Nov 13, 2019

Wisconsin Veteran Was Awarded 70 Percent of Benefits for Which He Was Criminally Convicted of Receiving

Updated - "Despotism is a plan alone, without law and without rule, leading all its will and caprices," wrote Montesquieu, an Enlightenment political philosopher preceding the American Revolution.

The wrongfully convicted Navy veteran, Keith Roberts, is the victim of caprice and an orchestrated scheme to criminally target this veteran for fraud though Roberts' Claims file or C-file abundantly documents his claim for disability benefits for his diagnosed PTSD condition.

A legal argument advanced by Roberts concerns the U.S. Dept of Veterans Affairs and U.S. Dept of Justice's disregard of laws and rules that govern the conduct of federal agencies towards citizens applying for services and benefits, such as military veterans.

Laws and rules in place guide the adjudication of claims, though these legal processes are superseded by the caprice of men and women, in Roberts case.

Like 100,000s of veterans, Roberts engaged in the convoluted process of the VA bureaucracy seeking disability benefits in what is supposed to be a non-adversarial process under the Veterans' Judicial Review Act (1988) that empowers veterans the right to judicial review of decisions involving their benefits under the exclusive authority of the legislatively created VA adjudication procedures.

Roberts’ benefits claim — related to his PTSD that was diagnosed as occurring because of the in-service stressor event of witnessing and trying to prevent his friend (Airman Gary Holland) from being crushed to death by a C-54 airplane while stationed at a Naval air base in Naples, Italy in 1969, and an unrelated assault by the Navy Shore Patrol — was granted at the 100 percent disability level in May 1999.

But Roberts became a target when the VA and U.S. DoJ hatched their plan to probe and prosecute Roberts, as indicated in emails obtained by Roberts' attorney, Bob Walsh.

Former VA General Counsel attorney and VA national Director of Compensation and Pension Services, Renee L. Szybala, authored the VA’s response to a Robert's letter to the VA, and, evidence suggests, engineered the 2005-06 prosecution of Roberts by U.S. Atty Biskupic.

As Roberts’ attorney Robert Walsh states in his CAVC (U.S. Court of Appeals for Veterans Claims) Supplemental brief filed in July 2007: "Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC)."

Szybala, who moved on from her position as VA Director of Compensation and Pension Services, was responsible for managing the network of VA Regional Offices across the country.

In an e-mail of January 27, 2005 from Debi Bevins, Special Assistant to the (VA) Secretary Jim Nicholson, Bevins asked Szybala: "Is there any truth to what Keith Roberts alleges in this e-mail?" referring to Roberts’ allegations of fraud and violations of his due process rights, and Roberts' declarations of his rightful entitlement pertaining to his experiencing what the VA calls "stressors."

In the same e-mail, Bevins asks: "Have we heard any news on the prosecution of Keith Roberts?"

Szybala replies in part in an e-mail dated January 27, 2005 that: "Of course not (there is no truth to Roberts’ allegations). But he (Roberts) may be confused and believe it. I have known of and been dealing with Mr. Roberts’ complaints for several years now, dating to my time at OGC (VA Office of the General Counsel) as explained in the message below. … In the interest of full disclosure, I also have a letter on this case from the American Legion, dated October 15, 2004 (asking for Vasil’s report), to which I have not yet responded. The fraud for which Mr. Roberts’ service connection was severed was uncovered, investigated, and reported by the OIG (Office of the Inspector General). To respond to the Legion’s letter, we need to confer with the OIG and have had trouble connecting. When we do we’ll ask them the question about the prosecution, too. My guess is, however, that this case would not interest a U.S. Attorney … ."

Several points made in this and subsequent e-mails obtained by the defense and not presented at the criminal trial by a young attorney (though successfully made part of the record of appeal at CAVC (U.S. Court of Appeals for Veterans Claims) after efforts by Roberts' subsequent atty, Robert Walsh) are critical and raise questions about the propriety of the prosecution instigated by the VA.

No testimony or evidence was presented at Roberts’ trial pertaining to Ms. Szybala’s statement that Szybala had been dealing with Roberts’ allegations and complaints for several years and that Szybala stated that "… he (Roberts) may be confused and believe it."

This is significant because if Roberts believed the VA claim that he was pursuing and Szybala assumed Roberts’ believed his claim, this discredits the principal allegation of the government’s criminal case that Roberts devised a "scheme" to formulate misrepresentations with the intent of defrauding the VA, the alleged crime for which Roberts was imprisoned for almost four years.

[In fact, the government in the person of Barbra Nehls of the Milwaukee VA Regional office wrongly claimed at trial that Roberts’ benefits were reduced based upon the VA’s determination that Roberts’ statements of facts from 1969 formed the basis of the VA decision to grant or deny benefits. This is a material misrepresentation of VA procedure: The determination of PTSD-related benefits relies upon medical evidence (such as being diagnosed by five different medical professionals that a vet has PTSD) and the existence of an in-service stressor (such as the reality that a man was crushed to death by a C-54 aircraft while an Airman was on duty), per 38 CFR (Code of Federal Regulations) 3.304(f). All a veteran has to achieve in first-person testimony is corroboration, not verification. The Code defines Post Traumatic Stress Disorder as Service connection for post-traumatic stress disorder; (PTSD) requires medical evidence diagnosing the condition in accordance with 38 CFR 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor occurred (38 CFR 3.304(f))].

Officials from the Milwaukee Regional Office and Special Agent Raymond Vasil’s Inspector General’s (OIG) office were included in the series of e-mails including one e-mail from the OIG's Vasil dated January 27, 2005, stating: "The U.S. Attorney is interested in prosecuting. He is not 100% yet and wanted me to interview any additional persons I could find that were present when the original accident happened in 1969 … ."

Commander Robert Don Hathaway (USN) and officer-in-charge was present when the original accident happened, and was not interviewed by the Inspector General’s (OIG) office.

Seems they wouldn't have liked what Comd Hathaway had to say. After a four-hour deposition conducted in early 2019 by atty Walsh, Hathaway's April 2019 affidavit is an exoneration of Keith Roberts from the ludicrous indictment that Roberts lied about his role trying to save his friend from being crushed to death.

Everyone near the C-54 acted to save a man being crushed to death, some more effectively than others.

The engineering of the prosecution evident from the e-mails and the rushed, extraordinary prosecution itself were challenged in Roberts’ supplemental brief filed at the U.S. Court of Appeals for Veterans Claims (CAVC) in July 2007.

"As detailed in the brief, the conduct of the (VA) Secretary has been contrary to law, in bad faith, highly adversarial. There is an inference of impropriety by any number of senior officials in the U.S. Department of Veterans Affairs," reads the brief filed by attorney Robert Walsh.

