IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA STATE …media.al.com/news_impact/other/Here is state's...
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IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA
STATE OF ALABAMA, )
)
)
)
v. ) CASE NO. CC-2014-000565
)
)
)
MICHAEL GREGORY HUBBARD, )
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Defendant. )
STATE’S SURREPLY TO HUBBARD’S REPLY TO
STATE’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION
FOR MORE DEFINITE STATEMENT
The State of Alabama, hereby submits its Surreply to defendant Michael
Gregory Hubbard’s (“Hubbard”) Reply to the State’s Response in Opposition to
Defendant’s Motion for More Definite Statement. Hubbard has failed to show
“good cause” for the granting of his motion. For that reason, and those stated
below, Hubbard’s motion is due to be denied.
1. Hubbard filed a Motion for More Definite Statement on December 22,
2014. On January 28, 2015, counsel for Hubbard sent a letter to the State in which,
among other things, defense counsel agreed that the State’s Response to Hubbard’s
Motion for More Definite Statement would be due on Friday, February 27, 2015.
(See Letter, at ¶ 2, attached hereto as Exhibit A) (defense counsel wrote: “This is
ELECTRONICALLY FILED3/9/2015 1:41 PM
43-CC-2014-000565.00CIRCUIT COURT OF
LEE COUNTY, ALABAMAMARY B. ROBERSON, CLERK
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acceptable” regarding the proposed deadline). At a scheduling conference on
January 30, 2015, Hubbard confirmed his agreement that the State could have until
February 27, 2015, to respond to the Motion. (January 30, 2015 Tr., at p. 4,
attached hereto as Exhibit B.) Consistent with Hubbard’s agreement, this Court
entered an Order, which stated: “The State is to respond to Hubbard’s Motion for
Definite Statement by February 27, 2015.” (February 5, 2015 Order, at p. 2, ¶5). In
compliance with this Court’s Order, the State filed its Response in Opposition to
Hubbard’s Motion for More Definite Statement on February 27, 2015.
2. Despite his agreement to the February 27 deadline, and even though
the Court’s Order established that deadline, counsel for Hubbard issued a press
release on February 27 in which he alleged that the timing of the State’s filing was
politically motivated. The press release stated in part: “This filing – just days
before the start of the 2015 legislative session – yet again raises questions about
political timing and motivations surrounding this matter.” (Statement of J. Mark
White for Hubbard Legal Team, attached hereto as Exhibit C) (emphasis added).
The State clearly filed its Response as ordered by the Court and as agreed by
Hubbard, and his counsel knew that. Counsel’s public statement to the media is
therefore indefensible.
3. On March 4, 2015, Hubbard filed a Reply in support of his Motion for
More Definite Statement in which he fails to address his burden to show “good
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cause” for the granting of his motion. Instead, Hubbard misapplies Alabama law,
raises irrelevant federal filing rules (which obviously do not apply in this state
court case), and attempts to re-litigate the issue of whether State filings should be
made under seal (although notably he now appears to expand his previous
arguments beyond just filings referencing 404(b) evidence to any State filings that
address the merits of the case). Tellingly, Hubbard completely ignores his burden
to show “good cause” before his motion for more definite statement can be
granted. See Rule 13.2(e) Ala. R. Crim. P. (“A motion for more definite statement
may be made at any time prior to entry of the defendant’s plea, which motion shall
be granted for good cause shown.”) (emphasis added); see also Hugh Maddox,
ALABAMA RULES OF CRIMINAL PROCEDURE, §13.2 at p. 466) (stating that “…the
Committee’s comment that ‘it is contemplated that motions for more definite
statement will not be routinely made or granted’ seems to indicate that the
Committee did not intend for the motion for more definite statement to be used
as a discovery rule.”) (emphasis added).
4. Instead of even attempting to show “good cause,” Hubbard attempts
to shift his burden to the State. (See Hubbard’ Reply at p. 3) (stating that “The
State cannot satisfy its burden by supplying examples of what Hubbard ‘might’ be
charged with.”) (emphasis added). The State has no burden to satisfy in opposing
Hubbard’s Motion for More Definite Statement; rather, it is Hubbard’s burden to
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show “good cause” why his motion should be granted. See Rule 13.2(e) Ala. R.
Crim. P. Hubbard’s failure to even articulate a basis for “good cause” is reason
enough to deny his motion.
5. Even if Hubbard had attempted to satisfy his burden, Hubbard still
cannot show “good cause” because, as set forth in the State’s detailed Response,
the indictment and discovery clearly inform Hubbard “with a reasonable certainty
of the nature of the accusation against him so that he may prepare his defense.”
Shouldis v. State, 953 So.2d 1275, 1283 (Ala. Crim. App. 2006). That is, the
State’s discovery has provided “any critical details that are available to the State”
to Hubbard and have now been “gathered by the defendant through … other
pretrial discovery procedures.” R.A.S. v. State, 718 So.2d 117, 121 (Ala. 1998)
(emphasis added).
6. Hubbard ignores the fact that the indictment and the discovery inform
him of the nature of the accusation against him and instead continues to request a
“bill of particulars” – even though he “is not entitled to a bill of particulars under
Alabama law.” Johnson v. State, 335 So.2d 663, 672 (Ala. Crim. App. 1976).
Hubbard is likewise incorrect that he is entitled to have the State explain how it
will prove its case at trial. See Hunt v. State, 642 So.2d 999, 1026 (Ala. Crim. App.
1993) (“The government need only allege the essential facts necessary to apprise a
defendant of the crime charged and not its theory of the case.”) (internal citations
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and quotations omitted). Accordingly, Hubbard’s motion is due to be denied
because he has not carried his burden to show “good cause.”
