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    Judge Jacob Walker's ruling

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    © All Rights Reserved
    Download as PDF or read online from Scribd
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    11K views18 pages

    Hubbard Ruling

    Uploaded by

    John Archibald
    Judge Jacob Walker's ruling

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    DOCUMENT 659 ELECTRONICALLY FILED IN THE CIRCUIT COURT OF LEE COUNTY, ALAsAMA, STATE OF ALABAMA, v. Case No 60-2014-000565.00 HUBBARD MICHAEL GREGORY Defendant. ORDER From October 26, 2015, through: October 28, 2016, this Court conducted hearings with the parties in the above-styled case primarily related to consttutonal Issues, prosecutorial misconduct, and selective and vindictive prosecution. The Defendant was present and represented by his former attomeys Honorable J. Mark White, Honorable Augusta Dowd, Honorable Willam Bowen, Honorable Chambers Waller, and Honorable Hannah Thompson, as well as his currant attomeys Honorable Lance Bell and Honorable Blake Oliver. Acting Attomey General W. Van Davis, Solicitor General Andrew Brasher, and Deputy Altomeys General Matt Hart and Michael Duty represented the State of Alabama. After the hearings, further testimony was taken in the form of depositions. On March 3, 2016, the Court conducted a second evidentiary hhearing regarding the Defendant's renewed motion to dismiss for prosecutorial ‘misconduet. This Ordor will address the Defendant's motions to dismiss for prosecutorial misconduct and vindictive prosecution as well as the Defendant's motion to depose Deputy Attorney General Matthew Hart and both the State of Alabama's and the Defendant's motions for @ Protective Order regarding the materials submitted to the ‘Court by Mr. Coleman for an in camera inspection. |. Prosecutorial Misconduct Since March of 2016, the Defendant has fled several mations ta dismiss alleging prosecutorial misconduct. The Court will evaluate the claims of prosecutorial misconduct using the standard set out in Bank of Nova Scotia v, United States, 487 DOCUMENT 659 U.S. 260 (1988). In that case, the Supreme Court held that as a general matter, “A district court may not diemiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants” |g. at 264. "Dismissal of the indictment is appropriate only fit is established that the violation substantially influenced the grand jury's decision to indict, orf there is grave doubt thatthe decision to ndict was fre from substantial influence of such violations.” Id. at 256. To be entitled to an evidentiary hearing on the issue of prosecutorial misconduct, the Defense had to meet the ‘some evidence” standard outlined in United States v, Armstrong, 517 U.S. 456 (1996). The Court held the Defendant had met the "some evidence” standard in an October 2, 2015, Order, and granted the Defendant's request for an evidentiary hearing on the Issue of prosecutorial misconduct, “The vast majority of the Defendant's motions to dismiss focus on the Defendant's ‘contention that Deputy Attorney General Matt Hart (hereafter “Mr. Hart") exerted Influence over witnesses in front of the Lee County Special Grand Jury or that he “leaked! information from the Lee County Special Grand Jury in order to influence public ‘opinion. This Order will address the Defendants major arguments separately, ‘A. Events in Front of Lee County Special Grand Jury 1. Henry “Sonny” Reagan ‘On March 30, 2016, the Defendant fled a motion entitled, Supplement fo Motions 10 Dismiss indictment: Prosecutorial Misconduct. In that motion, the Defendant argued the “prosecution, Investigation, and Special Grand Jury’ were tainted by Mr. Hart, who they claimed was ‘more interested in revenge upon those’ who have tamished his professional and personal reputation and challenged or criticized hhis conduct than in ‘obtaining justice.” (Def. Mtn. to Dismiss at 2-3) In support ofthis claim, the Defendant ‘contended that Mr. Hart told former Deputy Attomey General Henry “Sonny” Reagan about the investigation of the Defendant and about the Lee County Special Grand Jury, despite Mr. Reagan's not having beon involved with the case, To his motion, the Defendant attached memoranda from Mr. Reagan, wherein Mr. Reagan claimed Mr. Hart told him that wale the State might not convict the Defendant, he “intended to ruln Mike Hubbard poltically.” (Def, Min, to Dismiss Ex. A at 9). The Defendant also DOCUMENT 659 contended that Mr. Hart brought Mr. Reagan in front of the Grand Jury regarding a dispute over office space within the Attomey General's Office ‘The Defendant called Mr. Reagan to testify at the evidentiary