Hubbard asks appeals court to grant acquittal or new trial

Published: May. 24, 2017 at 3:57 PM CDT|Updated: May. 24, 2017 at 10:07 PM CDT
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(Source: Todd J. Van Emst/Opelika-Auburn News/Pool)
(Source: Todd J. Van Emst/Opelika-Auburn News/Pool)

MONTGOMERY, AL (WSFA) - Former Alabama House speaker Mike Hubbard has officially filed an appeal brief with the Alabama Court of Criminal Appeals.

Hubbard's defense team is requesting a judgment of acquittal or a new trial in his 2016 high-profile ethics case.

Hubbard was indicted on 23 Ethics Law violations in 2014, and in 2016, a Lee County jury convicted Hubbard on 12 counts.

The appeal argues Hubbard didn't violate the ethics law, instead stating the prosecution expanded the Ethics Laws to fit their case.

"A recurring danger, in the realm of public ethics laws, is that certain prosecutors seek to read those laws very expansively, stretching the words of the laws beyond their actual meaning so that they cover everything the prosecutors seem unseemly, and prohibiting everything the prosecutions assert should be prohibited," the appeal states.

The defense brings up an issue that was critical during the trial, which is the proper definition of a principal, lobbyist, the full value of a thing of value and compensation. They believe the improper use of these words helped convict Hubbard in what they determined as non-Legislature related business transactions that the state ultimately saw as a conflict of interest.  The defense blames the state for using those words outside what the Legislature intended when voting to enact the Ethics Law.

The appeal argues the trial court, presided over by Judge Jacob Walker, failed Hubbard by allowing former Ethics Director Jim Sumner, a state witness, to testify as an expert witness without proper certification before the trial.

"Sumner was permitted to testify at length as to his assertions about what various portions of the Alabama ethics statutes mean, why they were enacted and so forth.  Various objections by Hubbard to testimony of that sort were overruled," the appeal states.

Defense attorneys also ask the Court of Criminal Appeals to determine whether Walker erred when denying their motion for a new trial on allegations of prosecutorial misconduct.  The allegations stem from comments reportedly made about Hubbard by prosecutor Matt Hart, who leads the attorney general's public integrity unit.

"Most prominently, prosecutor Hart – did make himself such an overbearing presence in the grand jury process, that the indictment can only be seen as his rather than the grand jury's.  At the very least, there is grave doubt that the grand jury was truly independent of his overbearing pressure," the appeal stated.

The defense cites the trial court had extensive expert testimony from a leading expert on prosecutorial misconduct, referred to as Professor Gershman, who reported "There is no doubt that Hart's misconduct substantially influenced the Special Grand Jury's decision to induct Hubbard."

Court documents show Hart reportedly made this statement to a former AG prosecutor:

"Hart "was going to get [Ethics Director] Jim Sumner in the Grand Jury room and break him like a twig, … and get him to recant whatever ethics opinions he had issued to Mr. Hubbard."  Hart said that he would "tie a noose around [Hubbard's] [expletive] neck and cinch it down until he is grasping for [expletive] air, and then perhaps then [Hubbard] would plead guilty and resign."  Hart said that would "ruin Mr. Hubbard politically, that specifically he would put a one five five millimeter Howitzer right through him and he didn't care about the collateral damage to anyone else. "

Defense attorneys also charged the appeals court to determine whether the court failed to properly investigate alleged juror misconduct.

"The trial judge did not inform the defense of anything about this at all, until the concerned juror came forward after the trial," the defense reported.

The defense also reports an issue with the jury charge.  The defense's request change a portion of the jury charge was denied and was "indisputably" not covered in the court's instructions to the jury.

The defense argues the insufficiency of evidence, refusal to give requested jury charges, error in allowing Sumner to testify as an expert witness and the trial court's failure to properly investigate juror misconduct are grounds for a new trial.

The defense requested oral arguments for this appeal, however oral arguments are rarely granted by the Court of Criminal Appeals.  In around two thousand cases filed each year, only about 30 cases are granted the opportunity to engage in oral arguments before the court.

Generally the Alabama Court of Criminal Appeals decides the vast majority of the cases in less than three hundred days from the notice of appeal.  No statutory deadline exists for the Alabama Court of Criminal Appeals.

The Attorney General's Office must respond in 42 calendar days to this brief.  Hubbard was sentenced to 4 years in prison, but is currently out on appeal

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