The Scofflaw Trio
Former Atlanta Falcon Grounded by Appellate Corruption

Scofflaw Trio

In an unprecedented study of state government corruption conducted by The Center for Public Integrity, Georgia ranked lowest among all fifty states on the study’s corruption index. The watchdog’s heralded state integrity investigation rendered a scathing critique of all governmental agencies in Georgia citing rampant corruption and graft flourishing at every level. Regarding the mechanisms for judicial accountability and transparency in Georgia, no state possessed a profile more vacuous and repugnant. Notwithstanding Georgia’s 1,800 judges, the state’s judicial oversight committee employs just one part-time attorney making it the only state in the union with more than 1,000 judges to employ less than two full-time members.

Into this void of accountability enters psychologist Dr. Alex Higdon, a former Atlanta Falcon and father of four who has been embroiled in a protracted custody battle involving his right to have the numerous developmental difficulties of his children properly cared for without court interference. Unbeknownst to Higdon, when he initially stumbled into the Georgia court system nearly three years ago, he found himself in a veritable wild west of jurisprudence. Any positive presumptions Higdon may have originally held regarding the fair and lawful administration of justice in Georgia were soon obliterated amidst the cascading waves of injustice that have pummeled his pursuit from its inception.

Our interview with Dr. Higdon was focused primarily upon the latest violations of law perpetrated against his family by Georgia Court of Appeals justices Anne Barnes, Christopher McFadden, and Carla McMillian. These three judicial officers were charged with the duty to faithfully review multiple appeal briefs containing several irrefutable breaches of law and abuses of discretion committed by Fulton County Superior Court Judge Gail Tusan. Rather than honoring their oaths and obligations to hold this rogue trial court judge accountable for countless instances of judicial misconduct, these justices chose to engage in a process of cover up and cronyism that not onlyshielded Tusan from any scrutiny for her pervasive pattern of impropriety, but also enabled her pattern of perpetrating crimes against Fulton County families to continue unabated.

Moving beyond the broad generalization and unsubstantiated fact that so often accompanies an interview where a litigant alleges foul play, we asked Dr. Higdon to buttress his claims of court injustice by providing us relevant evidence in the form of pleadings and corresponding court orders which substantiate the veracity of his claims. In light of his extensive experience representing himself in five different courts including the State and Superior Courts of Georgia, the Georgia Court of Appeals, the Supreme Court of Georgia, and the US. District Court, we asked Dr. Higdon to share any insights he may have gleaned from his adventures in self-representation. In addition, we asked him to discuss any observations that might help illuminate the psychological underpinnings of Georgia’s court corruption and the forces at play which make that corruption so pervasive and intractable.

GCR: Could you briefly give us some background regarding the underlying subject matter of your case and then take us through the issues surrounding the violations of law committed by these three Court of Appeals justices?

Dr. Alex Higdon: From the outset, let me just say that if your readers will devote a few moments to understanding the essential elements of my case against the Georgia Court of Appeals, they will never again be able to read an opinion from that body and extend to it any presumption of integrity. The central issues in this case regarding the violations committed by Barnes, McFadden and McMillian were born from a March 2011 divorce case that was presided over by the recently removed Judge Gail Tusan. During the entire divorce process and long thereafter, Tusan not only committed several violations of law regarding custodial rights, guardian ad litem misconduct, and the division of marital assets, she grossly abused her discretion in both procedural and evidentiary rulings. Most important among the issues contested during the post-judgment phase of the divorce were those related to my insistence that my children were not receiving adequate medical treatment for their many medical maladies. This deprivation was a result of interference by my former spouse and Judge Tusan herself. As you might imagine, Tusan was incensed with my efforts to implicate her as one of the parties whose behavior was detrimental to the best interests of my children and in response to my claims, she has took several retaliatory actions which continue to harm my family despite her removal from my case.