And it bears repeating from the brief: "Ms. Renee Szybala, who responded to the letter for the Secretary, then appears to have had a direct involvement in orchestrating the efforts to commence criminal proceedings against the appellant in Federal District Court when she knew his appeals were pending at either the BVA (Board of Veterans' Appeals) or this Court (the CAVC)."

Two VA e-mails include.


A reader following this story may have noted the jumping back and forth between Roberts' VA claim and Roberts' fight against his criminal prosecution.

Reads Roberts’ Court of Appeals for Veterans claims (CAVC) July 2007 brief:

The referral of this case directly from the VA OIG’s Chicago office to the U.S. Attorney for the Eastern District of Wisconsin for criminal proceedings is contrary to law, justice, equity, and fair play.

When the Court rules to restore the benefits of the Appellant, we shall have arrived at an absurd 'Alice in Wonderland' result. A veteran will sit in prison for accepting the wire transfer of funds to which he was legally entitled. … This extraordinary rendition of a veteran from a VA administrative dispute directly into Federal District Court on criminal charges is unprecedented.
We are here; it is Alice in Wonderland.

Keith Roberts is now back to receiving 70 percent of his 100 percent VA benefits, and his new start date is two years earlier than it had been awarded previously.

Perhaps Keith Roberts can have 70 percent of his days in prison back?

Roberts' next step is to get this 2006 criminal conviction vacated or overturned.

Veterans' advocates estimate there have been some 5,000 cases where the VA Office of Inspector General (OIG) or other VA officials have targeted veterans with criminal prosecutions while the VA is still adjudicating claims.

One problem is the OIG does not probe VA employees who ignore the law and regulations to target innocent veterans. Rather, the OIG is simply a hammer used to pound veterans into submission.

But Roberts and his attorney, Bob Walsh, will not give up as they push for full benefits restoration as prelude to vindication and exoneration.

Other attorneys in the Court of Appeals for Veterans Claims bar agreee a time of reckoning is upon us.

Kisor v. Wilkie 139 S.Ct. 2400 (2019), and Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017) may provide the legal precedent to end the abuse of veterans accused of benefits fraud.

Walsh's March 4, 2019 letter to U.S. Department of Veterans Affairs General Counsel, Mr. James M. Byrne is reproduced below.
--
March 4, 2019


U.S. Department of Veterans Affairs
Mr. James M. Byrne
General Counsel
810 Vermont A venue, N. W.
Washington, D.C. 20420

Re: Demand for a Hearing in accordance with 38 C.F.R. §§ 42.1-42.47 (1988)
Keith A. Roberts, VA Claim Number C 28 353 461

Dear Mr. Byrne:

In 2005 I was asked to assist Mr. Keith A. Roberts in the adjudication of the allegation of benefits fraud made against him by employees of the U.S. Department of Veterans Affairs Office of Inspector General. Fourteen years later a final agency decision has still not been made in that dispute.

