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Republican Prosecutors and a Local Alabama Newspaper, An Overly Cozy Relationship

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A psychologist friend of mine once explained to me his clinical technique. "I always listen for they [his patients] aren't talking about," he said. "Because that's where the action is." That rule of thumb works if you want to understand the political prosecutions by Bush's Justice Department in Alabama. Focus on what local papers like The Birmingham News aren't talking about, because that's where the action is. And there's enough action to fill five John Grisham novels. Here's one subplot.

What they aren't talking about is what Sue Schmitz earns at her day job. As a member of the Alabama House of Representatives, her compensation, as set by the Constitution, is $10 a day. (Alabama's 175,000-word Constitution, the longest in the world, is known as a notorious barrier to political reform. In 2004, voters defeated an amendment that would have removed the Constitution's references to segregation.)

Schmitz, 63, also gets a monthly per diem of $3850 to cover travel and lodging when she's doing the people's business in Montgomery, more than 200 miles away from her home district near the Tennessee border.

According to the National Council of State Legislatures, legislators in states like Alabama, "say that they spend more than two-thirds of a full time job being legislators. Although their income from legislative work is greater than that in [some other states], it's usually not enough to allow them to make a living without having other sources of income."

Schmitz, who worked as a high school teacher for 35 years, had always relied on a second source of income while serving in the House. For her first five years as an Alabama representative, Schmitz was a substitute school teacher in her home district. But in December 2002, after the local board of education said she could no longer use flex time to balance her teaching and legislative duties, Schmitz made some calls to see about getting a job elsewhere. She wanted a position that would allow her to work around the dictates of Alabama's constitution, which says that the legislature may be in regular session for no more than 30 days out of each 105 calendar day period.

Through her contacts, Schmitz got a job as the Program Coordinator for Community and External Affairs for the CITY Skills Training Consortium, a program designed to help promote education among disadvantaged youths. She would start on February 1, 2003 with an annual salary of $42,623.

In April 2006, The Birmingham News began running a series of articles on "corruption" within Alabama's two-year college system. The reporting focused on a number of House Democrats who were engaged in "double-dipping" at the expense of Alabama taxpayers. "Double-dipping" became a political catchphrase in Alabama. What wasn't The Birmingham News talking about? The outside employment and business interests of Republican politicians, among other things.

A few weeks after The Birmingham News started going after Democratic representatives who "double-dipped" within the two-year college system, U.S. Attorney Alice Martin started hauling in witnesses for her grand jury investigation. The first case she brought to trial, over two years later, is against Sue Schmitz.

Schmitz never intended to look for job, according to the criminal indictment. Rather, in December 2002 Schmitz, "devised and intended to devise a scheme and artifice to defraud and obtain money and property belonging to others by means of false and fraudulent pretenses, representations, and promises." And, "it was further part of the scheme and artifice that defendant Schmitz sought to facilitate her fraudulent activity by seeking and obtaining authorization to perform services for the CITY Program on a 'flexible work schedule.'"

Let me spell it out for the non-lawyers. Prosecutor Martin isn't alleging that Schmitz pulled strings to get a cushy part-time job and then failed to perform. That isn't a crime. Instead, Martin alleges that Schmitz had the specific intent, before she ever got a job offer, to take the money and in return do nothing. And Martin says she can prove this beyond a reasonable doubt. Again, at the risk of being didactic, beyond a reasonable doubt means there can be no plausible alternative explanation.

The Birmingham News fails to acknowledge this critical legal distinction, and thereby misleads its readers:

"The prosecutor told jurors the case will boil down to a few questions. 'Did Sue Schmitz do the things she told the CITY program she did? Did she work the number of hours she said she worked? Did she perform the tasks she said she did? The answer to those questions is no, she didn't.'"

If it boils down to those questions, then the prosecution's case is fatally flawed and judge was bound to dismiss the case. More likely, the reporting at The Birmingham News is fatally flawed. Again, unsatisfactory job performance is not a crime. Martin is engaged in the type of prosecutorial overreaching that mirrors the case against Don Siegelman, where the prosecutor essentially argued that a political donation was the same thing as a bribe.

But to make her case easier to prove, Martin asked the judge to prevent the jury from hearing evidence that Schmitz held a bona fide job. The status of Schmitz' job had been the subject of prior litigation. Schmitz had sued the college that administered the CITY program for wrongful termination and won.

More specifically, Schmitz' contact of employment was not renewed after almost four years. She argued that she could only be terminated under the Fair Dismissal Act which covered college employees. The college argued that Schmitz was acting like an independent contractor, who could be terminated at will. The judge, who reviewed the circumstances of Schmitz employment, wrote:

"Ms Schmitz has also been a longtime employee of C.I.T.Y./CACC. The decision to hire her was made by the President of Central Alabama Community College. He set her work hours, work schedule and what she would be doing in her job. The President of the College also participated in firing Ms. Schmitz....Ms. Schmitz was not free to pick who she worked with or who worked under her. Her direct Supervisor was an employee of Central Alabama Community College."

After the ruling was handed down in favor of Schmitz, she has entered into negotiations with her employer for some kind of settlement.

Here's the giveaway of the prosecution's bad faith. Alice Martin wants the judge to, "prohibit the defendant from referencing this lawsuit at any fashion at trial, including its filings as well as any rulings or determinations issued." She says that the lawsuit isn't relevant, and that "the admission of such evidence will only serve to confuse, distract, and mislead the jury." Martin is shamelessly insulting the intelligence of everyone involved. Schmitz' willingness to invite judicial scrutiny into the circumstances of her employment reflects her state of mind, which is central to the government's case.

The prior lawsuit also touches on another point. It's impossible for someone to be employed in a phantom job for three years without the supervisor being similarly culpable. Schmitz' employer would not have willingly invited judicial scrutiny if this were part of some criminal enterprise.

But there's more. Martin wants the judge to "prohibit the defendant from suggesting to the jury that Schmitz could fulfill her obligations to the CITY Program by advocating on its behalf, or providing any advice or assistance on matters concerning the Legislature." Even though Schmitz' written job responsibilities included:

"II. External Affairs
A. "Develop and maintain a positive working relationship with members of the State of Alabama legislative delegation, various city and county officials relative to CITY locations.
B. "Establish a positive working relationship with various state service providers (i.e. Department of Human Resources, Department of Mental Health, and Department of Youth Services."

Martin also wants the judge to prevent Schmitz from presenting "an excessive number of character witnesses."

The foregoing is what The Birmingham News is not talking about. The paper's coverage has essentially been spoon fed by Martin.

"Prosecutors outlined the case they'll present against Schmitz in a 41-page trial memorandum. After it was reviewed by The Birmingham News, that document was sealed by a federal judge."

Recently, Brett Blackledge, the lead reporter on The Birmingham News "double-dipping" series, admitted that he got a lot of the information when somebody handed it over to him in a box. Some locals who found him to be less than honest had already likened Blackledge to Scott Templeton, the fabulist reporter in the HBO series The Wire. Templeton, who fabricated quotes and embellished facts to juice up his stories, ran with a bogus narrative - in that case, homeless murders - he was fed by a government officials . In the series finale, Templeton wins the Pulitzer Prize. Blackledge, who won the Pulitzer Prize for his double dipping reporting, recently left to work in the AP Washington Bureau.