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Thursday, January 28, 2016

Laquan McDonald and my wife, Carol, played central roles in showing the public that police charges of "assaulting an officer" can be complete fabrications


The shooting of Laquan McDonald in Chicago
Laquan McDonald and Carol Tovich Shuler had very little in common, but they helped show the public that police officers are prone to falsely allege that a citizen has assaulted an officer--especially when the cops know they have engaged in, or witnessed, misconduct.

McDonald, a 17-year-old black male, died in 2014 when a Chicago police officer shot him 16 times--even though video now shows that McDonald was moving away from officers, not toward them, at the time he was shot. Police apparently wanted him for questioning about a series of car break-ins.

Shuler, my wife of 26 years, is a 56-year-old white female with a spotless personal and professional record--except for one or two bogus black marks that political forces in Alabama caused because she was married to a journalist/blogger who reported uncomfortable truths about the state's ruling elites. Shuler was valedictorian of her high-school class and made straight A's throughout college.

Not exactly the type to be assaulting a police officer--and that's because she didn't. But then, neither did Laquan McDonald.

Carol Shuler, thankfully, survived her encounter with rogue cops. Deputies from the Greene County Sheriff's Department--about six of them, plus Sheriff Jim Arnott himself--were on hand when at least three of them surrounded Carol and brutalized her during an unlawful eviction, leaving her with a shattered left arm and heavy bruising. With the help of intense physical therapy, she is recovering, but caregivers have said her injury was so severe that she probably will regain only 75 percent usage of her left arm, at best.

Laquan McDonald did not survive--his life snuffed out much too soon, in a hail of police gunfire. But here perhaps is the thing Laquan McDonald and Carol Shuler most had in common. Cops on the scene, apparently aware that citizens had been the victims of gross police misconduct, immediately concocted bogus narratives of "assaulting a police officer."

Consider, for example, the behavior of Jim Arnott. Here's how we spelled it out in a post titled "Missouri Sheriff Jim Arnott shows that his immediate tendency is to lie when confronted with police brutality." From that post:

Carol was trying to enter our apartment to retrieve some of our belongings, as she had been told she could do. Specifically, she was trying to get our cat's litter box and was headed to the front door for that purpose, when a deputy jumped her. I saw the whole thing from about 15 feet away, while seated in the driver's seat of our automobile, which was parked in the driveway. Arnott saw it from a vantage point about 10 feet closer than mine.

And what was the sheriff's immediate reaction to seeing one of his deputies brutalizing a 55-year-old woman who was trying to get her cat's "latrine"? Arnott's response was to lie. He pointed at Carol and said, "She assaulted a police officer."

That statement is absurd to anyone who witnessed the event. And it's even more absurd when you consider that Carol wound up with a severely broken arm that required surgery, and there is no indication that any of the half dozen or so officers on hand--armed with at least one assault rifle and numerous handguns--suffered the slightest scratch.

What are the implications of having a sheriff make such bogus claims against you? Well, it goes way beyond a mere inconvenience, as we described earlier:

Because of Arnott's lying eyes--and lying tongue--(Carol) apparently was going to be charged with assaulting a police officer. The deputy who drove her to the jail told her she was facing a felony and likely a $100,000 bond.
At some point, Carol (likely in shock; she would receive treatment with oxygen) announced that her arm was killing her. Someone finally took notice, decided this might be serious, and had her transported to Cox North Medical Center, a few blocks from the jail.

That's where X-rays showed Carol's arm was broken so badly that it would require a trauma surgeon, not an orthopedist, to repair it. She now has roughly 10 screws and multiple titanium plates that probably will stay in her arm as long as she lives. But Jim Arnott's immediate reaction, upon seeing his officers assault Carol, was to claim she had assaulted them.



Carol Shuler
Hundreds of pages of documents released in early December show that Chicago cops concocted a false "assaulting an officer" claim against McDonald, much like the one Arnott created on the spot against Carol. This is from a Chicago Tribune report about documents in the McDonald case, much of them coming from the Chicago PD's internal investigation:

In December 2014, the department officially recorded the shooting as a justifiable homicide.

"McDonald committed aggravated assault against the three officers, finally forcing Officer Van Dyke, in defense of his life, to shoot and kill McDonald," according to a report of that determination.

One report claims McDonald "battered" three officers. Another claims that Officer Jason Van Dyke, who fired the 16 shots, was "injured." From the Tribune article:

Again and again in reports, Van Dyke's account is supported by the other officers at the scene, each one describing the teen as a threat to the veteran cop. Four officers claimed that McDonald advanced toward Van Dyke, even though the video shows him walking away. Two others said he turned or raised an arm toward him
How police viewed the shooting, though, was clear. In the report that closed the investigation, filed in March, a detective offered this terse assessment.

"Criminal attacked officer," the report says, "that officer killed criminal."

Chicago cops viewed Laquan McDonald as a thing, a sub-human, one against whom they could easily lie--as proven by video of the shooting below.

Cops in Springfield, Missouri, apparently viewed Carol Shuler the same way. They apparently were not bothered in the least to arrest her, handcuff her, and send her to jail--for a "crime" she did not remotely commit. And if her arm had not been broken, she probably still would be in jail because I could not have possibly paid the $10,000 required for her release.

Much of the reporting on police misconduct has focused on the racial angle--and that's understandable given that black Americans clearly have suffered from cop abuse for decades. But the Laquan and Carol stories provide another side to the issue.

They tell us that cops, when they need to protect one of their own, are willing to look beyond race. When you are abused by a cop, other cops are prepared to lie and heap more abuse on you--without regard for the color of your skin.


Wednesday, January 27, 2016

Records show Alabama steel exec Bill Upton admitted to having sex with young woman who called him "Daddy," but he still received favorable divorce order


Bill Upton, president of Vulcan Steel Products
The president of an Alabama steel company admitted to having an extramarital affair with a young woman he had raised as his daughter but still received a favorable divorce order from a private judge in Jefferson County, court documents show.

William D. "Bill" Upton Jr. is president of Vulcan Steel Products, which is based in the Birmingham suburb of Pelham. Upton sued his wife, Linda S. Upton, for divorce in 2010 and received a stunningly favorable judgment, even though he admits in court papers to having sex with Gincie Walker, a young woman the Uptons had helped raise for roughly a decade and who called Bill Upton "daddy" for years.

Bill Upton and Gincie Walker now are married and live in Mountain Brook. Linda Upton also has remarried and lives in the Shook Hill home she and Bill Upton shared for more 30 years, as he (along with significant help from Linda and her parents) built a business empire.

It's common for a wife/mother and children to receive the marital residence in a divorce, especially where the husband/father has admitted to flagrant marital misconduct. But Linda Upton lost custody of all her non-adult children--all have special needs, and she raised them from early ages--even though we can find nothing in the record to indicate she was found to be an unfit mother. Linda also wound up paying Bill Upton for his share of the marital home, even though he was the party in the much stronger financial decision--and he was the party who admitted to marital misconduct.

Why did a court, headed by private judge Gary Pate, look favorably upon Bill Upton, even though he admitted to behavior that comes close to meeting the definition of incest? Court documents describe Bill Upton as a multimillionaire, and that might have been one factor in his favor. Also, George R. Fernambucq, of the Birmingham firm Boyd Fernambucq and Dunn, represented Bill Upton. Fernambucq's name has been prominently mentioned in at least two lawsuits that allege widespread "hunting-club corruption" in Alabama divorce courts.