7. Hubbard’s Reply also improperly attacks the motives of the
prosecution by citation to inapplicable federal court filing rules. Confirming the
inapplicability of the federal rules he cites, Hubbard’s Reply concedes that
Alabama law does not require the redaction of identifying information from
documents filed in criminal cases. (See Hubbard Reply, at ¶¶9-13). Further,
Hubbard ignores the fact that the State’s detailed Response Brief and exhibits are
clearly permissible under Alabama law:
While the sufficiency of a criminal indictment is determined from its
“face” and within “the four corners” of the indictment, any
“vagueness” or “uncertainty” in Hunt's understanding of the
indictment was removed by the Attorney General's lengthy response
to Hunt's motion for a more definite statement. … In response to
Hunt's motion for a more definite statement, the Attorney General
filed a lengthy written response and attached extensive exhibits
including Hunt's income tax returns.
Hunt, 642 So.2d at 1026, 1031. Since the federal law Hubbard cites does not apply
in state court, the only relevant law here is Hunt, which clearly permits the State to
respond in the manner in which it did. Consistent with Hunt, the State properly
filed a lengthy and detailed Response to Hubbard’s Motion for More Definite
Statement with extensive exhibits containing documents produced to Hubbard in
discovery. Accordingly, the State’s filing was not only appropriate under Alabama
law, but was also responsive to Hubbard’s Motion.
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8. Hubbard’s Reply also attempts to re-litigate his motion to require the
State to file 404(b) material under seal. That motion was previously briefed and
orally argued on January 30, 2015. (See Ex. B). Following briefing and oral
argument, this Court resolved Hubbard’s motion by entry of an Order on February
5, 2015, which did not require the State to file any pleadings or documents under
seal. Hubbard’s current argument that nothing should be filed by the State until the
Court has ruled on its admissibility would practically require the State to make all
pre-trial filings under seal. In other words, it would require the parties to litigate in
secret, which this Court clearly rejected in its February 5, 2015 Order.1
9. In sum, Hubbard’s Motion for More Definite Statement asked the
State to put some meat on the bones of the indictment. In line with Hunt, the State
did that. Hubbard’s complaint that the result of his request was exposure of his
wrongdoing should fall on deaf ears. See Quotations of Benjamin Franklin,
Applewood Books, at p. 22 (“He that blows the coals . . . has no right to complain
if the sparks fly in his face.”).
1 Hubbard’s citation to the Bobo decision again has no bearing on the issue before the
Court. The State again notes for the record that the Eleventh Circuit issued the following
decision in a later appeal in that case: “[I]n the interest of eliminating any doubt of judicial
fairness and impartiality, we direct that this case be reassigned to a different judge upon remand
for further proceedings.” Bobo v. United States, 185 Fed. Appx. 885, 888 (11th Cir. 2006) (per
curiam).
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In accordance with the foregoing, the State respectfully requests that this
Court enter an Order denying defendant Michael Gregory Hubbard’s Motion for
More Definite Statement.
Respectfully submitted this 9th
day of March 2015.
W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Miles M. Hart
Miles M. Hart
Deputy Attorney General
Chief, Special Prosecutions Division
OF COUNSEL:
W. Van Davis
Supernumerary District Attorney,
Acting Attorney General
423 23rd
St. North
Pell City, AL 35125-1740
Michael B. Duffy
Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, AL 36130-0152
(334) 242-7300
(334) 242-4890 – FAX
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CERTIFICATE OF SERVICE
I hereby certify that I have, this the 9th day of March 2015, electronically
filed the foregoing using the AlaFile system which will send notification of such
filing to the following registered persons, and that those persons not registered with
the AlaFile system were served a copy of the foregoing by U. S. mail:
J. Mark White, Esq.
Augusta Dowd, Esq.
William Bowen, Esq.
William Chambers Waller, Esq.
White Arnold & Dowd P.C.
2025 Third Avenue North, Suite 500
Birmingham, AL 35203
Phone: (205) 323-1888
FAX: (205) 323-8907
R. Lance Bell
Trussell Funderburg Rea & Bell, PC
1905 1st Ave South
Pell City, AL 35125-1611
Phillip E. Adams, Jr.
Adams White Oliver Short & Forbus LLP
205 S 9th Street
Opelika, Alabama 36801
Phone: (334) 745-6466
Fax: (334) 749-2800
/s/ Miles M. Hart
Deputy Attorney General
EXHIBIT A
EXHIBIT B
1 IN THE CIRCUIT COURT
2 FOR THE COUNTY OF LEE
3 STATE OF ALABAMA
4 THIRTY-SEVENTH JUDICIAL CIRCUIT
5 CRIMINAL DIVISION
6 STATE OF ALABAMA,
7 PLAINTIFF,
8 VS. CASE NO:
9 MIKE HUBBARD
10 DEFENDANT.
11 ___________________/
12 PROCEEDINGS
13 BEFORE:
14 HONORABLE JACOB A. WALKER, III, CIRCUIT
15 COURT JUDGE, LEE COUNTY JUSTICE
16 CENTER. JANUARY 15, 2015
17 APPEARANCES:
18 FOR THE STATE:
19 HON. MATT HART
20
21 FOR THE DEFENDANT:
22 HON. MARK WHITE
23 HON. AUGUSTA DOWD
24 HON. WALLER
25 HON. PHIL ADAMS
1
1 PROCEEDINGS HAD IN OPEN COURT
2 JANUARY 30, 2015
3 (Parties present and the following
4 proceedings were had.)
5 DEPUTY: All rise.
6 (Parties comply.)
7 THE COURT: Y'all keep your
8 seats.
9 (Parties sit down.)
10 THE COURT: Y'all ended up at
11 the wrong tables.
12 MR. HART: I didn't do it,
13 Judge. You know that.
14 THE COURT: All right. Okay.
15 I guess, first, let's just kind of
16 work backwards. When do y'all want
17 it set?
18 MR. WHITE: Judge, we -- I know
19 it would shock the Court, but we
20 have actually been in communications
21 with each other, and we have reached
22 some agreements --
23 THE COURT: Okay.
24 MR. WHITE: -- on what might
25 make sense. And working backwards
2
1 is probably a good place to start.
2 I will see if Mr. Hart agrees with
3 that.
4 THE COURT: All right.
5 MR. WHITE: But I think we have
6 looked at, as far as a trial date,
7 of -- the week of October the 19th,
8 is sort of what --
9 THE COURT: Okay.
10 Mr. WHITE: -- Mr. -- my
11 co-counsel here is coming back from
12 being out of the country, especially
13 for that case. I think that's
14 probably what works. And then we --
15 we have looked at the civil
16 calendar, criminal calendar.
