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Birther plaintiffs say they didn’t get a Fair decision

Just as debunked conspiracy theories don’t die when logic dictates that they should, so birther conspiracy theory lawsuits don’t seem to end when the courts dismiss them. Case in point is Fair v. Walker in Maryland.

This case, the long caption of which is Tracy A. Fair and Mary C. Mitlenberger1 v. Robert Walker, Chairman of the Maryland State Board of Elections, et al. (President Obama is one of the defendants), is one of the leftover election lawsuits from 2012 that I wrote about in my article “Fair gets Obama hearing.” The issue raised was whether the Maryland General Assembly members should be removed from office for voting for something that removed the requirement that candidates swear they were eligible, that the law be changed back to what it was, and Obama be barred from the ballot in Maryland forever (plus some other stuff). The case was dismissed because it was filed later than the date on which the statute required candidates for the ballot to be certified. The original suit (based on a faulty knowledge of Maryland law) was filed in time, but the amended complaint was too late. The legal term is “laches,” a burden on a party because of delay.

Plaintiffs appealed to the Maryland Court of Appeals and lost; however, they have now filed for reconsideration, citing among other things, “new evidence.” One wonders how there could be “new evidence” about when primary ballots for the 2012 election had to be certified. The specific new evidence was attached to a motion for judicial notice linked below, which seems to consist of some old stuff (Vattel, etc.) This all seems to be something related to their original claim, which of course could not be heard because it was dismissed. In all fairness (no pun intended), they allege other reasons for reconsideration, and dump a very long list of cases. Plaintiffs stated at the outset that they couldn’t find a real lawyer to take their case. I would just offer one suggestion to pro se plaintiffs: do not start an argument with the words, I do not understand how….

To the best my knowledge, the decision of the Court of Special Appeals was not published.

Documents:


1Added to Birthers A to Z list.

Forensically speaking

I was reading Douglas Vogt’s petition to the Supreme Court and noticed this sentence (presumably ghost-written by Montgomery Blair Sibley).

Attached to the Notice of Commission was Vogt’s publicly-available, 95 page affidavit in which he demonstrated forensically the existence of twenty (20) separate points of forgery in the Certificate of Live Birth (“COLB”) of Barack Hussein Obama, II (“Obama”).

Forensics is a science, the scientific method of gathering and examining information about the past, a discipline that to my knowledge Vogt has never practiced nor received training in. Vogt’s affidavit doesn’t cite any published works on forensic science, nor does he allude to having any background whatsoever in questioned document examination. He is a self-made expert. Indeed Vogt expresses disdain for the forensic certification, characterizing it as meaningless at Birther Report:

Paul Irey and myself have over 83 years experience in the graphics/type and scanner business. A forensic document examiner takes a course over the internet, pays $800 and 98% of them pass and get the certificate. I had to send my chapter on evidence of computer manipulation to the Arizona Sheriffs office who sent it to Reed Hayes so he would learn more about Photoshop and how Adobe created the JBIG2 compression layer. He did not know it. He is a hand writing expert and worse yet he only worked from the PDF copy that there was no chain of custody. He is NOT an expert on type and what Paul and I covered in my affidavits.

It serves Vogt’s purpose to make sweeping generalized aspersions about document examiners and their qualifications, because Vogt himself has no such qualifications. It is true that there are forensic certification diploma mills, but the organization certifying Reed Hayes is not one of them, nor is the American Board of Forensic Document Examiners that requires, for example, an undergraduate degree plus two years of full-time training at an accredited forensic laboratory and current employment in the field, and in order to apply to take oral, written and practical certification tests, must provide references from three certified examiners. In short, Douglas Vogt could not become ABFDE certified.

Vogt himself seems to have been completely unaware of JBIG2 compression until the anti-birthers told him about it (it is completely absent from his earlier reports) and he certainly has no “chain of custody” associated with his puttering around. Given that Obama’s birth certificate appears to the first document Vogt has ever examined “forensically,” I would think it fair to call him a “beginner” rather than an “expert.”

The reason that Vogt is not an expert, and the reason he is not qualified to make the claims he does is:

  • Vogt uses no recognized methodology: he makes it up as he goes along
  • Vogt cites no recognized authority
  • Vogt doesn’t look at evidence objectively, discarding, for example, any published birth certificate that contradicts his numbering theories
  • Vogt freely misrepresents regulations and statutes to try to prove false statements.
  • Vogt has no prior experience in examining forgeries.
  • Vogt has never even taken so much as a single course in forensic document science.