Regarding the issues most germane to the violations of law perpetrated by Barnes, McMillian and McFadden, let’s first talk about February 27th, 2012. That’s the date when Judge Tusan gave an on-air interview with investigative reporter Jeff Chirico of CBS News. During that interview, Tusan not only spoke on the merits of my case which was still pending in her court, she lied upon direct inquiry about the matters most material to its resolution. Essentially, she violated several state, federal, and constitutional laws by granting this interview and all those breaches of law necessitated her immediate and unconditional disqualification from my case. Notwithstanding her duty to immediately recuse herself, Tusan refused to do so. Instead, when I filed my motion to recuse her, she summarily denied it with her right hand and with her left, she penned a very rare and controversial order called a global pre-filing injunction. This order enjoined the clerk of courts from filing any submissions from me and instituted Tusan as the gatekeeper responsible for viewing all my pleadings and assessing whether they were merit worthy before allowing them to be filed with the court.

JEFFCHIRICOINTERVIEW OF TUSAN

Here is where the three justices from Court of Appeals justices enter the fray. Because restricting a litigant’s filing submissions is a constraint upon that person’s 1st Amendment right to access the courts, such a deprivation is only warranted when several conditions have been met by a trial court. Despite the fact that Tusan should have never been permitted to cling to the bench and compose such an order after her defamatory interview with CBS, she met none of the necessary conditions. Let me just reiterate, she failed to meet even one condition that would permit her to file such an order, not one!

Could you explain to us the specific conditions necessary to draft such an order and if it is true that none of those conditions were met, how was it possible for the injunction to go through?

Pre-filing injunctions can only be filed when there is an extensive history of frivolous and vexatious litigation. Not only had I no significant history of litigious filing, not one single pleading I ever produced in Tusan’s court was deemed frivolous.

In Tusan’s pre-filing injunction order she cited only two examples of my inveterate frivolity and neither example was ever judged frivolous. The first suit that Tusan claimed frivolous was my Petition for Writ of Habeas Corpus against my former spouse who was withholding visitation from me based on an illegal self-effectuating clause the judge inserted in the divorce decree. That clause illegally permitted my former spouse to deny me custodial rights without a hearing if she became “aware” that I had medical tested my children without her knowledge. Amazingly, this Petition that Tusan was now calling frivilous was one she herself defended two months prior by reading her three page pre-prepared order denying a dismissal attempt by my former spouse. Even more outrageous, Tusan also ended that hearing by restoring to me the custodial rights that my former spouse unlawfully stole from me using a canard which claimed I had performed secret medical testing on my children that in some way threatened their best interests. Can you imagine?

Regarding the second claim of frivolity, it had to do with a Petition for Writ of Mandamus I filed against Tusan which was not filed in her court and not judged frivolous by the Mandamus Court who ruled upon that Petition. Tusan never possessed the jurisdiction to even make such a judgment, and yet, she put it in an order that the Court of Appeals has just sanctioned.

In addition to these two glaring substantive contradictions arising from Tusan’s order, the judge violated every procedural due process mandate ever divined by the state and federal courts who had previously produced pre-filing injunctions. First, she failed to give notice or hold the required hearing allowing me to contest the propriety of such an injunction that deprived me unrestricted access to court.

Second, her order was global in that it restricted all my actions in the Superior Court including those not related to the underlying suit and those where another judge would be presiding. There is wide consensus about the law here. Absent any finding of a broader pattern of pleading misconduct beyond the cases assigned to Tusan, any sanction against me would need to be limited to those matters properly arising within the context of her court. The law calls this a “narrow tailoring” of the suit.

And finally, Tusan failed to produce what countless courts have called “an adequate record for review.” Such a review must be provided by a Judge before filing any injunction restricting access and it must include a list from the judge of all the cases and motions that led her to conclude that a vexatious litigant order was indicated. At the very least, a judge would have to demonstrate that a litigant’s activities were numerous or abusive. It should go without saying that such a demonstration was impossible for Tusan in my case as none of my filings in her court were ever judged frivolous.

Regarding these three justices from the Georgia Court of Appeals, how do they enter into the mix? What responsibility do they have in these violations by Tusan? Don’t they have the prerogative to just disagree with your version of events and deny your appeal outright?

No. They have no such prerogative. Many contested issues here do not involve evidentiary rulings by the trial court where these justices can say, “Well Mr. Higdon, we presume the judge got it right as she was there in court with you. She heard and weighed the material facts and evidence of the case and we did not.” Look at the enumerations of error in my appeal brief! Many are issues of law and the Court of Appeals extends no deference to the trial court when reviewing such matters. They don’t get to blow them off by claiming, “oh sorry, the trial court must have done their job.”