17 THE COURT: Uh-huh (affirmative
18 response).
19 MR. WHITE: The one question we
20 don't know is, are we going to be in
21 this building or the new one?
22 THE COURT: Well -- well, we
23 will be here.
24 MR. WHITE: Okay.
25 THE COURT: No. No. They are
3
1 -- they are having a -- there is
2 going to be a nice, big courtroom
3 over there, but it's not going to be
4 finished.
5 MS. DOWD: Okay.
6 THE COURT: So it's going to be
7 just a nice, big concrete floor with
8 no Sheetrock or anything. So -- so
9 we will -- we will be right here.
10 MR. WHITE: Well, we didn't --
11 none of us intended, on either
12 side, to touch on a sore subject by
13 asking that question. And then,
14 Judge, we were looking at, as I
15 understand from the -- as we stand
16 here today, --
17 THE COURT: Uh-huh (affirmative
18 response).
19 MR. WHITE: -- the State has
20 responses due in February --
21 THE COURT: Uh-huh (affirmative
22 response).
23 MR. WHITE: -- on the motion
24 for a more definite, and on the
25 production. As I understand it,
4
1 Mr. Hart has got some additional
2 electronic problems on his
3 production --
4 THE COURT: Uh-huh (affirmative
5 response).
6 MR. WHITE: -- and is trying to
7 get an additional two weeks. Is
8 that right, Matt?
9 MR. HART: That's correct. Let
10 me just -- would you give him --
11 THE COURT: Now, what about --
12 okay. And do you want to address
13 that motion to seal or not seal the
14 404 B.
15 MR. HART: We will address that
16 one today, Your Honor, --
17 THE COURT: Okay.
18 MR. HART: -- because it will
19 affect all of the rest. I have
20 given one of those to the defense.
21 MR. WHITE: The 404 --
22 MR. HART: Yes.
23 THE COURT: Well, typically, I
24 mean, the -- the basic response is
25 filed, but whatever the supporting
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1 documents are not filed.
2 MR. WHITE: And -- and Judge, I
3 think I can help you --
4 THE COURT: Okay.
5 MR. WHITE: -- with that. When
6 we filed the original 404 --
7 THE COURT: Yes.
8 MR. WHITE: -- and we are
9 putting the burden on you --
10 THE COURT: Yes.
11 MR. WHITE: -- about examining,
12 I -- I -- we were not aware of the
13 procedure that had been used in --
14 by Judge Cole. We are perfectly
15 fine --
16 THE COURT: Okay.
17 MR. WHITE: -- with them filing
18 the notice and to -- and putting the
19 burden on us to object. I think
20 Mr. Hart has some timing issues
21 that we have not been able to agree
22 on. He would rather -- I would --
23 we would like it sooner, and he
24 needs later. Is that correct?
25 THE COURT: Okay.
6
1 MR. HART: That -- that's
2 correct. Your Honor, we intend to
3 file our 404 B notice in accordance
4 with the rules. We didn't like
5 Judge Cole's procedure.
6 THE COURT: Okay.
7 MR. HART: We didn't agree to
8 it. It was very unusual, even in
9 that circuit. We are -- we want to
10 follow the local practice, which is
11 what we typically try to do. I have
12 talked to the DA's Office and looked
13 at several cases, even some high
14 profile cases, --
15 THE COURT: Uh-huh (affirmative
16 response).
17 MR. HART: -- Desmonte Leonard,
18 Harvey Updyke, and so forth. And we
19 are going to file our 404 B notice
20 just like they do in all those other
21 cases; --
22 THE COURT: Okay.
23 MR. HART: -- that's our
24 intent.
25 And timing-wise, we
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1 are -- don't intend to give it to
2 them. We are going to give it -- we
3 propose to give it to them 90 days
4 before trial.
5 THE COURT: Uh-huh (affirmative
6 response).
7 MR. HART: That's plenty of
8 file to get it and use it and do
9 whatever they need to do with it.
10 THE COURT: Okay. Now, what I
11 have done in other things, when
12 they -- when they -- in other cases
13 when they had filed notice and --
14 and then if you wanted to have a
15 lengthy hearing about the 404 B, I
16 have made that a closed hearing.
17 MR. WHITE: Yes.
18 THE COURT: But that was -- but
19 that was only in -- in --
20 MR. WHITE: Here is --
21 THE COURT: -- capital murder
22 cases where the State was seeking
23 the death penalty --
24 MR. WHITE: -- here is what
25 I --
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1 THE COURT: -- that I -- that I
2 can recall.
3 MR. WHITE: -- here is what we
4 are trying to avoid. He -- we are
5 trying to avoid having a bunch of
6 stuff that gets put in the public
7 record that is determined not to be
8 relevant --
9 THE COURT: Sure.
10 MR. WHITE: -- or admitted.
11 And whatever mechanism you have used
12 in the past for that is fine. I
13 sort -- I -- I thought it would be
14 easier on -- and -- on your time if
15 they filed the notice on a day
16 certain and produced the materials
17 to us and then we'd have "X" days to
18 object.
19 THE COURT: Okay.
20 MR. WHITE: We -- we,
21 obviously, don't agree that it needs
22 -- we -- we think it ought to be
23 sooner rather than later. That's
24 kind of where we are on the issue,
25 and it's time for you to rule is
9
1 kind of --
2 THE COURT: Okay.
3 MR. WHITE: -- what I think.
4 THE COURT: Well, what -- let
5 me give you a couple of possible --
6 MR. WHITE: Okay.
7 THE COURT: -- hearing dates.
8 MR. HART: And, Your Honor,
9 this hearing is for -- the one we
10 are talking about --
11 THE COURT: Well, if -- well,
12 one, this would be a hearing --
13 you know, let's say you -- you
14 can't agree on your -- the -- the
15 motion for a more definite
16 statement.