Did Bill Upton's association with Fernambucq help him in Jefferson County court, no matter what Upton had admitted to? It almost certainly didn't hurt.


Gincie Walker Upton
Meanwhile, Linda Upton was represented by MaryLee Abele, the same Mountain Brook attorney who could not keep Sherry Carroll Rollins from being the victim of a grotesque cheat job administered by Judge D. Al Crowson in Shelby County.

Bill Upton filed for divorce, but court documents show it was his own egregious behavior that precipitated the breakdown of the Upton marriage. A Motion for Relief from Judgement, dated March 1, 2013, includes the following language under "4. Gincie Walker is William D. Upton's girlfriend." The Q and A is taken from "Defendant's Exhibit 4, William D. Upton's Deposition, p. 64." (The Motion for Relief from Judgment can be read at the end of this post.)

Q: Is Gincie Walker the only time you've had sexual intercourse with anyone during your marriage other than Linda [Upton]?

A: [William D. Upton Jr.] Yes.

Linda Upton's Motion to Alter or Amend, filed on December 17, 2012, contains the following language. (The motion can be read at the end of this post.)

1. The Husband openly admits his infidelity with a mental patient/former sibling of the minor children, who are now constantly exposed to their father's romantic relationship with the woman and who are clearly suffering as a result of this Court's Order awarding primary custody to the husband; who has never been the primary care-giver of the children.

Why does the document refer to Gincie Walker as a "mental patient." Here's how we explained it in an earlier post:

Gincie Walker had grown up in an abusive home in Shelby County before settling into the Upton family when she was in her mid to late teens. Linda and Bill Upton have one biological son and had adopted or fostered a number of special-needs children over about a 20-year period. Court records state that Gincie Walker has multiple-personality disorder, and she was in her mid to late 20s when the affair with Bill Upton started; she now is in her early 30s.

The Uptons never officially adopted Walker, but they parented her throughout adolescence and well into early adulthood. Sources state that she was treated as, and seen as, the Uptons' daughter.

A reasonable person could conclude that Bill Upton preyed on a young female family member who had a severe mental disability. And yet, an Alabama court granted him custody of other children.

How could this happen? What were its repercussions?

We will address those questions in upcoming posts.






Tuesday, January 26, 2016

Ashley Madison hack ranks among the top scandals of 2015, even though the press barely has touched key elements of the extramarital-cheating story


The hack of the Ashley Madison extramarital-affair Web site is one of the top 10 scandals of 2015, according to USA Today. Meanwhile, Wired magazine named Ashley Madison (AM) one of the 11 biggest hacks of the year.

Those rankings come even though major elements of the AM story have barely been touched in the press. We plan to change that in 2016. In fact, we maintain that the most important aspects of the AM story still are be uncovered.

The New York Post seems to be of a similar mindset. In late October, it published a story titled "The storm isn't over yet for Ashley Madison cheaters." That headline gets to the heart of an AM issue that largely has gone uncovered.

Who are the Ashley Madison paying customers? Who are these people, the ones willing to cough up cash in hopes of lining up a partner to help cheat on their spouses? Are these "cheaters" (to borrow an NY Post term) from the fringes of society. Are they borderline criminals or sociopaths, the types known for failing to abide by societal norms?

Our examination of AM lists from two states--Alabama and Missouri--suggests the answer to those last two questions are a solid no. In fact, we've found that many AM customers would be considered among our nation's "best and brightest," enjoying status as true elites.

We're talking doctors, lawyers, engineers, accountants, dentists, chiropractors (lots of chiropractors), military leaders, law-enforcement officials, wealth managers (lots of wealth managers, especially in the "old money" areas of Birmingham), CEOs, COOs, Sr. VPs, and much more.

Who are these elites who seem drawn to cheating, and what do their dalliances with AM say about their values and ethics? We intend to examine those questions closely in the early weeks of 2016.

Meanwhile, what are others saying about the Ashley Madison story? This is from USA Today:


Hackers who stole customer information from the cheating site AshleyMadison.com dumped nearly 10 gigabytes of data to the dark web this year, fulfilling a threat to release sensitive information including account details, log-ins and credit card details, if Avid Life Media, the owner of the website didn't take Ashley Madison.com offline permanently.

In August, the group who hacked into Ashley Madison, doubled down, posting what appears to be another 20 gigabytes of data — including the CEO's emails.

Analysis of the email addresses in the databases show that most come from webmail providers, said Robert Hansen, vice president of WhiteHat Labs at the computer security company WhiteHat Security, which independently studied the data.

The top most-used domains were Gmail.com, with 8.7 million, Yahoo.com with 6.6 million, Hotmail with 6.2 million and Aol.com with 1.2 million, Hansen found.

Surprisingly, there were at least 13,000 addresses from military and government emails with .mil and .gov addresses.

Here is Wired's take:

The breach of AshleyMadison.com, a site that touted itself as the premier platform for married individuals seeking partners for affairs, was loud and flashy and deserves the award for brazenness. Exactly one month after their hack of the cheating site went public, the hacker or hackers behind the breach made good on a threat to release sensitive company data, dropping more than 30 gigabytes of internal company emails and documents, as well as details and log-in credentials for some 32 million accounts with the social networking site. The data included names, passwords, addresses, and phone numbers submitted by users of the site. Although many of the personal account details were fabricated by users to remain anonymous, the hackers also released seven years worth of credit card and other payment transaction details, which exposed the real names and address of many customers. Reality TV star Josh Duggar was among those exposed by the breach. The company has been hit with several lawsuits from irate customers who accused the cheating site of being negligent in protecting their data.

Perhaps the essence of the Ashley Madison story can be found in a 2013 Newsweek article titled "Wall Street Loves a Cheater." The story was written roughly two years before the hack, but it speaks volumes about the way financial elites viewed a site whose motto is "Life is short; have an affair." From the Newsweek piece:

Headlines in tabloids and even so-called respectable newspapers – think of the Anthony Weiner sexting scandal – and gossip television shows underscore America's fascination with unfaithfulness. In recent years, websites devoted to relationships, including match.com and JDate, have become publicly traded companies (the latter's parent company's ticker symbol: LOV). America has plenty of "sin" businesses – gambling, liquor and cigarette companies are pillars of the New York Stock Exchange. Even the American Association for Retired People, better known for tips on arthritis and prostate screenings, reports a steep drop in the percentage of members who think nonmarital sex is wrong – to 22 percent in 2009, from 41 percent a decade earlier. "Ashley Madison is attracting people who may have always been inclined to cheat," says Peggy Drexler, an assistant professor of psychology in psychiatry at Weill Medical College at Cornell University. "But the site is also providing a previously unavailable opportunity to those who might in years past have chosen not to cheat. . . . "

American investors who get in on Ashley Madison would join a clutch of Canadian hedge funds that have already made a killing, raking in over $90 million in cash dividends since 2009, Biderman says. But like a cheating spouse, those Canadian investors don't want their identities known. Ashley Madison "is a remarkably good business," says one money manager at a Canadian asset management firm with $1 billion in assets who declines to name himself or his firm, citing fears of a public backlash. He says his firm has made 25 percent a year on its stake since investing in 2008. "It's recurring, has high margins, high free cash flow, requires little capital, has a rock-like balance sheet and is exceptionally well run by its passionate CEO."

That "passionate CEO," Noel Biderman, resigned in August after the site was hacked in July.  E-mails leaked from the hack show that Biderman himself had engaged in multiple affairs, suggesting he was a bit too passionate for his own good. The company now is awash in lawsuits, totaling more than $500 million, and the litigation figures to drag on for years.

