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Thursday, December 8, 2016

Arizona cop who punched woman in the face sees his story fall apart -- and that is one of many similarities between that case and our abuse from law enforcement

Arizona cop Jeff Bonar punches Marissa Morris in the face.
(From nydailynews.com)
An Arizona cop who was caught on video punching a woman in the face is seeing his credibility shredded, thanks largely to another officer who was on the scene and makes no mention in his report of the woman repeatedly kicking anyone before being punched.

The incident, which started when Flagstaff cop Jeff Bonar and sheriff's deputy Joel Winchester tried to evict Marissa Morris and others at her residence, has profound resonance here at Legal Schnauzer. It has so many similarities with our cop-related experiences in Alabama and Missouri that it's hard to keep up with them all.

But here is our best effort to show how the various cases converge, the truths we can take from them. Taken together, the cases indicate you can be subjected to gross police abuse, no matter where you live in the country:

(1) Rogue cops have an almost innate instinct to lie about abuse of the public --

In Arizona, Officer Bonar wrote in his report that Morris had kneed him multiple times, including once in the groin, prompting him to strike her. Deputy Winchester makes no mention in his report of any aggressive behavior on Morris' part, other than repeatedly stating (correctly) that she did not have any outstanding warrants for her arrest. In Missouri, my wife Carol was slammed to the ground and an unknown officer yanked so violently on her arms that one of them was snapped in two, and the other was purple from extensive bruising. Greene County Sheriff Jim Arnott, inexplicably, was on the scene, standing about five feet away when Carol was assaulted. He immediately stated that Carol had "assaulted a police officer." I knew this statement was false because I saw the whole event from about 20 feet away, and Carol did not say or do anything to prompt the assault. She had been given permission to enter the apartment to retrieve our belongings -- as had I -- and that's what she was trying to do.

(2) Be wary when law enforcement is on hand for an eviction --

Both of these cases involved evictions. Our understanding is that sheriff deputies (usually one or two) are on hand to make sure evictions go smoothly, with the landlord's staff and tenants doing most of the work. Ours involved eight to 10 officers and probably close to a dozen assault rifles and handguns. Best we can tell, the Arizona eviction was legitimate. Ours had been stayed, by law, when we timely filed a notice of appeal in our court case. Did that have any impact on rogue cops? Nope. They had no lawful grounds to be on the Missouri property, much less to barge through the door, start waving firearms around, handcuff us, and eventually commit a brutal assault on Carol.

(3) Cops might try listening to citizens once in a while --

In Arizona, Marissa Morris repeatedly tried to tell Bonar that she did not have an outstanding warrant -- and she proved to be correct about that. Did Bonar listen to her? No, he punched her in the face. In Missouri, as I was sitting handcuffed on the lawn outside our apartment (why was I handcuffed for an eviction?), I repeatedly told Arnott that execution of our eviction was stayed because we had timely filed a notice of appeal (and paid the filing fee) within the 10-day window allowed by law. He repeatedly turned his palms upward and shrugged his shoulders, as if he had no clue about Missouri law -- on a subject he is entrusted with handling.

(4) Cops don't seem to care if they hurt someone, even women --

Marissa Morris apparently took a punch to the face without being hurt too badly. This must be one tough woman -- or perhaps Bonar hit her more with his palm than with his fist. The punch had to have hurt, and Morris was fortunate to escape without a broken nose or other structural damage. As for our situation in Missouri, X-rays show that Carol's left arm was essentially snapped like a twig, with the break so extreme that it required trauma surgery -- and she likely will never regain more than 75 percent use of her arm.

(5) Cops aren't big on showing warrants or offering explanations for their actions --

According to a report at copblock.org, Morris asked Bonar to see a copy of any warrant for her. He didn't show her a warrant, and he did not explain what any warrant was supposed to be about. I can identify with that. When Alabama deputy Chris Blevins entered our home, knocked me to a concrete floor three times, and doused me with pepper spray, he did it all without showing a warrant, stating he had a warrant, or stating his reason for being on our property. When told by a judge at my resisting arrest trial to produce copies of any warrants, assistant DA Tonya Willingham said she didn't have any. I've still never seen one. Copblock.org used the term "kidnapping" to describe what happened to Marissa Morris, and since I also was taken without a warrant, I've used the same term to describe my experience.

(6) Cops will hit you with a "resisting arrest" charge simply for questioning their actions --

Both Arizona officers alleged in reports that Morris "resisted." As noted above, I actually went to trial in Alabama for "resisting arrest" and was found guilty -- even though a dashboard camera caught Blevins walking into our garage without stating his reason for being there. It captures him asking me to step outside, and me telling him to (in so many words) get the hell out of our house. Under Alabama law, an arrest is unlawful when an officer enters premises without stating his reason for being there. In fact, a citizen has both a right, and a duty, to resist an unlawful arrest -- and an officer has no lawful grounds to use any force in an unlawful arrest. Morris and I acted 100 percent within our rights, but she still got punched in the face -- while I got pummeled, doused with pepper spray, and thrown in the slammer for five months.

(7) Cops and cover-ups seem to go hand in hand --

Based on press reports, it appears Officer Bonar participated in a cover-up. His report said Marissa Morris kneed him multiple times, including in the groin, while another cop on the scene made no mention of any kneeing or kicking. (Note: I've had the misfortune of being hit in the "delicates" a time or two while playing sports, usually baseball. Some advice for you young sprouts out there -- never take to a baseball or softball diamond without a cup firmly in place. No matter how uncomfortable a cup might feel, you will be glad you had one on if a ball makes direct contact with the "family jewels.") If Morris actually had kneed Bonar in the groin, I feel quite certain the officer would have been on his hands and knees, wanting to puke up his guts. His report makes no sense, and the words of another officer, indicate Bonar flat-out lied. Here in Missouri, I've written several posts about the Greene County Sheriff's Office Policies and Procedures Manual, which is supposed to govern investigations regarding use of force. The posts, which include links to the manual online, can be viewed here, here, and here.

X-ray of Carol Shuler's arm,
broken by a sheriff's deputy
Guess what we recently discovered about the policies and procedures manual? The link to it on the Web no longer works. You click on the link, and you now get this -- and I can't find the manual anywhere else on the Web. In September and October 2016, I wrote three posts based largely on that manual, and now it has disappeared from the Web.

What does that tell you? It tells me that Sheriff Arnott's department has not followed its own policies and has never conducted an investigation, serious or otherwise, about what happened during our eviction.

(8) Cops have ways of taking their body cams out of commission --

A report at CBS News on the Arizona incident included the following:

Bonar was wearing a body camera, but according to his own police report, he turned it off before approaching Morris.

Why would an officer turn off his body cam before approaching someone? (For that matter, why are body cams made so that officers can turn them off?) I can think of only one answer: Bonar knew he was likely to rough up Morris, and he wanted to make sure there was no video evidence of it. Fortunately, Morris' friends and family members were on hand to make sure the punch was captured on video. (From my research, evictions normally are under the control sheriff's departments. It's not clear why Bonar, a city police officer, was on the scene. Did he have some beef with Morris, or someone close to her, and appeared with the intention of roughing her up?)

Was there a similar mindset at play in Missouri, with us? I have little doubt about it. I suspect any cameras were removed or turned off, and if one was operational, I imagine its contents have been destroyed. We believe one police vehicle might have been parked in a way that it would capture the assault on Carol -- if it included a functioning dash camera.

Many Americans still like to think cops are looking out for them, doing that "protect and serve" thing. But if you've actually had a close encounter with a cop, you are likely to know the truth -- a lot of them are lying scumbags and bullies, who apparently take delight in hurting others and trying to cover up their misdeeds.

