful, harried situation. More importantly, Haikala ignores the full legal meaning of the word "willfully" in Section 242 cases.

That's strange because Haikala cites the full meaning of the term, upon which the Patel case largely hinges, on page 53 of her opinion:

“A person acts ‘willfully’ for purposes of section 242 when he acts with ‘a specific intent to deprive a person of a federal right made definite by decision or other rule of law,’ or ‘in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.’” United States v. House, 684 F.3d 1173, 1199-1200 (11th Cir. 2012) (quoting Screws v. United States, 325 U.S. 91, 103, 105 (1945)).

As you can see, it's not just a matter of whether Parker acted with "specific intent." It also is a matter of whether he acted with "reckless disregard" of a constitutional requirement.

We invite you to view the video below and ask yourself, "Did Parker act with reckless disregard for Patel's rights when he clearly used a leg swipe to knock the older man's feet out from under him, causing him to land head-first on the ground, becoming partially paralyzed and sustaining injuries that required spinal fusion surgery?"

As Haikala acknowledges on page page 89 of her ruling, "willfulness generally is a question that a jury must resolve, and jurors generally are tasked with the responsibility for assessing the credibility of witnesses." United States v. Feliciano, 761 F.3d 1202, 1206 (11th Cir. 2014).

Multiple expert witnesses testified at trial that Parker's leg swipe is not among the techniques usually taught, or approved for use, in law enforcement. A jury clearly could have found that Parker's use of an improper technique constituted "reckless disregard," even though he acted in a split-second fashion.

So why did Haikala ensure that a third jury would not hear the case, after the first two had deadlocked? The answer to that question remains unclear, but the judge's actions certainly are not supported by law.


(To be continued)


Previously in the series:

(1) Here's the flip side of police-brutality cases -- July 13, 2016

(2) Federal judge in Alabama shows how cops tend to get favorable treatment in court -- July 18, 2016


(3) Judge threw out charges based on case that does not support her findings -- July 29, 2016

(4) Record indicates officer lied about three key issues in Patel brutality case -- August 5, 2016



Thursday, August 18, 2016

How bad is Obama judicial nominee Abdul Kallon? 11th Cir. ignored 3 SCOTUS cases to help him cheat my wife out of rights to home she co-owned for 20 years


U.S. Eleventh Circuit Court of Appeals in Atlanta
Republicans stalling on President Obama's nomination of Merrick Garland to the U.S. Supreme Court are committing a grave injustice. That's because, by pretty much all published accounts, Garland is qualified to sit on the nation's highest court.

If Republicans also are stalling on Obama's nomination of Abdul Kallon to the U.S. Eleventh Circuit Court of Appeals -- and that appears to be the case -- they are doing us a favor. That's because Kallon is a dreadful judge, and I've seen his sorry act with mine own eyes multiple times.

Why is Kallon so bad? Well, let's consider the following question that many Americans surely have asked themselves: Why is it so frustrating to deal with judges and courts? Answer: Even when you are right about a key issue, and the court admits you are right, judges still find a way to make it look like you are wrong--and to deny you justice. Abdul Kallon taught me that one.

My wife, Carol, and I experienced a classic example of this phenomenon in Roger Shuler and Carol Shuler v. William E. Swatek, et al, a case that involved an unlawful sheriff's sale that cheated us out of full rights to property we had owned for more than 20 years at the time.

We've shown that  Kallon, who currently sits on the federal bench in the Northern District of Alabama, botched his ruling on a simple issue involving Carol's rights to her own home. Given that Obama has nominated Kallon to a seat on the U.S. Eleventh Circuit Court of Appeals, this should concern every American. It certainly should concern the some 33 million people who live in Alabama, Georgia, and Florida--the three states covered by the Eleventh Circuit.

Kallon found that he could not consider Carol's claims because he lacked subject-matter jurisdiction under the Rooker-Feldman Doctrine. We argued, in a Motion to Alter or Amend Judgment and in our appellate brief, that Carol was not a party to the underlying state case, so Rooker-Feldman did not apply to her. In other words, Kallon was wrong, and he had to hear her claims. (Note: For purposes of this post, we will assume Kallon correctly excluded my claims because of Rooker-Feldman. That's not the case, but by focusing only on Carol's claims, we hope to simplify matters and make this post easier to understand. I was, at least, a party to the underlying state action, but Carol was not.)