Maybe the company wasn't so well run after all.

Noel Biderman
The Birmingham law firm Heninger Garrison Davis has filed multiple class-action lawsuits against Biderman and Avid Life Media (Ashley Madison's parent company).

That means there will be multiple Alabama angles as the Ashley Madison story plays out in 2016. According to a report at Business Insider, Alabama leads the nation in per-capita spending on Ashley Madison.

Who are some of those big spenders? We will be shining light on that question in the weeks ahead.



Monday, January 25, 2016

U.S. Supreme Court restricts judge's discretion in Florida death-penalty sentencing, while ignoring an almost identical issue in the Don Siegelman case


To a great extent, the whole purpose of appellate courts in the United States is to ensure laws are applied in a uniform fashion. With that in mind, we have new evidence that our nation's highest courts, including the U.S. Supreme Court (SCOTUS), are failing miserably.

I joined Andrew Kreig, attorney and journalist with the Washington, D.C.-based Justice Integrity Project, for a discussion last week about inconsistency in the courts on the Peter B. Collins Show (PBC) out of San Francisco.

The issue began to take shape when SCOTUS refused on January 11 to hear the latest appeal in the case of former Alabama Governor Don Siegelman. Attorneys for Siegelman argued that trial judge Mark Fuller improperly based sentencing, in part, on conduct for which the defendants were acquitted. That, Siegelman argued, interfered with his Sixth Amendment right to a trial by jury.

Antonin Scalia and Clarence Thomas, two of the court's most conservative justices, had indicated in a dissent from a 2014 case (joined by liberal justice Ruth Bader Ginsburg) that they were ready to take on that very issue. Assuming those three voted to hear the Siegelman appeal, that means a yes from only one other justice was needed for the court to accept the case. But no other support was forthcoming, not even from Obama appointee Sonia Sotomayor.

Consider the irony when SCOTUS, one day after refusing to hear the Siegelman case, released Hurst v. Florida, which involved almost the identical judge-vs.-jury question present in Siegelman. Here is how the Orlando Sentinel described the issues in Hurst:

By an 8-1 vote the U.S. Supreme Court declared Florida's capital sentencing scheme unconstitutional, saying in death penalty cases juries – not judges – must spell out at least one reason why the defendant should be put to death.

Under the old system, jurors listened to evidence then voted on whether to recommend life in prison without the possibility of parole or death. Their decision did not need to be unanimous.

The final decision was left to a judge.

In Tuesday's majority opinion, Justice Sonia Sotomayor wrote that by having the judge make the final decision, Florida was violating a defendant's right to be tried by a jury of his peers.

The test case involved Timothy Lee Hurst, who was convicted of murdering his boss in a Pensacola Popeye's restaurant in 1998.

The U.S. Supreme Court did not convert his sentence of one of life in prison. It merely threw out his death sentence. He is still a convicted murderer. It's now up to the state to figure out what sentence to mete out and how to do it.

Yes, you read the highlighted section above correctly. Sonia Sotomayor, who apparently voted not to hear the Siegelman case, wrote the majority opinion finding that Florida's capital-sentencing scheme was unconstitutional because it "was violating a defendant's right to be tried by a jury of his peers."

Sonia Sotomayor
That is precisely the argument Siegelman made regarding the sentencing in his case. So why did the high court hear one case--and essentially rule in favor of the Siegelman view--and ignore the case that involved Siegelman himself? If that question leaves you scratching your head, join the crowd. It certainly had Andrew Kreig, Peter B. Collins, and I scratching our heads.

From the PBC Web site, which includes links to audio of our discussion, and notes a number of Siegelman-related issues that were raised:

In the Siegelman case, now-disgraced Judge Mark Fuller sentenced the former governor for acts the jury had acquitted Siegelman of. In the recent death penalty case, styled Hurst v. Florida, the Supreme Court overturned Hurst's death sentence and struck down part of Florida's capital punishment system because the judge unilaterally imposed the death penalty after the jury merely recommended by 7-5 vote that Hurst be executed.

We discuss how this principle should have been applied to the Siegelman appeal, which was based on Fuller's over-sentencing of Siegelman.

We also talk about President Obama's failure to pardon or commute Siegelman's sentence, and the former governor's recent stretch in "the hole" after prison officials abruptly cut off an interview he was doing with a substitute host on the Thom Hartmann radio show. We discuss the new documentary expected this summer that recaps the layers of injustice in this case, which will be narrated by Martin Sheen.

Is consistency supposed to matter in our courts of law? Consider Rule 35 of the Federal Rules of Appellate Procedure, which addresses the circumstances under which en banc review can be conducted. The rule holds that such a full-panel review is appropriate when it "is necessary to secure or maintain uniformity of the court's decisions."

Rule 10 of the U.S. Supreme Court holds that "certiorari review is properly considered when "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter."

What does this tell us in light of the high court's recent handling of the Hurst and Siegelman cases? The lesson seems to be this: Consistency matters on paper; in real life, not so much.

Thursday, January 21, 2016

Rob Riley plays leading role in letter--and perhaps other documents--that could prove wrongdoing in the prosecution of former Alabama Gov. Don Siegelman


Rob Riley
Birmingham attorney Rob Riley, the son of former Alabama Governor Bob Riley, is a central character in a letter--and perhaps other documents--that are sought in a new lawsuit designed to unearth evidence of possible misconduct in the Don Siegelman prosecution.

Joseph Siegelman, the former governor's son and an attorney with The Cochran Firm in Birmingham, is suing the U.S. Department of Justice (DOJ), seeking documents about his father's prosecution. Multiple lawyers, using a variety of legal routes, have sought such documents for roughly 10 years. But the government, which seems particularly sensitive about items related to the supposed recusal of U.S. Attorney Leura Canary, has refused to turn them over.

The new effort from Joseph Siegelman focuses heavily on a letter that the DOJ's Office of Professional Responsibility (OPR) prepared for U.S. Rep. John Conyers (D-MI). Adam Zagorin, of the Project on Governmental Oversight (POGO), wrote an article that mentioned the letter--and we reported on it in December 2014 and January 2015. The title of Zagorin's article is "Justice Department Downplays Evidence of Politics in Probe of Governor."

The government might have downplayed evidence of a political prosecution, but the Conyers letter makes clear the evidence is there. (See full letter at the end of this post.)

In his federal complaint, Joseph Siegelman states that the DOJ admits in the Conyers letter that several of its officials "acted improperly" in the Don Siegelman case. The complaint goes on to state:

Among those officials was the Assistant U.S. Attorney (“AUSA”) in charge of the Siegelman prosecution who communicated directly with the campaign manager of Mr. Siegelman’s gubernatorial opponent. The letter discusses an email from the AUSA to the campaign manager informing him that the AUSA “and a small group of like-minded conservative prosecutors” within the U.S. Attorney’s office were pursuing Siegelman.

The identity of the assistant U.S. attorney remains unknown, for now. But the campaign manager in question was identified more than a year ago as Rob Riley. From our original report on the subject:

A federal prosecutor communicated with prominent Alabama Republican Rob Riley during the investigation of former Democratic Governor Don Siegelman, according to a report released yesterday.

Riley was serving as campaign manager for his father, Bob Riley, who was Siegelman's chief political opponent at the time. The revelation seems to support claims that Siegelman supporters have been making for years--that unlawful political motivations played a pivotal role in the prosecution.

