Friday, January 18, 2019

Question about the jailing of journalists catches Donald Trump AG nominee William Barr off guard, but here is the harsh reality of current U.S. law

Thursday, January 17, 2019

Trump attorney-general nominee William Barr said at his confirmation hearing this week that he "can conceive" of jailing journalists "as a last resort." I am the most recent U.S. journalist to be incarcerated -- from Oct. 23, 2013 to March 26, 2014 -- and my five-month stay behind bars was the third longest in American history. It was, by far, the longest for a journalist in a purely civil matter, and it apparently was the only one involving an alleged violation of a preliminary injunction that was unlawful on its face--running contrary to more than 200 years of legal precedent.

In short, Judge Claud Neilson's arrest order in my case likely was the most unlawful First Amendment ruling in U.S. history.

The issue of jailing journalists hits close to home, and I've written extensively on the topic. Since Barr did a poor job of explaining U.S. law on the matter -- in fact, he seemed flummoxed by the question from U.S. Sen. Amy Klobuchar (D-MN) -- I decided, in the interest of clarity, to help him out. (And yes, it's scary that an incoming chief law officer in the United States knows so little about a profound constitutional issue that he needs my help.) From a report at Yahoo News:

During his confirmation hearing on Tuesday, attorney general nominee William Barr was asked by Sen. Amy Klobuchar, D-Minn., whether his Justice Department would “jail journalists for doing their jobs.”

Barr, President Trump’s pick for the nation’s top law enforcement officer, said he could envision a situation where a news organization or individual journalist could be held in contempt of court.

“I think that, uh, you know I know there are guidelines in place,” Barr said after a seven-second pause. “And I can conceive of situations where, uh, you know, as a last resort, and where a news organization has run through a red flag or something like that, knows that they’re putting out stuff that will hurt the country. There might — there could be a situation where somebody could be held in contempt.”

Barr is correct that contempt of court often is an issue that leads to the incarceration of a journalist. A judge might order a reporter to produce documents related to a criminal matter, or to avoid publishing an article that could affect national security -- and if the reporter refuses, he can lawfully wind up behind bars. Do I agree with that? No. Is it the law of the land? Yes.

And it is not just a matter of "guidelines." It is based on a U.S. Supreme Court (SCOTUS) ruling -- Branzburg v. Hayes, 408 U.S. 665 (1972) -- in a case that is getting close to 50 years old. Here is how we explained it -- and compared jailings related to criminal matters and my incarceration on a 100-percent civil matter -- in a March 2015 post:

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

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

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

The other five U.S. journalists to be arrested in this millennium, whether I like it or not, were lawfully arrested under Branzburg:

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

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

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

Bottom line: If a U.S. reporter fails to appear and answer questions, per a court order in a criminal investigation, he can lawfully wind up behind bars. I suspect many Americans have no idea the First Amendment can become so squishy under certain circumstances --and William Barr did a poor job of explaining it.

The lawful incarceration of an American journalist almost always involves criminal investigation -- and the reporter's effort to protect a confidential source. My unlawful incarceration, on the other hand, involved a prior restraint -- and except for matters of national security -- those almost always fall outside the law. That Alabama lawyer Rob Riley and Liberty Duke did not appreciate my accurate reporting (it's never been proven false or defamatory, as a matter of law) hardly is a matter of national security.

In CBS, Inc. v. Davis, 510 U.S. 1315 (1994), SCOTUS addressed the "exceptional cases" where a prior restraint might be proper. The opinion is from Harry Blackmun:

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

William Barr probably was interested mainly in obtaining a fancy title and more or less phoned it in for his confirmation hearing. He certainly did a poor job of educating the public. Hopefully, we have helped fill in some gaps.

Wednesday, January 16, 2019

Donald Trump has paid about $30 million to settle child-sex complaints, including a 2012 incident at Albemarle Estate in Charlottesville, Virginia

Wednesday, January 16, 2019

Albemarle Estate at Trump Winery

Donald Trump has paid roughly $30 million to settle child-sex complaints brought against him since 1989, according to a D.C.-based investigative journalist.

Wayne Madsen Report (WMR)which is a subscription site, describes the settlements in a Jan. 14-15 post titled "Why is Trump so afraid of Cohen's testimony?" From the article:

Donald Trump continues to lash out at his former lawyer and "fixer," Michael Cohen, as the February 7 public testimony by Cohen before the House Oversight and Government Reform Committee, chaired by Representative Elijah Cummings (D-MD), draws nearer. Cohen said he wants to "give a full and credible account of the events that have transpired."