By a letter dated October 15, 2004, Mr. Phillip R. Wilkerson of the
American Legion wrote to the Director of the Compensation and Pension Service
of the Veterans Benefits Administration demanding a hearing regarding the
benefits fraud allegations made against him in accordance with 38 C.F.R. §§ 42.1-
42.47 (1988). (Exhibit 1.) That hearing has never been provided.
During the pendency of his recent appeal before the U.S. Court of Appeals
for Veterans Claims in docket 16-1219 a motion to intervene as amicus curia was
filed on behalf of Veterans for Due Process, Inc., (Mr. Philip Cushman). (Exhibit
2
Congressional mandated due process protections set forth in 38 C.F.R. §§ 42.1-
42.47 and the unlawful policy of the Veterans Administration (now U.S.
Department of Veterans Affairs) to circumvent them since 1986 is highly relevant
to this demand.
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
In 1986 Congress completed an extensive effort aimed at improving
contract and benefits fraud adjudications by the federal government. See United
States. Cong. Senate. Committee on the Judiciary. Overview of False Claims and
Fraud Legislation. Hearing, Jun. 17, 1986. 99th Cong. 2nd Sess. Washington:
GPO, 1987. A copy of the legislative history is attached. (Exhibit 3.)
The Congressional effort was to end the Balkanized procedures found
throughout the federal government so as to protect the rights of those accused of
benefits fraud and also to protect the interests of the taxpayers.
The Veterans Administration promulgated regulations in accordance with
the 1986 legislation. The regulations were amended in 1988 to reflect the creation
of the U.S. Department of Veterans Affairs, and have not been amended since.
See 38 C.F.R. §§ 42.1-42.47 (1988).
In 2005 I made requests to your agency under the Freedom of Information
Act (FOIA). The responses supported my conclusion that the U.S. Department of
Veterans Affairs has never complied with the regulations for benefits fraud
adjudications. The Veterans Benefits Administration and the Office ofinspector
General make use of an ad hoc system which deprives veterans and other
beneficiaries of proper notice, a meaningful opportunity to be heard, and any
opportunity to confront evidence being used against them. Not only is the current
procedure devoid of fundamental fairness and due process, but unfounded
allegations of benefits fraud are placed in the veterans benefits claims file.
Thousands of employees of the Veterans Benefits Administration can lawfully
access the computerized claims file. The response to a recent FOIA request dated
August 10, 2018, indicates that since May 11, 1988, 4,163 VA benefits fraud cases
had been referred to the U.S. Department of Justice. These cases have been
referred by the U.S. Department of Veterans Affairs Office of Inspector General
(VA OIG) directly to United States Attorneys around the country. (Exhibits 4.)
A response from your office confirms that the due process protections found in 38
C.F.R. §§ 42.1-42.47 have never been afforded to any of these veterans accused of
benefits fraud.
Page 2 of 6
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
One of the most troubling aspects of my involvement in the adjudication of
benefits fraud allegations by your agency has been the litigation position adopted
by your office. In Roberts v. Shinseki, 23 Vet.App. 416 (20 1 0), counsel for the
Secretary argued in supplemental briefing that your office had no role to play in
the adjudication of benefits fraud matters. During oral argument before the three
judge panel and later the en bane Court the position of the Secretary was that the
Office of General Counsel had no role to play in the adjudication ofbenefits fraud.
Counsel further stated that the reference to claims in 38 C.F.R. § 14.561 only
referred to claims by or against contractors. Since the agency had over 1 million
active claims for disability benefits pending at that time I found that position to be
rather remarkable. The ad hoc process employed by the VA OIG is devoid of due
process, fundamental fairness, and any reasonable degree of competence.
Veterans are denied access to the procedural due process afforded the recipients of
other federal benefits accused of fraud. The review of fraud allegations by your
office found in the regulations along with the preparation of a detailed complaint
to be served on the accused would have resulted in hundreds of the cases referred
to the United States Attorneys for prosecution being resolved administratively.
The recent case of U.S. v. Monkemeyer, 2:17-cr-10-PLM, U.S. District
Court for the Western District of Michigan, is illustrative of the hazards inherent
with the current "sand lot" procedures used to process benefits fraud allegations
by your agency. Mr. Monkemeyer was accused of altering his DD-214 by
employees of the VA Regional Office (RO) in Detroit, Michigan. His benefits
claims had been adjudicated by employees of the RO in West Virginia. His
unemployability determination was made by the Maine RO. Several years later he
was accused of benefits fraud. His disability compensation benefits were severed
and that decision is pending review by the BV A. He was indicted for theft of
government property under 18 U.S.C. § 641. After months of motions, discovery
and investigation a three day jury trial was held in 2018. Mr. Monkemeyer was
acquitted. His disability benefits have not been restored, nor had the damage to
his reputation. In addition, the unfounded allegations against him can still be
found in his VA benefits file. The economic harm to the taxpayers and Mr.
Monkemeyer have been significant. The personal damage to Mr. Monkemeyer has
been even more egregious. Had Mr. Monkemeyer been afforded his due process
rights under 38 C.F.R. §§ 42.1-42.47 much of the harm could have been avoided.
Page 3 of 6
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
The United States Supreme Court raised the standard for fraud pleading in
civil matters in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955
(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). Mr. Roberts
was deprived of any meaningful notice of the allegations against him. The VA
refused to provide Mr. Roberts or his American Legion representative a copy of
the report of the VA OIG which made allegations of benefits fraud against him.
That report had been placed in his benefits claims file. Both he and his American
Legion representatives were also denied access to his VA benefits claims file at
his hearing in Washington D.C. before the Board of Veterans Appeals (BVA) in
2005. It has since been determined that his appeal was adjudicated using an
incomplete photocopy of his claims file as the original was in the possession of the
employees of the VA OIG Chicago office.
As a former staff attorney for your agency I find the adjudication of a quasicriminal
allegation in what was intended by Congress to be a non-adversarial and
claimant friendly benefits system to an affront to logic and contrary to common
sense. As discussed in the amicus curia brief attached, an allegation of benefits
fraud should be closely held. Such an allegation is the province of the Office of
Inspector General and the Office of General Counsel. Unfounded allegations of
fraud have no place in a veterans benefits claims file. With the new national work
queue hundreds if not thousands of employees of the Veterans Benefits
Administration can access a file and review allegations that may or may not have
any basis in fact.
In the event a veteran is found innocent of any wrongdoing there is no
process or procedure available to remove fraud allegations from a benefits file.
Such allegations and related evidence should be restricted to files maintained by
your office and the Office of Inspector General in accordance with the procedures
mandated by 38 C.F.R. §§ 42.1-42.47. This is the exact issue now confronting
Mr. Monkemeyer. How do you un-ring a bell?
Some insight into the convoluted and unlawful procedures now being
followed by the VA OIG are set forth in the affidavit of Mr. Roberts dated March
9, 2007. (Exhibit 5.)
Page 4 of 6
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
Since 1986 veterans and their family members accused of benefits fraud by
your agency have been deprived of due process of law that the recipients of
benefits administered by other departments of the government are routinely
afforded. In many cases veterans and other beneficiaries have been subjected to
premature criminal prosecutions and federal collection efforts without ever having
been afforded notice and an opportunity to be heard as mandated by the
Administrative Procedures Act 5 U.S.C. §§ 551-559, 701-706, 1305,3105, 3344,
4301(2)(E), 5335(a)(B), 5372, and 7521.
In this case Renee Szybala, then the director of compensation and pension
service of the Veterans Benefits Administration, was actively participating in the
effort to have Mr. Roberts indicted. At the same time she was assuring both Mr.
Roberts and his American Legion representative that his appeal was being
processed. Documents obtained in criminal discovery indicate that she had
authored the response to a letter sent by Mr. Roberts to then Secretary of Veterans
Affairs Principi concerning the loss of his benefits and the allegations against him.
Even more disconcerting is the questionable practice of employees of the
Office of Inspector General taking cases where allegations of benefits fraud are
being actively adjudicated by the Veterans Benefits Administration directly to
United States Attorneys for prosecution. The absurd outcome from this practice is
that a federal criminal conviction is obtained, a sentence served, damages
specified by the trial court are being collected, and then years later the benefits in
question are restored. That is what has happened in this case. Mr. Roberts has
had 30 percent of his benefits restored. And that decision is on appeal. So after
more than a decade a final agency decision as to benefits and damages has never
been issued.
Page 5 of 6
Keith A. Roberts, 38 C.F.R. §§ 42.1-42.47
We demand that the disability benefits of Mr. Roberts be restored in full. In
the alternative we request that a proper review of the file be made by your office
and that a complaint issue and proceedings before an administrative law judge be
convened in accordance with 38 C.F.R. §§ 42.1-42.47.
Sincerely, ~
PI'~
Robert P. Walsh
Enclosures: Exhibit 1., Letter, American Legion, Philip B. Wilkerson, to Renee
Szybala, Director of Compensation and Pension Service, October 15, 2004, 6
pages; Exhibit 2., Motion and Brief Amicus of Phillip Cushman, Roberts v.
Wilkie, CAVC 16-1219, motion to intervene denied by order dated October 27,
2017, 57 pages; Exhibit 3., United States. Cong. Senate Committee on the
Judiciary. Overview of False Claims and Fraud Legislation. Hearing, Jun. 17,
1986. 99th Cong. 2nd Sess. Washington: GPO, 1987, 176 pages; Exhibit 4.,
Freedom of Information Act response, August 10, 2018, 3 pages; Exhibit 5.,
Affidavit of Mr. Keith A. Roberts, March 9, 2007, 12 pages.
Page 6 of 6
#

Nov 12, 2019

Keith Roberts Wrongful Prosecution Is Part of Pattern of U.S. Government Bureaucrats Targeting Veterans

Men of honor have come forward to speak the truth
about the 2007 prosecution of Wisconsin's Keith
Roberts for fraud, a crusade that has netted the
lives of many military veterans. Commander,
United States Navy (ret), Robert Don Hathaway
has set the record straight, as bureaucrats crawl
back under the rocks where they live and work.

Navy Commander has come forward 50 years after a horrific death on a Naval air base to speak the truth and clear an innocent veteran wrongfully convicted by the VA and U.S. Dept of Justice


Updated - In 2010, the New York Times reported new U.S. Dept of Veterans Affairs regulations ending a requirement that "specific events like bomb blasts, firefights or mortar attacks" be documented as "stressors" for PTSD disability claims in a rare win for military veterans. 

