MONTGOMERY, AL (WSFA) - A second motion for recusal has been filed, days after the judge denied immunity from prosecution for a Montgomery police officer charged with murder.
A strongly worded motion for recusal, change of venue, and a request to disqualify the Montgomery County District Attorney's Office was filed over the weekend by the defense.
Late Monday afternoon, the defense filed a lengthy petition with the Alabama Court of Criminal Appeals for a Writ of Mandamus to force Judge Greg Griffin to grant immunity in this case, and for a stay in the circuit court proceedings pending a decision in this matter.
MPD officer Aaron "Cody" Smith is indicted for the murder of Greg Gunn, who was fatally shot during a physical altercation on Feb. 25, 2016. Gunn was unarmed.
The defense called Griffin's comment, measuring the credibility of Smith's testimony, as 'inappropriate", implicating Smith as unjustified in his use of lethal force.
"…This Honorable Court invited the media into the courtroom only to voluntarily proclaim that he believed that the officer's testimony was not credible tainting the community's perception of Officer Smith and the eventual jury pool", the motion stated.
The defense believes this comment is also grounds for a change of venue for the trial, which is set for August 13. The defense also filed an exhibit with numerous stories from across the country quoting Griffin's statement about the officer's testimony.
"Here, the trial court has allowed any and all media into the courtroom to sit and hear the testimony and observe the evidence presented. In doing so, this Honorable Court has taken this serious litigious matter and transformed it into an immediate media circus. Specifically, in knowing that the media sat attentively in the audience this Honorable Court stated, "I have to admit to you, I don't find the officer's testimony to be credible".
The motion also seeks to disqualify the Montgomery County District Attorney's Office, citing Judge Griffin's son is now employed as an Assistant District Attorney in this office.
"Thus, since the Court's son and namesake has become employed with the Montgomery District Attorney's Office as an Assistant District Attorney for Montgomery County, Alabama, the very office prosecuting this action, a conflict has been created which would case this Honorable Court to recuse himself from this matter", the motion stated.
The motion goes on to cite Cannon 3 (c) of the Alabama Canons of Judicial Ethics,
"The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "his impartiality might be reasonably questions" under Canon 3C(1) or that the lawyer-relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceedings' under Canon 3C(1)(d)(ii) may require his disqualification."
Montgomery County District Attorney Daryl Bailey confirms the judge's son, Gregory Griffin, works in the office's civil division handling child support cases, stating Griffin works in a separate building from the criminal division and is walled off from the case. Bailey confirms the D.A.'s Office consulted with the Alabama State Bar Association prior to Griffin's hire.
At the time of this statement, Bailey had not read the motion and couldn't comment further on the filing. The D.A.'s Office has strongly opposed any action to take this case outside the 15th Judicial Circuit for prosecution.
Griffin had agreed to allow cameras in the courtroom for the immunity hearing. While the defense agreed, the Montgomery District Attorney's Office declined the request.