While Cohen will avoid certain subjects still under investigation by Department of Justice special counsel Robert Mueller, he may provide some insight into the types of embarrassing things he "fixed" for Trump, before they ended up in scandalous court trials. This may include Cohen assisting Trump in paying off victims of Trump's sexual assaults over the years.

The cases go way beyond those widely reported in the mainstream press, WMR reports. They also go beyond cases that involve women and adults. They indicate Trump has a disturbing taste for children:

In addition to Stephanie Clifford, aka porn actress "Stormy Daniels," and former Playboy model Karen McDougal, Cohen reportedly helped settle a number of rape cases involving Trump. WMR received a list from a reputable Republican source of these settlement claims, all of which involve male and female minors:

(1) Michael Parker, 10-years old, oral rape, Mar-a-Lago, Palm Beach, FL, 1992. Trump paid his parents a $3 million settlement.

(2) Kelly Feuer, 12-years old, $1 million settlement paid in 1989, allegations of forced intercourse, Trump Tower, NY, NY.

(3) Charles Bacon, 11-years old, $3 million, allegations of oral and anal intercourse, 1994, Trump Tower, NY, NY.

(4) Rebecca Conway, 13-years old, intercourse and oral sex. Trump Vineyard Estates, Charlottesville, VA, 2012, $5 million settlement.

(5) Maria Olivera, 12-years old. Her family was paid $16 million to settle allegations of forcible intercourse occurring in Mar-a-Lago, Palm Beach, FL, 1993.

(6) Kevin Noll, 11-years old, anal rape, Trump Tower, NY, NY. 1998. Settlement details unknown.

Five of the six alleged incidents took place at two of Trump's best-known properties -- Trump Tower in New York City and Mar-a-Lago in Palm Beach, FL. The exception is incident No. 4, which is the most recent (2012) and took place at Albemarle Estate at Trump Winery. Donald and Eric Trump opened the facility as a bed-and-breakfast in May 2015.

Donald Trump
Trump started negotiating to acquire the property after it went into foreclosure in 2011. Trump formally purchased the entire estate in October 2012.

The child-sex settlements might explain Trump's reluctance to disclose his tax returns, WMRreports, and documents indicate our "president" is a deeply disturbed individual:

WMR's GOP source indicated that Trump has refused to release his tax returns because they will reveal the many out-of-court settlements he has paid to silence his assault victims and their families. The list of Trump's child victims came with an interesting reference point that was apparently part of the documentation in the settlement cases. Trump was designated with a psychiatric disorder referenced in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM–5). The referenced disorder is "Pedophilic Disorder (F65.4)."

Tuesday, January 8, 2019

Under a U.S. Supreme Court case called Alabama v. Shelton, Carol's sentence of probation in Missouri "assault" case is invalid and due to be reversed

Monday, January 7, 2019

Orig. post:

Under a U.S. Supreme Court case called Alabama v. Shelton, Carol's sentence of probation in Missouri "assault" case is invalid and due to be reversed

Ruth Bader Ginsburg
The suspended sentence that a Missouri judge placed on my wife, Carol, in a bogus "assault of a law enforcement officer" case is "invalid" and a "nullity," and it must be reversed,  according to U.S. Supreme Court (SCOTUS) precedent.

We already have shown that, by placing a suspended imposition of sentence (SIS) on Carol, Judge Jerry Harmison Jr. ensured there is no final, appealable judgment in the case and no conviction (even though Carol, contrary to fact and law, was found guilty). Now, we learn that the SIS and two-year probation Harmison imposed are unlawful and due to be vacated.

How many ways can one compromised judge screw up a case?

This all goes back to Missouri's denial of Carol's right to counsel, and the relevant law comes from the nation's highest court in a case styled Alabama v. Shelton, 535 U.S. 654 (2002). How rich is the irony that the cheat job heaped on Carol in Missouri would be -- or should be -- decided by a SCOTUS case that originated in Alabama?

Justice Ruth Bader Ginsburg (with dissents from -- surprise, surprise -- Antonin Scalia, Clarence Thomas, William Rehnquist, and Anthony Kennedy) wrote the opinion in Shelton.Here is it's central holding:

Held: A suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. Argersinger, 407 U. S., at 40. Pp. 660-674.