A related consequential victory, it appeared, was the V.A. and U.S. Dept of Justice halting in its search-and-destroy mission of seeking out veterans with PTSD and prosecuting them for fraud for any or no reason.

This related victory for veterans was misreported here.

A malicious bureaucratic scheme implemented by the U.S. Dept of Veterans Affairs, Office of Inspector General continued after 2010.

Figures obtained by Robert P. Walsh, a Vietnam War combat veteran and a Michigan attorney who fights now for veterans, show that there have been 3,403 criminal arrests of veterans for fraud between 1986 and 2018, according to an Aug 10, 2018 letter to Walsh from the U.S. Dept of Veterans Affairs, Office of Inspector General.

One of those veterans is Wisconsin's Keith Roberts; another is Karl F. W. Monkemeyer, two men who served their country only to come home to be accused of fraud and wrongfully prosecuted by federal bureaucrats feasting on our veterans like jackals.

There is no due process that is observed for veterans who upset bureaucrats.

There is federal law that is supposed to protect veterans, but this law, 38 C.F.R.§§ 42.1-42.47 (1988), is falsely regarded as advisory by VA staff, for example, who disregard its protective mandates and procedures in their lust to justify their own bureaucratic importance.

Keith Roberts

Roberts’ VA disability claim for his diagnosed PTSD is related to his trying to save his buddy, Florida native Airman Gary Holland, from being crushed to death by a C-54 airplane while stationed at a Naval air base in Naples, Italy in 1969.

The VA and U.S. Attorney claim that Roberts lied about his role at the death scene (though he was stationed there and was on duty) and that he lied about being friends with Holland, though the two trained and arrived in Naples together. [An analysis obtained from Roberts wife, Deloris Roberts, of the service histories of Gary Holland and Keith Roberts reveals parallel military careers that would make it unlikely that Holland and Roberts were not at least friendly in their relationship, and that contradicts the prosecution’s indictment and trial statements.]

Commander Robert Don Hathaway

Roberts' attorney, Bob Walsh, located Roberts' officer-in-charge, Robert Don Hathaway, who was stationed at the Naples air base and conducted a four-hour deposition.

Hathaway, Commander, United States Navy (ret), is described as a no-nonsense Navy officer who reacted with surprise at news of the Roberts affair.

Hathaway's April 12, 2019 affidavit in sum corroborates Roberts' recollection of the death scene and utterly disconfirms the United States Dept of Justice's ridiculous indictment that Roberts misled the VA about his actions.

Roberts has testified under oath and in numerous documents submitted to the VA that he was on line duty, ordered (perhaps in bad form) several officers to help with the rescue of Holland, until ordered away.

Reads Mr. Hathaway's affidavit in part: "It is my considered professional opinion as a career U.S. Navy aviator of 30 years and a Navy Aviation Safety Officer for 10 years that the removal of the jacks from VC-54Q (Navy R5D) Aircraft Bureau Number (BUNO) 050878 on Saturday, February 1, 1969, was the most significant event in the chain of events which would culminate in the death of Gary D. Holland on February 5, 1969."

Put another way, the death of Holland was negligence, and those personnel who called off Roberts in his efforts and later testified against him were protecting an old crime that was dug up inadvertently by the VA.

"The death of Gary D. Holland was not an 'accident', it was the direct consequence of negligent conduct by officers and non-commissioned officers at NAF Naples, Italy," reads Hathaway's affidavit. "Some of these same individuals testified against Keith A. Roberts at his trial for criminal benefits fraud."

Roberts took it hard in 1969, watching a young man get crushed to death, and he bore ill will towards some of the people whom he believed were responsible.

Concludes Hathaway: "Gary D. Holland died during the Vietnam war. War is by definition productive of death and injury. But Gary D. Holland died tragically and avoidably in a place and at a time when he had every reason to feel safe."

Commander Robert Don Hathaway, USN, (Ret) has come
forward 50 years after a horrific death on a Naval air base
to speak the truth and clear an innocent veteran wrongfully
convicted by the VA and U.S. Dept of Justice.
Hathaway's April 12, 2019 affidavit is reproduced below; exhibits and images are referenced, but not shown:

AFFIDAVIT AND SWORN DECLARATION
ROBERT DON HATHAWAY
COMMANDER, USN, RETIRED


I, Robert Don Hathaway, being first duly cautioned and sworn, state that the
following information is true and correct based upon my personal knowledge.

PERSONAL INFORMATION
1. My name is Robert Don Hathaway, my date of birth is February 1,
1944. [personal info deleted here]
3. I attended Northeastern State University and received a Bachelor of
Science degree.
4. I joined the U.S. Navy in March of 1966 under an aviation officer
candidate program. I received my wings in June of 1968 and retired
in 1993.
5. I am a Naval aviator qualified in a number of fixed wing, rotary wing,
and jet powered aircraft.
6. I accrued over 1 ,000 hours flying C-54 aircraft during my Navy
career.
7. I graduated il-om the Naval Safety Officer Course at the Naval Post
Graduate School, Monterey, California in 1972/73.
8. This affidavit is prepared on behalf of Keith A. Roberts. A photo of
Keith A. Roberts is attached and marked as Exhibit A.
9. At no time has any employee of the U.S. Department of Veterans
Affairs or other U.S. government agency contacted me to discuss the
events of Tuesday, February 4, 1969, in which Gary D. Holland was
fatally injured.
10. As detailed below, Keith A. Roberts was under my command and was
on duty at the transient line office in Hanger 2, Naval Air Facility
Naples, Italy, on Tuesday, February 4, 1969, when Gary D. Holland
was fatally injured. A photograph of Gary D. Holland is attached and
marked as Exhibit B.
11. Keith A. Roberts was in pay grade E-3 on February 4, 1969, and was
designated as an ADJAN, Aviation Machinist's Mate (Jet Engine
Mechanic).
Naval Air Facility Naples, Italy (NAF Naples)
12. My first duty station in the U.S. Navy was Naval Air Facility Naples,
Italy (NAF Naples). I reported for duty there in August of 1968.
13. I was an ensign (0-1) when I arrived, and had been promoted to
Lieutenant Junior Grade (LTJG) by February of 1969.
14. Captain R. M. Frye, USN, was the commander, NAF Naples, in
February of 1969.
15. LCDR Jerry L. Fuchs, USN, was the Assistant Aircraft Maintenance
Officer at NAF Naples in February of 1969.
16. LCDR Harold R. Truesdale, USN, was the Operations Maintenance
Division Officer in February of 1969.
17. NAF Naples had two hangars in 1969. Hangar 1 was occupied by
Squadron VR-24. Hangar 2 housed the maintenance operations and
the Transient Line Division office, or line shack. A photo of the
hangars and ramp area circa 1959 is attached and marked as Exhibit
C. By 1969 a number of structures had been added near the hangars,
but the hangars were as shown in 1969.

