MONTGOMERY, AL (WSFA) - The defense team for MPD Officer Aaron "Cody" Smith files second petition with the Alabama Court of Criminal Appeals in a high-profile murder case.
Smith is indicted for the murder of Gregory Gunn, whom was shot to death during an on-duty altercation in February 2016. Gunn was unarmed.
This is one of many filings by the defense that followed a hearing in July, where Smith was denied immunity. During that hearing, Griffin stated he did not find Smith's testimony credible, launching concerns by the defense that Griffin tainted the potential jury pool in Montgomery two weeks prior to trial.
Wednesday, the defense team filed a supplemental petition for a Writ of Mandamus with the Alabama Court of Criminal Appeals requesting the appellate court to issue a stay in the circuit court proceedings while it reviews their petition, and to force Griffin to gr ant Smith immunity from prosecution or recuse from the case.
In the petition, the defense recognized a Mandamus is an extraordinary remedy but felt it is appropriate in this circumstance.
"The trial judge, with no regard for Officer Smith presumption of innocence has poisoned the potential jury pool by stating, "I have to admit to you, I don't find the officer's testimony credible,'" the petition reads.
In arguing for the Court to compel Griffin to gr ant immunity, the defense cited any claim that a law enforcement officer used excessive force must be analyzed under the Fourth Amendment's "reasonableness" standard.
The defense argued the appellate court should also compel Griffin to recuse due to his assertion that Smith's testimony lacked credibility.
"Although, actual bias is not necessary, the recusal of a trial judge is not required by the mere accusation of wrongdoing, it is the duty of the judge to disqualify himself wherever at whatever state of the litigation it appears that his partiality might reasonably be questioned," cited caselaw quoted in the motion.
The petition requested the Alabama Court of Criminal Appeals to compel Griffin to gr ant an Immunity from prosecution. However, if it affirms Griffin's decision not to gr ant immunity, the defense asked that the appellate court order Griffin to recuse from the case.
Other parties must now respond to this petition.
Smith's trial is scheduled for Aug. 13.