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Bentley investigation not the first time Ellen Brooks cited gaps in law to let perps walk free

Bill Britt

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Supernumerary District Attorney Ellen Brooks speaks at a news conference on Wednesday, April 4, 2018.

If the findings of a special grand jury empaneled to hear allegations of wrongdoings against former Gov. Robert Bentley and his cronies sound familiar, it should.

In 2012, after an eight-month investigation, a Montgomery grand jury found that the state’s ethics and campaign finance laws were not specific enough to indict former Gov. Bob Riley and then-Speaker of the House Mike Hubbard.

Alabama campaign finance laws remain full of loopholes, Senator seeks reform

So also were the findings in the Bentley investigation, according to its report, the laws were insufficient to prosecute.

There is at least one distinct tie between these two grand juries – both were led by Ellen Brooks, the former Montgomery County District Attorney.

In both cases, Brooks found that state laws were inadequate to prosecute, thus letting Bentley walk free in 2018, and Riley and Hubbard in 2012.

In 2018, as in 2012, Brooks provided a list of problems with the laws that needed to be strengthened or clarified by the Legislature in case someone else dares commit the same acts.

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However, in the Riley-Hubbard investigation, Brooks listed the alleged violations committed by the pair. In Bentley’s case, she allowed no such revelation of facts, leaving the public clueless about the details while calling on lawmakers to fix the loophole.

Brooks enumerated 12 different times Riley and Hubbard made PAC-to-PAC transfers that seemingly violated the very laws they had just enacted but failed to do the same with Bentley’s alleged wrongdoings.

In both cases, Brooks found that state laws were inadequate to prosecute, thus letting Bentley walk free in 2018, and Riley and Hubbard in 2012.

In the Riley-Hubbard probe, Brooks concluded that under the 2012 laws, “No individual is identified to be held responsible and prosecutable for any criminal violation pertaining to a political action committee (PAC) under the act.” She further wrote, “It is not a crime for a PAC to solicit or receive an illegal contribution, such as from another PAC.”

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As for Bentley, she states, “Bentley could not be prosecuted for personal gain in office due to the current status of the state’s ethics laws.” Brooks listed three areas of concern:

The Ethics Act does not cover non-spousal, intimate or romantic relationships.

The law authorizes the Governor to appoint the Secretary of Law Enforcement and does not prohibit the Governor from initiating, directing or receiving reports on criminal investigations for illegitimate political purposes.

State law does not prohibit non-government personnel from performing the functions of a public employee while receiving payment from a private entity for that work (so-called loaned executives), and there is a question whether the Ethics Act clearly covers such individuals.

Investigation into the Bentley concludes with no charges, report calls for stronger ethics laws

The public was made aware of what Riley and Hubbard did – why not Bentley and his pals?

Perhaps it shouldn’t be surprising that, once again, a Brooks led grand jury was unable to find lawbreaking because there were no laws to break.

In the Riley-Hubbard affair, the investigation fell to Brooks because the complaints were made in her jurisdiction. But in the Bentley situation, Brooks was appointed by Attorney General Steve Marshall, who, in turn, was selected by the man she was prosecuting.

As APR reported last week, Bentley tapped Marshall as AG after he agreed to investigate Special Prosecutions Divison Chief Matt Hart and Acting Attorney General Van Davis.

Sources: Marshall appointed AG after agreeing to investigate rogue prosecutors

In an interview conducted by U.S. News, Republican State Rep. Ed Henry from Decatur may have revealed the plot that led to Bentley’s exoneration. Henry met with Bentley the same day he held a private meeting with Marshall. Henry says he warned Bentley against naming then-Attorney General Luther Strange U.S. Senator to fill the seat vacated by Jeff Sessions.

‘I’m not going to be indicted, I get to appoint his successor.’

“Henry says he cautioned Bentley against appointing Strange, only to hear a jaw-dropping explanation from the governor,” according to the U.S. News. “I met with Gov. Bentley the day he appointed Strange and told him, ‘If you do this, you will be impeached,’” Henry recalls. “Gov. Bentley’s reply to me was, ‘Ed, we have to get rid of him. He’s corrupt.’ And I said, ‘You’re going to appoint someone who you believe to be corrupt to the U.S. Senate?’ He said, ‘We have to.’ I said, ‘Even if that means you most likely will be indicted or impeached?’ He said, ‘I’m not going to be indicted, I get to appoint his successor.’”

Bentley’s official calendar shows he met with Marshall at 8:00 a.m. on February 8, he met with Henry an hour later at 9 a.m. which confirms Henry’s timeline..