17 MR. HART: Okay. Okay.
18 THE COURT: Or you -- or you
19 can't -- you can't agree on your 404
20 B matters. That one could actually
21 be a little bit later, but I think
22 the one on the motion for a more
23 definite statement should be a
24 little sooner.
25 MR. HART: We don't disagree,
10
1 Judge. One -- one thing we're
2 trying to avoid -- let me tell you
3 what our -- if I may, our posture.
4 We don't need a hearing every
5 time -- I mean, first of all, under
6 the rules --
7 THE COURT: That -- that would
8 be good.
9 MR. HART: That was a good
10 point, wasn't it? Thank you, Your
11 Honor.
12 Under the Rules, 15
13 point four, motions to dismiss, in
14 particular, are intended to be
15 consolidated. You are supposed to
16 put all your grounds in one motion
17 to dismiss and not file one this
18 week and ask for a hearing and see
19 how that goes and then file one two
20 weeks from now and ask for a hearing
21 and see how that goes. The defense
22 has already stated in public and in
23 some of their communications and
24 filings and so forth -- for
25 instance, they intend to challenge
11
1 the constitutionality of the
2 statute. They know that now. They
3 know that before discovery and so
4 forth. Many things they know. They
5 have a schedule to do some of these
6 motions that they have --
7 THE COURT: Okay.
8 MR. HART: -- shared in part.
9 We want it all -- we want as few
10 hearings as we can have so we can
11 move orderly, and we want to know
12 what we are dealing with. We don't
13 want a motion to dismiss filed 30
14 days before trial.
15 THE COURT: Sure.
16 MR. HART: And that's where we
17 are headed. And that's what we
18 would like to avoid.
19 THE COURT: Well, what I am
20 anticipating any motion to dismiss,
21 any motion for a more definite
22 statement, trying to do it sometime
23 this spring. If you -- if you had
24 to have a hearing regarding any 404
25 B matter, evidentiary matter, that
12
1 could be, you know, later this
2 summer.
3 MR. WHITE: You have got two --
4 currently you have got two
5 motions -- well, really three
6 motions to dismiss pending.
7 THE COURT: Uh-huh (affirmative
8 response).
9 MR. WHITE: We broke them out
10 by subject, even though we filed
11 them pretty close. One of them is
12 based on the issue --
13 THE COURT: Uh-huh (affirmative
14 response).
15 MR. WHITE: -- as to the
16 appointment of the acting grand
17 jury. We would need to take
18 evidence on that. There is another
19 one on conduct of the grand jury.
20 We need to take evidence on that,
21 but I don't see any reason why we
22 couldn't get a -- two or three days
23 and do all that -- knock all that
24 out at the same time frame, Judge.
25 THE COURT: Okay.
13
1 MR. WHITE: We have indicated
2 to the State that we are, in fact,
3 going to raise some issues. By way
4 of example, the first four counts
5 are -- basically relate to conduct
6 while chairman of the political --
7 THE COURT: Uh-huh (affirmative
8 response).
9 MR. WHITE: -- party is
10 spending private money. You -- we
11 don't look far in the law library
12 for that one, because that hasn't
13 ever been used before.
14 THE COURT: Uh-huh (affirmative
15 response).
16 MR. WHITE: So you're going to
17 have both a facial issue and as
18 applied issue there. What we need,
19 though, is we need the response to
20 the more definite statement, and we
21 need the production. I don't
22 need -- we don't need it as much for
23 the current motions that are filed,
24 but for the other motions, --
25 THE COURT: Sure.
14
1 MR. WHITE: -- we absolutely
2 need them.
3 THE COURT: Well, let me give
4 you these dates and --
5 MR. WHITE: Okay.
6 THE COURT: -- really, going
7 into April 15th, 16th, and 17th, I
8 mean, I can move some things around
9 and give you basically two -- two
10 days or so --
11 MR. WHITE: Okay.
12 THE COURT: -- even back to
13 back right in there.
14 MR. WHITE: Okay.
15 THE COURT: If you wanted to go
16 to -- if you wanted to wait and go
17 to May 20th or May 22nd, but -- I
18 mean, I think those April dates
19 would be a little better.
20 MR. WHITE: I think we just
21 lock them down.
22 THE COURT: Okay. Well, do you
23 want to do it April 15th?
24 MR. WHITE: I think that works.
25 THE COURT: Okay.
15
1 MR. WHITE: I would like to do
2 -- anything other than what else I
3 am going to have to do on April the
4 15th, --
5 THE COURT: Right. And -- and
6 I wouldn't --
7 MR. WHITE: -- which is pay my
8 taxes.
9 THE COURT: -- I wouldn't
10 really see taking up any 404 B
11 matters or anything like that on
12 April 15th.
13 MS. DOWD: Your Honor, it would
14 -- this is Augusta Dowd. It would
15 be great if we could lock down those
16 dates. I will advise the --
17 THE COURT: Okay.
18 MS. DOWD: -- Court, I am in --
19 scheduled to start a jury trial
20 April 6th. If that case does, in
21 fact, go forward -- it depends
22 probably on the talents of the
23 mediator in the case who sits to my
24 left. But if that case probably
25 does go forward, I might request to
16
1 revisit that. We would discuss that
2 in the office.
3 THE COURT: Okay.
4 MR. ADAMS: I would ask the
5 Court not to comment on what
6 Ms. Dowd just said about the talent
7 of the mediator.
8 THE COURT: No. But it's -- I
9 am going to -- I will leave it on
10 the 15th, --
11 MS. DOWD: That would be
12 great.
13 THE COURT: -- and 16th or so.
14 MR. WHITE: Okay.
15 THE COURT: And then -- because
16 just looking at our calendar, I
17 can -- I can easily move some things
18 around on that date. And then --
19 and then when we are here on that
20 date, we will just say, well, when
21 do you want the other hearings.