Adam Zagorin wrote the article, titled "Justice Department Downplays Evidence of Politics in Probe of Governor," for Project On Government Oversight (POGO). The information about Rob Riley is included in a letter, dated June 3, 2010, from Assistant Attorney General Ronald Weich to U.S. Representative John Conyers (D-Mich.), who was then chair of the House Committee on the Judiciary. (See full letter at the end of this post.)

A Justice Department internal affairs unit, the Office of Professional Responsibility (OPR), was critical of several government attorneys involved in the Siegelman case, but concluded that the evidence "did not establish that political motivation played a role" in the case.

OPR's conclusions do not square with evidence that a chief prosecutor was communicating with Rob Riley during the Siegelman investigation. From our report:

Here is Zagorin on the communications between a member of the prosecution team and Rob Riley:

"In 2002, during the Justice Department’s investigation of Siegelman’s administration, a federal prosecutor emailed the son and campaign manager of Siegelman’s principal Republican opponent updating him on the confidential probe, according to a Justice Department document obtained by the Project On Government Oversight and reported here for the first time.

"In the email, the prosecutor said he had been “thwarted” after starting an investigation “into the Siegelman administration.” He added that it was “frustrating for me and a small group of like minded conservative prosecutors” to “fight the tide in order to do the job we are sworn to do.”

Perhaps most disturbing is this: It does not appear OPR bothered to interview Rob Riley--or the prosecutor. Was OPR interested in getting at the truth? Doesn't look like it, as Zagorin makes clear:

In listing the people OPR interviewed, the Justice Department letter summarizing the probe does not name Rob Riley, the son of and campaign manager for Siegelman’s political rival Bob Riley and the recipient of the “like minded conservatives” email. As a result, it is unclear whether OPR contacted him.

The DOJ letter also offers no indication of why the prosecutor emailed Riley in the first place, and on whose instructions, if anyone’s. Nor does it say whether Riley replied or took any subsequent action. It does not explain how the “small group of like minded conservative prosecutors” fit into the picture, or why the prosecutor injected his own political leanings and those of his colleagues into the matter.

John Conyers
(From politics365.com)
The unanswered questions also include who may have “thwarted” the conservative prosecutors and why, and what penalty the prosecutor faced, if any, for sending the email.

“I do not recall receiving the email in 2002, but I had nothing to do with the U.S. Attorney’s Office pursuing charges against Don Siegelman,” Rob Riley told POGO, noting that the contact would have occurred more than a decade ago. “I also do not recall being contacted by OPR one way or the other.”

Rob Riley has a habit of issuing such oily, limp-wristed responses when he is pressed with tough questions. Let's see, where have we heard them before?

Maybe Joseph Siegelman's lawsuit will put Rob Riley under the kind of pressure he's never experienced before.



Wednesday, January 20, 2016

Will Joseph Siegelman's lawsuit against Justice Department produce evidence that officials admitted to wrongdoing in prosecution of his father?


Joseph Siegelman
(From wiat.com)
Joseph Siegelman, an attorney with The Cochran Firm in Birmingham, has filed a lawsuit against the U.S. Department of Justice (DOJ) seeking documents about the prosecution of his father, former Alabama Governor Don Siegelman. The new lawsuit suggests certain DOJ officials have admitted to misconduct during the course of the Siegelman investigation and trial.

Siegelman associates have been seeking documents about the case, especially regarding the supposed recusal of then U.S. Attorney Leura Canary, for roughly 10 years. Alabaster attorney John Aaron filed a Freedom of Information Act (FOIA) request in 2006 and followed up with a lawsuit in 2009. Aaron learned that more than 1,000 documents exist related to the Canary recusal, but the government has refused to turn them over.

Joseph Siegelman filed a FOIA request last year with the DOJ's Office of Professional Responsibility (OPR), but the request was denied. Joseph Siegelman now has filed a lawsuit, which appears to go well beyond the Canary-recusal issue. (Please see full lawsuit at the end of this post.) From a report at WAFF in Huntsville:

The son of former Alabama Governor Don Siegelman is suing the Office of Professional Responsibility, a branch of the United States Department of Justice. Siegelman is serving a federal sentence for bribery and conspiracy at Oakdale Prison in Louisiana.

Siegelman’s son, Joseph Siegelman, is suing for records obtained during the Office of Professional Responsibility’s, or OPR’s, investigation into Siegelman’s prosecution and conviction. The OPR investigates Department of Justice attorneys accused of professional misconduct.

The filing states that the OPR opened an investigation after multiple national media outlets reported on the Siegelman case and raised questions about the prosecution. These outlets reported prosecutors placed undue pressure on witnesses, communicated with the jury, communicated privately with the judge, and withheld evidence from the defense.

Could Joseph Siegelman's lawsuit produce devastating information about the prosecution? According to WAFF, the answer appears to be yes:

The lawsuit also notes an article written by the Project On Governmental Oversight. That article mentioned a letter summarizing the OPR investigation. That letter reportedly includes admissions from “several” officials who acted improperly.

In June 2015, Joseph Siegelman filed a Freedom of Information Act, or FOIA, request for the OPR findings. The OPR denied that request based on an exemption for inter- or intra- agency memos or letters, an exemption for personal privacy interests, and an exemption for records compiled for law enforcement.

Joseph Siegelman says the OPR is wrong in [its] reasoning and is illegally withholding the information. He has requested a trial before a federal jury. Don Siegelman’s release date is set for August 8, 2017.

From the Joseph Siegelman complaint:

On December 11, 2014, the Project On Government Oversight (“POGO”), an independent nonpartisan non-profit organization, published an article entitled, “Justice Department Downplays Evidence of Politics in Probe of Governor.” The article discussed a letter sent from the Office of Legislative Affairs of the DOJ to the Honorable John Conyers on June 3, 2010 which purported to summarize the findings of OPR’s investigation.

In that letter, the DOJ admits that “several” of its officials involved in the Siegelman case acted improperly.

Among those officials was the Assistant U.S. Attorney (“AUSA”) in charge of the Siegelman prosecution who communicated directly with the campaign manager of Mr. Siegelman’s gubernatorial opponent. The letter discusses an email from the AUSA to the campaign manager informing him that the AUSA “and a small group of like-minded conservative prosecutors” within the U.S. Attorney’s office were pursuing Siegelman.


The death of Eagles guitarist Glenn Frey reminds us of the value of craftsmanship--in any endeavor


Glenn Frey
I am the son of a craftsman. My father, William Joe Shuler, made his living (and supported a wife and four kids) as a railroad worker and postal clerk. But his real gifts were as a repairman and a creator, especially with wood.

It's not a stretch to say my dad could fix most anything. I remember him taking an aged Dodge Rambler, which was dead on our driveway, and giving it years of new life. He also built extraordinary grandfather clocks--from scratch, as best I could tell. When he needed a place to put his clocks together, he built his own woodworking shop in our backyard.

I participated in the shop-building project, helping with the foundation, the framing, and the roofing. Until then, I thought hay hauling was the dirtiest, hardest job on the planet. My roofing experience convinced me that job, especially on a hot day, was just as brutal as hauling hay.

It's not that my father passed along his mechanical gifts to me. I had no idea how to build a woodworking shop; he had to show me how to do everything. And I wouldn't even know where to begin on building a grandfather clock.

But my dad did pass along an appreciation for craftsmanship. And I was reminded of that with news Monday about the death of Eagles guitarist, singer, and songwriter Glenn Frey, at age 67.

That's strange because my dad and Glenn Frey seemingly had nothing in common. Frey was the guy with long hair who co-wrote (with Jackson Browne) and sang "Take it Easy," the Eagles' first hit. My dad was a crewcut guy for almost all of his adult life.

