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Rep. Randy Davis claims prosecutor misconduct, seeks dismissal of charges

Chip Brownlee

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Samuel Mattison / APR

State Rep. Randy Davis, a Republican from Daphne, and former state Republican Party Chairman Marty Connors are seeking to have their indictments dismissed by the federal courts on claims that prosecutors engaged in misconduct during the grand jury hearings.

Davis and Connors were indicted on federal bribery charges in July. In a filing Tuesday, Davis’ attorney asked the court to dismiss an indictment against Davis, Connors and G. Ford Gilbert, another man indicted in the same case related to charges that the three conspired to force insurers to cover treatments at health clinics in which they had a financial stake.

Davis’ attorney claims that federal prosecutors made up prejudicial statements to the grand jury and altered a transcript of grand jury proceedings in order to cover up the alleged prejudicial statements.

“[A]ll available evidence supports a conclusion that the indictment was procured through multiple instances of flagrant, unconscionable, and prejudicial prosecutorial misconduct before the grand jury in which AUSA’s Jonathan Ross and Josh Wendell took advantage of their special position of trust thereby impairing the grand jury’s integrity as an independent body,” the motion reads.

The alleged “prejudicial statements” the defense points to are found in an unedited transcript delivered to the defense counsel in August that filled in previously unfilled gaps in an edited transcript that listed two “off-the-record” discussions.

In those “off-the-record” discussions that were later filled in in the unedited transcript produced after defense requests, prosecutors refer to Trina Health — the health clinics in which Davis and the other defendants had a financial interest — as “not a legitimate enterprise.”

“Our position is that Trina Health is not a legitimate enterprise, period. Okay. They’re not — I don’t know if that’s come across yet. They are snake it’s snake oil. Does that make sense?” the unedited transcript reads.

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The defense claims those statements were “improper, derogatory, and prejudicial statements” that could have improperly influenced the grand jury.

Davis’ defense attorneys say that is only part of the problem. What’s worse, they say, is that there is no reference in the transcript to prosecutors requesting an off-the-record conversation. If that were the case, they say it likely would have been recorded.

“What appears to be the case is that the government falsely represented that there was an off-the-record discussion on March 14, 2018, when, in fact, the discussion was on-the-record all along and only later, after the transcript was produced on March 30, 2018, by the court reporter and reviewed by the government, was the transcript edited to cover up the improper, derogatory, and prejudicial statements made to the grand jury about the defendants by the AUSA’s involved,” the motion reads.

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“The inappropriate statements made by the AUSA’s to the grand jury prejudiced each of the defendants because all of them are accused of conspiring together to commit offenses against the United States,” it continues.

His attorneys say the prosecutors’ alleged actions violate the defendants’ constitutional rights under the 5th Amendment and the 14th Amendment and their due process clauses.

A federal grand jury originally indicted Davis, Gilbert and Connors on charges of wire fraud, conspiracy to commit an offense against the United States and bribery in connection with a program receiving federal funds.

The grand jury heard testimony in March of 2018, returned an initial indictment in June and returned another superseding indictment adding Davis in July. All of the defendants have denied the charges.

There is a trial scheduled for January.

Gilbert, who lives in California, is the founder of Trina Health, which began opening clinics in Alabama in 2014 and 2015.

Davis, who is 66, is accused of having worked with former House Majority Leader Micky Hammon, R-Decatur, an investor in the diabetes clinics, to get the clinics’ treatments covered by Blue Cross Blue Shield of Alabama, the state’s largest insurer.

The prosecution said in the indictment that Davis participated in an improbable attempt to pressure Blue Cross Blue Shield to cover insulin therapies offered at Trina’s health clinics while he had a financial interest in those clinics and stood to gain from seeing their treatments covered.

Hammon pleaded guilty to a mail fraud charge last year related to misusing campaign funds and has already served a three-month sentence in federal prison.

The clinics offered an intravenous insulin treatment, OIVIT, for those with diabetes. The Centers for Disease Medicare and Medicaid Services issued a decision in 2009 stopping coverage of the treatment.

Davis, who was elected in 2002 and is not seeking re-election, is accused of lobbying BCBS on behalf of Trina and working with Hammon to recruit new investors for Trina Health in return for finders’ fees. In 2016, Davis and Hammon worked to push a bill through the Legislature that would force coverage of the treatment, prosecutors said, and he met with then-Gov. Robert Bentley.

Rep. Jack Williams, R-Vestavia Hills, was also indicted in April and was accused of being part of scheme but wasn’t named in the July superseding indictment. He is expected to enter a pretrial diversion program, and isn’t seeking re-election.

Hammon was removed from office upon his plea deal.

 

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Legislature

Medical marijuana bill “is not about getting high” — it’s “about getting well.”

Bill Britt

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More than half of U.S. states and the District of Columbia have legalized medical marijuana in some form. Last week, the Alabama Senate Judiciary Committee passed SB165 on an 8 to 1 vote. If the measure becomes law, it will allow Alabama residents to obtain medical marijuana under rigorously imposed conditions.