22 MR. WHITE: Okay.
23 MR. HART: Your Honor, we -- we
24 want to be heard on the other
25 hearings issue. We don't think -- I
17
1 mean -- okay. We can deal with it
2 in the future, but --
3 THE COURT: Sure. But I am not
4 talking about -- if you -- if you
5 needed a 404 B matter -- I mean,
6 what I would prefer to do -- I mean,
7 you don't have to do it this way --
8 and of course, it depends on what
9 you put them on notice of, too. You
10 know, you could do it right before
11 trial in October, if it's -- if it's
12 relatively short, but I prefer to do
13 it, you know, sometime in August or
14 sometime in September prior to the
15 hearing. And -- and then whether
16 it's an open hearing or a closed
17 hearing, quite frankly, depends on
18 what you have. And, of course -- I
19 mean -- and when I mentioned having
20 the closed hearing in other cases,
21 that was -- that's a death penalty
22 case, too. I mean, that's very --
23 you know, those are always, you
24 know, going to be much more
25 sensitive.
18
1 MR. HART: The State is in
2 accord, Your Honor, and --
3 THE COURT: Uh-huh (affirmative
4 response).
5 MR. HART: -- we would like a
6 final --
7 THE COURT: Uh-huh (affirmative
8 response).
9 MR. HART: -- if we can do it,
10 we would like to work through all
11 these motions of the very various
12 sort. There is going to be a lot of
13 unusual probably, relatively
14 speaking, --
15 THE COURT: Uh-huh (affirmative
16 response).
17 MR. HART: -- pretrial
18 litigation here. The 30 to 45 days
19 before trial, we would like to have
20 a final motion hearing somewhere in
21 that range.
22 THE COURT: Sure. I think we
23 can do that.
24 MR. HART: Okay.
25 THE COURT: But I don't -- but
19
1 would you rather -- I can -- I can
2 give you a date now possibly, or I
3 could -- I could just wait until
4 April and give you the date.
5 MR. WHITE: For a final
6 pretrial?
7 THE COURT: Uh-huh (affirmative
8 response).
9 MR. HART: We can do that. We
10 have proposed -- that piece of paper
11 I handed you, Your Honor, --
12 THE COURT: Okay.
13 MR. HART: -- and I have given
14 it to the defense, --
15 THE COURT: All right.
16 MR. HART: -- we communicated
17 in writing a couple of times about
18 this --
19 THE COURT: All right.
20 MR. HART: -- the -- the dates.
21 THE COURT: All right.
22 MR. HART: And if you look at
23 the final pretrial conference,
24 putting it on August 28th and then
25 back up the things.
20
1 THE COURT: Okay.
2 MR. HART: Now, the defense is
3 not -- I don't want to imply that
4 they have agreed with all of this.
5 For instance, our 404 B deadlines
6 and some other things, I gave you a
7 chart that shows what we are in
8 agreement on and what we are not.
9 MR. WHITE: Judge -- and I have
10 not had a chance to review the chart
11 where he purports to agree. But let
12 -- let me tell you this --
13 THE COURT: I think the 28th or
14 so would probably be okay.
15 MR. WHITE: The pretrial date
16 is fine, and I have no problem with
17 that date. The problem we have is
18 this, the State wants you to order
19 us to not be able to file any
20 further motions after a certain
21 date.
22 THE COURT: I really can't do
23 that.
24 MR. HART: That's not --
25 MR. WHITE: That's the end of
21
1 my argument.
2 MR. HART: -- that's not our
3 proposal, Judge. That's not our
4 proposal.
5 MR. WHITE: That's the end of
6 my argument.
7 MR. HART: Let me --
8 THE COURT: Okay.
9 MR. HART: -- let me just --
10 that's not -- that's not our
11 proposal, Judge.
12 THE COURT: Okay.
13 MR. HART: What we say is, we
14 would like the Court in the typical
15 administration of the case --
16 THE COURT: Uh-huh (affirmative
17 response).
18 MR. HART: -- to indicate to
19 the parties or direct the parties,
20 don't file something that you know
21 about that and that you can do it
22 otherwise --
23 THE COURT: Sure.
24 MR. HART: -- with no
25 problem --
22
1 THE COURT: That will be fine.
2 MR. HART: -- five days before
3 trial if -- for good cause they can
4 always do anything.
5 THE COURT: Okay.
6 MR. HART: We understand the
7 difference in --
8 THE COURT: Well, sure. I mean
9 -- and -- and I think, you know,
10 you're going to have motions for a
11 more definite statement. You are
12 going to have some -- it sounds like
13 some constitutional issues that are
14 going to be brought up. I mean, I
15 would like all of that to be
16 addressed, you know, in April, and
17 -- and then -- so, that, quite
18 frankly, all that can be resolved.
19 MR. WHITE: Yes. And -- and
20 some of that drives off this: If --
21 if the State at this point can say,
22 one, we are going to produce on "X"
23 day --
24 THE COURT: Uh-huh (affirmative
25 response).
23
1 MR. WHITE: -- and yes, it will
2 be in the electronic format --
3 THE COURT: Uh-huh (affirmative
4 response).
5 MR. WHITE: -- that we have
6 given them, then we will at least
7 know while we are waiting on it what
8 it's going to look like. If it's
9 going to come up in a rental truck
10 and it's all hard paper, we have got
11 an issue, so --
12 THE COURT: Okay.
13 MR. WHITE: -- that would help
14 us.
15 THE COURT: Right.
16 MR. HART: Your Honor, if
17 they --
18 THE COURT: Go ahead, Mr.
19 Hart.
20 MR. HART: Your Honor, we have
21 looked at -- now, they didn't
22 request the particular format that
23 they have asked for at this point
24 until the 21st of this month.
25 THE COURT: Uh-huh (affirmative
24
1 response).
2 MR. HART: We certainly have no
3 intention, of -- of course, of
4 getting a big box of paper and --
5 THE COURT: Uh-huh (affirmative
6 response).
7 MR. HART: -- driving up there
8 and delivering it to them that way.
9 We use a -- a program that is a
10 commercial program, Summation -- I'm
11 sure the Court has heard of that --
12 to bate stamp and do certain things.
13 But we are going to provide them --
14 and it's more than the rule requires
15 -- electronic copies, PDFs of all
16 these things. They've asked for a
17 bunch of other stuff. They want us
18 to break out meta data and do all
19 these kinds of things. There again,
20 looking at the local custom, we are
21 going beyond what is typically
22 done.