We've witnessed it in Alabama and Missouri, and reading about the recent case in Arizona brings a lot of that trauma back home.

Wednesday, December 7, 2016

The longer the "Luv Guv" Bentley story goes on, the more personal offense I take at his efforts to target me because I broke his sleazy story into the open

Gov. Robert Bentley and Rebekah Caldwell Mason
The more we learn about Alabama "Luv Guv" Robert Bentley, the more I take personal offense at his hideously corrupt and hypocritical administration. An objective journalist, of course, is not supposed to write a sentence like that. But I've had to check my objectivity at the door on this story.

Bentley repeatedly has taken swipes at my professional and personal integrity, and multiple reports have him targeting me (and perhaps my wife, Carol) for unlawful retaliatory action. To think this clown rode into office while touting family values, with one arm raised in the air, while the other thumped a Bible . . . well, it makes him a despicable individual in my book, right down there with his GOP predecessor, Bob Riley -- and I thought no one could touch Riley when it came to right-wing perversity. Bentley has placed himself in the same ballpark.

All of this comes back to mind in the wake of a lawsuit former Bentley security chief Wendell Ray Lewis filed two weeks ago (Nov. 23) against Bentley, former adviser/mistress Rebekah Caldwell Mason and various unnamed individuals and entities who allegedly helped form a slush fund to pay Mason for her "services" to the governor.

I've been a professional journalist for more than 35 years, and I know how to separate my personal feelings from the job of being a reporter. But members of the Riley machine caused me to be thrown in jail for five months in Shelby County, Alabama, for daring to produce accurate journalism about their nasty activities. Now, Bentley has come along to smear me time and again, perhaps taking a role in acts that caused Carol's arm to be broken and us to be thrown into the streets. When political figures attack you in that way, it's no longer just a news story. They are trying to ruin you, and the most objective reporter is driven to fight back -- in a way that could draw blood from someone, at some point.

Again, why has the Bentley story become personal? Let's count the reasons, taking into account what we've learned from the Lewis lawsuit:

(1) On August 31, 2015, we break the story at Legal Schnauzer of the Bentley-Mason extramarital affair. Nine days later (on Sept. 9), we are unlawfully evicted from our apartment in Springfield, Missouri, and in the process, a deputy breaks Carol's left arm so severely that it requires repair from a trauma surgeon. We later learn that Bentley had targeted Web-based journalists, including yours truly, who led the way in breaking details about the Mason affair.

(2) On September 1, 2015, I become the first journalist to report on possible financial irregularities related to the Bentley/Mason affair. I follow up with a second such post on September 2. (Al.com begins to address similar issues on September 3; but the entire scandal, both the sexual and financial angles, take flight from my reporting.) Did this increase the likelihood that Bentley would target us, causing Carol's arm to be broken and both of us to have assault weapons and pistols pointed in our direction -- during an eviction that, by law, could not happen? We still are searching for answers to that question.

(3) In a December 27, 2015, article by al.com reporter (and Ashley Madison devotee) Chuck Dean, Bentley denies "rumors" of an affair with Mason. From the article:

"The rumors were not true," said Bentley.

The governor then seemed to let out months of pent up frustrations.

"There were people on blogs and people in the press who crossed the line. They truly crossed the line. People on talk radio crossed the line," said Bentley.

Bentley essentially took a No. 2 on my integrity. Did I take exception to that, knowing the quality of the sources who helped me break the affair story? Yes, I did. Did I take a certain amount of pleasure in what came next? Yes, I did.

(4)  On March 22, 2016, news breaks that text messages and audio recordings show that Bentley and Mason did, in fact, have an affair. Audio captures Bentley reminiscing about fondling Mason's breasts and exploring her nether regions. Despite that, Bentley claims the affair was just a matter of dirty talk and was not physical. (Note to self: Fondling a woman's breasts and massaging her nether regions does not count as "physical.") The Rachel Maddow Show, The Washington Post, and other national news outlets pick up the story, turning Bentley -- and Alabama -- into a national punchline.

(5) In early August, a new audio recording captures Bentley calling me a "slimy guy" and blaming his divorce on "casino gambling people." How low will this guy go? This is from our post on the subject:

A taped phone conversation released yesterday captures Alabama Gov. Robert Bentley calling your humble blogger a "slimy guy." Bentley also makes a negative reference to attorney Donald Watkins. The tape adds another level of authenticity to reports that Bentley used state and federal resources to target Watkins and me -- the two citizen journalists who broke the story last summer of Bentley's extramarital affair with advisor Rebekah Caldwell Mason.

It becomes more intriguing when you consider this timeline: I broke the story of the Bentley/Mason affair on August 31, 2015, the same date Bentley and State Rep. Allen Farley (R-Bessemer) talked in the evening, with Bentley calling me a "slimy guy." Nine days later, on September 9, my wife, Carol, and I were violently and unlawfully evicted from our apartment in Springfield, Missouri, and Carol was left with a shattered left arm that required trauma surgery. We've already asked this question: Were Bentley and/or Mason involved in arranging the bogus eviction in Missouri? Was that part of their plan to target me? Was having us roughed up and brutalized also part of the plan?

The new audio suggests the answer might be yes.

(6) Finally, we have the Lewis lawsuit, which was filed on November 23. Lewis quotes Bentley admitting to a physical affair and asking his security chief to break up with her for him. So, let's review: Everything I reported in my early postings -- roughly seven months before the mainstream media took notice of the story -- was accurate. But "Luv Guv" Bentley wants the public to believe I am the "slimy guy." This apparently is a seriously disturbed mind at work.

Where does this all go from here. In a Facebook post dated December 4, attorney Donald Watkins says corruption might be coming to a head in Alabama, driven in part by former House Speaker Mike Hubbard and his efforts to reduce his sentence for ethics-law violations by "singing like a bird" to a task force of state and federal investigators. From the post:

Hubbard’s cooperation with authorities has led them to others in state and local government. This includes Jefferson County lawmakers and local officials.

As a result of Hubbard’s substantial cooperation with prosecutors, at least four members of the Alabama House of Representatives are under investigation and could possibly be indicted. One of the four -- Oliver Robinson -- suddenly resigned his House seat at the end of November. Three additional Birmingham-area legislators are targets of the investigation. Two of these lawmakers are Republicans and one is a Democrat.

In October, the Alabama Attorney General’s Corruption Unit empaneled a grand jury in Jefferson County. This is the prosecutorial unit that took down Mike Hubbard.

We have confirmed that the grand jury is investigating allegations of ethics violations and public corruption inside Birmingham City Hall and the Birmingham Water Works Board. The investigation is also reviewing vendor relationships at other city agencies, including the Birmingham Airport and Birmingham Construction Industry Authority.

(Question:  Is anyone looking at Riley Inc.? How can any serious investigation of Alabama corruption not include Bob and Rob "Uday" Riley?)

Watkins paints a picture that comes back around to "Dr. Love" Bentley and Rebekah Mason:

On Friday, Cooper Shattuck, Governor Bentley’s former legal adviser, suddenly resigned from his powerful position as General Counsel to the University of Alabama System. Shattuck oversaw Bentley’s “dark money” slush fund -- the Alabama Council for Excellent Government – that was formed in 2015 and used to pay Rebekah Mason for “personal services” rendered to the Governor. The slush fund was established after Mike Echols, Governor Bentley’s long-time personal CPA and heavy hitting moneyman for the Robert Bentley Campaign Committee, split from Bentley. Echols resigned his post over a disagreement with Bentley about his love affair with Rebekah Mason. . . .

Prosecutors have not extended a plea deal to Rebekah Mason. They do not need her cooperation to make their criminal case against these two lovers.