I feel certain my dad had no clue who Glenn Frey and the Eagles were--even though their albums were featured regularly on the stereo turntable in my bedroom. I was born in 1956 and was old enough to appreciate quite a few bands from the '60s--the Beatles, Beach Boys, Dave Clark Five, Guess Who, Grass Roots, Three Dog Night, and Creedence Clearwater Revival. But I began to actually understand music (at least a little) in the '70s, And that decade belonged to the Eagles.

I came to consider "Take it Easy" as almost the perfect pop song. I loved the Eagles harmonies and their ability (thanks largely to Bernie Leadon's banjo and pedal steel) to merge country and rock. And when the Eagles added guitarists Don Felder and Joe Walsh to harden their sound, that led to the monster albums "One of These Nights" and "Hotel California," cementing the Eagles as a band for the ages.

The Eagles started as four guys (Frey, Leadon, drummer Don Henley, and bassist Randy Meisner) who were committed to democratic principles--with all four guys singing lead and having an equal say in band decisions. Frey and Henley quickly realized that wasn't going to work, so they gradually took over the band.

Henley, because of his soulful, raspy voice, a gift for lyrics, and an impressive solo career, became the band's best-known member. ("He could sing the New York City phone book and make it sound good," Felder once said.) Henley also became a stickler in the studio, meaning it could take years for the Eagles to produce a record. Bandmates called Henley "Sonic Bat" because of his ability to hear the slightest mistake in a song. (From that nickname, came another--"Guano," which is Spanish for bats--t.)

Even after launching solo smashes such as "Dirty Laundry," "Boys of Summer," and "End of the Innocence," Henley could identify the real leader of the Eagles. "The Eagles are Glenn's band," he said. "They always will be."

That's because Frey essentially was the band's "head coach." He co-wrote and sang the first hit, pretty much settled on the band's name, established the band's low-key concert style, handled personnel decisions (some of which led to painful exits) and developed themes for albums and many individual songs.

With the plaintive, haunting "Desperado," Frey and Henley established themselves as a songwriting team of the highest order. In essence, they became America's version of Lennon and McCartney.

How did Frey and Henley work? The Eagles best-known song, "Hotel California," provides a clue. The lyrics--"On a dark, desert highway, cool wind in my hair; warm smell of colitas rising up through the air; up ahead in the distance, I saw a shimmering light; my head grew heavy and my sight grew dim; I had to stop for the night"--came mostly from Henley. But Frey developed the song's theme--of a man driving through the desert, until he sees the lights of Los Angeles in the distance, and pulling into the mythical Hotel California as fatigue takes him.

Felder wrote the music for "Hotel California", and the song stands as one of the great collaborative pieces ever.

As the "MC" of Eagles concerts, and a primary spokesman in the press, Frey was quick with a quip. He could poke fun at his uber-serious songwriting partner--"Nobody can suck the fun out of a room like Don Henley." He also could poke fun at himself--"People think Jackson Browne and I wrote 'Take it Easy.' But Jackson pretty much had the song ready when he got stuck on the lyrics. I said, "How about, 'It's a girl, my Lord, in a flatbed Ford, slowing down to take a look at me"? Jackson said, 'Yeah, that's good.' And that's how I got a credit on the song; I wrote one line." (That quote is from the History of the Eagles documentary. I might not have it exactly right, but I'm pretty sure I've got the gist of it. I just know that I guffawed when I heard it."

Frey was ambitious and driven, and he could get nasty with bandmates who weren't of the same mindset or questioned his tactics. All three members who left the band--Leadon, Meisner, and Felder--departed in the wake of disputes with Frey. When the Eagles regrouped in 1994, after what Frey called a "14-year vacation," he (with some assistance from Henley) tried to rearrange the group's business structure so that the two of them would get bigger shares and Felder would be pushed aside as a partner. When Felder continued to ask questions about Manager Irving Azoff and the band's finances, Frey booted him out of the band--and years of nasty litigation ensued.

Felder probably wound up with a nice settlement, but he was forced out of a band for which his entrance marked an explosion in popularity--and he wrote the music for what would become the band's signature song. Was Frey driven by control, power, and greed? It looks that way to me--and I'm a big Frey fan. Frey and Henley should have been grateful for Felder's contributions to the band, and respectful of the role he had earned as partner. Instead, they (mainly Frey) strong-armed him out of the band.

Was Glenn Frey a driven leader who sought the best from those around him? Yes. Could he be a charming, insightful, and funny guy? Yes. Was he generally graceful and honorable under fire? Nope. Was he a musical genius? Based on his solo output, the answer probably is no. He was a very good, but not quite great, musician; any "genius" tag related to the Eagles belongs with Henley.

Was Frey a craftsman? Absolutely, and insight on that comes from Timothy B. Schmitt, who left Poco in 1977 to replace Meisner as the Eagles bassist. Poco was--and still is--a very good band, with a career that spanned more than six decades and produced hits like "Good Feeling to Know," "Keep on Tryin',""Rose of Cimarron," "Crazy Love," and "The Heart of the Night." But the band has never come close to the heights the Eagles reached.

Someone once asked Schmitt about the difference between the two bands, and he said, "There is a level of craftsmanship with the Eagles songs that we didn't have with Poco."

Who drove that craftsmanship? Don Henley certainly played a role, but the leader--the man who set the standards high--was Glenn Frey.

I, and millions of other fans, long will be grateful for what Glenn Frey brought to our lives. I think even my dad would have appreciated Frey's determination to get things right.

Frey is best known as the co-writer and/or lead singer on major singles, such as "Tequila Sunrise," "Already Gone," "Lyin' Eyes," "New Kid in Town," "Heartache Tonight," and (of course) "Take it Easy."

But he also took the lead on LP tracks that made all seven of the Eagles' studio albums such treasures. One of my favorites is a song from the band's third album, "On the Border," and it wasn't even written by a member of the Eagles. Tom Waits wrote "Ol' 55," but with Frey on lead vocals and piano--plus classic Eagles harmonies, it's a song that has stayed close to my heart for almost 45 years. Here are the Eagles performing "Ol' 55" live:









Tuesday, January 19, 2016

Mike Hubbard and Don Siegelman are alike? Al.com's John Archibald must be joking--and he contradicts his own words in a column from about a year ago


John Archibald
It probably was inevitable that a member of the Alabama mainstream media (MSM) would compare indicted House Speaker Mike Hubbard (R-Auburn) with imprisoned former Democratic governor Don Siegelman? It was a cinch that the MSMer's analysis would be wildly off target. But we never dreamed he would contradict his own words from roughly a year ago.

The journalist in question is al.com's John Archibald, who wrote "Why Mike Hubbard is like Don Siegelman." Archibald is no stranger to shallow, nonsensical analysis, so it's not a surprise that he would tackle this subject and screw it up. But you would think he might at least remember his own words from February 2014, in a post titled "This country is about to have a throwdown over abusive cops and courts."

Archibald's Hubbard/Siegelman commentary is goofy from the outset because there are almost no similarities between the two politicians and their criminal cases:

* Hubbard was indicted while in office and has refused to step down from his post, even temporarily, despite pleas from members of his own party; Siegelman was not in office when he was indicted.

* Hubbard's indictment appears to be lawful--it was filed inside the relevant statute of limitations and cites language that matches that from the state ethics law upon which it is based; the federal government filed an indictment against Siegelman almost one full year after the statute of limitations had lapsed, and the former governor was convicted based on jury instructions that match neither the statutory nor case-law language. In essence, Siegelman and codefendant Richard Scrushy were convicted of a "crime that does not exist."

