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Stealing the Statehouse

Does Hubbard Own the Courts?

Bill Britt

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By Bill Britt

Alabama Political Reporter
 
MONTGOMERY—At what appears to be a 2012 lecture promoting his vanity publication Storming the Statehouse, Speaker of the House Mike Hubbard, R-Auburn said, in reference to the Supreme Court, “We have 9 of 9 Justices.”
 
Hear comment at  20:40 mark
 
In his speech, Hubbard seems to make clear that he believes the Alabama Supreme Court would be inclined to rule in a partisan manner in a particular case.
 
The narrative that Alabama’s courts are a political tool is an old one, with some doubt and yet plenty of merit. The courts are not trusted in part, because the justices are elected along party lines. In the case of the Supreme Court, this would mean the court is aligned with the Republican Party and that is exactly what Hubbard is referring to in his statement.
 
Wayne Flynt, Professor Emeritus of History at Auburn University, recently told AL.COM that his hunch was that Speaker Hubbard would be indicted as a result of the public corruption investigation being conducted in Lee County. But he added, “My hunch is he will not be convicted.”
 
He goes on to say, “The reason is the Supreme Court has made it increasingly difficult to do what happened to (former Gov. Don) Siegelman… I don’t think this (Alabama) Supreme Court is ever going to say that because those two events happened, they are somehow related unless…unless you’ve got a document (such as) from Richard Scrushy that says if I give you $1 million for the lottery, will you appoint me to the hospital board so I can protect HealthSouth.”
 
Flynt, a historian, is either clairvoyant or knows something that has not been reported by this news organization. In over 60 reports on Hubbard and his believed wrong doings, the Alabama Political Reporter has never found that Hubbard committed the same acts as Siegelman.
 
Here Professor Flynt seems to be making a flawed analogy.
 
What our reporting has clearly shown is that Hubbard accepted money from American Pharmacy Cooperative Inc., and in exchange had language added to the 2013 Medicaid portion of the General Fund Budget to give the company a monopoly over the pharmacy benefit plan the State was considering. In this instance, Hubbard could be charged with accepting a bribe to pass legislation and using his office for personal gain.
 
In other reports we have shown how Hubbard used the funds received by the ALGOP and other political action committees to funnel money into his personal business interests. This is more akin to embezzlement and not a Quid Pro Quo like in the Siegelman-Scrushy affair.
 
Again the comparison by the Professor is inaccurate, comparing dissimilar acts perpetrated by very different men.
 
However, in Flynt’s statements, there are echoes of the very hopes of Hubbard and company, while enflaming the fears of those who believe that justice is not always dispensed equally, within the political class. Still the notion of indictment verses conviction has become so rampant among political insiders that it is almost worthy of its own tracking stock.
 
The idea that party affiliation and alliance to political bosses trumps judicial integrity, speaks to the darker side of politics and the State’s justice system.
 
There is no evidence that the Alabama Supreme Court would ever compromise their judicial integrity for a party boss or anyone else.
 
But, there are some occasions where other courts have ruled in what appeared to be a partisan manner.
 
There is no doubt an intersection where Judges and politicians connect. Take the recent appellate court hearing in the case of former Sen. Lowell Barron. In that case, the lives of the individuals sitting on the State’s court of appeals were so intwined with the defendant, that three of the sitting justices had to recuse themselves from hearing a motion made by the prosecution.
 
In the Barron case, it would appear that the justices recused themselves in a manner that would give the public confidence that justice was being served.
 
Since 1995, Alabama has had a law that, “require[d] the recusal of a justice or judge from hearing a case in which there may be an appearance of impropriety because as a candidate the justice or judge received a substantial contribution from a party to the case, including attorneys for the party.”
 
However, the 1995 law was never applied because it never received pre-clearance under the Voting Rights Act.

In 2014, State Sen. Cam Ward, R- Alabaster, passed a law in which “a motion can be filed if a reasonable person would perceive the contribution made by a party to the case, or his or her attorney, would impair the judge’s impartiality or if there is a serious question whether the judge can be objective.”
 
The approach that Ward offered still leaves ample room for mischief; where there is a confluence of money, friendships, party affiliations and the law.
 