What happened next was astounding. The Eleventh Circuit found that we were right, and Kallon was wrong -- that Carol's claims were not precluded by Rooker-Feldman and had to be heard by the district court. But the Eleventh Circuit cheated Carol anyway, by borrowing a point Kallon had ruled on (incorrectly) and applying it to Carol's claims -- even though her claims had not been heard in the district court, as the appellate court found they must.

That probably sounds like a mind-twister to many readers, but it's a classic example of how convoluted court corruption can be. Let's see if I can provide a little clarity: The Eleventh Circuit essentially found that Carol had wrongly been deprived of a hearing on her claims in the trial court, but then threw out her claims on grounds that the trial court had not heard--it could not have adequately heard those grounds, of course, because it had not heard Carol's claims at all.

Here is a fundamental holding of law: An appellate court is supposed to rule only on issues adequately heard and raised in the trial court. But that's not what happened in Shuler, et al v. Swatek, et al. It's a sign, in my view, that the Eleventh Circuit was more interested in protecting Kallon than it was in dispensing justice. The law required, as the Eleventh Circuit admitted, that Carol's claims be heard by the trial court. But they never were.

On what did the Eleventh Circuit hang its flimsy ruling? It found that Carol's claims against our troublesome neighbor (the criminally inclined Mike McGarity) and his sleazy lawyer, Bill Swatek, must fail because McGarity and Swatek were not "state actors" for purposes of a civil-rights claim under 42 U.S.C. 1983. Specifically, here is what the appellate panel found:

Finally, Carol Shuler contends that the district court erred in dismissing her claims under 42 U.S.C. §§ 1983, 1985 against William Swatek and Mike McGarity for failure to state a claim. Section 1983 provides a right of action only against "a person acting under color of state law." Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005). Although neither Swatek nor McGarity are state officials, Carol Shuler argues that they can be held liable under § 1983 because they obtained a writ of execution against the Shulers' property and caused the writ to be enforced. However, this contention is insufficient to state a violation of § 1983, because "one who has obtained a state court order or judgment is not engaged in state action merely because [he] used the state court legal process." Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985).

Where did the Eleventh Circuit judges come up with Cobb v. Ga. Power Co. and one of its findings? They borrowed it from Kallon; it's right there on page 31 of his memorandum opinion in our case.

Abdul Kallon
There's a slight problem with borrowing material from Kallon -- he's likely to get it wrong, and that's exactly what he did in this instance. Most of us learn this lesson in third grade -- if you are going to copy off someone's paper, copy from one of the smart kids, not one of the dummies. The Eleventh Circuit copied from a bad judge and -- surprise, surprise -- they got it wrong.

What's the correct law? We cited it in our appellate brief. (See full appellate brief at the end of this post.)

The district court found that Swatek and McGarity were protected from the Shulers‟ 1983 claims because they were not acting under color of state law. The U.S. Supreme Court, however, has held that private individuals who act jointly with state officials are deemed to be acting under color of state law. In Lugar v. Edmondson, 457 U.S. 922 (1982), our nation’s highest court found: “As is clear from the discussion in Part II, we have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor‟ for purposes of the Fourteenth Amendment. The rule in these cases is the same as that articulated in Adickes v. S.H. Kress and Co., supra, at 152, in the context of an equal protection deprivation: "Private persons, jointly engaged with state officials in the prohibited action, are acting "under color‟ of law for purposes of the statute. To act "under color‟ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents," quoting United States v. Price, 383 U.S., at 794.

How badly did the Eleventh Circuit, likely in conjunction with Kallon, want to make sure Carol's claims were not heard. As you can see above, the appellate court was willing to ignore clear findings from three U.S. Supreme Court cases. That tells me the fix was firmly locked in place.

Is there much a citizen can do in such situations? Not really. The only realistic option is to file a Petition for an En Banc hearing, which we did. (See petition at the end of this post.) Those, however, are rarely granted, and ours was denied.