23 THE COURT: Well, it -- well,
24 this is kind of getting way ahead,
25 but I mean, do you anticipate the
25
1 State filing a motion to join all of
2 these indictments together in one
3 trial?
4 MR. HART: I don't know, Your
5 Honor.
6 THE COURT: Okay.
7 MR. HART: I don't know. And
8 we -- our time line -- we asked for
9 two more weeks. We have got
10 technical issues. I could have my
11 agent lay them out for you. I won't
12 bore you with it unless you desire
13 that. And we are in contact with
14 the company. We have had some
15 problems with our -- issues. So we
16 are asking until February the 17th
17 to deliver these. We have got a lot
18 of it done.
19 THE COURT: Okay.
20 MR. HART: But not all of it.
21 And then our response to the motion
22 for a more definite statement we
23 would like to give them on February
24 27th.
25 THE COURT: Okay.
26
1 MR. HART: That's shortly after
2 that.
3 MR. WHITE: Let me make sure I
4 understand. You asked -- you
5 mentioned all the indictments.
6 THE COURT: Uh-huh (affirmative
7 response). All the counts.
8 MR. WHITE: The counts. Okay.
9 THE COURT: Now, you are --
10 it's one indictment, but all the
11 counts.
12 MR. WHITE: Fine. We --
13 THE COURT: I'm sorry.
14 MR. WHITE: Yeah.
15 THE COURT: I scared you.
16 MR. WHITE: Yes. You can
17 understand why I might ask the
18 question.
19 THE COURT: Yes.
20 MS. DOWD: Judge --
21 THE COURT: Yes, ma'am.
22 MS. DOWD: Judge, one thing
23 that's a concern to me is, I have
24 heard -- and I appreciate the
25 response --
27
1 THE COURT: Uh-huh (affirmative
2 response).
3 MS. DOWD: -- on the discovery,
4 because we will get in February.
5 THE COURT: Uh-huh (affirmative
6 response).
7 MS. DOWD: What is of concern
8 to me is an effort by the State to
9 set and to say to the Court --
10 THE COURT: Uh-huh (affirmative
11 response).
12 MS. DOWD: -- we want
13 constitutional issues addressed, we
14 want everything addressed by April,
15 but yet, I am not -- I don't know
16 under the current framework whether
17 the State intends to -- to give us
18 our bill of particulars response
19 and -- and whether that will raise
20 new issues or additional issues.
21 THE COURT: Well -- but we will
22 have to just take that up in April
23 and see. I mean, I would just -- I
24 would prefer for it to be, you know,
25 that way, but there could always be
28
1 -- you know, there could always be
2 an exception to it. I am not -- I
3 am not going to issue some type of,
4 you know, firm order that says, you
5 know, you can't raise a
6 constitutional issue --
7 MR. WHITE: Thank you.
8 THE COURT: -- after April
9 17th. I would prefer for all of
10 that to be taken up in that April
11 hearing so that -- you know, if
12 there needs to be some type of
13 ruling beyond this court, you know,
14 that can all be addressed and -- and
15 -- well before October.
16 MS. DOWD: Yes, sir. And
17 that's --
18 THE COURT: And I hope well
19 before August 28th or whenever the
20 pretrial date is.
21 MS. DOWD: That's exactly my
22 point.
23 THE COURT: Uh-huh (affirmative
24 response).
25 MS. DOWD: And I think I didn't
29
1 communicate it effectively. Under
2 the --
3 THE COURT: Uh-huh (affirmative
4 response).
5 MS. DOWD: -- under the current
6 framework, will we have their bill
7 of particulars actually filed as
8 opposed to the briefing on timing or
9 what they need to say?
10 THE COURT: I would hope so.
11 MS. DOWD: That's the question.
12 THE COURT: So -- now, the
13 other -- now, let -- let me address
14 the -- of course, y'all -- we
15 were -- we thought we were going to
16 have a hearing earlier this month
17 and -- and because of -- there was
18 some witnesses or some documents
19 for witnesses out of -- out of
20 Birmingham that were subpoenaed and
21 that then those witnesses just
22 produced their documents or more or
23 less some type of disc or hard drive
24 and -- and left it with the Circuit
25 Clerk. I think the defense then
30
1 wanted to get a copy of it so I had
2 the Clerk take those -- you know,
3 what was filed and put it with the
4 court reporter. The reason I was
5 hesitant to -- to just release that
6 was because I felt that the Clerk
7 had been placed into the chain of
8 evidence. And -- and so I want to
9 know how to handle that. I don't
10 know if it's better to handle it to
11 just let the -- if y'all want a
12 transcript of what that is, let the
13 court reporter just -- just type it
14 up and give you both a transcript
15 and send it out to you, but I was
16 very hesitant to get the Circuit
17 Clerk in a chain of evidence and
18 then to release something and -- and
19 then the next thing you know, you
20 know, they are in the chain and --
21 and she is having to testify in the
22 case.
23 MR. WHITE: Well, Judge, the
24 purpose in making it returnable was
25 just to preserve it.
31
1 THE COURT: Sure.
2 MR. WHITE: And -- and you're
3 absolutely right. We didn't want to
4 get in the chain of evidence --
5 THE COURT: Uh-huh (affirmative
6 response).
7 MR. WHITE: -- and Mary may
8 never forgive me for doing that, but
9 I will take the heat for that.
10 THE COURT: Yeah.
11 MR. WHITE: I think your idea
12 is correct. We can either copy it
13 on a -- the other -- one of them has
14 been transcribed.
15 THE COURT: Okay.
16 MR. WHITE: -- and the State
17 has filed it in -- as an attachment
18 to one of the pleadings. It's the
19 other one.
20 THE COURT: Uh-huh (affirmative
21 response).
22 MR. WHITE: We are happy to
23 have the court reporter transcribe
24 it. We are happy to have a copy
25 made of it.
32
1 THE COURT: Okay.
2 MR. WHITE: And that those two
3 can just stay in the safe or
4 whatever.
5 THE COURT: Sure. That would
6 be fine. But they are -- they are
7 with -- they are with Ms. Smith
8 right now.