Known as the Compassion Act, SB165 would authorize certain individuals to access medical marijuana only after a comprehensive evaluation process performed by a medical doctor who has received specific training.

“I care for people who are ill, and I try to reduce their suffering to the best of my ability, using the tools at my disposal that are the safest and most effective,” said Dr. Alan Shackleford, a Colorado physician who spoke before the Judiciary Committee. “Cannabis is one of those tools.”

Shackleford, a Harvard trained physician, has treated more than 25,000 patients at his medical practice over the last ten years, he says a large number of his patients have benefited from medical cannabis.

While there are detractors, the Compassion Act is not a hastily composed bill but is, in fact, the result of a year-long study by the Alabama Medical Cannabis Study Commission that voted to approve the legislation by an overwhelming majority.

“It’s a strong showing that two-thirds [of the commission] thought the legislation was reasonable and well-thought-out,” said Sen. Tim Melson, R-Florence, after the commission vote.

Melson, who chaired the commission, is a medical researcher and is the lead sponsor of SB165.

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Two-thirds of Americans say that the use of marijuana should be legal, according to a Pew Research Center survey. “The share of U.S. adults who oppose legalization has fallen from 52 percent in 2010 to 32 percent today” according to Pew. The study also shows that an overwhelming majority of U.S. adults (91 percent) say marijuana should be legal either for medical and recreational use (59 percent) or that it should be licensed just for medical use (32 percent).

These numbers are also reflected in surveys conducted by Fox News, Gallup, Investor’s Business Daily and others.

“This bill is not about getting high. This bill is about getting well,” says Shackleford.

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Cristi Cain, the mother of a young boy with epilepsy that suffers hundreds of seizures a day, pleaded with lawmakers to make medical cannabis legal.

“This body has said so many times that your zip code should not affect your education,” Cain told the committee. “Well, I don’t believe that your area code should affect your doctor’s ability to prescribe you medication. If we were in another state, my son could be seizure-free.”

SB165 will strictly regulate a network of state-licensed marijuana growers, dispensaries, transporters, and processors.

There will be no smokable products permitted under the legislation and consumer possession of marijuana in its raw form would remain illegal.

“The people of Alabama deserve the same access to treatment as people in 33 other states,” said Shackelford.

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Education

Opinion | Instead of fixing a school for military kids, how about just fixing the schools for all kids?

Josh Moon

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The education of police officers’ kids isn’t worth any extra effort. 

Same for the kids of nurses and firefighters. Ditto for the kids of preachers and social workers. 

No, in the eyes of the Republican-led Alabama Legislature, the children of this state get what they get and lawmakers aren’t going to go out of their way to make sure any of them get a particularly good public education. 

Except, that is, for the kids of active duty military members stationed at bases in this state. 

They matter more. 

So much so that the Alabama Senate last week passed a bill that would create a special school to serve those kids — and only those kids. To provide those kids — and only those kids — with a quality education. 

An education better than the one available right now to the thousands of children who attend troubled school systems, such as the one in Montgomery. 

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The charter school bill pushed by Sen. Will Barfoot at the request of Lt. Gov. Will Ainsworth carves out a narrow exception in the Alabama Charter School law, and it gives the right to start a charter school located at or near a military base — a school that will be populated almost exclusively (and in some cases, absolutely exclusively) by the kids of military members. 

The explanation for this bill from Barfoot was surprisingly straightforward. On Tuesday, Ainsworth’s office sent information packets around to House members to explain the necessity of the bill. 

In each case, the explanation was essentially this: the Maxwell Air Force Base folks don’t like the schools in Montgomery and it’s costing the state additional federal dollars because top-level personnel and programs don’t want to be in Montgomery. 

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And in what has to be the most Alabama response to a public education problem, the solution our lawmakers came up with was to suck millions of dollars out of the budget of the state education department budget and hundreds of thousands out of the budget of a struggling district and use it to build a special school that will provide a better level of education to a small group of kids simply because it might generate more federal tax dollars. 

And because having your name attached to a bill that supposedly aids the military looks good, so long as no one thinks about it too hard. 

But in the meantime, as this special school is being built, the hardworking, good people of Montgomery — some of them veterans and Reservists themselves — are left with a school district that is so recognizably bad that the Legislature is about to build a special school to accommodate these kids. 

Seriously, wrap your head around that. 

Look, this will come as a shock to many people, but I like Will Ainsworth. While we disagree on many, many things, I think he’s a genuine person who believes he’s helping people. 

The problem is that he is too often surrounded by conservatives who think every issue can be solved with a bumper sticker slogan and screaming “free market!” And who too often worry too much about the political optics and too little about the real life effects. 

And Montgomery Public Schools is as real life as it gets. 

Right now, there are nearly 30,000 kids in that system. And they need some real, actual help — not the window dressing, money pit BS they’ve been handed so far through LEAD Academy and the other destined-for-doom charters. And they sure as hell don’t need a special charter for military kids to remind them that the school system they attend isn’t good enough for the out-of-towners. 