* Hubbard was indicted by a state attorney general (Luther Strange) who is a member of his own party. Siegelman's indictment and prosecution were driven by members of the opposing party. Alabama attorney Jill Simpson swore in an affidavit, and testified under oath before Congress, that GOP operatives targeted Siegelman for political reasons--not because he had committed a crime.

Don Siegelman
I could go on and on about differences between Hubbard and Siegelman and their respective cases. But let's turn our attention to Archibald.

His main gripe seems to be that neither Hubbard nor Siegelman has admitted guilt. (I'm not a Mike Hubbard fan, but he hasn't even gone to trial, and he's entitled to plead not guilty and try to prove that in court. Under those circumstances, it would be nutty for him to admit fault.) Here is the key point Archibald seems to be making:

If we know one thing at all by now it is that Mike Hubbard will serve Mike Hubbard first. He will cling to the power he believes he rightfully claimed for himself from the Democrats and all the forces marshalled against him. He will hold to that power as long as he has fingernails to sink into it. Because he is just like every other politician who grabs hold and cannot let go.

He's just like those he ridiculed when he himself staked a claim to public service.

Like convicted Democratic former Gov. Don Siegelman.

They both refuse to acknowledge fault. They both refuse to accept responsibility. They point and blame, because they always used government as a way to service themselves privately instead of using it provide the public service they promised.

Archibald seems to be saying we have a justice system that always gets it right--that all prosecutors, lawyers, judges, and jurors are fair, honorable, serious, perceptive, and knowledgeable. This system, Archibald seems to assert, is infallible--and anyone who is indicted or found to be guilty under it has a duty to admit guilt.

That's a far cry from what Archibald wrote roughly one year ago. On that occasion, Archibald was understandably disturbed about the case of Sureshbhai Patel, a grandfather from India who was body slammed and partially paralyzed by Madison police officer Eric Parker. (We will be addressing the latest outrages in the Patel case soon.) Here is what Archibald wrote last February:

I've been asked a lot lately, in the wake of the gay marriage debate, what the next great civil or human rights battleground will be. And I think this is it.

Justice. And all that means.

It is the use of force by police. It is the fairness of justice for the rich and the poor alike. The battle is simmering now, in places like Ferguson and Madison, and more quietly in courts like those in Childersburg and Clanton, where the smallest of traffic offenses can lead to jail time for those who cannot pay immediately.

It was by far the most insightful piece I've seen from John Archibald, and I praised him for it publicly. Archibald correctly stated that our justice system is deeply flawed--and the law-enforcement and legal/judicial types who make it "hum" often have dubious motives.

So why should Don Siegelman admit guilt because of the findings from a court system that Archibald admits is a long way from infallible? Why should Mike Hubbard admit fault before he's even tried by such a system?

Mike Hubbard
Here is a question for John Archibald, and those who think like him: Imagine you received a letter from the IRS, claiming you owe $5.6 million in back taxes--due to profits from a car-dealership you opened three years ago. Imagine, however, that you've never opened a car dealership or any other sort of business--profitable or otherwise.

Do you just quietly take the IRS's word and start trying to figure out how you are going to pay $5.6 million--or maybe start thinking about what life will be like in federal prison? Or do you fight back--telling IRS officials they are wrong and offering proof that you do not owe back taxes?

Any rational person is going to fight back--realizing that our government entities can, and do, make mistakes.

But Don Siegelman and Mike Hubbard are supposed to just quietly take whatever the court system gives them? I don't buy it--and John Archibald's own words indicate he doesn't buy it either.

Thursday, January 14, 2016

Remembering the schnauzer who inspired a blog about the fight for justice




Murphy and Carol appeared on a TV report about the Blessing of the Animals
on St. Francis of Assisi Day



Today marks the 12th anniversary of the death of Murphy Abigail Shuler, the beloved miniature schnauzer for whom this blog is named. Murphy died unexpectedly on her 11th birthday, and my wife, Carol and I still miss her like she passed yesterday.

Ironically, Murphy's death and birthday came on January 14, one day after Carol's birthday, January 13. You might say that, for us, all kinds of mixed emotions are wrapped up in those two dates on the calendar.

If something good comes from this blog--a more educated public about injustice, more awareness about our broken and dysfunctional court system, support for victims of court-related corruption--the credit for that should go to Murphy. Without her, I don't think I ever would have been inspired to write a blog.

How could a dog inspire a blog. I tried to put the answer to that question into words with a post back in October 2011:

I am convinced that the distinctive title is a major reason this blog has resonated with more people than I ever dreamed possible.

In fact, an individual who has been the subject of quite a few posts here recently told me, "You know, people ask me all the time about Legal Schnauzer. And I think that title is one reason. It seems to connect with people."

Needless to say, those words warmed my heart. That's because this blog never has been about the anger, frustration, and fear we've experienced at the hands of our broken justice system--although those certainly are key elements to the story. At the risk of becoming overly ethereal, Legal Schnauzer has been, for the missus and me, like a divine calling.

It really is inspired by Murphy Abigail Shuler, the miniature schnauzer who was a guiding light in our lives from the day we adopted her in March 1993 until her death on January 14, 2004. She was with us, literally, through the first four years of our trip through legal hell. She is with us, spiritually, today.

What did Murphy mean to us? I tried to address that in a post titled "Lessons from our pets":

I don't pretend to know the answer to weighty questions about our pets. But I know what my wife and I hope--and believe. A heaven without Murphy and our other animal friends would not seem, well, all that heavenly.

Have you ever wondered about the special senses animals have? For 11 years, I knew that Murphy could see and hear and smell things in a way that I could not. But I also suspect she could sense our Creator in a way that I could not.

Many times I wonder exactly what my mission is in this time and place. I hope I'm a fairly decent husband, son, and brother, and I like to think I'm considered a reliable employee and coworker. I hope a few people consider me a friend worth having.

Murphy and her mom at Gulf Shores, Alabama

But I think Murphy knew exactly what her mission in this life was. And I think she sensed that from a higher power every day. Without that kind of connection from above, I don't know how she could live with the faith and trust that she displayed on a daily basis.

We humans struggle to discern our missions. And even when we think we've found them, we are easily distracted, easily turned in other directions. My sense is that Murphy never veered from the path she was meant to be on.

Aside from all that heavy stuff, Murphy was just a ball to have around. She was a source of constant amusement and playfulness, so much so that we developed the habit of creating songs for her--as I tried to explain in a post titled "Songs for Murphy":

Maybe our favorite "Murphy Song," appropriately enough, came from a band whose roots are firmly planted in Tuskegee, Alabama. It was inspired by the Girl's solid little build. We've read that some miniature schnauzers weigh in the 10- to 12-pound range. But that wasn't our girl. She was 18 to 20 pounds of solid muscle. "Murph, you're built like a brick s--thouse," one of us said one day. That prompted us to try our version of this Commodores classic:

And so, while this day always brings sadness, it also brings a sense of thankfulness, joy, and hope. In that spirit, we share a song that will forever make us think of Murphy--and it never fails to make us smile:




Wednesday, January 13, 2016

Gov. Bentley's affair with aide Rebekah Caldwell Mason, plus his curious plans for beach mansion, draw national headlines from NY Times and Gawker


Gov. Robert Bentley and Rebekah
Caldwell Mason
(From HBTV.us)
Fallout from Alabama Gov. Robert Bentley's affair with aide Rebekah Caldwell Mason now is generating national headlines--and they aren't about the governor's supposed standing as a "family values" conservative.

