Appellate court denies Montgomery officer's petition for immunity, judge recusal

Appellate court denies Montgomery officer's petition for immunity, judge recusal

MONTGOMERY, AL (WSFA) - A Montgomery police officer facing an imminent murder trial was handed a legal setback Friday in his efforts to have the trial stopped on grounds of immunity, or to have the trial moved or the judge taken off the case.

The Alabama Court of Criminals Appeals denied MPD officer Aaron "Cody" Smith's petition for a Writ of Mandamus to compel Montgomery Circuit Judge Greg Griffin to grant him immunity from prosecution, to recuse from the case, and for a change of venue.

The denial comes after Griffin, himself, denied the subsequent motions filed in circuit court.

Smith is indicted for the murder of Gregory Gunn, who was shot to death during an on-duty altercation in February 2016. Gunn was unarmed.

This is one of many filings by Smith's attorneys 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.

"But I have to admit to you that I did not find the officer's testimony today to be credible, and, therefore, I do not feel that you have met your burden of proof that he's entitled to immunity, and this trial will proceed on August 13," Griffin stated in court.

The Alabama Court of Criminal Appeals stated it could not conclude from the petition that Griffin abused his discretion in denying Smith's motion, calling the statement judicial in nature, explaining his decision for denying immunity.

The order cited that Smith must show Griffin's statement was made with personal bias in order to argue a motion for recusal. The appellate court also stated it was not available to rule on a motion for change of venue based on pretrial publicity.

Smith's lawyers will now appeal to the Alabama Supreme Court.

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