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No timeline for MPD officer's murder trial, awaiting AL Supreme Court ruling

Updated: Oct. 23, 2017 at 10:26 PM CDT
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MONTGOMERY, AL (WSFA) - The trial for one of the most high-profile murder cases in Montgomery was scheduled to begin Monday, but remains on hold awaiting a decision by the Alabama Supreme Court.

Montgomery Police Officer Aaron Cody Smith is charged with the murder of Greg Gunn. Smith fatally shot Gunn while on duty in February of 2016. Gunn was unarmed.

While Smith's murder quickly moved through the courts, that progress will likely be thwarted for the foreseeable future.

The case is currently stayed by the Alabama Supreme Court as they consider a petition by the defense for a Writ of Mandamus to force Montgomery Circuit Judge Greg Griffin to recuse from the case. Griffin denied the defense's motion to recuse over a Facebook post where Griffin discussed being stopped by MPD while walking in his neighborhood.

The defense felt Griffin's post in some ways mirrored the current prosecution, as Gunn was walking through his neighborhood when stopped by Smith.

"The case is waiting for them to resolve an issue," stated Smith's defense attorney Mickey McDermott. "I believe that perhaps, one of the reasons they have not released a decision is one of their own members, Justice Tom Parker has filed a case in federal court to change the rules on judges and their First Amendment rights, on what they can and can't comment on."

Parker believes the Alabama Canons of Judicial Ethics, which governs judges in the state, infringes on his right to free speech to comment on public issues. The Court of the Judiciary filed a complaint against Parker for comments he made on a radio show regarding the state's defiance of the U.S. Supreme Court's ruling on same sex marriage, which was later d ropped.

Parker filed a federal lawsuit in 2016 regarding the issues of free speech, which is ongoing. Monday, Parker's legal team filed a proposed schedule for the federal case, which involves settlement discussions in May of 2018, and a trial in 2019.

"Justice Parker recused himself, as you'll remember," defense attorney Roianne Conner explained. "He did not even consider the stay, and he has recused himself from hearing this case. I do think it is impacting the Alabama Supreme Court, not to get in their minds – because I can't, but it looks like they are waiting to see how the Parker case is resolved on the federal level before they issue a ruling here."

The defense believes Parker's recusal lends credence to their position on the writ of mandamus.

When the high court determines who will preside over the case, the defense will request an immunity hearing.

"Immunity now applies to a law enforcement officer using reasonable and justifiable force in protecting himself and others, as along as he is lawfully performing his duties or in a place he or she is lawfully allowed to be at," stated McDermott. "We feel that definition encompasses our officer."

The immunity applies to law enforcement officers charged criminally and in civil cases, which applies to Smith. If he isn't gr anted immunity, the defense will also put that issue before an appellate court.

"We are obligated to leave no stone unturned, any lawyer in our position would do the same thing," stated McDermott.

It's also expected the defense would renew their requests for a change of venue, which was previously denied by Griffin.

The state declined to speak to us on camera, but argued against the recusal issue in court, and would oppose immunity in this case. District Attorney Daryl Bailey has followed guidelines to not discuss this ongoing investigation, gr anting few interviews on this case.

Despite the time that's passed, Conner and McDermott do not feel the case has lost public interest, citing ongoing personal threats and vandalism for defending Smith.

"I think it will go rear its head again," Conner said of the hostility toward the defense. "We will still have heat in this case when we go to trial."

The date of that trial, could be at least another year away.

McDermott acknowledges the weight this case has placed on both families, and this community.

"We would like the public to remember Officer Smith and his family, they have had a difficult time, and we want the citizens in this area to keep the Gunn family in their thoughts," McDermott said. "We believe this was a tragedy and justice will be served."

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