Articles in The New York Times and Gawker focus on Bentley's plan to use funds from BP oil-spill grants to refurbish the state's beachfront mansion, which has been in a state of disrepair since being struck by Hurricane Danny in 1997. The articles particularly focus on allegations that Bentley is dipping into state coffers to fix the mansion because he lost his own beach properties in a divorce from First Lady Dianne Bentley, which ended a 50-year marriage among reports that the governor and Mason had become unusually close.

The Times article, titled "Alabama Governor’s Use of Oil Spill Funds for Mansion Draws Criticism" and written by Alan Blinder, was published on July 11. Gawker followed up yesterday with a piece by Jordan Sargent titled "Alabama Governor Will Take His Post-Divorce Blues to a State-Funded Beach House."

Blinder, of The Times, sets the stage with his report from Montgomery:

In a capital where almost anything can turn contentious, there has mostly been a consensus on a matter of housekeeping for close to two decades: A rehabilitation of a ramshackle governor’s mansion on the gulf coast would be political folly.

So when Gov. Robert Bentley’s office acknowledged last month that Mr. Bentley, a second-term Republican, was renovating the home with up to $1.8 million that BP gave the state after the 2010 oil spill in the Gulf of Mexico, it was something of a jolt, particularly because the property in Baldwin County is intended only as a retreat for governors.

Mr. Bentley, who cannot seek a third consecutive term, is making no apologies for the decision, which provoked debate about BP’s payouts after the spill; questions about what a state short of cash is doing supporting an executive escape; and testy posts on social media by the governor and the state auditor, a fellow Republican.

“If this were a house in the woods in North Alabama, nobody would think anything about it,” Mr. Bentley said in an interview last week. “It just sounds more elaborate when it’s on the beach. But it’s a state-owned property, and it is our responsibility to repair state-owned properties.”

The Republican auditor would be Jim Zeigler, who has made it a habit to raise thorny questions about Bentley's actions. Writes Blinder:

State officials, citing security concerns, have been reluctant to disclose details of the renovation. Many of the plans were contained in a handsome portfolio that architects presented to Mr. Bentley, who said he wanted the project completed in time for a Memorial Day event for veterans.

But the governor forcefully denied Mr. Zeigler’s assertion on Facebook that he sought upgrades to the property only after a divorce in which he lost two beach houses.

“We’ve been working on this for a long time. All right?” Mr. Bentley said with a trace of anger as he gestured toward the plans, which were dated Aug. 27. Mr. Bentley’s wife, Dianne, filed for divorce on Aug. 28; the couple had been separated since January, according to a court document. (The governor’s office disputed the separation date, which was included in Dianne Bentley’s divorce complaint, and said Monday that the couple lived together until late August.)

Mr. Bentley made a similar case on Twitter in December, when he said Mr. Zeigler was “lying” and complained about news outlets publishing the auditor’s allegations. Mr. Zeigler, for his part, stood by — and often repeated — his charge.

Gawker, with its motto "Today's Gossip is Tomorrow's News," takes an "in yo face" approach to the story. While The Times discreetly sidestepped any mention of an extramarital affair, Gawker's approach is much less delicate. After all, this is the Web site that reported before on the Bentley/Mason scandal with the headline: "Alabama Governor Robert Bentley Won't Say Whether He Fucked a Staffer."

Alabama beach mansion
(From rt.com)
Headlines don't come much more direct than that. Writes Sargent in his latest Gawker piece:

Alabama Governor Robert Bentley had a poor 2015, having divorced from his wife of 50 years in the midst of a widespread rumor that he’d had an affair with a key aide. Bentley has something to look forward to this year, though: a newly rebuilt beach house. But about that. . . .

The distastefulness of a state governor souping up a beach house via funds nominally dedicated to repairing a vital environmental region after a historically damaging disaster is obvious to everyone involved. . . .

But it is on the beach, and that specific detail has piqued the interest of one official close to the money: state auditor Jim Ziegler. Ziegler’s theory is that Bentley isn’t fixing the mansion because of a responsibility to the state or so that, as Bentley states, it can be used for events that will foster economic growth in Alabama. Instead, in a statement written before Christmas, Ziegler offered that Bentley’s interest in the mansion stems from the fact that the governor lost possession of two beach homes in the divorce from his wife.

Ouch! And the scorching words don't end there. Sargent sums up Bentley's mess thusly:

Bentley now has to refute not only that he’s immorally diverting money, but that he’s doing it for a deeply personal reason. The governor attempted to provide evidence contrary to Ziegler’s theory to the Times, saying that his office has been working on refurbishing the beach retreat for “a long time.” To that end he showed reporter Alan Blinder plans dated August 27. That date is especially curious because, as Blinder notes, Bentley’s wife filed for divorce one day later.

In a separate statement to AL.com, a Bentley spokesperson said that the governor recently purchased his own property on the same peninsula that houses the rundown governor’s mansion. Maybe that is so, but it doesn’t obscure an unchangeable fact as Bentley moves on from the twin loss of his previous beach homes: one plus one equals two.

Tuesday, January 12, 2016

Justices Antonin Scalia and Clarence Thomas appeared poised to side with Siegelman in SCOTUS case that could have protected the right to trial by jury


Don Siegelman
(From Montgomery Advertiser)
The U.S. Supreme Court's decision yesterday not to hear the latest appeal in the Don Siegelman case, of course, is a blow to the former Alabama governor. But it's also a blow to a supposedly bedrock concept of our demorcracy--the right to a jury trial. That means yesterday's decision is a blow to all Americans, even those who've never heard of Don Siegelman and have no idea what his case is about.

Here is the central issue in the Siegelman appeal: May a court consider acquitted conduct to increase a sentence within the statutory range of the offense for which the defendant was convicted? That is precisely what U.S. District Judge Mark Fuller--who since has resigned from the bench in the wake of a wife-beating scandal--did in the Siegelman case. And it's a big reason Siegelman is not scheduled for release from federal prison until August 8, 2017.

To a considerable extent, he is being held now based on charges of which a jury acquitted him. A number of constitutional and legal groups have filed briefs in the case, arguing that such an outcome violates a defendant's Sixth Amendment right to a jury trial and violates the Right to Popular Sovereignty inherent in the U.S. Constitution.

Based on news reports about a similar 2014 case, two of the Supreme Court's most conservative justices--Antonin Scalia and Clarence Thomas--appeared ready to side with Siegelman, a Democrat. Liberal justice Ruth Bader Ginsburg, who joined Scalia and Thomas in a 2014 dissent, also appeared ready to side with Siegelman.

If Scalia, Thomas, and Ginsburg voted to hear the Siegelman case--as seems likely--that means no other justice provided a fourth vote needed to hear the case. SCOTUS announced that Obama appointee Elena Kagan did not participate in deliberations because, as solicitor general, she had written a brief urging the high court to uphold the Siegelman convictions.

If this scenario played out behind the scenes, that means two liberal justices--Clinton appointee Stephen Breyer and Obama appointee Sonia Sotomayor--could have provided the fourth vote needed to hear the Siegelman case. But they apparently did not do it.

That raises this question: If Democrats are the party that champions constitutional rights, what kind of rights are Breyer and Sotomayor supporting--especially on an issue where even Antonin Scalia and Clarence Thomas see constitutional problems?