Bentley and Mason have run out of options for avoiding their indictment.

Tuesday, December 6, 2016

The "objectionable content" warning is gone from Legal Schnauzer as Trump's loons fail in their effort to muzzle our reporting on Bill Pryor and Jeff Sessions

Bill Pryor
The content warning that had been placed on Legal Schnauzer for several days is gone, hopefully never to return. You can chalk that up, we think, as a small victory for those of us who refuse to let loony supporters of President-Elect Donald Trump win by intimidation. It also shows the complainers failed to follow Google policy, which probably helped ensure their efforts to essentially censor this blog would fail.

A content warning appeared here not long after our November 17 report titled "Our posts about Judge Bill Pryor's ties to 1990s gay pornography have gone viral, thanks to Trump election -- and now, a second nude Pryor photo has surfaced." Our number of visitors skyrocketed as thousands of readers landed at Legal Schnauzer from Facebook, Reddit, Above the Law, and many other sites. Also the widely read fact-checking site Snopes.com weighed in on the Pryor gay-porn story.

About the same time, we ran a post stating that Trump's nomination of U.S. Sen. Jeff Sessions (R-AL) as U.S. attorney general was like "picking Tiny Tim to lead the New York Philharmonic."

That, plus the Pryor posts in November, seemed to unleash a flood of nutty, nonsensical, and threatening comments -- many of which I deleted or sent to spam.  Along with that, came what appeared to be a coordinated effort to complain about a nude photo of Pryor that ran at the gay-pornography site badpuppy.com in the 1990s. I had run the photo twice before, always including a warning that those who are squeamish about nudity should not scroll to the bottom of the post, where the picture was placed. So what happened? Naturally, certain readers ignored the warning, scrolled to the bottom to see the photo, got a case of the vapors, and whined to Google about it.

The origins of the complaints and wacky comments are not known for sure right now. But given that Sessions is Trump's AG pick -- and Pryor (because of his ties to Sessions) likely is near the top of Trump's list of possible nominees to the U.S. Supreme Court -- it seems a safe bet that Trump supporters launched the attack. I'm guessing they were particularly alarmed about our statements that a second nude photo of Pryor has surfaced, and we have information that could lead to explosive and revealing articles about Sessions.

Given Trump's clear lack of respect for the rule of law, no one should be surprised that his followers can't follow rules either. In fact, they violated Google policy in making their complaints about Legal Schnauzer.

What do I mean? The Blogger platform, which comes under the Google umbrella, has a "report inappropriate content" policy; it can be found at this link. A key part of the policy is this:

If an author’s contact information is listed on their blog, contact them directly to ask them to remove or change the content in question.

My e-mail address is available in the upper right-hand corner of the blog; it's hard to miss. But no one contacted me directly to complain about objectionable content. So in whining that I was violating Google policy, the whiners themselves violated Google policy.

I like to think we are providing a public service by giving a glimpse at what life likely will be like under a President Donald Trump. After all, it's quite clear that this "content warning" is about politics and not about nudity. In other words, the people responsible for it are dishonest, threatening, psychologically unhinged -- and they are too cowardly to contact me directly, as Google policy requires them to do.

Pryor is considered a prime candidate to be nominated to SCOTUS, and my accurate reporting on his foray into gay pornography is a possible threat to his ascent -- hence the complaints about objectionable content. I also have information that could be powerful enough to scuttle the Sessions nomination.

Any nude photos on this blog now have been pixilated, so nudity no longer is an issue. I proved that to Google, and also showed that whiners had violated policy by not contacting me directly first, and the content warning went away.

Is the content warning gone for good? I don't know; this is my first time dealing with the issue, so it's hard to say. At this point, I'm impressed by Google's response to my request to have the warning removed.

I soon will be running a second nude photograph of Pryor, and the plan is to pixilate that. But I'm guessing a new uproar will break out because Pryor supporters aren't concerned about nudity; they are concerned about my reporting, which shows that their homophobic judge is a world-class hypocrite for having dabbled in gay pornography while he was in college. Jeff Sessions also has a closet-full of skeletons, and we will be reporting on them.

That's why we landed in the cross hairs of unhinged Trump supporters; it had nothing to do with a nude photograph.

Arizona cop who punched woman in the face sees credibility take a blow when fellow officer fails to support his claim that woman kneed him several times

Arizona cop Jeff Bonar punches Marissa Morris, with
deputy Joel Winchester between them.
(From nydailynews.com)
An Arizona police officer who recently was caught on video punching a woman in the face has said she kicked him several times, including once in the groin. But the cop's story took a serious blow late last week when a sheriff's deputy who was on the scene issued a report that does not mention the woman assaulting the officer.

The more we learn about this incident the more it reminds my wife, Carol, and me of our own experiences with officers in Alabama and Missouri. And it adds to the mountain of evidence that the first instinct for many officers is to lie after they have abused a citizen.

Coconino County deputy Joel Winchester is seen in the video between Flagstaff officer Jeff Bonar, who threw the punch, and Marissa Morris, a 30-year-old Flagstaff resident who was on the receiving end. The two officers had gone to Morris' residence to serve an eviction notice when Bonar said he believed Morris had at least one outstanding arrest warrant and started trying to apprehend her. She responded by saying, ""You cannot arrest me until I know I have a warrant." That's when Bonar punched her in the face. (The video is embedded at the end of this post.)

In his report, Bonar claimed the woman "kneed him several times, including in the groin, before he hit her." But Winchester's report makes no mention of aggressive action on Morris' part, other than to state multiple times that she did not have an outstanding warrant. Morris proved to be correct about that; As CBS News reported:

Morris did hold two “failure to appear” warrants for DUI and resisting arrest — but they were resolved before Wednesday’s incident.

Translation: Bonar had no grounds for arresting Morris, but he tried it anyway, wound up punching her in the face, and then -- we now know -- he lied about her kicking him. The Web site copblock.org put it all in blunt terms:

Marissa Morris was already having a bad day. Due to an eviction, she was hurriedly trying to relocate her possessions when Jeff Bonar pulled up and claimed that she had a warrant and he planned to arrest her. However, not only did the badged thug not have the warrant to show her, as is the law, he did not even explain what the warrant was for. The woman was resisting her illegal kidnapping when the power-tripping gangster decided that she deserved a punch in the face for demanding her rights.

Wow, let's review all the telling phrases used herer: "Badged thug," "he did not even explain what the warrant was for," "the woman was resisting her illegal kidnapping," and "the power-tripping gangster decided she deserved a punch in the face"? I couldn't have written it better myself.

Now, we can add "lying liar who lies" to the descriptive phrases for Bonar. This is from an azcentral.com report about Officer Winchester's report on the incident:

Deputy Joel Winchester is captured in the cellphone video footage. He is seen between the two for most of the duration of the physical encounter.

In his report, obtained by The Arizona Republic, Winchester described his role in the incident. He said in the document that Morris “resisted” as he struggled to keep her hands behind her back to be handcuffed.

“As our efforts continued in this manner, I noted (Bonar) punch Marissa around the chin area with a closed fist,” Winchester wrote. “I believe this was an effort to gain her compliance and enhance efforts to maintain control of her.”

There is no mention in the report of Morris kicking or kneeing Bonar, and few specific details about the physical struggle involving the three of them.

He did write that Morris repeatedly told Bonar that she no longer had a warrant out for her arrest and asking him to contact officials for verification.

How does this remind us of our experiences with rogue cops in Alabama and Missouri? Suffice to say that the similarities are so real, and so great in number, that I haven't slept much since reading about the Arizona incident in detail -- and it will require a followup post to explain how the incidents converge, and what we can learn from them.