The only other option is to seek review from the U.S. Supreme Court. For most citizens, the chances of getting hit by a piece of space debris probably is greater than the chance of having a case heard by SCOTUS.. On top of that, the expense of seeking Supreme Court review is prohibitive for many regular folks.

And so, Abdul Kallon (with help from the Eleventh Circuit) made sure that my wife had no chance at justice. This is the kind of judge Barack Obama wants to promote?

If you are a Democrat, that notion should make you want to vomit.







Wednesday, August 17, 2016

Key figure in Upton divorce case has ties to Shelby County's notorious Dr. William Flynn Walker and one of Alabama's worst cases of child sexual abuse


Gincie Walker Upton
A central figure in the Upton v. Upton divorce case has strong connections to probably one of the worst cases of child sexual abuse in Alabama history.

Gincie Walker essentially was the daughter of Linda and Bill Upton when she began a sexual relationship with Bill, who is the multimillionaire president of Vulcan Steel Products in Pelham. That prompted Bill Upton to file for divorce from Linda, his wife of more than 30 years, and led to a case that included numerous dubious rulings by private judge Gary Pate.

Bill Upton, who generally was the beneficiary of Pate's rulings, has since married Gincie Walker (her name now is Gincie Walker Upton), and they live in Mountain Brook. Linda Upton has remarried and still lives in the marital residence after being forced to pay Bill Upton for his share of the property, despite egregious marital misconduct -- to which Bill Upton admitted in a deposition.

Where does child sexual abuse enter the picture? Gincie Walker Upton has been diagnosed with multiple-personality disorder, with roughly 30 distinct personalities. How did Ms. Upton come to have such a severe mental disability? Multiple factors probably are involved, but she was born into a family that apparently took dysfunction to levels most people cannot imagine.

Her biological father is Dr. William Flynn Walker. By all accounts that we've heard, Dr. Walker was a brilliant physician and a major figure in the evangelical religious movement in Shelby and south Jefferson counties. He was a leader at Briarwood Presbyterian Church before going on to start Evangel Christian School, a home-school ministry of Evangel Church PCA (Presbyterian Church of America) in Alabaster.

But Dr. William Flynn Walker's life behind the facade included horrifying acts against children. In October 2005, he was indicted on seven counts related to child sexual abuse. This is from a a Shelby County Reporter article on the case:

A well-known member of the Shelby County home-school community has been indicted by a federal grand jury for interstate transportation of children for illegal sex acts.

William Flynn Walker, 48, of Shelby, was charged in a seven-count indictment filed last week in U.S. District Court in Birmingham.

Walker is charged with transporting three different children across state lines between 1984 and 2004 and engaging in illegal sexual acts with them.

Our research indicates conservative religious and political figures have been remarkably quiet about the case from the outset. In fact, state law-enforcement officials in Shelby County reportedly ignored evidence of Walker's secret life until federal officials finally entered the picture when he transported children across state lines. Here is more from the Shelby County Reporter:

Walker is known in home-school circles for his role in the founding of Evangel Christian School, a Helena-based organization formed as a ministry of Evangel Church, PCA.

However, church leaders refused to comment on Walker’s official role at the church or with the home-school group.

If convicted on federal charges, Walker could face a maximum sentence of 130 years in prison and a fine of $1,750.

He also faces prosecution by the Shelby County District Attorney’s office, stemming from two sex-related charges filed in May.

Walker was arrested in Jefferson County, where he worked as a physician in Birmingham and charged with sexual abuse and first-degree sodomy.

Would Walker have gotten away with sodomy, sexual abuse, and other unspeakable acts involving children if he had not invoked federal jurisdiction by transporting children across state lines? Our guess is yes -- that powerful religious, political, and law-enforcement figures were determined to cover for him, probably because of his ties to Briarwood and Evangel Christian.

Evangel Christian PCA in Alabaster, AL

In August 2006, William Flynn Walker was sentenced to 27 years in federal prison, without the possibility of parole. He was sentenced to 20 years in prison on the state charges. He is due for release in 2033 and will be on state probation for the rest of his life. From a Shelby County Reporter article:

Shelby resident William Flynn Walker, 49, who was indicted last October on seven counts of transporting minors across state lines and engaging in sex acts with minors, was sentenced in federal court last week to serve 27 years in prison without the possibility of parole.