It comes down to this. Each one of these justices understood the law and each understood the gravity of this case. My God, it’s a case where one of the primary issues of dispute is the physical health and well being of my children and the fact that their health has been significantly compromised by the obstructive conduct committed by the court and the children’s mother. They also understood their duty as a court of review which was clear and unequivocal–if an appeal placed before them contains reversible error by the trial court, these three are required to reverse that court’s judgment with no questions asked. It’s as simple as that. This was not some Georgia Supreme Court certiorari affair where these justices could weasel out of addressing some wrongdoing by claiming the contested issues that lie before them lack a certain communal gravitas.

So to your question, what specifically did these three justices do? They produced an opinion that consists of nothing more than a smattering of meritless ramblings sandwiched between a few bare, conclusory rulings that were unsubstantiated by any fact whatsoever. And then, in an odd and ironic twist, these justices generously peppered in a few inapplicable citations of authority that actually support the essential arguments advanced in my appeal. When I first read the opinion, it felt like I had just entered some jurisprudential twilight zone.

Their appeal opinion consisted of five short paragraphs. The first three paragraphs are nothing more than a general outline of the case which ends with the court declaring its general disagreement and then as I just mentioned, they provided case law citations that fully support my appeal. The final two paragraphs are merely baseless conclusions that fail to reference any specifics contained in my enumerations, followed by a pronouncement that they will not disturb Tusan’s rulings on appeal “absent an impermissible restriction of my access to the courts.” Astonishingly, they could only be referring to the impermissible restrictions mentioned in my appeal as those are the only possible impermissible restrictions that can exist with a global pre-filing injunction.

Before I move on, let me underscore one thing. These justices failed to specifically address every one of my appeal’s eleven enumerations of error. If they would have addressed even one of my enumerations directly and specifically, it would have precluded any possibility that my claim could have been denied. Somehow, this trio of scofflaws knew that they could produce an order teeming with infirmity, an order which is in direct contravention to the authorities they themselves cite to support it and all that would not matter. They knew in advance they would be able to pawn it off as proper and do so with impunity. That’s Georgia Justice. That’s who we are dealing with here.

You mentioned earlier about the emergency motion to enjoin Tusan from filing her order. What happened to that pleading?

That pleading was a Rule 40 (b) Emergency motion which is most often ruled upon within 10 to 20 days of its entry into the system. That would make sense given it’s an emergency motion requiring a more expeditous disposition. After languishing unruled upon for nearly five months, CBS news contacted the court and spoke to Chief Justice Ellington. Ellington was aware of the spurned motion but gave no information about what, if anything, the court planned to do regarding its disposition. Eleven months go by and along with the court’s denial of my appeal comes an order on that emergency motion. So what does the opinion say? Very simply, “appeal denied as moot.” Knowingly and in bad faith, these three judges sat on that forsaken motion and watched it wither and die on the vine.

So with regard to the second appeal opinion, what was it about and what actions did these three justices take that in some way violated you and your children?

In many ways, the violations perpetrated by this trio to fabricate their second opinion were more atrocious than those violations committed in their first. This appeal involved holding my former spouse in contempt for refusing to have my twin boys assessed for treatment recommendations regarding their medical challenges. By the time of the hearing, Tusan had already made three rulings ordering my former spouse to complete these tasks and yet, no assessment and no recommendations. While there were so many violations of law committed by Tusan, let me give you just a few and then shift to the appeal decision by Barnes, McFadden and McMillian.

First, Tusan granted me a hearing for contempt against my former spouse but when it began, she denied me my right to give evidence and argument claiming she had already heard the issues at the March 28th, 2011 final trial some five months earlier. Let me say that in another way. Tusan claimed she had already heard the evidence that she refused to allow me to air during this contempt hearing. This was new evidence that had accumulated over the previous five months regarding the neglect of the former spouse. As you will see, despite never hearing any evidence on the matter during the contempt hearing, Tusan lied and claimed she did hear evidence and ruled on the matter illegally. Tusan needed to conjure up a ruling to avoid accountability for violating my constitutional rights as she understood her behavior in denying me evidence and argument was an irrefutable breach of constitutional law.