Judge Malihi, an administrative law judge in Georgia, summed it up in his decision in the case of Farrar v. Obama, speaking of Douglas Vogt and Felicito Papa:

neither witness was properly qualified or tendered as an expert in birth records, forged documents or document manipulation

As for Paul Irey, he said that he was certain Obama’s birth certificate was fake before he looked at and was just trying to justify that belief–he lacks scientific objectivity. Here’s a section from the transcript of Irey’s appearance on Reality Check Radio:

Irey: … I started to study it, knowing it had to be a forgery, and just looking for what I could find.
Foggy: You knew it was a forgery before you started studying it?…
Irey: Yes, yes. I knew it was a forgery.
Foggy: How’d you know that?
Irey: I had information from a government worker who had a friend at one of the agencies who come back to me after we had a big debate during the time Obama had been, uh, announced for office [inaudible] legitimacy, where’s the birth certificate? We were talking about that way back when, and he debated with me. Went down to his agency and advised me that, uh, that I was right basically. That there was no birth certificate in the records. But his agency was not going to, uh, do anything about it more or less. So I kind of went in with his background. It sort of converted his attitude. I could tell how his attitude changed after that, because he was no longer supporting Obama. I was supporting Colin Powell….
Foggy: I’m not asking you to identify the guy, but can you tell us like what agency? Was it an intelligency agency? I mean can you give us a hint?
Irey: Yes, I can. It was the Secret Service.
Foggy: OK
Irey: As you know, the Secret Service is, one of their responsibilities is to vet. …

Of course, the Secret Service doesn’t vet presidential candidates, and there is no reason that they would have a birth certificate in their files for any of them.

Irey’s analysis consists primarily of blown up copies of typewritten text. Irey claims 57 years experience in typesetting, but nothing in his report is about typesetting; it is about typewriters, and Irey describes his typewriter experience as: I’m also four years experience in typing with a typewriter (Taitz v. Elections Commission testimony). Irey also says that he used Photoshop from the beginning, but the best Irey could hope to  do with such expertise would be to show that the White House PDF could have been created by Photoshop, not that it wasn’t created by something else, like a Xerox WorkCentre 7655. (I should add that no birther has ever produced a fake birth certificate using Photoshop that has all of the characteristics of Obama’s certificate.) Irey has no experience with the electronic format of a PDF so as to find any unique signature of Photoshop.

Vogt’s Supreme Court petition will be denied.

Alabama chief justice may have tipped off birthers

Investigation requested

Photo of Moore with US flag in backgroundRC Radio reports that Birmingham Attorney Barry Ragsdale has notified the Alabama Supreme Court of a possible ethics violation. This came after Sharon Rondeau of the Post & Email wrote that Alabama Chief Justice Roy Moore had spoken to someone and told them the future date of the Alabama Supreme Court decision in McInnish v. Chapman. The correct prediction of the date was published at the P&E. Lest we jump to conclusions, Ragsdale in his letter to the court cautioned:

Needless to say, given the tenor and content of the on-line blogs in question, there is reason to doubt the accuracy or veracity of anything reported by them.

Judge Moore was previously an author for WorldNetDaily.

Read the details at RC Radio.

After thinking about this for a while, I feel it more likely that Judge Moore did not have the conversation claimed by Rondeau. The “face to face” detail seems contrived, something added to make the story more believable. This story is a bit like Orly Taitz’ complaint about extra-judicial remarks by Judge Wingate in Mississippi, one that is almost certainly bogus.

Vogt filed at Supreme Court?

According to Birther Report, a document reproduced the article there is described as “Filed at the U.S. Supreme Court on March 20, 2014.” If that were the case, then one would expect the petition to have appeared on the Supreme Court docket on March 21, but it’s not there. The case is styled: “Douglas Vogt vs. United States District Court, Western District of Washington.

The document presented at BR is not, it appears, the actual petition for a writ of certiorari, but a separate motion to expedite and file under seal. According to the Reporters Committee for Freedom of the Press study, an increasing number of sealed filings are appearing at the Supreme Court, but one must question the necessity of such a filing in this case. Naming Vogt’s fantasy forger is immaterial to his petition, as is his incompetent crank forensic analysis.

It all seems a publicity stunt to me.

McInnish Appeal denied in Alabama

mighty Klayman has struck out

Today the Alabama Supreme Court issued its 7-2 decision in the case of McInnish v. Chapman, and the decision goes against plaintiffs Hugh Chapman and Virgil Goode, who were trying to force the Alabama Secretary of State to verify Obama’s eligibility to be on the 2102 Alabama presidential ballot. Larry Klayman was the attorney for the Appellants.