The Transient Line Division
18. In addition to my flying duties I was the Division Officer in charge of
the Transient Line Division in February of 1969.
19. In my absence LT. Paul W. Solomon was the officer supervising the
Transient Line.
20. I reported to LCDR Harold R. Truesdale, USN.
21. LCDR Truesdale had been on the U.S.S. Forrestal on July 29, 1967,
in the Gulf of Tonkin when a Zuni rocket discharged prematurely and
caused a massive fire on the flight deck killing 134 sailors. This is
the same fire that John McCain survived.
22. LCDR Truesdale was deeply involved in the investigation of that
incident which he perceived had threatened to end his Navy career.
23. Because of the Forrestal incident in his recent past LCDR Truesdale
was extremely risk averse and micro-managed all of those reporting
to him at NAF Naples.
24. The senior non-commissioned officer in the Transient Line was Chief
George Hill, Jr. When I arrived in Naples in August of 1968 he was a
First Class Petty Officer (E-6). He was promoted to Chief Petty
Officer in January of 1969.
25. In February of 1969 Chief Hill had over 20 years of service in naval
aviation.
26. To the best of my knowledge Chief Hill passed away in 2009.
27. Keith A. Roberts, who was called "Robby", was an ADJAN, E-3, in
February of 1969.
28. He had reported for duty at NAF Naples in November of 1968.
Naples was his first duty assignment.
29. He was assigned to the Transient Line. A photo of Roberts in the
Naples Line Shack is attached as Exhibits D. A photo of Roberts
circa 1969 is attached as Exhibit E.
30. The Transient Line Division was responsible for all aircraft
movement on the base. That included the movement of aircraft
assigned to VR-24, the Fleet Air Logistics Squadron, which occupied
hangar 1.
31. Transient Line personnel were also responsible for placing aircraft on
jacks and removing them.
32. The Transient Line operated 24 hours a day, 7 days a week, and 365
days a year. The Division consisted of 2 officers, 1 Chief Petty
Officer, 4 Petty Officers and 6 men ofE-3 grade. The manpower of
the transient line was supplemented as needed. Approximately 11
enlisted men were assigned to the Transient Line in February of 1969.
33. The Transient Line office or "shack" was located in Hangar 2 and had
windows to the outside so that the runway, taxiways, and ramps could
be observed. There were also large windows so the hangar floor
could be observed.
34. The Transient Line Office had hot line telephones to the aircraft
control tower and to the fire station crash crew.
35. The actuator switch for the hangar Alarm Bell was located
approximately 6 feet from the transient line shack door that opened
out into the hangar.
36. The alarm bell was sounded if their was an emergency, or any time
aircraft were being moved in the hangar, and when equipment was
being moved on the hangar floor.
37. Tugs, forklifts and other equipment were stored outside and adjacent
to the hangar.
38. All of the enlisted men assigned to the transient line held aviation
rates.