Walker was also sentenced to 20 years in prison in Shelby County district court in April. Walker will serve the two sentences concurrently.

Walker was sentenced on charges that he transported three separate children seven times over state lines to commit sex acts with them between 1984 and 2004.

Assistant U.S. Attorney Jim Phillips confirmed Monday that Walker will also be required to pay $100,000 in restitution for his crimes.

Strangely, the article does not say if Walker pleaded guilty or was convicted by a jury. In another strange twist, a search at al.com turns up nothing about the William Flynn Walker case--and I can find no photos of William Flynn Walker on the Web.

William Flynn Walker is being held at the Federal Correctional Institute at Butner, North Carolina. Here is information about him from the Federal Bureau of Prisons Web site:


WILLIAM FLYNN WALKER

Register Number: 25462-001

Age: 59

Race: White

Sex: Male

Located at: Butner Low FCI

Release Date: 11/15/2023

We are guessing that the 2023 release date is a mistake. A 27-year sentence should put his release at 2033, as stated in news reports.

Bill and Gincie Upton
(From facebook.com)


Was Gincie Walker Upton, as a child, one of her father's victims? Did he have accomplices who abused her and other children? It seems unlikely that Dr. Walker acted alone, although no one else has been implicated in the case. Was Gincie Walker abused in a way that led her to have multiple-personality disorder--and did that condition play a major role in the breakup of the Upton marriage?

This much seems clear: Linda Upton, who adopted four special-needs children and fostered numerous others, genuinely seemed to be trying to help a troubled youngster when she took Gincie Walker into her home. That led her husband to engage in abominable behavior, and Alabama's dysfunctional court system piled on by making sure Linda Upton would receive a division of property that was nowhere near what she was entitled to under the law.

Tuesday, August 16, 2016

Pennsylvania attorney general is convicted of perjury, in a trial that apparently was brought in retaliation for her unmasking of creepy judges in "Porngate" probe


Pennsylvania AG Kathleen Kane
(From ijr.com)
If you think Alabama politics is sleazy . . . well, check out what's going on in Pennsylvania.

Kathleen Kane, the Democratic attorney general of Pennsylvania, was found guilty yesterday on nine counts of perjury and obstruction related to a grand jury leak. Did Kane actually do anything wrong? It's possible. Was her prosecution conducted for political reasons? There is almost no doubt about it, yes.

Kane had outed a number of Pennsylvania judges and other state officials who made it a habit to send pornographic, racist, and misogynistic messages via the Internet. Her investigation, which became known as "Porngate," led two state Supreme Court justices, and others, to resign.

Seamus McCaffery, a Democrat, was the first justice to resign, in 2014. He had been suspended, in part, for attempting to blackmail a fellow justice. Republican Michael Ekin resigned in March 2016.

How gross were the actions of individuals Kane unmasked? Consider this from a 2015 Washington Post story:

Over the past 15 months, beleaguered Pennsylvania Attorney General Kathleen Kane has released a steady stream of messages retrieved from a state email server that show state officials and employees trading pornographic, racist and misogynistic messages.

There are jokes about rape and sexual assault, photos mocking African Americans and other minorities, and insults leveled at people because of their weight, their sexual orientation or their religion. At least two state Supreme Court justices and numerous officials in the office of the attorney general have been caught in the scandal that has been dubbed “Porngate.”

Want more details? Here they are:

A small sampling: A photo of a pantsless woman on her knees performing oral sex on a man is captioned “Making your boss happy is your only job.” A picture of a white man fending off two African American men while carrying a bucket of fried chicken reads “BRAVERY At Its Finest.” The sender of the email that shows a group of men engaged in sex included this message to friends, “How friggin gay are you?”

When you see these emails . . . it’s just a swamp of misogyny, racism, homophobia and white privilege. It taints everybody, especially in the judicial branch,” said Bruce Ledewitz, associate dean of academic affairs and a law professor at Duquesne University School of Law. “Some of these things are really disgusting. You get the impression that every white male office holder in the state is a creep.”