Second, in her order for this contempt hearing, Tusan did not use the defense that she gave at the hearing which was “I already heard that at final trial.” She realized after the fact that she needed to concoct some way out of her violation so she employed an equitable defense claim called unclean hands and used it in her order. The problem for Tusan is that she broke the law by using that defense. In child custody matters, no judge or litgant is permitted to use an unclean hands defense. Even worse, Tusan lied in her order by claiming my former spouse used the unclean hands defense during the hearing–a claim that is clearly belied by the record. It was never mentioned by my former spouse or her counsel because Tusan never allowed either party to give argument or evidence on the contempt claim against my former spouse for neglecting the medical treatment of my children.

Third, Tusan broke the law when she made a change of custody in a contempt proceeding. In an effort to make it impossible for me to push my former spouse to have the children assessed and treated, Tusan gave the former spouse final say in medical matters which cut off my ability to force my former spouse to attend to the treatment needs of my children. Once again, the law is clear. No one is permitted to make a change of custody during a contempt hearing. This law was instituted in order to discourage litigants from attempting to use a contempt motions to finagle custodial changes without having to properly file for a child custody modification.

The last violation of law I will mention is this. Even if it was somehow legal to change child custody in a contempt hearing, in order to properly make that change of custody, the law requires a judge to hold a hearing on the matter that demonstrates a material change in circumstance regarding the children that necessitates such a change. Because Tusan denied any hearing on the custody matters, it is metaphysically impossible that either party could have mentioned any material changes to the circumstances surrounding the children’s best interests.

Let me make sure I understand. Tusan granted you a contempt hearing regarding your wife’s refusal to obtain treatment recommendations for your children based on three court orders compelling her to do so. Then, when you came to court, Tusan denied your contempt hearing by using a forbidden defense and then took away your medical decision making power by changing the legal custody arrangement without a hearing required by law?

Exactly. But keep this one thing in mind. My efforts to get these children assessed and treated were not based on some personal whim or gut feeling. Assessment and treatment recommendations for the twins had long been vociferously advocated for by the physician responsible for recovering our second child from autism and nearly recovering our first child before the physician’s treatment protocol was dismantled by the courts. She was the primary care coordinator for our children for nearly three years. Because she was out of state and not approved by the former spouse, the weight of her recommendations was severely marginalized by Judge Tusan and her friend and Guardian Ad Litem in the case, Dawn R. Smith.

Before I move on, let me just briefly mention that there were many more instances of misconduct by Tusan. Two of the more egregious violations include (1) Tusan’s attempting to use the first ten minutes of the hearing to cajole me into changing my motion for new trial into a custody modification and (2) the fact that she lied on her order four times regarding issues of custody. While both of these violations are affirmed by the record, I am not going to go into specifics here as they are evidentiary matters and would require much more factual detail in comparison to the breaches of law committed by Tusan. Instead, I’m going to jump to the three judges from the Court of Appeals and the perversion of justice that became their second appeal opinion.

The appellate opinion’s first three paragraphs were devoted to a general outline of the case with specific reference to some facts given by the former spouse and some rulings by Tusan. The final three paragraphs, divisions (a), (b), (c), all in theory pose as rulings on my enumerations, but only division (a) touches upon one of my twelve enumerations of error. Strangely, divisions (b) and (c) were issues decided in my favor during the hearing and were not enumerations in my appeal. Besides, they are not issues of custody and outside of an agenda to obfuscate the truth, there is no other earthly reason for these three justices to parade them around as if I presented them in my appeal as contested issues.

Division (a) was the Court of Appeals attempt to address the issue of unclean hands. Amazingly, these three judges themselves violated the law by arguing in bad faith that Tusan made a proper determination of unclean hands, regurgitated a couple lies committed by Tusan, then affirmed her ruling. Again, you cannot use any equitable defense, much less the unclean hands defense, in a child custody proceeding. It’s really that simple. The dreck these three justices produced in response to multiple violations of law by Tusan is heartbreaking. And when you consider the fact that their actions left my children and their medical problems once again languishing in limbo, I’m going to see that these three are brought to justice. That’s not puffery, it’s promissory.

So why you? Why do you think they are they singling you out for this kind of treatment?

