MONTGOMERY, AL (WSFA) - Montgomery Circuit Judge Greg Griffin denied the defense's motion Tuesday for a change of venue in the murder case involving Montgomery police officer Aaron "Cody" Smith.
Smith was charged with murder following the fatal shooting of Montgomery resident Greg Gunn during a routine stop on Feb. 25, 2016. Gunn was unarmed, but Smith's defense team argues the officer's life was in danger.
The defense also asked the appeals court to stay the hearing for a change of venue, while they considered the recusal matter, but the court failed to rule on the stay prior to Tuesday's hearing.
Smith's legal team is now expected to file another petition with the Alabama Court of Criminal Appeals to stay Tuesday's ruling.
The 15th Judicial Circuit's backlog in criminal cases, specifically murder cases is no secret. Defense attorney Mickey McDermott questions why Smith's case, which is set for trial in October, will be tried years ahead of other murder cases.
"I do want to note that all the other circuit judges recused from this case, and Judge Griffin refused to recuse", McDermott said. "He has expedited this case, perhaps on a personal basis or because he feels the community isn't being well served, it's a decision he is entitled to make. He is an intelligent and fair man and we will rest on his decisions."
The state flatly opposed changing the venue for this case. Deputy District Attorney Lloria James filed a brief opposing the change of venue citing that excessive publicity in this case does not translate to prejudice.
"Actual prejudice can only occur once prospective jurors have been questioned", the court document states. "Therefore, the defendant has no viable claim of actual prejudice because there has not been a venire formed, let alone questioned. Consequently, any argument should focus on presumptive prejudice from any pretrial publicity."
McDermott disagrees and feels signs and posters around the city are contaminating the prospective jury pool.
"It will make getting a jury in this community very difficult", McDermott stated.
The defense will request a hearing to argue Smith was acting in self-defense, according to Alabama's modified stand your ground law, which has provisions set out for law enforcement officers.
"We believe Officer Aaron "Cody" Smith is entitled to that hearing and a decision in his favor", McDermott stated.