(To be continued)

Monday, December 5, 2016

Kansas City "Super Lawyer" Craig O'Dear, of Bryan Cave firm, has plenty to say about our reporting on the Ashley Madison Web site -- and his appearance there

Craig O'Dear
Every subject in our Ashley Madison series has been given at least one opportunity to make a statement or respond to questions prior to publication. Most have passed on that opportunity, but Kansas City "Super Lawyer" Craig O'Dear, of the Bryan Cave firm, opened up about plenty. So did Stephanie O'Dear, his ex wife. Both indicated they reconciled in 2014 and are living together again as a family, although neither specifically said they were remarried.

Here is the full response that Craig O'Dear sent to me via e-mail:

Mr. Shuler:

The article you have drafted and now threaten to publish conveys a false and misleading impression of people about whom you have little knowledge.

Stephanie was and is the love of my life. We were married in 1995, and legally divorced in November 2012. Many years prior to the effective date of our divorce, we ceased to be a married couple, and my marital obligations to Stephanie came to an end. I was not unfaithful in the marriage, and Stephanie never alleged in our divorce proceeding that I had been. Your draft article conveys an impression to the contrary. That impression is false.

Further, I have never at any time in my life been romantically involved with any woman who was married. You draft article conveys a false impression to the contrary on that issue as well by highlighting the marketing tag line for the dating site you reference and implying anyone who might have used it did so for the purpose of engaging in an extramarital affair. The only possible purpose you could have to do this is to publish something you believe will draw traffic to your site, with an intent to embarrass and damage me and Stephanie and our children, both personally and professionally. During this difficult period in my life, whatever social activity I engaged in violated no marital obligations. My focus was being the best father I could be to my children and being the best lawyer I could be practicing law and taking care of my clients. If you took the time to interview anyone who has any personal knowledge of my life, you would know this.

The good news in all of this is that in the Spring of 2014, Stephanie approached me and expressed a desire to re-establish our relationship and reunite our family. Unlike most of the stories of broken marriages, this one has a happy ending. We engaged in a process that achieved our objective, and Stephanie and I are again partners in life, living together with our children, and enjoying the blessing of all that entails. This is yet another point on which your draft article conveys a false and misleading impression, because you know nothing about the people and the family you seek to slander.

I am copying Stephanie on this email. I told her of your communication to me. She has seen your draft "article" and she told me she had some comments to convey to you as well. You should refrain from publishing your false and slanderous "article." If you proceed to publish this false and misleading article, an act which is legally actionable, we insist you publish in full in the same article my response and Stephanie's response, which tells the real story of our lives and corrects the many false impressions your article conveys.

          Craig S. O'Dear

          Sent from my iPhone

Mr. O'Dear makes a number of curious, even alarming, statements. A few such statements require a response from me:

1. I did not "threaten" to publish anything. I said I was going to publish an article on Mr. O'Dear's appearance at Ashley Madison, which he does not deny, and I even sent him a draft to fact-check, comment on, or take questions about. Why does he use the word "threaten"? My best guess is this: Most extortion statutes use some version of the term "threat" or "threaten." Such laws generally govern situations where someone says, "I'm going to publish this unflattering information if you don't do such and such." That is a threat, and nothing like that is present in my communication with Mr. O'Dear. As a "Super Lawyer," he should know that, but he apparently wants to send a not-so-subtle threat himself.

2. O'Dear repeatedly claims my article gives a "false and misleading impression" about him and his family life. He never points out anything that is false, and he apparently is the arbiter of what is, or is not, a "misleading impression." His comment seems to be an attempt to "read into" my article information that is not there.

3. O'Dear claims my article "conveys the impression" that he had been unfaithful in his marriage, even though his wife never alleged that in her divorce proceeding. Well, that's fine, but my article doesn't allege that either. It's curious that O'Dear takes a literal approach to reading his wife's divorce documents, but reads my article based on "impressions" that he pulls out of thin air.

4. O'Dear claims he never has been romantically involved with a married woman, but again, my article never says that he has been. He also says he never engaged in social activity that violated marital obligations. Again, my article doesn't say that he has. O'Dear seems to be focusing on Ashley Madison's motto: "Life is short, have an affair." That is the language the firm has used to differentiate itself from standard dating sites. Ashley Madison developed that language, not I; and the company clearly was targeting those who were at least interested in the possibility of an extramarital affair. That's a marketing decision Ashley Madison made, and Mr. O'Dear fell for, but I was not involved in that process.

5. O'Dear seems to dip into mind-reading when he claims my reporting "will draw traffic to your site, with an intent to embarrass and damage me and Stephanie and our children, both personally and professionally." The truth? I've never said anything in my communications with Mr. O'Dear about blog traffic, embarrassing anyone, or damaging anyone (personally, professionally, or otherwise).

6. I'm pleased the O'Dears have reunited, and that information only came to light because I did legwork -- also known as journalism -- to bring it to light. My original reporting references the reunion, and I address it again here. And yet, O'Dear still claims I am seeking to "slander" his family.

7. O'Dear then refers me to Stephanie O'Dears comments -- which we will share in an upcoming post -- but he warns that I should not publish this "false and slanderous" article, which he deems "legally actionable." That's a clear threat of a lawsuit. As I've stated on this blog several times, all of us are subject to being sued each day, from the moment we wake up until the moment we plop back in bed. I suppose we can be sued while we are asleep, perhaps for "negligent dreaming" or "intentional infliction of dreamy distress." That doesn't mean any old lawsuit is legally actionable, and the filing of baseless lawsuits comes with the possibility of countersuits and sanctions.

Now, let's see what Stephanie O'Dear has to say.

(To be continued)

Here is the only post I've ever let someone talk me into censoring, and it proved to be predictive of the outcome in $3.5 million default-judgment hearing

Don Blankenship
(Last in a two-part series)

Will I ever again let anyone talk me into censoring a post here at Legal Schnauzer? I hope not because the one instance where that happened did not turn out well.

As noted in a recent post, attorney Davy Hay talked me out of publishing a post about a hearing on my motion to vacate Jessica Medeiros Garrison's $3.5-million default judgment. Hay's primary point of concern? He felt the post, published the morning after Hay had argued the motion with Garrison lawyer Bill Baxley, made it look like he could not control his client.

In other words, Hay was concerned that it might hurt Judge Don Blankenship's feelings. As it turned out, Blankenship proved to be a corrupt con man, and we never should have been concerned about his feelings.

The censored post was written almost two months before Blankenship issued his ruling. But it proved to be prescient, accurately showing (if you read between the lines) how Blankenship was likely to rule on almost every key point. When you've been cheated as many times in court as I have, I guess you get pretty good at seeing another cheat job coming.

Here is the one censored post in the history of Legal Schnauzer. Its important because it provides significant insight into the facts and law that should have forced Blankenship to vacate Garrison's $3.5-million. That he didn't rule properly . . . well, it makes him the same as the white, conservative crooks who dominate the Alabama bench. On a positive note, it shows that -- even well in advance -- Blankenship was not fooling me.

Hopefully, there will never be another censored post as long as Legal Schnauzer lives:

June 19, 2015 
Headline: Evidence at yesterday's hearing suggests that Jessica Garrison's $3.5-million default judgment is void
No final order was issued yesterday at a hearing on a motion to vacate a $3.5-million default judgment against me in the Jessica Medeiros Garrison defamation case. But evidence strongly suggests the judgment already is void.

My presence was not required, so I was not at the Jefferson County Courthouse. But my attorney, Davy Hay, provided a general rundown of what took place. Hay and Garrison's lawyer, Bill Baxley, apparently engaged in spirited argument about a number of issues regarding the default judgment, but Hay drove home what might be the single most important argument -- from a simple procedural standpoint, Garrison's default judgment appears to be void.