That’s the point, it’s not just me. My case is like so many others but distinct in that I’ve been able to prolong the fight back. Early in my training at Vanderbilt I did an internship which involved treating rape and assault victims. There was one particular young woman whose journey inspired me very deeply and I vowed that if I was ever raped or raped of anything, I would want to respond as she did. When I think about this young woman and her courage and then look to my children, I know I’ve got to keep moving forward with this. I don’t want to enable these people to do to others what they have done to me and my children. Make no mistake. I’m not the first cracker they bit down on. I just want to be the first of many who got stuck in their craw. I will never be able to recover the years taken from my children’s development and may not even be able to do much in my case moving forward, but I may be able to help those folks coming behind me and maybe even a few walking beside me at this very moment.

You referenced the word cracker. Are you suggesting the treatment you are receiving by these courts has something to do with racial matters?

This is Atlanta, Georgia. I think the specter of racism is always lurking here, but this problem eclipses the prevailing black and white framing of conflict for which Atlantans are famous. It’s about profit, not pigment. I guess you could say it’s about color in this sense, if you ain’t green, you ain’t seen. Sadly, it’s really a pay-to-play scheme here in Georgia courts on two levels.

Level one is pay your dues. These judges don’t want to see pro se litigants in their courts acting like a lawyers. As State Court Judge of Fulton County James Altman recently barked at me from the bench, “you’re playing lawyer,” “you’re trying to quote law to me like a lawyer,” “you’re a doctor, you only play a lawyer on TV,” and my favorite, “I’m not going to sit here and spend a lot of time hearing things that I know don’t matter. This is why people hire lawyers!” It sounds outrageous for a judge to say such things on the record, but these statements really epitomize where these judicial officers are coming from.

Level two is pay your money. If you’re not contributing to a judge’s campaign or nestled nicely within the nexus of court power brokers, you’re going to find yourself on the wrong end of justice. Don’t ever kid yourself. Here in great state of Georgia, justice flows in waters green.

I’m just imagining someone reading this interview and saying to themselves, wow that really sounds cynical. Things can’t really be that bad. What do you say to those people? How would you field their response?

I’d say quite the opposite. I’m fighting to put an end to the cynicism. It’s the price we pay for allowing the corruption in these courts to flourish unchecked. Cynicism is a kind of emotional and intellectual negligence. It’s insidious. It’s a psychological cancer that metastasizes and before you know it, it’s infected who you are and how you experience the world. One of the most important parts of my job is to help foster a sense of hope in my clients, so I would respectfully disagree with anyone who thought me cynical. But you have to be real, it’s not all puppy dogs and rainbows out here. The more that people are traumatized and blindsided by court corruption, the more vulnerable they are to contracting the cancer.

When you use the word corruption, it may strike some as an overgeneralization. Can you share with us some specific ways you think people are most traumatized and blindsided by Georgia courts.

First, you’ve got to move beyond the general construct of corruption to those forces which underlie it. When you spend a little time inside these courtrooms, it won’t take long to notice that you are wading into a culture of constipation, moral constipation. These judges, staff attorneys, and court clerks, all fully understand the attendant moral and legal obligations to which they are beholden and yet, so many just can’t seem to purge a response that reflects a commitment to doing the right thing. If you want to know someone’s true north, look at their private behavior. For so many of these folks, public service has become nothing more than public position in service to private interests.

Think about the Catholic Church. When the bishops were made aware of the countless priests abusing the flock, what did they do? They maligned their accusers, truncated any investigation of crimes, and then quietly shuffled and shunted these criminals to neighboring parishes to continue the atrocity. Now think about Judge Gail S. Tusan and her abuse of me and my children. Take a look at how our Georgia “bishops” have responded to my damaged family? They painted their accuser as an entitled, entantrumed jailhouse lawyer enraged that he failed to get what he wanted in his divorce but got what he deserved. Then, posing as public servants, bishops Barnes, McMillian and McFadden joined hands and heart with Tusan, filled a few pages with fiction too chimerical to be maintained and then buried any evidence of wrongdoing. And finally, in an effort to provide Tusan sanctuary from scrutiny, the bishops took her under wing and recused her from hundreds of family court cases and “reassigned” her to the criminal division of Fulton County Superior Courts. In her new parish, Tusan is now free to continue her pattern of abuse and avoid any accountability for her rapacious behavior.