Did white male office holders take an underhanded path to get back at Kane for unmasking them as creeps? Sure looks that way. Consider this from a Fox News article about Ekin's resignation earlier this year. (And how appropriate is it that "Porngate" is tied, in a roundabout way, to the Jerry Sandusky child-sex scandal at Penn State?)

Justice Michael Eakin's decision to retire marks the latest fallout since embattled state Attorney General Kathleen Kane began releasing hundreds of emails in 2014 to the media and ethics agencies. Kane has since been indicted on perjury and other charges that she claims were trumped up because she took on the old boys' club of Pennsylvania's judiciary and law enforcement. . . .

The exchange of explicit and pornographic emails by state prosecutors was uncovered as part of Kane's internal review of how the office handled the investigation into Jerry Sandusky, the former Penn State assistant football coach now serving a lengthy prison sentence after being convicted in 2012 of 45 counts of child sexual abuse.

Pennsylvania has an old boys' club that controls the courts and law enforcement? Gee, that's a shock. Alabama has one, too. Right now, the Pennsylvania old boys' club is making Alabama's look good, by comparison. And I didn't think that was possible.

Failure to provide lawful notice makes Jessica Medeiros Garrison's $3.5-million default judgment void, meaning it is a nullity worth absolutely zero


Jessica Medeiros Garrison and Alabama AG Luther Strange
GOP operative Jessica Medeiros Garrison took to the Web last fall to crow about a $3.5-million default judgment an Alabama circuit judge awarded in a defamation case against me. Legal Schnauzer has been ranked among the top 50 law blogs in North America, but Garrison dubbed it a "ridiculous little blog."

Garrison's arrogance, which was on full display in her as-told-to article at women's fashion magazine Marie Claire, might start dwindling now that we can show her $3.5-million "bonanza" is void. In other words it is a "nullity," worth zero. And those aren't my words; they come from Alabama law on the subject.

The crowing Ms. Garrison will never get enough from that judgment to buy a hot dog at Sneaky Pete's. In fact, the judgment might wind up costing her a lot more than she ever will receive.

How do we know? The answer probably can be found in a variety of Alabama cases, but the best one we've found is styled Abernathy v. Green Tree Servicing (Ala. Civ. App., 2010). In Abernathy, a Franklin County woman faced a default judgment from Green Tree, allegedly because a sheriff's deputy left court papers with the woman's mother. Abernathy wound up having no idea she was being sued. In a complicated series of events, Abernathy had to file two motions seeking relief from the default judgment; in the second instance, notice had been sent to her, but not to her attorney.

Abernathy lost in the trial court, but she took the matter to the Alabama Court of Civil Appeals. Here was the gist of her argument:

Abernathy contends, among other things, that Green Tree did not provide her with appropriate notice of its November 12, 2009, application for a default judgment and that, as a result, the trial court erred when it entered the November 13, 2009, default judgment. Specifically, she argues that Rule 55(b)(2), Ala. R. Civ. P., required that her attorney be given three days' written notice before the entry of the November 13, 2009, default judgment and that the failure to provide such notice constitutes reversible error. We agree.

How did failure to give proper notice affect Green Tree's claim.? You might say it was gutted. From the appellate court:

The failure to provide the notice of the application for a default judgment as required by Rule 55(b)(2) renders the default judgment "void, and not merely voidable," Bracknell v. S.E. Belcher, Inc., 517 So. 2d 588, 591 (Ala. 1987), and "requires a vacation of the default judgment," Southworth v. University of South Alabama Med. Ctr., 637 So. 2d 896, 898 (Ala. Civ. App. 1994).

Like Abernathy, I had appeared in my case; in fact, I appeared once in regular clothes (before I had been arrested because of the Rob Riley/Liberty Duke case) and at least twice in jail clothes during my five-month stay at the "Shelby County Hilton." That is what triggers the three-day notice requirement. In essence, the appellate court was saying there is no excuse for not giving notice of a default application when the defendant has appeared in the case.

The bottom line? I never received any notice of Garrison's default judgment application, or its hearing. The whole process took place without me knowing about it. Davy Hay, a Chilton County attorney who was "representing" me at the time, said the record showed it was not just a matter of me not receiving notice -- there was no indication notice was even sent.