On top of that, Hay argued, the court incorrectly applied a "private person" status to Garrison, even though she appears to be a public figure who has engaged in high-profile, public matters for roughly a decade. That means the court should have used an "actual malice" standard to address the alleged defamation.

Circuit Judge Don Blankenship has been off the bench recently because of eye surgery, so he conducted the hearing via telephone, with the two lawyers speaking from the courtroom. It's not known when Blankenship will make a ruling.

The hearing raised issues of good faith and fair dealing. Davy Hay filed our Motion to Vacate on April 23, meaning Baxley had eight weeks to file a written response. He filed nothing in writing before the hearing, but he did execute a "mini document dump" of "evidence" that appears to be utterly irrelevant to the Garrison case (more on that in a moment). In essence, our motion was unopposed in writing, and we had no opportunity to prepare for Baxley's "document dump."

What points to Garrison's default judgment being void? The record shows that she filed a Motion for an Order Rendering Judgment by Default on January 6, 2015 (entered on January 7). On January 13, 2015, the court entered an order granting the motion. In between those two dates, there is nothing in the record to show the plaintiff made any effort to notify me of her application for default. (The case docket is embedded at the end of this post.)

As we showed in a recent post, Alabama law requires that the opposing party receive at least three days written notice of a default application and hearing. The law suggests it must be actual notice, with completed service. Here is how we summarized the law:

Despite whatever arguments Baxley comes up with, the facts and law already point to the default judgment being void, based on a case styled Abernathy v. Green Tree Servicing, (Ala. Civ. App., 2010). Abernathy focuses on the notice required for parties seeking default judgments. From the ruling:

"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."

The Abernathy case goes on to state that failure to give proper notice "renders the default judgment void" and "requires vacation of the default judgment."

Not only did I not receive notice, the record apparently shows that the plaintiff or her representatives never sent it. Under the law, that should make yesterday's other arguments moot.

As for those other arguments, Attorney Hay said Baxley entered a dozen or more exhibits that purported to show I have an ongoing disregard for the justice system. That's the "'document dump" I referred to earlier. Apparently the exhibits were copies of court orders from other cases, or news reports from other cases; it was hard, Hay said, to tell exactly what they contained. It perhaps is even harder to determine how they are relevant to the Garrison case. Without seeing the exhibits, I can't say much about them. But I can say for certain that any insinuation I have a habit of disregarding the court system is false.

Heck, if anything, the justice system has shown disrespect for me. After all, an Alabama judge (Baxley friend Claud Neilson) essentially ordered me kidnapped, leading to a five-month incarceration that violates more than 200 years of First Amendment law -- and that played a major role in the Garrison-case default judgment, as did a foreclosure (which I believe was wrongful) on our home of 25 years.

The dubious exhibits apparently were the only "hard copy" material Baxley filed with the court. Should the exhibits, which appear to have no connection to the Garrison case, be kicked out as irrelevant? Sure looks that way from here.

The two-pronged "Kirtland" test, which is central to having a default judgment overturned, partly involves a showing of a meritorious defense. The test comes from a case styled Kirtland v. Fort Morgan Authority Sewer Service Inc., 524 So. 2d 600 (Ala. Sup. Ct., 1988)Baxley apparently argued that the defaulting party must submit affidavits or exhibits to show a meritorious defense, but Alabama case law does not appear to say that. From the Kirtland case:

The rationale behind the meritorious-defense requirement is that evidence of a defense indicates that the outcome of the case could be different if it were disposed of by a trial on the merits rather than by a default judgment and, therefore, justifies reopening the case so that justice can be done. . . .

The allegations set forth in the answer and in the motion must be more than mere bare legal conclusions without factual support; they must counter the cause of action averred in the complaint with specificity— namely, by setting forth relevant legal grounds substantiated by a credible factual basis. Such allegations would constitute a "plausible defense."

A case styled Ex parte Illinois Central Gulf Railroad, 514 So. 2d 1283 (Ala. Sup. Ct., 1988) puts it in even simpler terms:

To meet the meritorious-defense element, the movant need not satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant is prepared to present a plausible defense.

Our Motion to Vacate asserts the ultimate defense in a defamation case -- the truth of my reporting, stating that I stand by my sources and my work. The motion also states that I have evidence, and can obtain additional evidence via discovery, that more than amounts to a "plausible defense."

The first prong of the Kirtland test is perhaps the most important, It states that a trial court must act with an understanding that default judgments are disfavored under the law, and any close call should come down on the side of ordering a trial on the merits:

The Alabama Constitution and our past opinions construing the default judgment rule support the conclusion that the interest in preserving a litigant's right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy. We have repeatedly held that the trial court's use of its discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala. 1987). . .

We, therefore, emphatically hold that a trial court, in determining whether to grant or to deny a motion to set aside a default judgment, should exercise its broad discretionary powers with liberality and should balance the equities of the case with a strong bias toward allowing the defendant to have his day in court."

In this case, there isn't much doubt about the default judgment. The evidence indicates it is void, on procedural grounds. In terms of case law, my right to a trial on the merits is paramount and should demand that the default judgment be set aside.

As the defendant, I am due my day in court. Blankenship's order, whenever it comes, should uphold Alabama law on that point.

The above post, which Davy Hay talked me into censoring, showed exactly what Blankesnhip's obligations were under the law and hinted that he probably would ignore them. Unfortunately, my post proved to be quite predictive of Blankenship's actions.

No wonder Davy Hay, as surrogate for the legal tribe, did not want this post to see the light of day. But it's seen the light of day now. Hay's concern should not be about controlling his clients. It should be about unmasking corrupt judges, like Don Blankesnhip, who sit on benches all over Alabama and deny justice -- especially for regular folks going up against the powerful, the moneyed, and the connected.

We see no sign that Davy Hay cares one iota about that. You can bet that Bill Baxley, once known for standing up to the Ku Klux Klan, does not.

Friday, December 2, 2016

UA counsel Cooper Shattuck resigns barely a week after being named in lawsuit brought by ex security chief against "Luv Guv" Bentley and Rebekah Mason

Cooper Shattuck
Cooper Shattuck, chief legal counsel for the University of Alabama System and a confidant of embattled Gov. Robert Bentley, has resigned. The move comes eight days after Wendell Ray Lewis, Bentley's former security chief, filed a wrongful-termination lawsuit against the governor and his adviser/mistress Rebekah Caldwell Mason.

Also named in the lawsuit is ACEGOV, a nonprofit that Shattuck formed, apparently to funnel money to Mason. Just two days ago, we wrote a post about the Lewis lawsuit and its likely discomfiting effects on officials at the University of Alabama and Alabama Power. Shattuck is mentioned prominently in the lawsuit:

A few months after Lewis retired earlier than he had ever intended to, he was contacted about a senior security position with The University of Alabama. He met with Cooper Shattuck, formerly Governor Bentley’s Legal Advisor and now General Counsel to the University System. Shattuck spoke to Lewis about helping with University security, perhaps having a role with Coach Saban, whom Shattuck described as “the University’s greatest asset.” Eventually, Shattuck turned the conversation to the Governor. He asked Lewis his thoughts. Lewis told Shattuck, honestly and soberly, that he thought eventually the Governor would be held accountable, and that he should be. Shattuck replied, “Well, I plan to be a friend to him when he falls.” Lewis never heard back from Shattuck about the University security job.

Shattuck plans to be a friend to Bentley when the "Luv Guv" falls? Is this resignation part of that plan? Was it forced on Shattuck or did he willingly give up what would seem to be a dream job for any UA graduate?