What can you tell people about protecting themselves from this process?

Aware and prepare. Be aware of how the system works and be prepared to vigorously resist. I possessed neither quality when I first stepped across the court threshold. It’s important to understand not only the big picture, but also what’s happening at ground level.

The big picture is pretty straightforward. There are no functional structures of accountability to boundary and police judicial officials at all levels. It may be a social psychological cliché, but it’s so often true that power minus oversight equals corruption. The first impediment to accountability is that the recusal statutes are constitutionally vague, toothless, and grossly unenforced. Houdini would be proud to see how these judges creatively contort the meaning of the phrase “extrajudicial bias” to avoid being disqualified from cases based on bias or corruption.

Second, the appellate courts are astonishingly corrupt. Neither body is an institute of honor or beyond reproach. And please don’t ever think that my case is an aberration or that it’s just about Barnes and her crew. You are going to need a brown bag on your person when you hear the expose we got cooking up for both the Georgia Court of Appeals and the Georgia Supreme Court.

And lastly, the Judicial Qualifications Committee, the body charged with the responsibility to discipline rogue judges is woefully outnumbered and terminally underfunded.

As for understanding the ground level, it has to do with what I call the tools of tort: collusion, discretion, and attrition. Judges and attorneys collude with each other to protect their turf. They regularly employ devices like discretion and the letter of the law to defile the spirit of the law. And lastly, they string litigants along in limbo for years in an effort to either ensnare them in some procedural trap or exhaust every emotional and monetary resource until these litigants cry uncle.

With respect to your experience with the Georgia Court of Appeals and these judges, it seems to collide with the view of some who feel the court is an engine of productivity and a model of efficiency. How do you explain such divergence of opinion?

I’d say strategic marketing and statistical voodoo. You hear the court pompously touting how prolific they are in churning out opinions as if an outcome variable such as quantity of rulings is a true index of court efficiency and effectiveness. In reality, it’s a cunning reframe of abysmal court process. As always, buried beneath the raw statistics is the truth underlying the data. The process used by Barnes, McFadden, and McMillian to deliver their rulings in my case exemplifies why public confidence in these courts is fatally hemorrhaging.

Bring to mind Malcolm X in this vain. The courts have no qualms about imposing their will “by any means necessary.” Their actions clearly portray a philosophy of, “If we’ve got to sacrifice a family or two or ten in order to preserve the thin veil of propriety that serves to dupe the public into believing in the courts, then so be it.”

Conversely, when you think about the philosophic underpinnings of Martin Luther King, it’s all about means and ends. In his early writings you hear an eternal theme of “the ends need to preexist within the means.” Translation, if you seek the ends of justice, the means you employ to get there must be just. I’d say it like this, “You only get to where you come from.” So if you are going to hold up MLK as your bedrock, you don’t get to sacrifice a litigant or a whole class of litigants so you can conceal the impropriety of corrupt judges that threaten public confidence. The jig is up on the racket that is Georgia courts. Very shortly they’re going to be forced to examine where they’re coming from and compelled to ask the question, who do we want to be? Do we really want to be Malcolm, or would we rather be Martin?

So what makes you so confident that change is around the corner when this corruption you speak of has likely been around long before you came on the scene?

Maybe my declarations intimating “change is a comin’” sound a bit immodest, so let me temper that by assuring you that I understand these courts have joined forces and annihilated folk far more powerful than a peon pro se like me. Fortunately, it is not just me. In addition to the recent involvement of several law enforcement agencies, I’ve been quietly, yet intensely engaged in the process of gathering like-minded folks who are serious about transforming these broken courts.

There is a growing awareness in the general public that the culture of corruption here in Georgia is deeply entrenched and of an extraordinary magnitude. To extend the civil rights metaphor, I am asking others to join me at the counter sit-in and address this injustice. I am asking those individuals who possess cases of documented, irrefutable breaches of law committed by either lower or appellate courts to bring them to me. I pledge to put those people in touch with extremely cost effective ways to resurrect their illegally forsaken cases and give many an opportunity to join several class action suits now in the offing.

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