(I put "representing" in quote marks because I was not pleased with the work Davy Hay supposedly did on my behalf. In fact, I'm not sure he did anything on my behalf. We parted ways, and I was left with the notion that I certainly would not recommend Mr. Hay's services to anyone. More on that in an upcoming post.)

Don Blankenship
Judge Don Blankenship, in denying our motion to vacate the default judgment, blamed the lack of notice on me -- because I did not notice the court of our new address in Missouri after we had been forced from our home of 25 years in Alabama due to a foreclosure that almost certainly was wrongful. (See Blankenship's ruling at the end of this post.) Normally, I would notice a court and opposing parties of any address change during a court case -- even though we hadn't changed addresses for 25 years. But in the turmoil from dealing with a foreclosure and having to move to another state, I forgot all about the Garrison case. Her "ridiculous little complaint" didn't mean much when you are staring possible homelessness in the face.

Court documents show that my e-mail address was on every document I filed with the court. Garrison or her attorney, Bill Baxley, easily could have sent me an e-mail to determine my whereabouts. They never did that. I think they didn't do it because they didn't want me there; they wanted Garrison and Attorney General Luther Strange to blabber in court without pesky questions from the opposing side -- questions that might center on their professional, and personal, relationship.

Aside from that, Blankenship simply put the burden for notice on the wrong party. The law in Abernathy clearly shows the burden is on the plaintiff -- Garrison in this case. She did not fulfill her obligation, and that  makes her $3.5-million default judgment void. In fact, her little piece of paper is worthless, as the Abernathy court makes clear:

Our supreme court has stated that, when the three-day notice provision of Rule 55(b)(2) is violated, a trial court is "without discretion in the matter" and errs to reversal if it refuses to set aside the default judgment. Bracknell, 517 So. 2d at 591. Moreover, our supreme court has written that the failure to provide the notice required by Rule 55(b)(2) "requires vacation of the default judgment regardless as to whether defendant has shown a meritorious defense or not." Cockrell v. World's Finest Chocolate Co., 349 So. 2d 1117, 1120 (Ala. 1977) (emphasis added).

Hay should have included the lack-of-notice argument in his written motion, but he did not. He did, however, argue it during the hearing -- as Blankenship makes clear in his order. That means the issue properly was before the court, And as Abernathy shows, Blankenship had no discretion in his ruling; vacation of the default judgment was required.

What about the time I have to get the default judgment voided? What about Blankenship's outrageous screwups in the case? We will address those issues, and more, in upcoming posts.

For now, we know that Jessica Garrison's $3.5-million default judgment was a "ridiculous little" piece of garbage all along.


(To be continued)



Monday, August 15, 2016

In the speech where he hinted that gun nuts might want to assassinate Hillary Clinton, Donald Trump raised even scarier issues about an Alabama judge


Donald Trump during his "Second Amendment people" speech
(From cnn.com)
When GOP presidential candidate Donald Trump seemed to suggest last week that "Second Amendment People" might want to assassinate Democratic opponent Hillary Clinton over gun rights, it overshadowed perhaps a more significant issue in the same speech. It's almost certainly more significant if you have concluded that Trump was not serious in his statement about Clinton.

What's the issue that got overlooked? Well, it involves a federal judge from Alabama, a guy named Bill Pryor. Reporter Jay Michaelson picked up on it in a Daily Beast articled titled "Donald Trump’s Supreme Court Pick Would Kill the ‘Right to Remain Silent’ Warning." From the Michaelson piece:

Just a few sentences after the “Second Amendment” remark, Trump boasted, “we have such great Justices, you saw my list of 11 that have been vetted and respected.” At the top of the list—prepared not by Trump but by the Heritage Foundation, the conservative-to-libertarian think tank funded by the Coors family, the Koch Brothers, the Bradley Foundation, the Scaife Foundation, and the Olin Foundation, some of the same funders who have blocked the nomination of Judge Merrick Garland—is Judge William Pryor of the Eleventh Circuit Court of Appeals.