The answers to those questions are not clear, but Shattuck seems to be managing the story by releasing it yesterday afternoon via Fox News Tuscaloosa. Perhaps that is a news outlet he knew would not ask too many questions? Here is the official news release:

After over four years of service as General Counsel for The University of Alabama System, Cooper Shattuck has announced his resignation effective December 31, 2016. Shattuck plans to pursue a number of professional opportunities, including his recent nomination as a candidate for President-Elect of the Alabama State Bar.

“After many years of public service to the State and to the state’s largest education enterprise, I am looking forward to returning to the private practice of law where I can utilize my broad-based experience to further the interests and accomplish the goals of numerous clients,” Shattuck said.

Shattuck joined The University of Alabama System as General Counsel in August 2012. He previously served as Chief Legal Advisor to Governor Robert Bentley, where he worked extensively on the restoration of the environmental impact and recovery of the economic damages sustained by the state as a result of the Deepwater Horizon oil spill incident.

“I had the pleasure of working with Cooper over the past four years,” current Chancellor Ray Hayes explained. “During his tenure, Cooper maintained and grew a great team in the Office of Counsel and accomplished much. It will be difficult to find his replacement; however, he will assist with the transition.”

John Daniel, Chief University Counsel at UAB, has been named Interim General Counsel, and will work with Shattuck over the next month to ensure a smooth and seamless transition. With over 38,000 employees, 65,000 students, 50 affiliated entities, and a combined budget of over $5.6 billion, The University of Alabama System is the state’s largest education enterprise.

Shattuck put his house on the market last month, according to our sources. That suggests Shattuck is not planning to stick around Tuscaloosa. Where might he wind up? The Beasley Allen law firm in Montgomery is one possible landing place, our sources say. If Bentley picks Luther Strange to replace Jeff Sessions as U.S. Senator, Shattuck might be in line to take over as attorney general.

Thursday, December 1, 2016

Campaign adviser Roger Stone makes the most absurd Trump-related comment yet, claiming recount increases odds of Hillary Clinton being prosecuted

Roger Stone and Donald Trump
(From freedomdaily.com)
Of all the stunning statements made by and about President-Elect Donald Trump, the worst might have come earlier this week when a key Trump adviser indicated he had no knowledge of, or respect for, the rule of law.

Roger Stone, in so many words, said he has no regard for the 14th Amendment to the U.S. Constitution and for the ideals of the American justice system. If one is to assume that Donald Trump shares those views, our country could be in for a period of unimaginable darkness for the next four years -- or longer.

What exactly did Stone say? He said the Hillary Clinton campaign's decision to join the Green Party's recount effort in three swing states increases the likelihood of Clinton being prosecuted. Here are details on the comments, as reported at The Hill:

A longtime ally of President-elect Donald Trump says the Hillary Clinton campaign joining recount efforts increases the chances that Clinton will face criminal prosecution.

I think Hillary increases her chances of prosecution by acting this way,” Roger Stone said Monday on Newsmax TV’s “The Steve Malzberg Show.”

We should note that Stone long has been seen in political circles as somewhat of a loon. He got his start in politics as a dirty trickster for Richard Nixon, and The Daily Beast has described him as a "self-admitted hit man for the GOP." But Stone hardly is an outsider or a lightweight. He largely is credited with creating the "Brooks Brothers riot," which stopped the Miami-Dade recount during the 2000 presidential election and helped give us eight years of George W. Bush.

To hear a guy with that kind of clout -- and with the ear of the incoming president -- say that participating in a recount makes it more likely Hillary Clinton will be prosecuted . . . well, it makes one wonder if Stone (or Trump, for that matter) ever took a seventh-grade civics class.

Those of us who did take such a class know a little bit about the quaint notions of due process and equal protection that are found in the 14th Amendment. We know that, at least in theory, all of us are to be treated equally under the law -- and any prosecution is to be based on probable cause that an individual committed a crime, not on her support for a recount that might determine whether our election system was compromised.

Trump recently has backed off his campaign statements that he would prosecute Clinton if he was elected -- supposedly over an alleged e-mail scandal in which the FBI twice has released statements that it could find no criminal wrongdoing. A Politico article about the Stone comments, indicates Trump was on thin legal ice all along:

It would be a major breach of the Justice Department’s traditional independence from the White House for the president to order the prosecution of any individual as a means of political retaliation. (The FBI recommended against bringing charges against Clinton for her use of a secret email secretary of state in July and reaffirmed that decision a few days before the election.)

Still, Trump’s senior adviser, Kellyanne Conway, also seemed to draw a connection between the recount effort and the prosecution question during a TV interview on Sunday.

He’s been incredibly gracious and magnanimous to Secretary Clinton at a time when, for whatever reason, her folks are saying they will join in a recount to try to somehow undo the 70-plus electoral votes that he beat her by,” Conway said to CNN’s Dana Bash.

To make this even more mind blowing, one of Trump's candidates to be secretary of state reportedly is Gen. David Petraeus, who pleaded guilty to giving classified information to his mistress and still is on probation for that crime. This is an administration-in-waiting that suggests it would prosecute Hillary Clinton, against whom the FBI found no criminal conduct regarding classified information, while offering a cabinet post to David Petraeus, who has admitted to committing a crime involving classified information.

This is scary stuff, folks, especially for those of us who are wide awake in what seems to be a somnolent United States. Before even taking office, you have Trump and his acolytes essentially saying they support political prosecutions -- or, even worse, prosecutions based on whims or perceived affronts.

This suggests these people are not only dangerous, they are frightfully stupid. To go on television, time and again, to say they do not respect basic constitutional protections indicates they have no business serving in a position of governmental authority.

How dense are these people? Stone told The Daily Beast in 2008 that he had come to regret launching the Brooks Brothers riot. From the article:

“When I look at those double-page New York Times spreads of all the individual pictures of people who have been killed [in Iraq], I got to think, 'Maybe there wouldn't have been a war if I hadn't gone to Miami-Dade. Maybe there wouldn't have been, in my view, an unjustified war if Bush hadn't become president.' It's very disturbing to me."

It was so "disturbing" that Stone now supports Donald Trump? Sweet Jeebus, have mercy on what's left of our country!

We learn that Roger Stone has a sliver of a conscience, and at least mild concern about the U.S. engaging in unjustified wars. but he supports Donald Trump in 2016? The same Donald Trump who appears quite capable of launching unjust wars on a monthly basis, once he hits the Oval Office?

So Roger Stone perhaps has a conscience when it comes to war, but his conscience exits stage left when it comes to political prosecutions and respect for the constitution? A shaky conscience, with no brain, is . . . well, a bad combination.

Man, we are in for a heap of trouble. Our country probably has never seen dysfunction like Donald Trump, and acolytes such as Roger Stone, are about to unleash.

Wednesday, November 30, 2016

Lawsuit from "Luv Guv" Bentley's ex security chief might shine unwelcome light on financial shenanigans involving U of Alabama and Alabama Power

Wendell Ray Lewis
(From linkedin.com)
Officials from the University of Alabama and Alabama Power might be feeling a tad uncomfortable after former security chief Wendell Ray Lewis filed a lawsuit last week against Governor Robert Bentley, mistress/former adviser Rebekah Caldwell Mason, the ACEGOV nonprofit, Bentley for Governor Inc., and other unnamed persons and entities.

Coverage of the lawsuit, so far, has focused mainly on its content about the Bentley/Mason extramarital affair. But Lewis' complaint goes well beyond that, focusing on ACEGOV -- described in some quarters as a "slush fund" to pay Mason for her "services" -- and those who funded it. The complaint also seeks information about individuals who helped cost Lewis possible jobs at UA and Alabama Power after he had been forced out in the Bentley administration, apparently at Mason's insistence.

