MPD officer's defense team petitions appellate court for immunity, recusal

MPD officer's defense petitions appellate court for immunity, recusal

By Jennifer Horton | August 1, 2018 at 5:55 PM CDT - Updated August 9 at 4:42 PM

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.

Montgomery Circuit Judge Greg Griffin denied three defense motions on Tuesday, pushing the defense team to seek intervention from the Alabama Court of Criminal Appeals.

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 reasonableness of the use of force is evaluated under an objective inquiry that pays careful attention to the facts and circumstances of each particular case. And the 'reasonableness' of a particular use of force must be judged from the perspective a reasonable officer on the scene, rather than the 20/20 vision of hindsight. Excessive force claims….are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred. That inquiry is dispositive: When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim."

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.