Michaelson then reminds Americans of extremist views Pryor has expressed in the past -- and how they could radically alter our democracy if a President Trump were to nominate Pryor for the U.S. Supreme Court. After noting Pryor's staunch -- and in my view, wildly unlawful -- opposition to abortion rights under Roe v. Wade, Michaelson writes:

Pryor is also (in-)famous for a 2000 speech he gave (to the Heritage Foundation, incidentally) in which he called Miranda v. Arizona one of the two “worst examples of judicial activism.” (The other, of course, was Roe.) If you’ve ever watched a cop series on TV, you know Miranda—that’s the case that required police to tell arrestees “you have the right to remain silent.” 
In Pryor’s world, those warnings wouldn’t exist.

The U.S. Supreme Court more or less gutted Miranda with a 2013 ruling styled Salinas v. Texas. If BIll Pryor were to wind up on the high court, via a Trump presidency, it might wipe out Miranda altogether.

Consider a few troubling implications from such an outcome:

* Miranda applies not only to those arrested and charged with a crime, but also to those who have been detained in a "custodial investigation." In other words, some of these people have not even been accused of doing anything wrong.

Bill Pryor, in a gay-porn pose
from the 1990s and badpuppy.com
* So Bill Pryor wants people who have not even been accused of a crime to be forced to talk? How does he think law enforcement should accomplish that? By turning silence into a crime and forcing people to be incarcerated? By turning torture into a common component in the U.S. "justice" system? As an appointee under the George W. Bush administration, perhaps Pryor would be expected to have a fondness for torture.

In an otherwise fine article, Michaelson makes one mistake. Here's how he refers to Pryor:

Now, Bill Pryor is, by all accounts, a distinguished and ethical jurist. Born in 1962, he has had a brilliant career, serving as Alabama’s youngest attorney general from 1997-2003 before being nominated by President George W. Bush to a federal appeals court. 

Those of us who have followed Pryor's career closely know he is neither distinguished nor ethical -- and his career has been anything but brilliant.

We have shown that, as a college student, Pryor posed nude for photographs that wound up at the badpuppy.com gay-porn Web site, and he almost certainly failed to mention that in his confirmation hearings, which would constitute lying to Congress. Because of his gay-porn background, Pryor is subject to being controlled, even blackmailed, according to multiple news reports. Pryor perhaps is best known for launching (while Alabama AG) an investigation of former Democratic Governor Don Siegelman, leading to perhaps the most notorious political prosecution in American history.

Pryor's investigation, which turned into a federal probe, started after Siegelman had been in office for roughly three months. (Question: How could Pryor have probable cause to open such an investigation when Siegelman had been in office barely 12 weeks? Answer: He couldn't, which points to the investigation being driven by politics, not facts or law.)

As for Donald Trump, he vanquished the Republican primary field largely because of his ability to entertain and shock audiences. His comment about Hillary Clinton was perhaps his most shocking statement yet. But that should not lull Americans into thinking that Trump is a mere sideshow. He's running for the highest office in the land, and the thought of Bill Pryor on the Supreme Court should scare the daylights out of any thinking American who cherishes civil liberties and the rule of law.

Meanwhile, we have this question: Is Trump's campaign so out to lunch that no one is aware of Pryor's ties to 1990s gay porn? Trump claims that everyone on his "great" list of 11 potential justices has been vetted? Sure doesn't look like it with Bill Pryor. Does that suggest Trump is lying, or he just has no clue?

California biotech company, a Stanford University startup, sues UAB and veteran scientist Robert Kimberly for fraud and breach of contract


A California biotechnology-research company has filed a federal lawsuit against UAB and one of its veteran researchers, alleging a breach of contracts that caused $11 million in financing to fall through.

Pikamab Inc., of Menlo Park, California, alleges breach of contract, fraud, and negligence against UAB and Robert P. Kimberly, M.D. (See complaint at the end of this post.) Kimberly is director of UAB's Center for Clinical and Translational Science. He is a professor in the Division of Clinical Immunology and Rheumatology. Kimberly and UAB (technically, the defendant is the the University of Alabama Board of Trustees) claim they are protected from suit by sovereign immunity. They also claim the applicable statute of limitations precludes the Pikamab lawsuit. (See motion to dismiss at the end of this post.)

The lawsuit is before U.S. Judge Jefffey S. White, in the Northern District of California.