9 MR. WHITE: Okay.
10 THE COURT: So -- so they are
11 actually in -- in an evidence
12 locker.
13 MR. WHITE: So with -- with
14 your permission, we will just make
15 arrangements to --
16 THE COURT: Right. Sure.
17 MR. HART: No objection.
18 MR. WHITE: -- get a
19 transcript.
20 THE COURT: Because, again, I
21 -- I just -- I thought, you know,
22 the court reporters are accustomed
23 to handling evidence, and just
24 didn't want it down in --
25 MR. WHITE: If you need me to
33
1 say on the record that we are
2 satisfied if Ms. Smith --
3 THE COURT: Right.
4 MR. WHITE: -- has them, that
5 that -- there is no issue of the
6 chain of custody as it involves the
7 Circuit Clerk.
8 THE COURT: Because -- because
9 at some point the Circuit Clerk's
10 Office will be moving to the new
11 facility.
12 MR. WHITE: Yes. That's fine.
13 THE COURT: So --
14 MR. WHITE: -- if the court
15 reporter has them, we are -- that --
16 THE COURT: Okay.
17 MR. WHITE: -- we will
18 stipulate that's -- that's the
19 evidence.
20 THE COURT: As far as -- you
21 know, some of the media is here,
22 when we get into the trial -- you
23 know, something, you know, that -- I
24 mean, everything, you know, is fine,
25 obviously, about covering the trial.
34
1 There -- there are issues about
2 sending out real time tweets while
3 people are testifying. I think
4 just, quite frankly, other witnesses
5 who are being sequestered could,
6 quite frankly, read those, and so
7 that's just an issue we will
8 probably take up when we get closer
9 to trial. But I just want to make
10 everybody, you know, aware of that
11 and people -- people want to tweet,
12 they want to have real time
13 reporting, and I understand y'all's
14 desire to do that, but at the same
15 time, if -- if a witness is outside
16 the courtrooms, they can't hear what
17 one witness is saying, but they can
18 just look on their cell phone and
19 read the tweets; they essentially
20 know what the witness is testifying
21 to before they testify. And -- and
22 that's come up in other trials, and
23 it's just part of handling cases in
24 the 21st Century. So -- so I just
25 want to -- you know, just make --
35
1 make the media aware of that and --
2 and just also make the media aware
3 of why we have to have that rule.
4 It's not that we are trying to limit
5 your ability to report. Now, if we
6 are in a break, you know, you can go
7 outside and whatever you feel like
8 you need to report report. But,
9 again, that's just something we are
10 trying to handle, not so much to
11 limit -- not to limit what you're
12 reporting necessarily, but to limit
13 what witnesses have the ability to
14 read, and witnesses are here in the
15 Justice Center and we know where
16 they are, then that's one thing.
17 But we don't know -- there
18 may be potential witnesses away from
19 the Justice Center, and we just have
20 no way of knowing what they are --
21 what they are monitoring, and -- and
22 it's just a -- it's just an issue
23 that's coming up over and over and
24 over again.
25 MR. WHITE: I --
36
1 THE COURT: The -- the same as,
2 you know, telling jurors don't post
3 things on Facebook. I mean, I never
4 -- you never used to have to give
5 that curative instruction. But --
6 but that's just part of it. Do
7 y'all have anything else you want to
8 take up?
9 MR. WHITE: Judge, I think that
10 probably has covered most of it.
11 One thing that -- on -- on -- as I
12 remember the rule, I can't remember
13 if it finally got in or not, but
14 there was a contemplation even
15 before --
16 THE COURT: Uh-huh (affirmative
17 response).
18 MR. WHITE: -- when that first
19 media plan rule came out. But there
20 was a contemplation where there
21 could, in fact, be a media plan that
22 would involve not only the parties
23 but also the --
24 THE COURT: Now, we have a --
25 we have a set plan, if you want to
37
1 go get it from Ms. Campbell.
2 MR. WHITE: Yes.
3 THE COURT: And if -- anything
4 y'all want to take up in -- you
5 know, in April about it, you know,
6 that's fine, but we have kind of a
7 set plan.
8 MR. WHITE: Okay. But I -- I
9 think -- I think we can probably get
10 it --
11 THE COURT: But it basically
12 involves having one pool camera, one
13 -- one -- which is, you know, what I
14 would call a T.V. camera, a video
15 camera, another -- you know, one
16 still camera and --
17 MR. WHITE: Does it track the
18 date plan? I mean, the -- one of
19 the rules? Is it different -- is it
20 local?
21 THE COURT: It -- pretty
22 much, --
23 MR. WHITE: Okay.
24 THE COURT: -- but I mean, you
25 can take -- you can take a look at
38
1 it.
2 MR. WHITE: Okay.
3 THE COURT: But then a lot of
4 it is, quite frankly -- you know,
5 even though we have the media room,
6 the -- the acoustics in there are
7 just not great. So that's why most
8 of the media is in here so they can
9 actually hear. So -- but -- and --
10 and we have tried to work with that.
11 The -- but that's -- that's the
12 only --
13 MR. WHITE: My only other
14 question was, I assume you are going
15 to put an order out?
16 THE COURT: Yes, sir.
17 MR. WHITE: Or are you going to
18 -- you don't need a draft order?
19 THE COURT: No, sir. I will
20 send you one.
21 MR. WHITE: Okay.
22 THE COURT: And then -- oh. Do
23 you want to use -- I mean, this is
24 way early. But do you want to use a
25 juror questionnaire?
39
1 MR. WHITE: We will.
2 THE COURT: Okay.
3 MR. HART: The State will, Your
4 Honor.
5 THE COURT: Okay. We basically
6 have a form questionnaire that we
7 use that -- it's a questionnaire --
8 we pulled it from a case with --
9 Justice Maddox actually, you know,
10 said, well, this -- this
11 questionnaire would be pretty good.
12 So we think that because Justice
13 Maddox listed that, you know, it --
14 it has Appellate muster and then
15 past Appellate muster. And so --
16 but, you know -- so if y'all want to
17 ever take a look at that, there
18 should be -- Ms. Campbell should
19 have a copy of that, too.
