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Why Is This Journalist In Jail?

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It might have been expected that Alabama would be the first jurisdiction in this hemisphere in many years to imprison a journalist. This is the lot of Roger Shuler, blogger under the title "Legal Schnauser," which implies a self-image of a persistent, aggressive, little dog, with a loud bark. Shuler is accused of taking liberties with the truth, but his self-image seems to be fairly well accepted as exact. Shuler and his wife operate a left-wing blog from their home in Birmingham, Alabama, and although The New York Times has declared the Schnauser's allegations "fuzzily sourced," the Shulers get high marks for fearless, if rather undiscriminating, assaults on their subjects. These are generally drawn from the infinitely target-rich environment of the Alabama right, which includes practically all the state's Republicans and most of its Democrats. Roger Shuler's blog grew from a fierce dispute with his neighbour, which spread in defamation actions to his neighbour's lawyer, who, as a result of the skirmishing, ended up as part owner of the Shulers' house.

The Shuler case opens a sequence of cans of worms: First Amendment rights of freedom of expression are obviously involved, especially as the civil tort of defamation has effectively been abolished in the United States, unless the complainant can achieve the almost unheard of feat of proving intent to defame. The mere fact of defamation, even with negligence as the excuse, will not suffice for a finding of liability. It also raises important questions of the blogosphere generally; the National Bloggers Club, headed by Republican Ali Akbar, who has threatened Shuler with a defamation action despite the very difficult requirements for success, issued a statement denouncing Shuler for "rumor-monger cyber-bullying," but expressing grave concern about the impact of just throwing Shuler in prison without any real due process. The liberty of the person is supposedly guaranteed constitutionally, except after full legal formalities have justified detention; this is the second issue.

The whole affair also lifts the lid on the byzantine murkiness of Alabama political prosecutions and scandals, that have been the most notorious in the country for this sort of activity for the last 20 years or so. Shuler was imprisoned for ignoring service of an order to desist from defaming Rob Riley, a prominent Republican lawyer and son of a former governor. Shuler accused Rob Riley of having had an affair with a prominent lobbyist, that ended the incumbent marriages of both alleged parties. Shuler alleged the affair led to an abortion, despite the ostentatiously pro-life stance of Mr. Riley and his father, the former governor. The younger Mr. Riley has made a significant fortune from his legal work, including leading a civil suit against Richard Scrushy, who was recently released from prison after a conviction in the imbroglio involving governor Riley's predecessor, governor Don Siegelman. Siegelman solicited a charitable contribution from Scrushy, and when he received it, reappointed Scrushy to a state board. Many people, including Scrushy and Siegelman themselves, believe this was a partisan attack on Siegelman the Democrat, master-minded by George W. Bush's long-time chief political strategist Karl Rove. It was a very dubious saga in which Siegelman's appeals have gone on for six years but he has been sent back to prison.

Where the plot thickens further is that Siegelman's judge, Mark Fuller, is now informally accused of having a sexual involvement with his court's former Court Deputy Clerk and bailiff in a manner that could be deemed to compromise a number of the proceedings he has been involved in. Fuller is also controlling shareholder of the Doss Aviation company, which holds lucrative contracts with several government agencies and is thus alleged to have biased Fuller against numerous parties who came through his court. Riley gained from the alleged wrongdoing of Scrushy, and Shuler has been silenced by Riley. The whole steaming, malodorous tangle of politicized adjudication, in which money and politics are mixed up with peccadilloes added, simmers away like an eccentrically concocted bouillabaisse from the fish market of Mobile (where the former county executive was imprisoned several years ago on an apparently spurious charge of insufficiently energetic attempts to prevent the suicide of his girlfriend).

The details of the arrest of the Legal Schnauser (Roger Shuler, again, for those who are finding the plot hard to follow) add to the implausibility of the whole pretzel barrel of apparent improprieties and slapstick absurdities of Alabama jurisprudence. The Shulers sent their blog from their local library as they did not have the means to maintain their home Internet link, and were apprehended by the police on their way home from the library, ostensibly for shooting a stop sign, and then were served papers on the desist order Riley had sought. This ambulatory form of service was resorted to because the Shulers had not answered the door when a normal service was attempted at their residence. The Shulers declined service in the car and drove off throwing the papers out of the windows of the car and Roger Shuler did not appear in court the next day. He was found in contempt of court and taken into custody and is being held without bail, sine die, and left with no counsel to argue the immense constitutional issues involved: right to due process before incarceration, and right to freedom of expression, especially since offended parties are free to sue for defamation if they think that very high hurdle has been jumped (in Shuler's allegations against Riley).

It is all shabby, tawdry, and distasteful (though entertaining in places), but so is much of Alabama public life, and so are vast areas of the U.S. justice system. It is not conceivable to me that the United States, even its most primitive states, is not yet ready for a real makeover of its ramshackle justice system.

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