For example, the lawsuit names fictitious defendants "D," "E," and "F, who are described as:

"those persons, firms, corporations, universities, trade associations, think-tanks, non-profits, or other entities who or which contributed money directly or indirectly to Mason, whether by cash, check, PayPal, or other means, or provided other benefits or things of value to Defendant Mason, through RCM, or any of Defendant Mason’s businesses, any of Jon Mason’s businesses, ACEGOV, and/or Bentley for Governor, Inc."

The lawsuit clearly seeks information about "corporations," "universities," and other entities that paid Rebekah Mason and her husband, Jon Mason. It also dips into the world of journalism, seeking information about those who:

"participated in the act of feeding to certain Alabama journalists misleading information about the overtime worked, earned and/or paid to Plaintiff [Lewis] by the State of Alabama."

Speaking of the University of Alabama, the suit makes multiple references to Cooper Shattuck, UA's chief legal counsel and a former Bentley staff member. The lawsuit shines light on what led Shattuck to form ACEGOV:

On one occasion, Dr. Henry Mabry, then the Executive Secretary of the Alabama Education Association, said he could get Mason paid to the tune of $150,000. Paul Bentley told Lewis that Cooper Shattuck, the Governor’s former Legal Advisor, set up the 501(c)(4) for Mason. On information and belief, that 501(c)(4) was Defendant ACEGOV. Seth Hammett told Lewis he had a conversation with the Governor in which Hammett informed the Governor that because of the Governor’s relationship with Mrs. Mason, Mason could not be on the state payroll, therefore the need for the 501(c)(4). Bentley confirmed that conversation to Lewis,saying of Hammett, “I want his ass gone."

The lawsuit describes Lewis' relationship with Rebekah Mason as "strained at best." From the complaint:

She knew he wasn’t going to do anything to facilitate her relationship with the Governor; she wanted him gone. Plaintiff was beginning to reach an important conclusion: once you got in Rebekah’s cross hairs, that was it. She ordered the hit, and the Governor carried it out. At one point, the Governor barked to Lewis, “If anybody says another thing about Rebekah, I will fire their ass.

Rebekah Mason and Nick Saban
(From heavy.com)
It seems someone close to Bentley still had Lewis in his/her cross hairs, even after he had left his state job. From the complaint:

A few months after Lewis retired earlier than he had ever intended to, he was contacted about a senior security position with The University of Alabama. He met with Cooper Shattuck, formerly Governor Bentley’s Legal Advisor and now General Counsel to the University System. Shattuck spoke to Lewis about helping with University security, perhaps having a role with Coach Saban, whom Shattuck described as “the University’s greatest asset.” Eventually, Shattuck turned the conversation to the Governor. He asked Lewis his thoughts. Lewis told Shattuck, honestly and soberly, that he thought eventually the Governor would be held accountable, and that he should be. Shattuck replied, “Well, I plan to be a friend to him when he falls.” Lewis never heard back from Shattuck about the University security job. When Lewis eventually himself got back in touch with Shattuck, he told Lewis to reach out to Ronnie Robertson. Lewis followed up with Robertson, who had nothing to do with anything Lewis and Shattuck had talked about. Needless to say, no job offer was forthcoming.

Lewis went through a similar experience with Alabama Power:

Lewis also heard about this same time from Clay Ryan, a Birmingham attorney, who asked Lewis if he would be interested in the job of head of security for Alabama Power. Lewis responded in the affirmative. By text message on July 24, 2015, Ryan informed Lewis that the “pay will be ‘what it takes’ [one can assume, to get Lewis there]” and “You would be crosswhite’s [sic] guy” meaning Mark Crosswhite, the President and CEO of Alabama Power. Lewis replied, that same day, “Thanks Clay. This is a great opportunity!” But it never materialized. Ryan asked Lewis to send him a resume, which he did. But then Ryan asked Lewis how he intended to respond if and when the questions started flowing about the Governor. Another honest answer from Lewis. Another no call back.

(Note: The UA System hired Ryan as vice president of governmental affairs in September 2015; before that, he was an attorney at Maynard Cooper and Gale in Birmingham. Ryan helped serve as PR defender for UAB President Ray Watts during the university's controversy over removal of the football program.)

Lewis winds up alleging two counts of intentional interference with business or contractual relations -- one for unlawfully pushing him out of his state job and one for costing him opportunities with at least two other employers once he left.

Gee, this story sounds familiar. Cheating someone out of his long-time position as a state employee, and then making sure that his career is ruined so that he can't find jobs with other employers -- and he can't find justice in a court of law? Where have we heard that before?

Have "Luv Guv" and "Home Wrecky Becky" been taking notes from Alabama's previous GOP regime, led by Bob and Rob "Uday" Riley? Sure sounds like it.

Tuesday, November 29, 2016

I've let someone talk me into censoring a post only once in LS history, and it was a mistake, one I am correcting shortly, with insights about Garrison case

Davy Hay
Since this blog began in June 2007, there has been only one instance where I let someone talk me out of publishing a post. I've regretted it ever since, and I intend to correct the mistake in the next few days. But first, some background.

A hearing was held in Jefferson County Circuit Court on June 18, 2015, to consider my motion to vacate a $3.5-million default judgment for GOP operative Jessica Medeiros Garrison in her defamation lawsuit against me. I had researched the issues enough beforehand to know there was no way, under the law, Judge Don Blankenship could allow the default judgment to stand.

Davy Hay, my attorney at the time, and Garrison lawyer Bill Baxley argued the issues, and Blankenship stated that he would issue a written order in a few days or weeks. I knew the motion had to be granted, with the default judgment vacated, and the case moving forward with discovery and possibly a trial. I wrote a post to that effect and published it the next morning, June 19, explaining the facts and law that Blankenship had to follow -- at least if he took his judicial oath seriously.

Later that day, Hay contacted me and asked that I remove the post. His thinking? He said the post made it look like he couldn't "control" his client. Reluctantly, I took the post down, and naturally, Blankenship issued an order several weeks later, ignoring the law and denying our motion to vacate.

As it turned out, my post was spot-on about most every issue. But Davy Hay apparently only cared about not being embarrassed because his client had written accurately that a judge was incompetent, crooked, or both.

Hay then bailed out of the matter, even though we had a written agreement for him to represent me in the Jessica Garrison case -- the whole case. Hay got tons of free publicity from my case, and made multiple high-minded statements on his Facebook page about the critical free-speech issues at hand. But ultimately, he had no interest in fighting for those weighty, constitutional issues.

In a Facebook post dated April 23, 2015, Hay wrote:

I am about to hit "File Motion" on the single most important document I have ever written.

The document was a motion in my case. In a Facebook post dated April 28, 2015, Hay stayed with the high-minded theme:

My client and I are fighting for the most basic freedoms guaranteed under the First Amendment of the United States Constitution.

I was that client. Hay then used my case to get the kind of publicity he probably has never gotten at any other time in his legal career. Alabama Political Reporter published an article titled "Legal Schnauzer blogger finally has a legal champion." From the article, by Bill Britt:

Since July 2013, Roger Shuler has suffered one legal defeat after another, over reports he published on Legal Schnauzer concerning Liberty Duke, Jessica Medeiros Garrison, Attorney General Luther Strange and Rob Riley, son of former Gov. Bob Riley.

During all of his legal troubles, Shuler refused legal council (sic), and according to a report in The New York Times, maintained “self-defeating posturing.” (Note: This is off target on a couple of fronts. I never refused legal counsel; I always was open to, and would have welcomed, tough, smart, honest, affordable legal help. But no such lawyer appeared to meet me at the Shelby County Jail. As for the "self-defeating posturing" business, that characterization came from a right-wing California lawyer/blogger named Ken White (Popehat blog) who knew nothing about me and very little about my case. The guy presented zero evidence to support his claim.)

