I've previously written about Roger Shuler, the Alabama blogger currently in jail for contempt of court based on his defiance of an injunction that is likely an unconstitutional prior restraint of speech. Though I think that Shuler's history shows him to be a vexatious litigant, and though I think his erratic and foolish behavior has contributed substantially to this situation, I find the injunction against him and his incarceration for violating it very troubling. I'm quoted on that point in last weekend's New York Times.
There are some developments of note.
Shuler Has Been Convicted of Resisting Arrest And Sentenced to 90 Days Imprisonment, Suspended
Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resiting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson. I'm not an expert on Alabama criminal procedure, but my rough understanding is that misdemeanors like this are tried by bench trial in the "district courts" of Alabama, and can be appealed to the "circuit court" for a trial by jury, which is a strange way to run a railroad.1
Three things concern me about Shuler's bench trial.
First, he represented himself. It's not clear whether he refused appointed counsel (which he foolishly did before) or whether he was somehow deprived of one. I suspect he refused counsel, which is transcendentally idiotic and self-indulgent. He had a right to appointed counsel. Nothing in his history of pro se litigation suggests he was even minimally competent to defend himself.
Second, the judge denied Shuler a continuance to gather evidence, which Shuler requested because he had been in custody since October:
Jackson denied a request made by Shuler that the case be continued after he claimed that his incarceration prevented him from preparing his defense and obtaining certain discovery material, such as a video recording of the incident and copies of arrest warrants.
Now, representing yourself is likely to lead to this sort of result — you're not prepared for trial. But judges are supposed to take steps to protect the rights of pro se defendants. The arrest — and the alleged unlawful resisting of arrest — is less than three months old, and I find it highly dubious and suspicious that a judge would deny a continuance to give Shuler more time to seek discovery and prepare.
Third, it's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.
Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. That's what his wife argues now. Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.
The district judge imposed a suspended 90-day jail sentence, meaning Shuler is now incarcerated only on the contempt of court.
In short the coverage of the trial leaves me where I was before: questioning whether the Alabama court system is treating Shuler according to the rule of law, but also suspecting that Shuler is doing everything he can to undermine his own best interests.
Shuler Remains Incarcerated On The Contempt of Court Charges
Back in November, the Alabama court issued a permanent injunction against Roger Shuler forbidding him from saying certain things about the plaintiffs in his case and requiring him to remove certain posts from his blog. The court did so after a hearing that it characterized as a "permanent injunction hearing." As I explained back in November I believe that permanent injunction is a prior restraint in violation of the First Amendment; the cases permitting such prior restraint against defamation generally only do so after a full trial before the correct finder of fact (which should be a jury), not after some mere "hearing." There's nothing extraordinary about this case that should permit departure from that precedent. So unless Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing — something that's not outside the realm of possibility given his erratic behavior — the injunction seems unlawful.
Yet Shuler remains in jail for contempt of court based on his refusal to comply with the injunction. How long can he stay there? That's complicated.
There are two types of contempt consequences: punitive and coercive. Punitive contempt sanctions punish contempt; coercive contempt consequences seek to force someone to do something. Here's how the Supreme Court described the difference, and the different requirements:
"Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U. S., at 199; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.2
Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:
Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.
Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.
So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely." In many American jurisdictions that's correct — indefinite coercive incarceration is a tool that has led to calls for reform. In that Alabama case — which involved a mother refusing to disclose the location of a son suspected of arson — the Supreme Court of Alabama suggested that a court should revisit the issue:
In cases such as this, after the contemnor has been incarcerated for a substantial length of time, the trial judge should bring the contemnor before him for another due process hearing in which he can reevaluate the factual basis of his first adjudication. If he is satisfied that his determination was correct, he should again incarcerate her. If he is of the opinion that she is telling the truth, of course, he should release her.
Hopefully the Alabama court will revisit Shuler's incarceration. At this point Shuler's options to get out of jail are to comply with the (probably unconstitutional) order or appeal it. Given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal. Telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success.
We should be able to look critically both at Roger Shuler's behavior and of the system's treatment of him. Notwithstanding overly credulous coverage (like like Salon article that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior), Shuler remains his own worst enemy. His evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights. But even nuts and cranks deserve due process of law; depriving them of it threatens to weaken everyone's rights. I'm troubled by how Shuler's civil and criminal cases were handled.
- That's the way Massachusetts used to run things. My first trials were as a student prosecutor trying misdemeanor bench trials in Malden, MA. I prosecuted people for misdemeanors, and if I won, then they got a jury trial. It seemed a pointless exercise, but was probably conceived to reduce jury trial congestion. ▲
- Hence the argument of the Prendateers in the Prenda Law saga that Judge Wright's sanctions against them were levied without the requisite due process. But attorney sanctions raise different issues not presented here. ▲
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017