Puncher's chance: Tillman hopes haymaker will reverse convictions
By Chip Drago
Mobile Bay Times
Arguing that the Alabama Court of Criminal Appeals muddled both the facts and the law, lawyers for former Mobile County Sheriff Jack Tillman seek a rehearing in his bid to reverse the convictions that ended his political career last year.
Attorneys for Tillman contend Mobile County District Attorney John Tyson and former sheriff's department attorney Bob Campbell fouled the former lawman's right to effective counsel.
With neither Tillman's consent nor a court order, although he was under a subpoena obtained by Tyson's office, Campbell testified to a Mobile County grand jury investigating the sheriff's handling of the Mobile County Metro Jail's food fund.
The court rejected Tillman's appeal late last month in a 3-0 ruling:
"... Campbell did not breach the attorney-client privilege by testifying before the 2002 grand jury regarding the evolution of the law regarding sheriffs' authority to keep for themselves excess food money, and about his role in the negotiations between the sheriff's office and the Mobile County Commission in developing the 1996 resolution allowing excess food money to be used for law enforcement purposes."
"Nothing in the record supports a finding that the district attorney's office did anything improper in issuing the subpoena to Campbell to appear before the grand jury to give testimony regarding the background of the law and the resolutions at issue."
Judge Sam Welch wrote the opinion. Judges Bucky McMillan and Greg Shaw concurred. Judges Pam Baschab and Kelli Wise recused themselves from the case.
The appeals court's opinion is "an incorrect statement of the law," also at odds with the Canon of Ethics which bind both Campbell and Tyson, Tillman's lawyers contend.
The issue was whether it was proper for the district attorney to conduct any examination of Campbell without Tillman's consent.
"It is submitted that this court has misapprehended the distinction between the concepts of confidentiality and privilege," Tillman's petition states. "Privilege is the right of Jack Tillman; Confidentiality, however, was and remains the obligation of Robert Campbell."
Campbell has called the charges "preposterous," "absurd" and "frivolous," an attempt by Tillman to deflect blame from himself, and an intentional misrepresentation of the facts by his counsel, Jim Atchison and Don Beebe.
"The court usually doesn't give a blistering opinion like that (rejecting Tillman's appeal)," said Campbell. "It could have been worse. It's interesting that they (Tillman and his attorneys) didn't come out and make any comment when they got slam dunked by the criminal court of appeals."
"Of course, I will not comment on the opinion," Beebe said. "I don't comment on judges' decisions and opinions."
Ultimately, Tillman was charged in an indictment brought by a grand jury, but not the one that heard Campbell's testimony. Still, according to Tillman's lawyers, the process was "poisoned" because prosecutors benefited from Campbell's testimony as well as information in files that he shared.
Some clear distinctions in both the law and the facts of the case were apparently lost on the criminal appeals judges, according to Tillman's attorneys.
They cite page two of the court's "unpublished opinion," reading "Campbell was an attorney who had previously represented Sheriff Tillman in his official capacity as the Mobile County sheriff but whose representation at the time of his grand jury testimony has been replaced by another law firm. Campbell did not then, nor had he ever, represented Tillman as a private individual."
Tillman's lawyers dispute the court's assertion, pointing out that Campbell was representing Tillman in a case set for trial "the Tuesday after his grand jury testimony" in 2002.
And even after Tillman was indicted in April 2005, Campbell was representing the sheriff in court.
"... in May of 2005, Campbell's office was present in court defending Jack Tillman in the Southern District of Alabama in a civil rights case styled Washington v. Tillman," Tillman's lawyers write. "Interestingly in this case, Tillman was sued in both his official and individual capacity."
"The significance of this fact underscores the rupture of the attorney-client relationship between Tillman and Campbell," Tillman's filing reads. "One month after his indictment, Jack Tillman is still being represented by Robert Campbell. To this date, Tillman is still unaware that his attorney not only testified about him to a grand jury, but had also delivered his file materials to the district attorney."
According to Tillman, he only learned of Campbell's appearance before a grand jury inadvertently from a remark by an employee of Campbell at a social event.
Campbell has argued that he represented "the office of the Sheriff," and the appeals court found that "Campbell did not then, nor had he ever represented Tillman as an individual."
It is important to note, Tillman's lawyers state, that the indictment against Tillman alleged acts committed "while serving in the office of Sheriff of Mobile County and that he used his office for personal gain."
The court again errs in stating that Campbell disclosed no confidential communications in his grand jury testimony, according to Tillman's lawyers.
"All communications between Jack Tillman and Robert Campbell are confidential," they state. "Whether the conversation is privileged is an entirely separate legal question."
It was for Tillman, not Campbell, to decide whether to release the attorney to testify to a grand jury about their dealings, they maintain.
Tillman's attorneys continue: "Further the testimony does not answer the bigger question. How do we know what else Campbell discussed with the District Attorney's office and what other file information was shared?"
"This is getting kind of old," the 64-year-old Campbell said. "Pretty soon I'm going to have to take action against them, the attorneys and Jack. It just gets old. It goes on and on and on. Not only didn't I violate attorney/client privilege, also I never testified before that 2005 grand jury. They never heard a word of my testimony. There are a lot of absolute falsehoods here, absurd, bald-faced falsehoods. They knew their assertions made to the court were false. They knew the truth and absolutely scrambled it and slandered me and I'm not going to put up with it much longer."