hearing held from October 26, 2016, through October 28, 2018, during which he told the Court that he prepared the memoranda in an effort to memortalize conversations he had with Mr. Hart regarding the Lee County Special Grand Jury and staterionts he perceived as threats to both himself and the Defendant, Mr. Reagan seid that he began writing an ongoing document on his computer because he was "scared he would hhave to testify” about the events. The memoranda were addressed to former Chief Deputy Attomey General Kevin Tumer and office manager Charla Doucet, but Mr. Reagan said only one mamorandum addressed to Mr. Tumer was actually delivered’. Mr, Reagan also testiied that he retained legal counsel because of a hostile workplace environment stemming from his interactions with Mr. Hart. He said that he complained to bth Mr. ‘Turner and Ms. Doucet multiple times about Mr. Hart and that Ms, Doucet told him to do What he “needed to do In order to protect himself. Mr. Reagan testified that he also reconted one conversation he had with Acting Attorney General Davis ‘The Court permitted the Defendant to depose Mr. Turner on November 23, 2015, Mr. Turner appeared in Washington, D.C.. Attoreys White and Bell and Solicitor Brasher were present in the room with Mr. Tumer and questioned him there, while the Court and other parties watched the deposition via Skype from the Administrative Office of the Courts building in Montgomery, Alabama. Mr. Tumer testified that because he did hot directly supervise Mr. Reagan, he treated Mr. Reagan's issues with Mr. Hart as an ‘employment dispute and directed Mr. Reagan to address his complaints to Ms. Doucet, since personnel issues fell within her duties as office manager. Mr. Turner confirmed that he recelved one memorandum from Mr. Reagan regarding Mr. Hart and that it roforenced the Lee County Special Grand Jury. He said that he showed that memorandum to General Strange. Mr. Tumer said that he did not recall the exact ‘number of conversations he had with Mr. Reagan regarding the Lee County Special “hr Tturmer, long wth ttomey Genera Luther Strenge had previous ecsedthemsees re the Investigation and prosecution ofthe Dafendatin ts ease. DOCUMENT 659 Grand Jury but that the conversations did not contain a lot of detail. He testified that he never spoke to Mr. Hatt regarding the complaints. 2. Howard “Gene” Sisson (On May 21, 2046, the Defendant fled a supplemental proffer to his motion to dismiss for prosecutorial misconduct. In the profer, the Defendant attached a letter written by Gene Sisson, a former Special Agent with the Attomey General's Office. The letter was addressed to Jim Sumner, then-director of the Alabama Ethics Commission, In the letter, Sisson told of what he believed were ethics violations committed by Mr. Hart regarding Mr, Reagan and the Lee County Special Grand Jury. He told Mr. Sumner that he believed Mr, Hart was using his offic for personal galin, and he attached the above-referenced memoranda written by Mr. Reagan to his leter. In Paragraph 4, Mr ‘Sisson sald In the attachments you will get a glimpse of the bullying and intimidation ‘Sonny has been subjected to by Hart. OF particular Importance Is the threat made by Hart near February of this year to bring Sonny before the Lee County Special Grand Jury because of Sonny refusal to vacate office space coveted by Hart (Sisson Letter para. 4). In Paragraph 6, Mr. Sisson elaborated: Intimidation, threats of violence, and bullying escalated and were also documented by Sonny as they occurred after that first reporting. After a short series of complaints fled with Mr. Tumer, Sonny was eventually told {0 cease bringing his complaints against Hart to the Executive Division, {Sisson Letter para. 6). In Paragraph 8, Mr. Sisson informed Mr. Sumner of Mr. Hart's response to Mr. Reagan's personnel complaint: {tis my experiance in these matters the accused employee Is interviewed last or neatly so. | am told Hart claimed his busy schedule procludad their ‘meeting which prompted Ms. Doucet to suggest they mest during the weokend. | have not been told how that suggestion was countered by Hart. I do know, though, that he acquired a Grand Jury Subpoena for Ms. Doucet’s investigative fle of him based upon an allegation that the investigation itself was an attempt to obstruct justice in Lee County. (Sisson Letter para. 8). The Defendant also attached two letters written by Mr. Sisson to General Strange and Alabama Department of Personnel Director Jackie Graham. DOCUMENT 659 ‘These lettors appear to reference to the disciplinary action taken against Mr. Sisson regarding these matters. ‘Tho Defendant called Mr. Sisson to testify at the evidentiary