Stop with the facade and fix the school system. 

You people literally have the power and the money to do this. Given the rollbacks of tenure laws and the passage of charter school laws and the Accountability Act, there is nothing that can’t be done. 

Listen to your colleagues on the other side, who took tours recently of charter schools in other states — charters that work with underprivileged students and that have remarkable success rates. Hell, visit those charters yourself. Or, even better, visit some states that have high performing public schools in high poverty areas, and steal their ideas. 

But the one thing you cannot do is leave children behind. Whatever your solution, it cannot exclude some segment of the population. It cannot sacrifice this many to save that many. 

That sort of illogical thinking is what landed Montgomery — and many other areas of the state — in their current predicaments. Carving out narrow pathways for a handful of students has never, ever worked. 

Let’s stop trying it.

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Crime

ADOC investigating possible suicide at Easterling Correctional Facility

Eddie Burkhalter

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The death of a man serving in the Easterling Correctional Facility in Barbour County on Sunday is being investigated as a possible suicide. 

Marquell Underwood

Marquell Underwood, 22, was found in his cell unresponsive at approximately 4 p.m. on Sunday, according to a statement by the Alabama Department of Corrections. 

Underwood was being held in solitary confinement, known as “segregation” cells in Alabama prisons. Suicides in such isolated cells is central to an ongoing lawsuit against the Alabama Department of Corrections. 

“He was not on suicide watch. All attempts at life saving measures were unsuccessful,” The statement reads. “ADOC cannot release additional details of the incident at this time, pending an ongoing investigation and an autopsy to determine the exact cause of death.” 

Underwood pleaded guilty of murder in the 2015 shooting death of Gregorie Somerville in Tuscaloosa and was sentenced to life in prison. 

Underwood’s death is at least the second preventable death inside state prisons this year. 

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Antonio Bell’s death on Jan. 9 at Holman prison is being investigated as a possible drug overdose. 

Last year at least 6 people serving in Alabama prisons died as a result of suicide, according to news accounts. During 2019 there were 13 homicides in state prisons, and as many as 7 overdose deaths, according to news accounts and ADOC statements. 

The Southern Poverty Law Center’s 2014 lawsuit against the Alabama Department of Corrections over access to mental health care for incarcerated people is ongoing. 

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“The risk of suicide is so severe and imminent that the court must redress it immediately,” U.S. District Judge Myron H. Thompson wrote in a May 4, 2019, ruling. 

Judge Thompson in a 2017 ordered required ADOC to check on incarcerated people being held in segregation cells every 30 minutes, to increase mental health staffing and numerous other remedies to reduce the number of preventable deaths. 

“The skyrocketing number of suicides within ADOC, the majority of which occurred in segregation, reflects the combined effect of the lack of screening, monitoring, and treatment in segregation units and the dangerous conditions in segregation cells,” Thompson wrote in his order. “Because prisoners often remain in segregation for weeks, months, or even years at a time, their decompensation may not become evident until it is too late—after an actual or attempted suicide.” 

The SPLC in a Jan. 2019 filing wrote to the court that “the situation has become worse, not better, since the Liability Opinion. There have been twelve completed suicides since December 30, 2017…Defendants fail to provide the most basic monitoring of people in segregation. Defendants fail to do anything to learn from past suicides to prevent additional suicides.”

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Crime

Early morning contraband raid at Easterling Correctional Facility

Eddie Burkhalter

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The Alabama Department of Corrections on Tuesday raided the Easterling Correctional Facility in Barbour County to collect contraband. 

More than 200 officials from ADOC, state Bureau of Pardons and Paroles, Department of Natural Resources, Game Warden Division, and Russel and Coffee County Sheriff’s departments conducted the early morning search, according to an ADOC press release. 

“Operation Restore Order is a critical initiative designed to create safer living and working conditions across Alabama’s correctional system,” ADOC commissioner Jeff Dunn said in a statement. “The presence of Illegal contraband including drugs, which undoubtedly is perpetuated by the presence of illegal cell phones, is a very real threat we must continue to address.” 

“Additionally, our aging and severely dilapidated facilities are constructed of increasingly breakable materials that ill-intentioned inmates can obtain and fashion into dangerous weapons. The presence of illegal contraband puts everyone at risk, and action – including Operation Restore Order raids – must regularly be taken to eliminate it,” Dunn’s statement reads. “We remain committed to doing everything in our power to root out the sources of contraband entry into our facilities, and will punish those who promote its presence to the full extent of the law.”

ADOC is developing plans to conduct more of these larger raids, in addition to smaller, unannounced searches, which prison officials hope will help the department “develop intelligence-based programs to identify contraband trends and provide necessary intelligence to identify corruption indicators.” 

“The public should contact ADOC’s Law Enforcement Service Division at 1-866-293-7799 with information that may lead to the arrest of anyone attempting to introduce illegal contraband into state prisons. The public may also report suspicious activity by going to the ADOC Website at http://www.doc.alabama.gov/investigationrequest.”

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