What does this mean for Carol's case?

(1) She was placed on probation, but a violation of its terms could lead to a jail term. That, SCOTUS found in its 2002 Shelton ruling, is not allowed under the Sixth Amendment;

(2) Carol at one point had an attorney -- public defender Patty Poe -- but when Poe bailed out of the case, jail was waived as a possible punishment, by law;

(3) Carol never had another attorney, and she never waived her right to counsel, so Harmison committed a huge blunder by adding probation to the equation -- and probation, by definition, means jail is on the table. And that, Justice Ginsburg found, is a no-no.

(4) Both Poe and Margaret Palmietto (the original judge in Carol's case) apparently have more functioning brain cells than Harmison, who took over after Palmietto recused -- or maybe Poe and Palmietto are slightly less corrupt than Harmison. Either way, Poe told us upon exiting that, with jail off the table, the court could only sentence Carol to a fine, community service, or some type of educational course. Palmietto, in her final days on the case, said multiple times in open court "it's just a fine" -- as if Carol should have no problem being fined for an offense she did not commit, even according to the written and verbal statements of the so-called "victim."

Carol Tovich Shuler
Where does the SCOTUS case have its roots? The answer is Etowah County, Alabama, (county seat is Gadsden), where LeReed Shelton represented himself and twice was found guilty of third-degree assault -- being sentenced to a suspended 30-day jail term and unsupervised probation. Shelton appealed, and the Alabama Supreme Court ultimately reversed his sentence, finding it invalid because he did not have counsel, violating his Sixth Amendment rights.

SCOTUS upheld the Alabama Supreme Court's finding, with these words from Ginsburg:

Defendant-respondent Shelton represented himself in an Alabama Circuit Court criminal trial. The court repeatedly warned Shelton about the problems self-representation entailed, but at no time offered him assistance of counsel at state expense. He was convicted of misdemeanor assault and sentenced to a 30-day jail term, which the trial court immediately suspended, placing Shelton on two years' unsupervised probation. The Alabama Supreme Court reversed Shelton's suspended jail sentence, reasoning that this Court's decisions inArgersinger v. Hamlin, 407 U. S. 25, and Scott v. Illinois, 440 U. S. 367, require provision of counsel in any petty offense, misdemeanor, or felony prosecution, Argersinger, 407 U. S., at 37, "that actually leads to imprisonment even for a brief period," id., at 33. The State Supreme Court concluded, inter alia, that because a defendant may not be imprisoned absent provision of counsel, Shelton's suspended sentence could never be activated and was therefore invalid. . . . 

The Sixth Amendment does not permit activation of a suspended sentence upon an indigent defendant's violation of the terms of his probation where the State did not provide him counsel during the prosecution of the offense for which he is imprisoned. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point "result[s] in imprisonment," Nichols v. United States, 511 U. S. 738, 746; it "end[s] up in the actual deprivation of a person's liberty," Argersinger, 407 U. S., at 40. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow.

Carol was the victim of an uncounseled (and unlawful) conviction, and SCOTUS makes clear that her sentence must be reversed as invalid. Whether the dictates of the nation's highest court has any impact on Jerry Harmison Jr. -- or anyone else in Missouri's perverse "justice system" -- remains to be seen. But it's clear Carol's sentence is a nullity, meaning it is legally void and is based on . . . well, nothing.

Wednesday, January 2, 2019

Alabama's crooked system of starving inmates so that sheriffs can use the money for personal expenses finally is being exposed for the whole nation to see

Wednesday, January 2, 2019

Alabama's crooked system of starving inmates so that sheriffs can use the money for personal expenses finally is being exposed for the whole nation to see

Outgoing Moran Sheriff Ana Franklin
(Decatur Daily)

An Alabama prosecutor is suing his county sheriff for using funds intended for feeding jail inmates to pay her own legal fees. In another sign that nontraditional journalism has immense value, a groundbreaking blog puts the important (and largely unseen) issue in perspective.

Morgan County District Attorney Scott Anderson filed a lawsuit on December 21 seeking to recover funds outgoing Sheriff Ana Franklin allegedly had used for personal expenses. William Gray of Birmingham, one of Franklin's attorneys, said the sheriff used surplus jail-food money to pay lawyers who helped negotiate a deal with federal prosecutors that recently ended with Franklin pleading guilty to a misdemeanor for willful failure to file a tax return. From an article by Eric Fleischauer, of the Decatur Daily:

Some money originally earmarked for feeding Morgan County jail inmates has gone to pay lawyers for Sheriff Ana Franklin, one of her attorneys said.