20 MR. WHITE: Okay.
21 THE COURT: But anyway -- do
22 y'all have anything?
23 MR. WHITE: That's all I --
24 THE COURT: Anything else,
25 Mr. White or --
40
1 MR. WHITE: -- can think of.
2 MR. HART: You are going to put
3 up -- just to be clear, Judge -- and
4 I think you did clarify this, but I
5 am looking at our first response.
6 We are going to get that discovery
7 on the 17th.
8 THE COURT: Okay. February
9 17th. All right.
10 MR. HART: Yes, Your Honor.
11 And then our response to their
12 motion for a more definite statement
13 on February 27th. Is that where we
14 are --
15 THE COURT: Okay. Okay. Okay.
16 MR. WHITE: One of those is
17 slightly different than your
18 existing order.
19 THE COURT: Okay. And then
20 April 15th for the motions.
21 MR. HART: We may have moved
22 it because we moved the discovery
23 date.
24 THE COURT: October 19th for
25 the trial. Around August 28th for
41
1 the pretrial.
2 How long do y'all
3 think the trial is going to take?
4 Two weeks?
5 MR. HART: I think it's -- I am
6 sorry. The State's portion is going
7 to take two weeks, Your Honor. I am
8 not sure about the defense.
9 THE COURT: Three weeks?
10 MR. WHITE: Once I get the more
11 definite statement response, I will
12 be able to tell you.
13 THE COURT: Okay. Okay. Do
14 y'all want to do -- well, I am
15 getting way ahead of you. Do you
16 want to break down individual voir
17 dire like we do in capital murder
18 cases, or do y'all want to give
19 people about how we have done
20 that?
21 (No response.)
22 THE COURT: That's basically
23 putting them in panels and bringing
24 them in in smaller groups for
25 each --
42
1 MR. WHITE: We -- we are going
2 to have to --
3 THE COURT: -- each -- for all
4 the questions?
5 MR. WHITE: -- I think we are
6 going to have to do something. Yes,
7 sir.
8 THE COURT: Okay.
9 MR. WHITE: Yes.
10 THE COURT: All right. We will
11 also talk to you about exactly how
12 many you would want summoned because
13 we can -- we can bring in extra
14 jurors if need be. So --
15 MR. WALLER: Take that up on
16 the April date or --
17 THE COURT: Well, probably
18 should take it up in April because
19 if -- if you are going to summon
20 extra jurors August 28th may be too
21 late.
22 MR. WHITE: Yeah. I think it
23 is.
24 THE COURT: And the -- and the
25 Court Administrator's Office would
43
1 like to know probably as soon as
2 possible.
3 MR. WHITE: April is fine.
4 THE COURT: Okay.
5 MR. HART: Very well, Your
6 Honor.
7 THE COURT: All right. But the
8 way we have done it is -- is
9 basically we will go through and --
10 and qualify them as -- in a big
11 group and try to have as many people
12 as we can fit in here to go through
13 and call the case for trial and --
14 and -- and let you do your voir dire
15 questions and then try to bring them
16 in -- in panels of, say, 12 or so
17 and let you do your follow-up
18 questions, and then if you want to
19 have individual follow-up questions
20 with a particular juror, you can
21 just say, well, I need juror so and
22 so and juror so and so remain and
23 excuse the rest of the panel. And
24 then they can be brought in
25 individually. Just -- just try to
44
1 work it that way. And then that way
2 the jurors come in at different
3 times and -- and they --
4 hopefully -- you know, they just
5 aren't having to wait here at the --
6 at the Justice Center the entire
7 time during -- during jury
8 selection. It's a little more
9 convenient for them to do it that
10 way.
11 MR. WHITE: Okay. I think we
12 are -- I have got -- now that I am
13 knowledgeable on the Casper method,
14 I am getting there.
15 THE COURT: Okay.
16 MR. WHITE: So I will be ready
17 -- we will -- we will have an idea
18 in April for you.
19 THE COURT: Okay. All right.
20 All right.
21 MR. WHITE: Thank you, Judge.
22 Appreciate it.
23 THE COURT: All right.
24 (Proceedings were
25 concluded.)
45
1 CERTIFICATE OF COMPLETION
2 OF REPORTER'S TRANSCRIPT
3
4 I CERTIFY THAT I HAVE THIS DATE
5 COMPLETED THE ORIGINAL OF A TRUE AND CORRECT
6 TRANSCRIPT OF THE EVIDENCE AND MATTERS
7 DESIGNATED BY THE PARTIES. ALL PAGES ARE
8 NUMBERED SERIALLY, IN THE UPPER RIGHT CORNER
9 OF THE PAGE, PREFACED BY AN INDEX AND ENDING
10 WITH THE NUMBER APPEARING TOP RIGHT OF THIS
11 CERTIFICATE.
12
13
14 DATED this 20TH day of 2015.
15
16
17 /s/ JJJJaaaa nnnn eeee tttt CCCC.... SSSSmmmmiiii tttt hhhh
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20 Janet C. Smith, CSR 195
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EXHIBIT C
White Arnold & Dowd P.C. 2025 Third Avenue North, Suite 500
Birmingham, AL 35203
For Immediate Release Contact: J. Mark White February 27, 2015 Phone: 205-323-1888
Statement of J. Mark White for Hubbard Legal Team Today’s filing is bizarre, improper, and non-responsive. It is more argument and political statement than pleading. It is replete with false statements and empty rhetoric. Apparently designed to further mislead the public, the filing demonstrates a basic lack of knowledge about the state ethics laws and the relevant facts in this matter. By design, Alabama has a citizen legislature, not a full-time legislature. It’s no secret that Mike Hubbard is a longtime businessman. It’s not improper for him to conduct personal business. This filing – just days before the start of the 2015 legislative session – yet again raises questions about political timing and motivations surrounding this matter. But Mike Hubbard won’t be distracted. He is focused on the legislative session and on doing the business of the people of Alabama. We will file appropriate responses with the court and welcome the long-awaited opportunity to expose the strange and curious ways this investigation has been conducted.