Here's another question--Hillary Clinton has powerful ties to both the Bill Clinton and Barack Obama administrations. What does this outcome say about her priorities regarding civil rights? Should she be pressed about this issue on the campaign trail? Could this cause Democrats who truly care about constitutional protections to support Bernie Sanders?

The 2014 case was styled Jones v. United States. Here's how the Stanford Daily summarized the facts and legal issues surrounding the case:

The case arose in Washington, D.C. Three men, Joseph Jones, Desmond Thurston and Antwuan Ball, were charged with, among other things, running an “open-air” drug market — essentially a conspiracy to distribute large amounts of drugs. If convicted on that charge, the men would effectively be held liable for all of the drugs dealt by the entire “organization,” much more than any of the men had personally distributed. The jury, however, did not convict on the conspiracy charge, and instead merely found the men guilty of distributing the relatively small amount of drugs that each had personally dealt— between two and 11 grams of crack cocaine. . . .

Nevertheless, the judge accepted the government’s argument and sentenced the defendants as if they had conspired to distribute more than 500 grams of crack, even though they had been specifically acquitted of those charges. The defendants therefore received sentences varying from 15 years to almost 19 years, sentences nearly four times the length of the next highest sentences imposed for similar convictions.

How did that sit with Scalia, Thomas, and Ginsburg? Not well, as the Stanford Daily reports:

The Court, however, denied certiorari, but not without dissent. Justice Scalia published a vigorous dissent, insisting that it was time for the Court to put an end to this practice. First marshaling precedent, Justice Scalia explained that any fact that increases the penalty to which a defendant is exposed is essentially an element of a crime, and therefore must be proved to a jury, not a judge. The Court has also held that a substantively unreasonable sentence is unconstitutional and must be set aside. It follows, then, according to Justice Scalia, that “any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.” Because the defendants argued that their sentences were only reasonable if the conspiracy was considered relevant conduct that could increase the Guideline penalty, the Sixth Amendment was implicated. Justice Scalia then closed by insisting that the Court should have taken this opportunity to “put an end to the unbroken string of cases disregarding the Sixth Amendment.”

Justice Scalia was not alone in his dissent. In fact, criminal cases can often lead to unusual lineups of Justices, and this case was one such example. Joining Justice Scalia in his dissent from denial of certiorari were Justices Thomas and Ginsburg. Given just one more vote, then, the Court would have granted certiorari to resolve this important issue.

Dissents from denial of certiorari are rare, and no such dissents were forthcoming in the Siegelman case. But three justices, from a wide range of political perspectives, have already made it clear where they stand on the issue.

Antonin Scalia
(From Mother Jones)
That leaves us with Don Siegelman to voice his own dissent, writing on his Facebook page from the Federal Correctional Institute in Oakdale, Louisiana. Siegelman starts by quoting Bob Dylan:

"It is hard to believe we live in a country where justice is just a game.” Bob Dylan

"U.S. Citizens do not have a constitutional right not to be framed": The U.S. Solicitor General, January 4th, 2010, in an argument to the U.S. Supreme Court defending Iowa law enforcement in a civil suit by two men who spent 25 years in prison for a crime they didn't commit. They were intentionally framed.

Today, the U.S. Supreme Court gives its stamp of approval to the practice of allowing judges to add years to a defendant's sentence for matters a jury found the defendant innocent!

We criticize North Korea, China and other countries for human rights violations while turning a blind eye to our own.

Today's U.S. Supreme Court decision is so extraordinarily shocking and is an example of America's democratic hypocrisies.

116 former state Attorneys General and The Constitution Project argued that a jury decision is final, that the U.S. Constitution gives the people, speaking through a jury, the final decision on guilt or innocence. The U.S. Supreme Court has thumbed its nose at justice."

Don E. Siegelman

Governor of Alabama, 1999-2003

Monday, January 11, 2016

Did issues tied to affair with Rebekah Caldwell Mason prompt Gov. Robert Bentley to spend $24,000 with Montgomery law firm known for criminal defense?


Gov. Robert Bentley and Rebekah
Caldwell Mason
(From HBTV.us)
Alabama Governor Robert Bentley in 2015 spent more than $24,000 in campaign funds with a Montgomery law firm noted for criminal-defense work. Were Bentley's payments to the Melton Espy and Williams firm driven by issues arising from his extramarital affair with aide Rebekah Caldwell Mason?

News of the affair broke on August 31, 2015, shortly after First Lady Dianne Bentley filed for a divorce that ended a 50-year marriage. Reports then showed that Robert Bentley's 2014 campaign paid more than $400,000 to Mason's company, RCM Communications, of Tuscaloosa--and Bentley had hired Mason's husband for a state position that paid more than $390,000 over a five-year period.

In short, public records showed that Rebekah Mason and her husband made more than $1 million during the Bentley administration. According to an al.com report about Bentley's latest campaign-finance report, another $76,000 went to Mason's company in 2015. (See campaign-finance report at the end of this post.)

Robert Bentley is not the only one, in the wake of his divorce, to hire a lawyer with a history of criminal-defense work. Rebekah Mason reportedly has hired Bobby Segall, of the Montgomery firm Copeland Franco.

The Alabama Council for Excellence in Government (ACEGOV) might be at the heart of the criminal concerns. Here's how we explained it in a post dated September 22, 2015:

What is the most likely source of criminal exposure for Mason and Bentley? Our sources say it is the Alabama Council for Excellent Government, also known as ACEGOV, a nonprofit organization with ties to three of the most powerful entities in the state--Alabama Power, the University of Alabama System, and the Poarch Band of Creek Indians, who have tried to arrange a monopoly on state gaming in exchange for assistance with the state budget crisis.

Where does ACEGOV get its money? The council is not terribly forthcoming with that information, but in a general sense, the funds reportedly come from Bentley's leftover campaign resources. More specifically, our sources say, the money comes mostly from Alabama Power and the Poarch Creeks--and a significant amount of it has been funneled to Governor Bentley's mistress, Rebekah Caldwell Mason.

Cooper Shattuck, a former legal adviser for Bentley, formed ACEGOV in February before moving on to become general counsel for the University of Alabama System.

Birmingham attorney Donald Watkins, via reporting on his Facebook page, shined additional light on ACEGOV, calling it a "slush fund" for Mason. Here is how Watkins described it:

For over a year, the governor seemed oblivious to the hurt and pain he had caused to Mrs. Bentley and his children by his love affair with Rebekah. Since he was re-elected last year, Bentley’s primary concern has been figuring out how best to use the financial resources of the state, along with leftover campaign funds and the financial resources of friendly political groups, to support his romantic lifestyle with Rebekah.

In February, Governor Bentley established the Alabama Council for Excellent Government, a 501(c)(4) non-profit corporation. Bentley’s former legal advisor Cooper Shattuck formed the Council at Bentley’s request. The stated purpose of the organization is to “support Governor Bentley in his efforts to solve real problems and to make Alabama greater, stronger and more excellent for all the hardworking men and women who call this great state our home.” In reality, the Council is a slush fund that was set up to (a) fund Bentley’s love affair with Rebekah while concealing payments to her from the view of public oversight and accountability, and (b) stash money for life with Rebekah after the governor’s divorce from Mrs. Bentley.

Bentley funded the Council with excess campaign funds left over from his 2014 gubernatorial campaign. The Council has also received a $25,000 contribution this year from AEA and $20,000 from the Alabama Hospital Association.

Watkins posted those words on September 9, 2015. Bentley's latest campaign-finance report shows that on October 15, 2015, barely one month later, he paid $24,758 to the Melton Espy firm.

Is that a coincidence? We doubt it.