"Since 2002 to today, it still goes on," he continued. "Unbelievable. Assertions that are totally false, knowing they are false, willfully made to a court of law, made to appeals' judges, to trial judges. Just say black is white, white is black, gray is purple. It would be something else if they didn't know the truth. But they know the truth and said something else anyway. Bald-faced assertions that are totally untrue. That's pretty bad. But if no one is going to stop them, then it's the same ol' same ol.'"
"Bit dog barks loudest," said Beebe.
Tillman hired Campbell in 1995 not long after winning office as sheriff of Mobile County in the first of three successful campaigns.
According to court documents, Campbell conferred with Tyson’s office in early 2002 just weeks after Tillman dismissed the attorney as the sheriff’s legal representative, replacing him with the Atchison Firm.
Tyson was in the midst of a years-long investigation into Tillman’s handling of the jail’s ‘food fund’ and other matters relating to the department’s operations.
Eventually, Tillman was indicted on five felony charges surrounding his handling of the food fund for the Mobile County Metro Jail and his testimony in a 2003 criminal case against his sister-in-law, Brenda Pate. Pate held an administrative planning post in the sheriff’s department.
A former professional boxer and popular political figure, Tillman plead guilty to two misdemeanors -- perjury and an ethics offense. Tillman also agreed to return some $13,000 that he shifted from the food fund to a separate account. He left office on the same day as his court appearance, maintaining that he had done nothing wrong despite his guilty pleas. The sentence did not require jail time.
Early last year upon confirming Campbell’s involvement with the prosecutors, Tillman sought the dismissal of charges and/or the disqualification of Tyson and his staff from the case for prosecutorial misconduct, a charge that Tillman’s camp raised publicly and privately throughout the controversy.
In a 2003 trial on charges that Pate, chief of planning for the sheriff’s office, stole almost $10,000 generated by a law enforcement conference in 2000, the judge granted a mistrial after her attorneys complained of prosecutorial misconduct. The case was retried and Pate was found guilty.
Unknown to Tillman, Campbell had met in 2002 with prosecutors, essentially becoming “an undercover agent for the D.A.'s office," argued Beebe, Tillman’s attorney in the criminal proceedings.
Tyson, Assistant District Attorney Nicki Patterson and Campbell all contended then and now that the lawyer’s cooperation did not violate attorney/client confidences because he spoke under subpoena as an “agent of the sheriff’s office” about matters of public record.
Jefferson County Circuit Judge James H. Hard, who was assigned to the case after the local bench recused itself, ruled against Tillman, neither dismissing the indictment nor disqualifying Tyson's office from the proceedings.
Several weeks later, the plea bargain was hammered out and Tillman stepped down as sheriff several months short of 12 years and three terms in office.
Given little note at the time, Tillman’s plea bargain was conditional, preserving his right to appeal the issue of Campbell’s testimony.
"They've misrepresented the facts and the law and were caught twice," Campbell said. "The trial judge was furious. That's why there was a gag order. He didn't want anything else said that was untrue about Bob Campbell, to protect against this slander and libel. This is the worst thing a lawyer can do and at the same time they're trying to accuse me of something that got that (a gag order) from the trial judge."
"I have a good reputation regardless of what they want to say," said Campbell. "Anytime Atchison wants to challenge me on reputation, that will be fine. But you can't get Atchison to come out of his hole."
"They knew they were misleading the court on the facts and the law and they did it anyway at my expense which they obviously don't care about," said Campbell. "They used public pleadings to blast me with falsehoods and lies. They threw me into the thing as a last crap shoot to save Jack. It's sad when you do that to an attorney. Ethically, I have the highest record you can have. Legally, I have the highest record you can have. I know more about attorney/client privilege than those guys will ever know in a million years. But their mindset is such that this is what we get. I'm never going to violate attorney/client privilege. I'd just get up and walk out. It's just preposterous. Jack Tillman loved me like a brother until Atchison got his foot in the door."
"This will be resolved in the legal arena," said Atchison. "It is a legal issue. It is before the court. It is about the client, Jack Tillman. We will rely upon the briefs. We think it is something the court should resolve. It has nothing to do with personalities. Call Jack. It's his rights that were violated. That's the issue."
Citing Alabama Bar Association general counsel Tony McLain, Atchison said, "Either confidentiality belongs to the client or it doesn't. The rule of the bar is that it is there (for the client). If this stands, then it is not there (for the client) and the rule of the bar has to be changed."
The petition for rehearing before the criminal appeals court may be a formality en route to seeking redress before the Alabama Supreme Court.
“He says he represents the sheriff’s office," Tillman said. "As many times I’ve been sued over the years – all sheriffs get sued by the way – by employees and inmates, if he represents the office of the sheriff, how come he never represented an employee who sued me? Why didn’t he ever represent employees who sued me? Why did he always represent me? Truth is, he worked for me. He worked at my leisure. I could hire or fire him at any time. Truth is, he always represented, always defended me, always.”
Since leaving office, Tillman, 60, has been writing an account of his experiences in law enforcement, particularly the many years he spent as an investigator and resource officer in the Mobile County Public School System before he became sheriff.
The brouhaha first arose from an ages-old practice vesting sheriffs with the financial responsibility for feeding prisoners, exposing them to profit or loss depending upon their husbandry.
Under food fund guidelines, the sheriff was allotted $1.75 per inmate per day for their feeding. As the responsible party, the sheriff either profits or exposes himself personally to financial loss, according to state law, Tillman has repeatedly pointed out.