VC-54Q (Navy R5D) Aircraft Bureau Number (BUNO) 050878
39. A number of Navy R5D (C-54) aircraft were either based or
maintained at NAF Naples in February of 1969.
40. A photo of a VR-24 C-54 circa 1960 is attached and marked as
Exhibit F.
41. Some of the C-54 aircraft were in a combination passenger and cargo
configuration for use by the senior commands.
42. VC-54Q BUNO 050878 (0878) was one of the combination executive
aircraft and was assigned to the Commander, Middle East Forces and
was based on Bahrain Island.
Friday, January 31, 1969
43. On Friday, January 31, 1969, (0878) had been in hangar 2 at NAF
Naples for periodic maintenance for approximately two weeks.
44. On January 23, 1969, Floyd M. Morris had determined that the nose
strut needed to be changed. See Investigative Report
69, (Exhibit J.), enclosure 14.
45. The aircraft had been placed on aircraft jacks by Transient Line
personnel.
46. A drawing depicting the jacking and lifting points for the C-54 is
attached and marked as Exhibit G.
47. A drawing depicting the aircraft jacks used for a C-54 aircraft is
attached and marked as Exhibit H.
48. The aircraft was positioned nose first in the hangar with the tail
section extending out over the ramp. A photo circa 1960 depicts a C-
54 in a similar position is marked as Exhibit I.
49. A new nose strut was being installed on C-54 (0878). All related
work had not been completed. See paragraphs 17-20, 20 FEB 69
investigative report (Exhibit J.) at page 4.
50. A drawing of the front main landing gear (nose gear) of a C-54
aircraft is attached and marked as Exhibit K.
51. On Friday, January 31, 1969, LCDR
capacity as the Assistant Aircraft Maintenance Officer at NAF
Naples, approach Chief George Hill, Jr. and requested that (0878) be
taken off the aircraft jacks.
52. The rationale set forth for this request by LCDR Fuchs was that the
removal of the jacks would facilitate movement out of the hangar in
the event of a fire and that under normal maintenance standards the
aircraft was not required to be on jacks. See paragraphs 19, 20, 20
FEB 69 investigative report (Exhibit J.) at page 4.
53. Chief George Hill, Jr. informed LCDR Fuchs that it was his opinion
that (0878) was not in proper maintenance status for removal of the
jacks and that they would be removed at a later time when the
necessary work was completed. Saturday, February 1, 1969
54. The new front main landing gear strut had been installed on Saturday,
February 1, 1969. See 20 FEB 69 investigative report (Exh. J.),
enclosure 14.
55. Enclosure 14 clearly indicates that critical components of the front
main landing gear assembly were missing on Saturday, February 2,
1969, when (0878) was taken off jacks by maintenance personnel.
See 20 FEB 69 investigative report (Exh. J.), enclosure 14.
Monday, February 3, 1969
56. Chief Steward, Gary D. Holland and other maintenance personnel
were involved in the installation of rigging and steering gear
associated with the front main landing gear. See 20 FEB 69
investigative report (Exh. J.), enclosure 14.
Tuesday, February 4, 1969
57. I reviewed my flight log which indicates that on Tuesday, February 4,
1969, I flew a mission in a C-117 Delta aircraft to the Naval Air
Station, Sigonella, Italy, then to Malta and returned to Naples. I
departed Naples early in the morning and had returned a short time
after Gary D. Holland had been evacuated by helicopter to the Navy
Hospital in Naples.
58. On Tuesday, February 4, 1969, written testing was conducted for
advancement from grade E-3 to E-4 in the morning. See the
announcement in the Capo News & Views base newsletter dated
January 8, 1969, and attached as Exhibit L., and see also 20 FEB 69
investigative report (Exh. J.), enclosure 14, confirming that Gary D.
Holland did not return to the hangar until 12:00 after completing the
test and eating lunch.
59. Keith A. Roberts along with other E-3's that worked in the hangar
were required to take the test. They were just returning to hangar 2 at
12:00.
60. After Chief Hill declined to remove the jacks from (0878)
maintenance division personnel had removed them as detailed above.
61. By the morning of Tuesday, February 4, 1969, (0878) was off jacks.
62. My recollection is clear that Keith A. Roberts was on duty at the
Transient Line Shack on Tuesday, February 4, 1969.
63. He was present upon my arrival at hangar 2 in the early afternoon of
February 4, 1969.
64. Keith A. Roberts participated in the after action debrief conducted by
Chief Hill and myself for all Transient Line Division personnel
during the afternoon of February 4, 1969.
65. The nose gear of (0878) collapsed trapping Gary D. Holland at 12:40.
See 20 FEB 69 investigative report (Exh. J.) Enclosure 15.
66. There was confusion and delay during the rescue effort.
67. Gary D. Holland was freed from the nose gear at 13:05. See 20 FEB
69 investigative report (Exh. J.), enclosure 5.
68. Gary D. Holland had been evacuated by helicopter to the U.S. Naval
Hospital, Naples, and arrived there at 13:20. See 20 FEB 69
investigative report (Exh. J.), enclosure 5.
69. Gary D. Holland was first seen by a medical officer at 13:30 on 04
FEB 69. See 20 FEB 69 investigative report (Exh. J.), page 2.
70. I had landed at Naples, taxied the aircraft, and was securing it when
Chief Hill came on board.
71. This would be the only time Chief Hill met me on an aircraft during
the entire time we served together.
72. The time was approximately 14:00.
73. Chief Hill briefed me on the collapse of the nose gear on (0878) and
the rescue efforts that had just concluded.
74. Chief Hill informed me that there were delays in the rescue efforts
and that in his opinion had the original efforts been allowed to
proceed Gary D. Holland would have had a good chance of survival.
75. Chief Hill stated that LCDR Harold B. Truesdale, USN, had ordered
the men attempting to use the fork lift to raise to nose of the aircraft
to stop as they might "further damage the aircraft".
76. There was a circus atmosphere in Hangar 2 when I arrived.
77. LCDR Truesdale was hollering instructions, ordering everyone to
return to duty and clear the hangar.
78. Some individuals responded that they did not work for him and
refused to leave.
79. At the time I arrived at Hangar 2 there were still at least 100 men and
women present.
80. Chief Hill and I gathered the Transient Line Division personnel and
had them each prepare a hand written statement regarding the incident
with (0878), the injury to Gary D. Holland, and what they had
observed or done as part of the rescue efforts.
81. Those hand written statements were then copied to the Transient Line
logbook to preserve them.
82. That evening I was present when there was a heated argument in the
Officers Mess regarding the incident, the rescue efforts, and what
many present believed to be unnecessary delay in freeing Gary D.
Holland.
Wednesday, February 5, 1969
83. Gary D. Holland died at 11:20 on 05 FEB 1969 at the U.S. Navy
Hospital, Naples, Italy. See 20 FEB 69 investigative report (Exh. J.)
at page 3.
84. LCDR Jerry L. Fuchs, USN, was appointed to conduct the
investigation by an order dated 05 FEB 1969. 20 FEB 69
investigative report (Exh. J.) enclosure 1.
The Reenactment of the Incident of February 4, 1969
85. LCDR Jerry L. Fuchs, USN, supervised a staged reenactment of the
incident in which Gary Holland was killed on Wednesday, February
5, 1969.
86. LCDR Fuchs prepared a statement in which he describes entering the
nose wheel well of (0878) on February 5, 1969. At this time the
aircraft jacks had been reinstalled.
87. LCDR Fuchs states that with his "left leg in position underneath the
down lock linkage, similar to the position depicted in enclosure (32),
I reached for the hydraulic line top connection, enclosure ( 15), which
the party was to secure, and as a result raised the down lock linkage
with my thigh. The lifting of the down lock linkage out of the lock
position required no intentional effort on my part. The process of
repositioning my body in any way caused sufficient force to be
applied to the down lock linkage to lift it out of the overcenter
position, which in turn would have allowed the nose wheel to
collapse if the aircraft had not been supported by jacks. "
20 FEB 69 investigative report (Exh. J.) enclosure 17, dated 5
February 1969.
88. Keith A. Roberts has informed me that he participated in another
reenactment identical to the one described above. Roberts states that
he was not able to move the linkage with his body no matter how hard
he tried. He further states that a color photograph of the reenactment
he participated in was offered as an exhibit at his criminal trial.

Investigation Report of 20 February 1969
89. The initial investigation of the fatal incident of February 4, 1969,
was conducted by LCDR Jerry L. Fuchs, USN. The report is dated 20
February 1969 and consists ed of71 pages. A copy is attached and
marked as Exhibit J.
90. LCDR Jerry L. Fuchs, USN, in his capacity as the Assistant Aircraft
Maintenance Officer at NAF Naples, was directly involved in the
decisions and actions that resulted in the death of Gary D. Holland.
91. LCDR Jerry L. Fuchs, USN, should have recused himself from any
role in the investigation of the incident other than as a witness.
92. The report dated February 20, 1969, is a preliminary report. This type
of report is also referred to as a "line of duty" report. The primary
purpose of these reports is to confirm that the death of the individual
involved was in the line of duty so that veterans benefits and Navy
final pay and benefits can be authorized.
93. The more comprehensive official U.S. Navy Safety Report has not
been available for my review. Access to those reports is restricted.
They are not subject to release via the Freedom of Information Act
and are for official use only.
94. It is my considered professional opinion as a career U.S. Navy aviator
of 30 years and a Navy Aviation Safety Officer for 10 years that the
removal of the jacks from VC-54Q (Navy R5D) Aircraft Bureau
Number (BUNO) 050878 on Saturday, February 1, 1969, was the
most significant event in the chain of events which would culminate
in the death of Gary D. Holland on February 5, 1969.
95. LCDR Jerry L. Fuchs, USN, testified in Federal District Court in the
trial of Keith A. Roberts that he could not think of any situation in
which an enlisted person would give an officer an order. That is
absurd. Military aviators routinely take orders from enlisted
personnel. The enlisted personnel serving on the Transient Line
directing aircraft give orders to the officers operating the aircraft on a
daily basis. Many military air traffic controllers are enlisted
personnel. The instructions they give to aircraft are orders.
96. Keith A. Roberts believed that as the individual manning the
Transient Line shack on February 4, 1969, when Gary D. Holland was
injured he should not have been impeded in his effort to rapidly raise
the nose of the aircraft with the fork lift.
97. That is inconsistent with the facts in the case, as clearly senior men
had arrived on scene that were more qualified to direct the rescue
efforts.
98. Keith A. Roberts and others who served with Gary D. Holland have
been troubled by his death.
99. The death of Gary D. Holland was not an "accident", it was the direct
consequence of negligent conduct by officers and non-commissioned
officers at NAF Naples, Italy.
100. Some of these same individuals testified against Keith A. Roberts at
his trial for criminal benefits fraud.
101. Gary D. Holland died during the Vietnam war. War is by definition
productive of death and injury. But Gary D. Holland died tragically
and avoidably in a place and at a time when he had every reason to
feel safe.
End of Statement

AFFIDAVIT AND SWORN DECLARATION OF
ROBERT DON HATHAWAY
COMMANDER, USN, RETIRED
I declare under the penalty of perjury that the foregoing is true and correct.