Since our legal travails started 16 years ago, Carol and I have hired at least five lawyers. (I might be forgetting someone.) Obviously, I don't "refuse counsel." I do tend to part ways with lawyers once they've made it clear they aren't going to do what they've said they would do. That gets a bit aggravating, especially when you've paid one lawyer roughly $12,000 and another $4,500. I have this strange tendency to get peeved when I pay that kind of money and get nothing for it -- especially in cases where the facts and law clearly are on my side. That doesn't even count the dozens of lawyers we've communicated with, or met with, and decided we wanted no part of working with them. A classic line from one such lawyer: "I'm not going to look down any rabbit holes!" Translation: "I have no intention of doing serious discovery to help prove your case -- but oh, I will require $5,000 up front for you to retain my 'services.' And that's just for starters." Gee, can't imagine why we found that unappetizing.

Anyway, here is more from the Britt article:

In an up-coming May hearing, [Shuler] will be represented by Davy Mack Hay, who said he will seek the justice that Shuler has been denied under the First Amendment. . . .

Hay, who has known Shuler for a number of years, recently filed a Motion To Alter, Amend, or Vacate the recent $3.5 million default judgment received by Garrison, for what her attorney called “cyber-bullying of the worst order.” (Note: This isn't accurate either. Hay and I never really knew each other. We talked on the phone a time or two a few months before he became my lawyer. And to this day, I haven't met him in person. We certainly did not know each other for a number of years.)

While it appears that Hay will be fighting the default judgment on grounds that his client was not properly informed of the hearing, it is about a much bigger issue, he says.

At issue is " . . . core constitutional tenets of journalistic protections associated with a ‘free press,’ which allows the unmitigated flow of news and information, void of Orwellian governmental intrusion,” writes Hays, in his motion.

More high-cotton rhetoric was present in an al.com article titled "Blogger Roger Shuler fighting $3.5 million judgment." From the article, by Kent Faulk:

Shuler, who operates the website Legal Schnauzer, on Thursday afternoon, filed a motion through his attorney asking Jefferson County Circuit Judge Donald Blankenship to vacate his April 13 default judgment against Shuler for $1.5 million in compensatory and $2 million in punitive damages.

Shuler also asks the judge to grant him leave to file an amended answer and counterclaim, and enter a new scheduling order sufficient to allow time for discovery in the case.

Notice key information in the final paragraph. Hay and I had discussed the possibility of filing a counterclaim and seeking discovery, and he agreed to take that approach. In other words, it was not just about overcoming the groundless default judgment; it was about going on the offensive, seeking discovery that would show Garrison knowingly filed a bogus lawsuit against me. I wanted Garrison held accountable for engaging in such fraudulent behavior, and Hay agreed that was the right approach. Here's more from the Faulk article:

Shuler filed an initial response denying Garrison's claims but failed or refused to sit for a scheduled deposition and did not attend a hearing that resulted in the default judgment.

Prattville attorney Davy Hay, who entered an appearance in the case on April 18 on behalf of Shuler, stated in Thursday's motion that the court had issued an order in the case May 9, 2014 changing Shuler's address from the Shelby County Jail to an address in north Shelby County.

"However, the aforementioned address was no longer the defendant's (Shuler's) residence by virtue of a recent foreclosure. Therefore, he did not receive notice of this court's scheduling order or any subsequent documents filed in the case," according to the motion.

Hay states in the motion that Garrison failed to ascertain Shuler's whereabouts and provide proper notice regarding hearings or filings in compliance with his due process rights, especially considering Shuler was representing himself at the time.

"Now that defendant (Shuler) is represented by counsel, he understands he had a duty to notify the clerk of court of any address changes, however, several circumstances prevented him from doing so," according to Hay's motion.

Hay is mostly on target here. As a procedural matter, I should have notified the court of our new address -- and I would have if our lives had not been turned upside down via the foreclosure; in fact, for quite some time, we did not know where our address was going to be. As a matter of law, however, we have shown that Garrison had an obligation to make sure I had at least three days notice of her application for default and a hearing on the issue. (See Abernathy v. Green Tree Servicing (Ala. Civ. App., 2010).

Garrison did not fulfill that obligation, meaning her $3.5-million judgment is void and can be attacked as such at any point. In short, the judgment is a nullity, having zero legal foundation. Here is more from the Faulk article, focusing on matters my wife, Carol, and I were struggling with at the time of the default judgment:

According to the motion those circumstances were:

* "Mr. Shuler and his wife lost their home and were facing the very real possibility of being homeless. This being such a pressing and immediate issue, all other concerns had to be given lower priority.

* "Mr. Shuler had just spent five (5) months in jail, which began with being beaten by law enforcement officials in his own home and wrongfully detained, in violation of his constitutional rights."

* "Mr. Shuler and his wife experienced excessive psychological trauma, resulting in the defendant spending six (6) days in a psychiatric unit, in direct relation to these events, and was diagnosed with Post Traumatic Stress Disorder."

* "Mr. Shuler has a good-faith belief that his very life has been in actual peril as a result of his reporting. Accordingly, he has been and continues to be highly reluctant to submit to the authority of the state after what he perceives to be illegal attacks against his person, his family, and his rights as a citizen of the United States."

Hay states in the motion that Shuler has a meritorious defense in the case, "and by virtue of evidence currently in his possession and that which can be obtained through exhaustive discovery, shall show that the case against him is frivolous and nothing more than an attempt by the plaintiff to unconstitutionally bully the defendant (Shuler) into silence."

Hay argues in the motion that Garrison is a public figure, based on her work on Strange's campaigns, her appointment as Chief Counsel and Deputy Attorney General of the state of Alabama in 2011, and her position as director of the Republican Attorneys General Association. If Garrison was to be considered a public figure, rather than a private citizen, it would raise the burden to that of proving actual malice, the motion states.

This is good stuff from Hay. The four circumstances listed are all accurate; in fact, they pretty much are matters of public record. Garrison's lawsuit, in fact, was nothing but an effort to bully me into silence. And there is little doubt Garrison is a public figure, but that standard was not used in her default judgment. That means the splashy $3.5-million figure is based on a flawed interpretation of the law.

Where does Hay go off the tracks? Well, note his reference to "exhaustive discovery," along with his earlier reference to our intention to file a counterclaim. Was Hay serious about that? Doesn't look like it. He bailed out of the case before doing any discovery.

After the hearing with Baxley -- but several weeks before Blankenship issued his order -- Hay told me Garrison had offered to accept a $1 payment from me if I would agree to remove posts about her extramarital affair with Attorney General Luther Strange. There were a couple of problems with that: One, I never saw such an offer in writing; two, I wasn't about to accept such an offer. I told Hay from the outset that Garrison had filed a groundless defamation lawsuit, and I wanted to file a counterclaim to hold her accountable. Hay made it clear he understood that, and indicated he would conduct "exhaustive discovery" to get at the truth.

He either never had any intention of conducting such discovery -- or his mind changed the day he and Bill Baxley came together to argue the motion to vacate.

My relationship with Davy Hay did not end on a good note. I liked Davy and thought he was someone with genuine ethics, but right now, I wouldn't recommend him to work a traffic-ticket case.

With that as background, let's look at the one post that I allowed someone to talk me into censoring. It's been a little more than a year since I wrote it, but every point about the Jessica Garrison case still holds. Her $3.5-million default judgment is void, a nullity, and not worth a piece of used toilet paper:

(To be continued)