According to its complaint, Pikamab is a start-up company that grew from research conducted at Stanford University and the Hospital for Special Surgery (HSS) in New York. The company is attempting to commercialize cutting–edge treatments for cancer, inflammatory disorders, and autoimmune diseases, using an invention related to stratified medicine. The invention is based on a number of patents and patent applications owned by Pikamab CEO Vijay Ramakrishnan, Ph.D,; Stanford; and HSS.

Kimberly and Pikamab entered into an agreement in 2009, and Kimberly became a member of the company's scientific advisory board. The complaint alleges that Kimberly steered Pikamab to award UAB two research contracts, with Kimberly to be the lead investigator on both. From the complaint:

Kimberly convinced Pikamab that UAB had access to unique databases (each called a “Cohort”) that categorized the biological characteristics of medical patients for certain diseases, such as lupus and lupus nephritis. Indeed, in 2011 (prior to the contracts at issue being signed), Kimberly represented that UAB was the only institution that could perform the contract work and stated that he would perform the contract with an utmost level of diligence by stating to Ramakrishnan in a telephone call: “ I will do a great job on these studies” (the “Misrepresentation”).

Court documents indicate Kimberly did not do such a great job, at least in Pikamab's view. The first contract, for $128,000, involved development of a theragnostic product related to certain cancer therapies. The second contract, also for $128,000, involved development of a product for treating lupus and lupus nephritis.

Where did the dispute begin? From the complaint:

When a research institution like UAB undertakes formal research on behalf of a sponsor, it is an industry custom that the investigating institution provide a comprehensive report setting forth, among other things, raw data as well as information sufficient to verify the methodology, scope and accuracy of the research (the “Deliverables”).

Pikamab alleges that Kimberly delivered almost nothing in the way of deliverables, in both contracts:

Defendants utterly failed to provide any Deliverables . . ., even though each contract specifically provided that the Defendants were to provide progress reports and final reports on the research. . . . Notwithstanding his reporting obligations, Defendants delivered a purported final report in the form of a 10-line email on April 30, 2012 that was completely useless. Moreover, from that 10 line email, Pikamab discovered that Defendants lied, misled, and did not perform the relevant studies as per the contract requirements.

A company pays UAB $256,000 for research studies and detailed reports -- and for one of the contracts it gets a 10-line email in return? For the other contract, it gets an irrelevant set of garbled data that was not requested? That raises this question: What kind of research operation is UAB running? The discovery process and possible trial might yield an answer that is quite unflattering for one of Alabama's most important economic drivers.

Robert Kimberly
Is that why UAB is seeking to have Pikamab's lawsuit dismissed, which would foreclose any possibility of discovery or a trial?   The Birmingham firm Maynard Cooper Gale is representing the university, and in documents we've seen so far, there is no effort to defend Kimberly's handling of the contracts. The defense arguments, so far, are legal and technical in nature.

There also is no effort to address Pikamab's damages, which are substantial, according to the complaint:

As a result of Defendants’ wrongful conduct above, Pikamab was unable to close on least $11 million dollars in financing. Such financing was contingent upon Pikamab being able to provide verifiable research results supporting the Invention. In addition, Pikamab was unable to close on strategic licensing deals with bio-pharma companies who were eager to be involved in the Invention, but who required proof-of-concept data. But Defendants’ breaches deprived Pikamab of the information needed to satisfy the requirements of investors and bio-pharma partners. Because of Defendants’ unlawful conduct, Pikamab ran out of money and was unable to finance new studies. Moreover, Pikamab wrote to other investigators of the lupus Cohort, but none were interested in investigating or resolving Pikamab’s complaints.

That is pretty damning stuff. It accuses UAB of cutting the legs out from under a company that holds the promise of helping to develop advanced treatment for cancers, lupus, lupus nephritis, and other diseases. What could possibly be the underlying motive behind this? Why would UAB do this in both contracts?

As we've reported numerous times in the past, UAB has a history of Medicare fraud, research fraud, and scientific misconduct. (See here, here, and here.) Such cases usually have been quietly settled or kept mostly from public view. It will be interesting to see if Pikamab gets an opportunity in a California federal court to pull back the mask on UAB's highly profitable, but ethically suspect, research enterprise.