The Court’s Majority issued no written opinion, only affirming the lower court decision dismissing the case.

  • Majority decision to affirm dismissal, no opinion (Stuart, Murdock, Shaw, Main, Wise)
  • Concurring opinion (Bolin)
  • Concurring opinion (Bryan)
  • Dissenting Opinion (Moore)
  • Dissenting Opinion (Parker)

Chief Justice Roy Moore issued the major dissenting opinion, and Justice Bolin issued a concurring opinion specifically addressed to Moore’s dissent. Chief Justice Moore states that under Alabama Law, Secretary of State Chapman has an affirmative duty to verify candidate eligibility. Justice Bolin agrees that candidate eligibility is an important public interest, but that Alabama statutes do not place a duty on the Secretary of State to verify it. Further Justice Bolin points out that Secretary of State Chapman is a nonjudicial officer with no subpoena power or investigative authority. Justice Bolin concludes:

Under our current structure, however, the burden of investigating a presidential candidate’s qualifications is best left – unfortunately or not – to the candidate’s political party….

As I understand his position, Justice Bolin is saying that a state statute requiring verification of eligibility for candidates for president is a desirable thing, given his belief that the federal courts are prohibited from adjudicating eligibility because of the Political Question Doctrine.

Justice Bryan also issued a concurring opinion, briefly stating his belief that legislation could be passed to allow verification of candidate eligibility.

Chief Justice Moore’s dissenting opinion goes to the details of the Alabama statutes involved and at a brief reading has no particular high points. It is an analysis on the merits.

Chief Justice Parker also dissents from the majority opinion, supporting the analysis of Chief Justice Moore, but disagreeing on the Secretary of State’s affirmative duty to investigate candidate eligibility.

A text search of all of the opinions affirms my opinion that the Affidavit of Mike Zullo is irrelevant to the decision, being cited not once, except that the dissenting opinion from Justice Parker made reference to materials submitted previously to the Secretary of State that were sufficient, in his mind, to warrant investigation. Those materials reference results of Zullo’s investigation and contain a brief statement from him.

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High-class judge shopping

Funny how quickly yesterday’s big story fades. I gave quite a lot of attention to an action Douglas Vogt filed in Seattle federal court, trying to force a judge to empanel a grand jury and let Vogt present his unqualified image analysis to it. It was pretty exciting with it’s sealed affidavit and bread crumbs left all over Internet radio leading to his mystery Jane Doe forger of Obama’s birth certificate. In the end, it didn’t work. The judge dismissed whatever it was.

Vogt and his “not an attorney anymore” associate Montgomery Blair Sibley (Sibley left his name in document metadata)  appealed to the Ninth Circuit Court of Appeals for a Writ of Mandamus to force the court in Seattle to give him his grand jury. That was denied January 14, and the case closed. (Vogt filed a motion to reconsider in January 24).

Undaunted Vogt started mailing his big package-o-papers to 175 federal judges asking them for a grand jury. That’s some judge shopping list. Vogt tried to drum up excitement by publishing the heavily-redacted reply from one judge that he took to be favorable, but nothing must have come of it because…

Having failed with everything so far, Vogt is taking the ultimate step of going before the US Supreme Court (although his motion for reconsideration is still pending before the 9th Circuit), says Vogt in a letter to the Post & Email blog. In the copyrighted letter, dated today, Vogt asks for money, $800, to defray the cost of printing 40 copies and the filing fee. Is it just me, or is it weird that a successful businessman who owns a photocopier company is asking for money to make copies? OK, I expect there are special printing requirements and maybe it makes sense to let a professional in Supreme Court filings do the work, but $800 is not all that much money for big-time executives.

The Vogt Press Release says: “Douglas Vogt will be lodging with the United States Supreme Court this month the compelling forensic evidence contained in his 95 page public and 75 page sealed affidavits.” I don’t think Supreme Court Rules are going to let him submit 170 pages—not even close, but then I wonder if the Supreme Court ever got a petition like this one before.

In his begging letter Vogt mentions, but does not explain, some urgency in getting this to the Supreme Court now because 9th Circuit delays were making were going to make it too late to file with the Supreme Court. This presumably refers to his motion for reconsideration, so far still pending. There is a limited time (90 days) after denial by the circuit during which an appeal to the Supreme Court may be filed.

This all seems silly to me unless it’s a publicity stunt for Vogt’s upcoming book, “From Forgery to Treason.” Folks who donate $25 towards his expenses will get an autographed copy of the Supreme Court filing, but alas no book. Vogt has clearly gone around the bend describing the 9th Circuit as afraid of his case.

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