The legal expenses may be part of at least $105,000 in jail-food money that Morgan County District Attorney Scott Anderson alleges the sheriff has taken or spent.

Anderson [on Dec. 21] filed a civil lawsuit against Franklin alleging she has illegally kept and spent state-issued jail food money that she should have been holding in trust exclusively for the feeding of inmates.

This issue has particular resonance here at Legal Schnauzer since I spent more than five months in an Alabama jail (Shelby County) in 2013-14 for reporting on state legal and political corruption, mostly among Republicans. I became the only U.S. journalist to be incarcerated since 2006 and probably the only American in history to essentially be "arrested for blogging," due to a preliminary injunction that has been an unlawful "prior restraint" under more than 200 years of First Amendment law.

I know what it's like to eat Alabama jail food; I survived on it for more than five months. Since then, we've learned that Alabama sheriffs make it a practice to to pocket money intended for jail food and use it for their own purposes. That issue first hit the press in early 2018 when former Etowah County Sheriff Todd Entrekin was found to have pocketed $750,000 in jail-food funds and used most of the money to purchase a beach house in north Florida.

A recent report at shows Entrekin, who lost his bid for re-election, made more than $1.5 million from funds that were supposed to be used for feeding federal immigration detainees at the Etowah County Detention Center in Gadsden.

Morgan County Prosecuting Attorney Scott Anderson
(Decatur Daily)
Here is the equation for Entrekin, Franklin, and other sticky-fingered Alabama sheriffs: The less money you spend on feeding inmates, the more money you will have for your own ventures. The headline on this post might as well be "Alabama sheriffs live in high style by starving inmates." I once was one of those starving inmates; I lost 25 pounds during my five months in jail, and it would have been worse if I had not had resources to take one of the few survival options available to Alabama inmates.

Morgan County Whistle Blower, a ground-breaking blog that has broken one story after another in the Ana Franklin scandal, summarized Alabama's inmate-food crisis in a Dec. 23 post that focused on the Lawrence County Jail:

Folks these jails have become all about the almighty dollar. They are no longer about corrections or punishment. They are about how much money can we make off the inmates and their families or loved ones.

In Lawrence County, if you bond someone out of jail they now charge a $35.00 jail processing fee. Not sure where this money goes or what it is used for or who gets it. Not sure what the purpose of this fee is since in Lawrence County everyone who is arrested or gets a ticket when paying their fine and court costs pays a $35.00 jail fee. This fee is to pay for the construction of the current jail which is 20 years old. Just another burden added to the families for the money maker. This applies to property bonds and bail bondsmen but the $35.00 is separate from what you have to pay the bondsman and must be paid by the person making the bonds. I think this is a clear case of double dipping. The $35.00 jail fee is being paid twice.

As if that is not bad enough as soon as you walk into the doors of the jail you immediately have access to two machines, the first is so you can put money into their account so they can buy items from the jail including food. This seems like a racket to me; first, you don’t feed them adequately and then sell them overpriced food all the while getting rich off leftover jail food money. Next to the first money machine is another money machine to put money into an account so they can use the phones.

These things put a burden on the families, many of whom are already struggling financially. The phones they can do without but when a loved one calls and says they are hungry and it has been well documented they are not being fed properly by these greedy sheriffs it is hard to not rake and scrape and come up with money for them to buy something to eat.

This whole operation just seems to swirl around how we can make money off people who are in jail and contrary to popular belief most are not hardened criminals like the sheriff portrays them. The food is about like this jail processing fee, it all seems like double dipping to me, getting money from the State for food and then getting money from the inmates for food.

The operations of the Sheriff's Department has gone from one of law enforcement to one with multiple systems within the organization that is totally focused on making money.

That is very well stated, and the highlighted portion particularly hits home because I lived under those conditions for five months. I can add one point to this, and I know about it only because I've experienced it firsthand. Bottom line: An inmate does not suffer from Alabama's crooked jail-food system only while he's incarcerated; its impact can stay with him long after he has been set free.

(To be continued)

R.D. Laing

R.D. Laing
Speaking on Autonomy