By the time Bentley had his meeting with Henry, he had already received Marshall’s assurance concerning Hart and Davis according  to individuals with knowledge of the meeting. Perhaps Bentley had also gotten other concessions from the soon to be announced attorney general.

How oddly ironic that the same prosecutor would find such similar conclusions in two separate high-profile cases involving public corruption at the highest levels of state government. But perhaps it is neither ironic or coincidental because is was Bentley appointee Marshall who personally selected Brooks who had a history of not finding wrongdoing because of state law inadequacies.


Special Grand Jury Report by Chip Brownlee on Scribd

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Economy

New unemployment claims continue to drop

Micah Danney

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(STOCK PHOTO)

There were 11,692 unemployment claims filed in Alabama last week, down from 17,439 the previous week, according to the Alabama Department of Labor.

Seventy-six percent of the claims from July 26 to Aug. 1 were related to COVID-19, according to the Alabama Department of Labor. That compares to 89 percent the week before.

New claims increased over the first half of July but declined in the second half.

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Health

Alabama nursing homes can’t use rapid COVID-19 test machines without federal guidance

In Alabama, there were 686 coronavirus deaths in long-term care facilities as of Wednesday, which was 42 percent of the state’s 1,639 COVID-19 deaths at that point.

Eddie Burkhalter

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(STOCK PHOTO)

Some Alabama nursing homes have received rapid, point-of-care COVID-19 test machines, but without guidance from the federal agency that sent them, the machines aren’t being used.

It’s been three weeks since the Centers for Medicare and Medicaid Services in a nationwide conference call with nursing home administrators announced plans to disburse the machines, which can provide results in 15 minutes.

John Matson, director of communications for the Alabama Nursing Home Association, told the Alabama Political Reporter on Wednesday that CMS has said it will send the rapid testing machines to 78 Alabama nursing homes to start, and eventually will supply one to each nursing home in the state. He said some of those 78 facilities have received them while some are still waiting for delivery.

“The biggest thing we’re waiting on from CMS is guidance on when and how it wants us to use these machines,” Matson said.

Matson said that CMS officials on the July 16 conference call said that regulations and guidance on the testing machines weren’t yet ready, but that the agency wanted to go ahead and disburse the machines.

“They wanted to distribute machines and then let the guidance and the regulations catch up,” Matson said.

The Trump administration touted the rapid tests machines’ ability to bolster testing in nursing homes, which care for older, sick people who are at most risk of serious complications and death due to coronavirus.

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As of July 30, 43 states reported 62,925 COVID-19 deaths, which was 44 percent of all coronavirus deaths in those states, according to the Kaiser Family Foundation.

In Alabama, there were 686 coronavirus deaths in long-term care facilities as of Wednesday, which was 42 percent of the state’s 1,639 COVID-19 deaths at that point.

While nursing home administrators await those federal guidelines to be able to use the rapid test machines, it’s taking longer to get COVID-19 test results from many labs. Matson said some nursing homes are seeing wait times for results as long as a week, which public health experts say makes the results nearly worthless.

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“Not every nursing home is experiencing that, but we do know that some are experiencing a longer turnaround time,” Matson said.  “As we’ve said before, knowledge is key, and when we run those tests we need those tests results back in a timely manner so we know how to properly treat our patients and our employees.”

The Alabama Department of Public Health on July 31 said that as Alabama continues to see an increase in the number of new COVID-19 cases, it’s taking commercial labs and ADPH’s lab an average of seven days to get results.

ADPH in the release states that the lengthier turnaround time for test results is due to several factors, including supply chain problems with test reagents, more demand for coronavirus tests nationwide, “and in some cases, increased numbers of unnecessary tests.”

“I think it’s important to emphasize that that is essentially a worthless result,” said Dr. Jeanne Marrazzo, director of infectious disease at UAB, during a press briefing July 30. “At that point, all it tells you is that six days ago you were negative.”

And there are problems with the rapid testing machine’s accuracy. CMS has said the machines have an error rate of between 15 and 20 percent, and that a negative test result on the machines shouldn’t be used to rule out a possible case.

“Negative results should generally be treated as presumptive, do not rule out SARS-CoV-2 infection and should not be used as the sole basis for treatment or patient management decisions, including infection control decisions,” CMS said in a FAQ on the rapid test machines for nursing homes.

Matson said CMS told nursing homes that while a negative test result should be followed up with a subsequent lab test to be certain, a positive result on the rapid test machines very likely means the person has coronavirus.

