Jay Murrill
Based on the number of lawyer jokes that have been floating around for years, it seems safe to say that many Americans do not hold the legal profession in high regard. We suspect that is because lawyers are seen as individuals who lie more than the average person.Alabama GOP operative Rob Riley and Jay Murrill, his sidekick from Homewood's Riley Jackson law firm, provide classic examples.
We've already caught Riley lying to The New York Times and about the dubious defamation lawsuit he and lobbyist Liberty Duke brought against me, my wife, and the Legal Schnauzer blog. We also have caught Murrill lying about the case to the CBS television affiliate in Birmingham.
But Riley and Murrill are not limited to making false statements to the press. No, they are "talented" liars who are quite capable of fudging the facts (and the law) across multiple platforms, including court documents.
Let's consider Riley's words to Sara Rafsky, a reporter for the Committee to Protect Journalists (CPJ), in an article titled "Censorship in Alabama's Shelby County." Rafsky reports that Riley, in a telephone interview about his lawsuit against me, said "he has a right to seek injunctive relief in a defamation case and there is legal precedent for doing so."
Riley has a slight problem with that statement: It is false. The work of his own hack lawyer, Jay Murrill, proves it is false. The words of experts on First Amendment law, of which Riley clearly is not one, also show it is false.
As for Murrill's handiwork, evidence in the record suggests he or other members of the Riley firm wrote all of the orders that Judge Claud Neilson wound up signing in the case. That includes the Order on Petitions for Preliminary Injunction, which is dated October 4, 2013, and can be viewed at the end of this post.
On page 2 of the order, second paragraph, Murrill/Neilson cite a case styled South v. City of Mountain Brook, 688 So. 2d 292 (Ala. Crim. App., 1966) for the proposition that "injunctive relief can be an appropriate and effective remedy to repeated and ongoing defamatory speech."
The South case, however, says nothing of the sort. It's a criminal case, involving alleged harassing communications, and has nothing to do with defamation, injunctive relief, or any other civil matter. This is a stunning example of legal chicanery, which more or less amounts to a fraud on the court.
But Murrill/Neilson do not stop there. At the sentence regarding the South case, they refer to footnote No. 3. The reader can look to that footnote at the bottom of the page and find . . . 12 other cases that supposedly support the claim that injunctive relief is proper in a defamation case.
That raises another slight problem for Murrill/Neilson--and Riley: None of those cases supports the proposition that injunctive relief is proper in a defamation case; in fact, quite a few of them say just the opposite.
Claud Neilson
This did not escape the attention of various legal experts who noticed that a journalist/blogger (me) had been sent to jail under outrageous circumstances in Alabama. In an amicus brief asking Neilson to reconsider his actions, the ACLU noted that his orders made scant mention of U.S. Supreme Court cases prohibiting injunctive relief--and then went even further. (See brief at the end of this post.)Indeed, not only were these substantial U.S. Supreme Court cases not presented to the Court, the cases cited in the Preliminary Injunction (see p. 2 and n.3) demonstrate that injunctive relief in a defamation case requires a final determination on the merits of the litigation.
In other words, those 13 cases cited by Jay Murrill do not remotely say what he claims they say. And for the record, there was no final determination on the merits of the litigation because there was no trial--and that's because Riley and Duke did not seek a trial and did not ask to have their case presented to a jury.
Ken White, a Los Angeles-based First Amendment lawyer and author of the Popehat blog, picked up on the ACLU's theme in a post dated October 27, 2013, noting that Neilson had declared certain Legal Schnauzer posts to be defamatory without any such finding at trial. Wrote White:
So how did Judge Neilson excuse granting Riley's motion for a preliminary injunction before any trial of the matter? Very badly.
Judge Neilson — who may have executed a proposed order from Riley's attorneys — utterly failed to cite or distinguish any of the wall of authority discussing how preliminary injunctions are strongly disfavored in both equity and First Amendment law. Judge Neilson didn't cite the "only in the most extraordinary circumstances" rule, let alone apply it. He only cited two Alabama cases — one 1947 case about defamation of a business that had no First Amendment analysis, and one appeal of a criminal harassment conviction that doesn't even mention prior restraint or injunctions. In a footnote, Judge Neilson cited a melange of state and federal cases from California, Ohio, Michigan, and Illinois with no explanation or analysis. Those cases actually undermine his authority to issue the injunction, because they support the proposition that an injunction against defamation is almost always inappropriate before a finding on the merits at trial or if the plaintiff wins a summary judgment motion. It appears that the drafter of this order simply scoured the nation for the handful of outlier cases saying something positive about injunctions against defamation — plus the tiny number of cases approving them pretrial — while completely ignoring the authority (including from the United States Supreme Court) that such injunctions are inappropriate. . . .
How is that for an honest, accurate, and brutal analysis of Murrill and Neilson's work? White does not let Rob Riley off the hook, either:
It's difficult to see what justifies this order — unless it's the fact that Robert J. Riley, Jr. is the son of a former governor and well-connected in the Alabama Republican party. It's very rare for judges to approve pretrial injunctions against defamation in the face of the overwhelming law against it, but when it happens it tends to benefit the rich, connected, and powerful. It's called the rule of law: they rule, that's the law.
Let's not forget that all of this lying was done on behalf of Rob Riley (and Liberty Duke). How bad was it, how flagrant? To arrive at an answer, you have to understand what those 13 cases cited by Murrill/Neilson actually say. We will address that in an upcoming post.
Rob Riley-Judge Claud Neilson's Preliminary Injunction by Roger Shuler
ACLU Memorandum by Roger Shuler