MONTGOMERY, AL (WSFA) - The Montgomery County District Attorney's Office has responded to defense's loaded motion in an MPD Officer's murder case.
MPD Officer Aaron "Cody" Smith is scheduled to stand trial for the murder of Greg Gunn, who was shot to death during an on-duty altercation in February of 2016. Gunn was unarmed.
Thursday, Judge Greg Griffin denied Smith immunity from prosecution, affirming the trial date of August 13.
The prosecution's response takes up the three motions filed Monday by the defense, requesting the judge to recuse from the case, a change of venue, and to disqualify the District Attorney's Office.
The state's response starts by arguing against a change of venue, stating the defense must prove prospective jurors have been prejudiced by pretrial publicity, which is 'rarely applicable and reserved for only extreme situations'.
The motion explains the defense must prove pretrial media coverage is so persistent and biased that it would be impossible to select an impartial jury, and doesn't feel the defense has met this burden.
"If the media coverage is factual as opposed to inflammatory or sensation, this undermines any claim for a presumption of prejudice", the motion stated.
District Attorney Daryl confirmed to WSFA 12 News that his office has never tried a criminal proceeding outside the 15th Judicial Circuit in Montgomery County.
The state also explains there's a heavy burden of proof to show a judge is prejudiced in the case, citing the defense has not produced any proof of bias, only accusations.
The defense called Judge Greg Griffin's assertion that MPD Officer Aaron Cody Smith's testimony lacked credibility as 'erroneous and potently fatal', citing language from a Supreme Court decision,
"In situations where premature remarks are made, a red flag is raised in regard to potential bias on the part of the judge", the defense motion stated. "In such a case, this Court must closely review the remarks and conduct of the trial judge to ensure that the accused was, in fact, accorded fairness in all stages of his trial."
The state also shot down the notion of disqualifying the District Attorney's Office over the hiring of Judge Greg Griffin's son as an assistant district attorney, explaining that he works in the office's civil division and is paid by the Department of Human Resources as he works on child support cases. This action was approved by the Alabama State Bar Association prior to hiring Griffin.
The prosecution asked the judge to deny all three motions filed by the defense.
Griffin set a hearing for these motions for next week but later canceled that hearing without explanation.
Late Monday, the defense also petitioned the Alabama Court of Criminal Appeals for a Writ of Mandamus that would force the judge to gr ant Smith's immunity. The defense also requested a stay to halt circuit court proceedings while the appellate court considered their petition.
Smith's trial is less than two weeks away.