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Elections

Alabama Forestry Association endorses Tuberville

Brandon Moseley

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Republican U.S. Senate candidate Tommy Tuberville.

The Alabama Forestry Association announced Wednesday that the group is endorsing Republican Senate nominee Tommy Tuberville in the upcoming general election.

“We are proud to endorse Tommy Tuberville in the United States Senate race,” said AFA Executive Vice President Chris Isaacson. “He is a conservative with an impressive list of accomplishments, and we know that he will continue that record in his role as U.S. Senator. Tommy knows that decisions made in Washington impact families and businesses and will be an effective voice for the people of Alabama.”

“I am honored to have the endorsement of the Alabama Forestry Association,” Tuberville said. “The AFA is an excellent organization that stands for pro-business policies. Protecting Alabama industry is a key to our state’s success.”

Tuberville recently won the Republican nomination after a primary season that was extended because of the coronavirus pandemic.

Tuberville is a native of Arkansas and a graduate of Southern Arkansas University. He held a number of assistant coaching positions, including defensive coordinator at Texas A&M and the University of Miami where he won a national championship.

Tuberville has been a head coach at Mississippi, Auburn, Texas Tech and Cincinnati. In his nine years at Auburn University, the team appeared in eight consecutive bowl games. His 2004 team won the SEC Championship and the Sugar Bowl.

Tuberville coached that team to a perfect 13 to 0 season.

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Tuberville has been married to his wife Suzanne since 1991. They have two sons and live in Auburn.

Tuberville is challenging incumbent Democratic Sen. Doug Jones in the Nov. 3 general election.

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Health

Corinth, Mississippi, is the scenario that school superintendents must be prepared for

Brandon Moseley

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(STOCK PHOTO)

Many Alabama school systems will resume in-person classes later this month. Corinth, Mississippi, rushed ahead to open classes and already there are positive tests for the coronavirus, and more than 100 students are now in quarantine. This is the fear that every school superintendent in the country will have to face when making the decision on whether or not to resume in-person classes in their school systems.

Taylor Coombs, a spokesperson for the Corinth School District, told CNN that six students and one staff member have tested positive for the novel strain of the coronavirus, SARS-CoV-2. Coombs said that an additional 116 students have been considered in “close contact” of a positive case and have been sent home to quarantine for 14 days. Corinth has 2,700 students.

The Corinth School District told parents in a letter posted on Facebook Wednesday that an individual from Corinth Middle School tested positive as well as an employee at Corinth Elementary School. The letter said the school has done contact tracing and is asking anyone who had contact with the individuals to quarantine for 14 days.

While in quarantine, children cannot attend school or any school activities, such as sports.

In-person classes resumed in the district on July 27, according to the school calendar. Corinth parents were given the option of returning to the school for normal classes or doing virtual learning.

Corinth has been screening students and staff on a daily upon entering the building with temperature checks, according to the district’s reopening plan. Staff are having to answer questions daily about if they have had symptoms in the past several days. Despite this, a number of students still were infected during the first week of school and over a hundred were exposed to the virus.

On Tuesday, Mississippi Gov. Tate Reeves issued a mandatory mask mandate for the state which includes schools, beginning Wednesday.

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“I know that I want to see college football in the fall,” Reeves said. “The best way for that to occur is for us all to recognize that wearing a mask, as irritating as it can be — and I promise you, I hate it more than anybody watching today — it is critical.”

Mississippi has the fifth-highest recorded case count per 100,000 people. At least 2.13 percent of the population having been already diagnosed with the infection. Mississippi trails only Louisiana, Arizona, Florida and New York.

Alabama is seventh in the country at 1.93 percent of the population. Of Alabama’s 91,776 total cases, 21,363 — or 23 percent — were diagnosed in just the last two weeks. At least 1,639 Alabamians have died already from COVID-19, and 314 of those deaths — or 19.2 percent — were reported in just the last two weeks.

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Despite the setbacks, Mississippi is pushing ahead on reopening schools.

“I believe that there is enough motivation (now) to safely get our kids in school that we can really juice the participation of mask-wearing throughout our state for the next two weeks,” Reeves said on Tuesday when he issued the mask order and the new measures to combat the virus.

Reeves acknowledged that the earlier “piecemeal approach” had not been effective.

Alabama will follow Mississippi’s lead and begin reopening schools next week, with the understanding that outbreaks, like Corinth, are possible and perhaps even likely as we move forward with in-person classes and high school football to follow later this month.

School systems need to open with a plan for testing, quarantining and unfortunately even for the unfortunate deaths of a staff member or student.

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