hearings held from October 26, 2016, through October 28, 2016. Mr, Sisson told the Court that while he was not involved with the investigation of the Defendant or the Lee County Special Grand Jury, he felt compelied as & law enforcement afficer to “file a complaint” with the ‘Alabama Ethics Commission on August 27, 2014. Later, Mr. Sisson explained that he did not fle a formal complaint but rather wrote Wi. Sumner a letter. He said he never rocelved a reply from Mr. Sumner. ‘Mr. Sumner also testified atthe evidentiary hearing regarding Mr. Sisson’s latter. He explained to the Court that before he was able to look at the substance of the document, he received a call from the Attorney Generat's Office requesting the leter as, 2 part of an investigation. Mr. Sumner said he made a copy ofthe document, but did not read it in eamest until after an employes from the Attorney General's Office had retrieved the original. Mr. Sumner testified thatthe letter from Mr. Sisson did not appear to be a complaint because it did not allege a violation of the Alabama Ethics Act. He said the word “complaint” did not appear in the letter, and no one mentioned in the letter appeared to be using his or her office for personal gain. When asked why he never responded to Mr. Sisson's letter, Mr. Sumner told the Court, “Typleally, we don't investigate things that aren't violations of the law." AC this stage of the caso, the Court finds Mr. Sumner's testimony persuasive. Mr. Sisson wrote a letter to the Director of the Ethics Commission regarding Mr. Hart's allaged behavior, and Mr. Sumner did nat fnd any ethical violations alleged In the document. 3. Deputy Attomey General Hart's Demeanor Before the Lee County ‘Special Grand Jury (On May 21, 2015, the Defendant flled a supplemental proffer in support of his motions to ismiss for prosecutorial misconduct under seal. in the motion, the Defendant attached Lee County Special Grand Jury transcripts that the Defendant argued “Teflected} 2 pattem of prosecutorial misconduct perpetrated by the State reflective of unconsttutional and ilegal conduct in addition to animus and vindictiveness DOCUMENT 659 ‘toward Hubbard that] infected the grand jury proceedings and substantially influenced thd grand jurors’ decision to indict” (Def. Min. to Dismiss para 2). The Court reviewed the transcripts atthe Defendant's request, ‘Addtionally, the Court ordered the State to produce the transcript pages of every Lee County Special Grand Jury witness being both sworn in and answering the State's questions regarding tone of the State's atiomeye and if the witnesses ever felt threatened. The State flled the supplement with the Court on July 31, 2015. The Court reviewed these transcripts for indications of Prosecutorial Misconduct. Of 156 total transcripts produced, the oniy witness who did not answer in the negative when asked if he or she felt threated gave netther a positive nor a negative response, The Cour also reviewed the full transcripts of other Lee County Special Grand Jury witnesses, along with audio recordings of some witnesses’ testimony. Furthermore, the Court allowed the Defendant to call witnesses to testily at the closed portion of the evidentiary hearings, held on October 28, 2015, regarding Mr. Hart's demeanor in front of the Lee Speclal Grand Jury. One of the witnesses fold the Court that she did not feel threatened by Mr. Hart, only that she feit he questioned her competency to pertorm ner job, ‘Upon review ofthe briefs, argument, and testimony in anticipation of, during, and following the evidentiary hearings held from October 26, 2016 through October 28, 2018, the Court is of the opinion that Mr. Hart's alleged behavior does not rise to the lovel of substantially influencing the Lee County Special Grand Jury's decision to inlet, ‘as required by Nova Scotia, 517 U.S, 456 (1996). Unlike the Court's previous Orders regarding Constitutionalty of the Alabama Ethics Act and expiration of the Lee County Special Grand Jury term, there are numerous disputed facts regarding these issues that ‘would best be decided by a jury ofthe Defendant's peers, B. Other Allegations 4. Deputy Attorney General Hart's Relationship with William “Bil” Britt The Defendant first alleged to the Court that Mr. Hart was “leaking” grand jury Information to Bill Brit in his motion to dismiss for violations of the Grand Jury Secrecy "he courtinterprets leak tomes dssembntion of rand jury testimony er evdence. The Court oes at Incrpret "ea to mean sending mations or puble matters to media contac DOCUMENT 689 ‘Act, fled on December 19, 2014. In the motion, the Defendant argued that Mr. Hart

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