Date Signed
NOTARY PUBLIC
STATE OF OKLAHOMA )
) ss.
COUNTY OF CHEROKEE )
On this \l_lliday of ~(',· \ , 2019, Mr. Robert Don
Hathaway came before me and signed this affidavit after being first duly cautioned
and sworn and acknowledging it to be true to the best of his personal knowledge.
~/~~
, Certified Notary Pubhc
Cherokee County, Oklahoma
My Commission Expires: 0 8: J 0 3 Jz L.

AFFIDAVIT AND SWORN DECLARATION
ROBERT DON HATHAWAY
COMMANDER, USN, RETIRED
LIST OF EXHIBITS
A. Photo of Keith A. Roberts circa 1968.
B. Photograph of Gary D. Holland circa 1968.
C. Photo of the hangars and ramp area, NAF Naples, Italy, circa 1959.
D. Photo of Keith A. Roberts in the NAF Naples Transient Line Shack circa 1969.
E. Photo ofKeith A. Roberts at the NAF Naples circa 1969.
F. Photo of a VR-24 R-5-D, C-54 aircraft circa 1960.
G. Drawing depicting the jacking and lifting points for the C-54 aircraft.
H. Drawing depicting the aircraft jacks used for a C-54 aircraft.
I. Photo circa 1960, C-54 nose first in a hangar at NAF Naples similar to the
position of(0878) on February 4, 1969.
J. U.S. Navy report of the investigation into the circumstances connected with the
death of AMSAN Gary D. Holland, as a result of an accident on 4 February
1969, dated 20 FEB 69, 71 pages.
K. Drawing depicting the front main landing gear (nose gear) of a C-54 aircraft.
L. Capo News & Views base newsletter dated January 8, 1969, announcing the
E-3 to E-4 written examination for the morning of Tuesday, February 4, 1969.
End of Exhibit
#

Nov 10, 2019

Veterans Day 2019 — Wisconsin Navy Veteran Proven Innocent; But Not Yet Cleared of Wrongful Conviction

Wisconsin's Keith Roberts
is a veteran whom we
betrayed and is a man
who will never be made
whole by what baleful
U.S. officials acting from
base motives inflicted
on an innocent man
from northern Wisconsin.

First in a series this week on wrongful conviction of innocent veteran


Updated - Madison, Wisconsin — Decency and duty drove a Wisconsin Navy veteran to act in an unsuccessful attempt to save a fellow airman from being crushed to death by a 73,000-pound C-54 transport aircraft at a Naval airbase in Naples, Italy on Feb 4, 1969.

The Navy veteran is Keith Roberts of Gillett, Wisconsin, (Mal Contends).

For his service and good work, Roberts was prosecuted by the United States Dept of Justice in one of the most despicable miscarriages of justice my state has seen.

While Roberts filed a disability claim related to his PTSD condition, citing in-service 'stressors,' that was being adjudicated at the Veterans Benefits Administration (VBA), U.S. Attorney Steven Biskupic (2001-2009) stepped in and subsequently secured an indictment on mail fraud on April 26, 2005 under Title 18 United States Code 1341 (mail fraud), later superseded to wire fraud, (Wisconsin State Journal).

Roberts was convicted of wire fraud in 2007 for receiving disability benefits related to PTSD, diagnosed by several public and private medical professionals. The federal indictment was malicious and baseless, (Wisconsin Navy Airman Keith Roberts, U.S. Attorneys Scandal–Milwaukee, EpluribusMedia, Wis Community).

The indictment reads in part that Roberts was not friends with his friend, Airman Gary Holland, and that Roberts "exaggerated" efforts to save his friend when the Navy air base equivalent of a general quarters alarm was sounding as an air man was being crushed to death by the C-54 aircraft. Consider this.

Reads a U.S. Department of Justice, United States Attorney’s Office Eastern District of Wisconsin press release from March 5, 2007:

Roberts was an airman stationed at the Naval Air Facility in Naples, Italy, in 1969. The indictment alleged,and the government proved at trial, that Roberts fabricated his role in the attempted rescue of an airman who was killed at the Naval Air Facility on February 4, 1969. Roberts also fabricated his relationship with that airman.Roberts was discharged from active duty in 1971.
The DoJ indictment is demonstrably false, but even granted its silly assertions and premises is absurd grounds for a federal criminal indictment.

This Wisconsin veteran's fight for exoneration of this political prosecution continues on this Veterans Day, 2019.

Contra the government's case, writes human rights attorney Scott Horton in Harper's Magazine (Sept 7, 2007), "The prosecution smacks of retaliation and a plan to suppress veterans claims—Roberts was prosecuted for tenaciously pursuing a claim for benefits, which VA resisted and which is still in the benefits review process."

The Vietnam-era veteran had no idea while he was gathering evidence seeking an earlier retroactive date for his successful VA claim in 2002, per the advice of a Shawano (Wisconsin) Veteran’s Service Officer, and jumping through hoop after hoop, that not only were his existing VA benefits in jeopardy but his very liberty was in danger.

"The process of gathering evidence to prove PTSD disability is extremely time-consuming," said then Sen. Barrack Obama (D-IL) on August 10, 2005 at a time when the VA was set to review 72,000 PTSD cases, but backed down under intense pressure from veterans. "It requires the compilation of medical records, military service records, and testimonies from other veterans who can attest to a person’s combat exposure."

As Roberts was adjudicating his claim with the VA, after Roberts had accused the VA of fraudulently handling his claims in 2003, U.S. Atty Biskupic, in an extraordinary development, stepped in in 2005 and launched this extraordinary prosecution.

Critics see Roberts as an innocent victim—a poster boy and cautionary tale—of a VA bureaucracy determined to deter PTSD claims from Vietnam vets, rightwing forces allied with VA Secretary Jim Nicholson (2005-07), and an overzealous prosecutor, Biskupic and his staff.

This week, these pages will feature exclusively new developments of a man who served our country honorably; followed the advice of his veteran service officer, and was subsequently chewed up, imprisoned and effectively tortured in federal prison.

A three-member panel for the United States Court of Appeals for the Seventh Circuit (07-1546) in July 2008 found that, "The record might also have supported a jury determination that Mr. Roberts sincerely believed that his statements were true and that he had no intention to defraud the Government ... .
---
The U.S. v. Keith A. Roberts indictment on mail fraud (April 26, 2005), [superseded by the indictment on wire fraud,] alleges in part that Roberts in his "(s)cheme to (d)efraud" the VA "falsely represented material information to the VA" including "that Roberts and airman Gary (Holland) were close friends and roommates."

In fact, an analysis obtained from Roberts wife, Deloris Roberts, of the service histories Gary Holland and Keith Roberts reveals parallel military careers that would make it unlikely that Holland and Roberts were not at least friendly in their relationship, and that contradicts the prosecution’s indictment and trial statements.

These service histories are readily available to any federal investigator probing the case. But the enterprise of judging the friendship between two airmen 35 years later is the basis of a federal indictment?
--
In February 2010, U.S. Supreme Court Chief Justice John Roberts questioned Assistant to the Solicitor General Anthony Yang in oral arguments in the federal benefits-related case, Astrue v. Ratliff.

Asked Justice Roberts, "In litigating with veterans, the government more often than not takes a position that is substantially unjustified?" (p. 52, United States Supreme Court)

Yes, he was told.

Roberts found this "really startling."

So, please, stay tuned, what I will present in these pages this week is really startling.

And Happy Veterans Day, Keith Roberts.

We know what our government did to you and your family.

"[T]he only reason Airman Roberts was ever prosecuted was because he was a ‘belligerent ass’ who kept insisting that he get paid back to discharge. He was demanding an appeal in Washington," said the source at the Clement J. Zablocki VA Medical Center in Milwaukee who e-mailed the Lee Rayburn radio show in Madison in early June 2007 about the Roberts affair. "I'd have to say that you guys are TOTALLY (uppercase in the original) right about Roberts' conviction being bullshit ... . "

Oct 31, 2019

In Defense of Facebook Against the Narcissism of Aaron Sorkin

A voice from Hollywood is attacking free speech on social media as non-authoritative voices continue to cast dissent at variance with proper discourse as determined by one Aaron Sorkin.

Sorkin pens an open letter to Facebook's Mark Zuckerberg this morning in an op-ed in the New York Times fretting that "lies have unfettered access to the American electorate."

After first extolling the virtues of free speech, Sorkin makes the point that what he regards as assaults on truth need to be better policed, lest lies infect the public consciousness (and children) to ill effect.

Writes Sorkin:

I get a lot of use out of the First Amendment. Most important, it’s a bedrock of our democracy and it needs to be kept strong.

But this [Facebook] can’t possibly be the outcome you and I want, to have crazy lies pumped into the water supply that corrupt the most important decisions we make together. Lies that have a very real and incredibly dangerous effect on our elections and our lives and our children’s lives.

Sorkin says he loves the First Amendment, but while Sorkin is able to sift and winnow the content posted on Facebook without being corrupted, others are not equipped with Sorkin's powers of discernment.

I wonder if Aaron Sorkin is able to discern his narcissism and silly condescension. Underneath Sorkin's self-adulation is the censor and wanna-be tyrant.

While Sorkin's regard for himself is laughable, his attacks on free speech are not.

Free speech need not be defended on grounds that consequences of liberty make for a healthy classical liberal society, ala New York Times v Sullivan (1964), an inspiring statement for liberty against those advocating for authoritative selection of published views.

However, the words of Justice William Brennan and other 20-century jurists speak forever to those who believe only they are immune from the corruption of unorthodox thoughts.

Writes Brennan in Sullivan:


The First Amendment, said Judge Learned Hand,

presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all. United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y. 1943).
Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, gave the principle its classic formulation:
Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. ... Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Thus, we consider this case [New York Times v. Sullivan] against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (New York Times v. Sullivan).
Aaron Sorkin ought consider the foundations of Sullivan today, because free speech protections may not be around forever.

Facebook well serves our national commitment to the principle that debate on public issues should be uninhibited.

Facebook recognizes that underlying discussion of public issues are the inalienable rights that define human beings in the American experiment.

Oct 29, 2019

Avery Prosecutor Releases Video Showing Police Surveillance of Protected Attorney-Client Meeting

Steven Avery and attorney Jerome Buting are shown in an
apparently illegally produced surveillance video at the
Calumet County Jail that shows a criminal defendant
meeting with his attorney in a confidential conference.
Updated - See Related to Avery Monitoring/Video Recordings of Avery Meetings with Counsel at Calumet County Jail.

Madison, Wisconsin — Advocates working for the exoneration of Steven Avery and Brendan Dassey are criticizing former Calumet County District Attorney (R) Ken Kratz for his possession of and Oct. 25 release of a video that appears to show illegal police surveillance of Avery meeting with his attorney in the Calumet County Jail on an unknown date believed to be between 2005 and 2007.

Kratz is now a private citizen. Kratz can no longer practice law in Wisconsin because his law license remains suspended following his sexual assault and harassment scandal that forced his resignation in 2010.

The YouTube video is posted by Kratz as part of a series of videos to promote an update to his book that was published in 2017.

In the bizarre video entitled "Sacrificial Lamb," Kratz appears to advocate for Brendan Dassey despite the fact Kratz prosecuted Dassey for the 2005 homicide of Teresa Halbach. Legal observers and human rights advocates regard the Dassey prosecution and conviction as a miscarriage of justice.

Law enforcement surveillance of the attorney-client meeting in the video begins at the five-minute, two-second mark. The law enforcement camera looks over the shoulders of attorney Buting.

The confidentiality of the attorney-client relationship is a hallmark of the American criminal justice system and of the American legal profession, (Cornell Law School Legal Information Institute).

Wrote Buting on social media on a pined (featured) Tweet on Oct 26:
Buting's Tweet makes the point that Kratz inadvertently revealed more law enforcement misconduct in the video that could work in Avery's favor as he pursues post-conviction litigation.

Writes Buting in a follow-up:
Questions raised by Kratz' video include:

How did Ken Kratz come in possession of this law enforcement video when he is now a private citizen?

How closely is Kratz still working with Wisconsin law enforcement?

Was the Avery legal team made aware of the existence of the surveillance video?

Observers believe the existence of the surveillance video may provide more grounds for appeal in Steven Avery's post-conviction litigation.

The Wisconsin Dept of Justice is currently defending the misconduct by law enforcement in the Avery case.

The case is State of Wisconsin v. Steven A. Avery, Appeal Number 2017AP002288.

For updated legal filing and explanations, see Work with KZ.