This is what the prosecution says happened in the first trial of former Gov. Don Siegelman:
 
In 2004, Siegelman, along with his former Chief of Staff Paul Hamrick and Dr. Phillip Bobo, were charged with conspiring to rig bids on a State Medicaid contract.
 
The judge in this case was U.S. District Judge U.W. Clemon. At the time, Federal prosecutors claimed that Clemon should recuse himself from the case because he was biased against the government’s case. Among the many conflicts cited was, that Clemon had received thousands in pro bono legal work from former Attorney General Bill Baxley, who represented “an important, unindicted co-conspirator” in the trial. According to an AP report in 2004, the prosecution said that Clemon had, “expressed bias against the government stemming from being investigated in a criminal matter involving his sister, Arnese Clemon. She pleaded guilty to fraud and money laundering involving the Los Angeles school district and was sentenced to prison.”
 
Clemon was never been charged in the California case, but was represented by Baxley, who did not charge Clemon for his services.
 
Clemon ruling in the case gutted the prosecutions case an enabled Siegelman to walk away from the bid-rigging allegations. Later, the 11th Circuit did remove Clemon from the Bobo case, “in the interest of eliminating any doubt of judicial fairness and impartiality.”

At the time, AP reported that, “The 11th Circuit said Clemon’s involvement in the Siegelman-Hamrick case did not rise to the level of actual bias, but certain aspects of his participation might ‘give rise to the appearance of … a lack of impartiality in the mind of a reasonable member of the public.’”
 
The lead prosecutor in the case before Clemon was Matt Hart.
 
Many in justice and law enforcement have used Clemon’s actions in the Siegelman-Bobo trial as an example of how judicial bias, political connections and judicial misconduct poisons a legitimate case.
 
Later, when Siegelman was convicted in the infamous,  Siegelman-Scrushy trial, Clemon made an appeal to the U.S. Attorneys Office on Siegelman’s behalf, accusing the prosecution of, “ ‘judge-shopping,’ ‘jury-pool’ ‘poisoning’ and ‘unfounded’ criminal charges in an effort to imprison Siegelman.”
 
To many, the Siegelman-Scrushy trial is an example of justice gone awry in our State because of political prosecution.
 
There is almost always a certain amount of suspicion that arises whenever the well-born or political class is placed on trial. But, in both of these politically charged cases, each side had an opportunity to cry foul.
 
Many people share Flynt’s belief that Hubbard will be indicted but will never be convicted. Perhaps even Hubbard draws comfort from, “We have 9 of 9 Justices.”
 
During his vanity book chat, Hubbard was not referring to the public corruption investigation in Lee County. But, his words are an ominous reminder that some think justice is not always blind.

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected]eporter.com or follow him on Twitter.

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Opinion | Inside the Statehouse: Buck’s pocket

Steve Flowers

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You voted Tuesday on a crowded ballot.

Historically, in Alabama we have voted more heavily in our Governor’s race year than in a presidential year. That is probably because we were more interested in the local sheriff and probate judge’s races, which run in a gubernatorial year, than who is president. The old adage, “all politics is local,” definitely applies here in Alabama.

We not only have a governor’s race this year, we have all secondary statewide offices with a good many of them open including Lt. Governor, Attorney General, State Treasurer, Auditor, and two seats on the Public Service Commission. We have five seats on the State Supreme Court, one being Chief Justice. All 140 seats in the Legislature are up for a four-year term. These 35 state Senate seats and 105 House contests are where most of the special interest PAC money will go. And, yes, we have 67 sheriffs and 68 probate judges as well as a lot of circuit judgeships on the ballot.

You may think the campaigning is over. However, some of the above races have resulted in a runoff which will be held on July 17. So get ready, we have six more weeks of campaigning before all the horses are settled on for the sprint in November.

We have a lot of folks headed to Buck’s Pocket. Last year after the open Senate seat contest, a young TV reporter for one of the stations I do commentary for asked me about Roy Moore and his loss. I told her ole Moore had gotten on his horse, Sassy, and ridden off into the sunset to Buck’s Pocket, which by the way wasn’t a long ride from his home in Gallant in Etowah County. She looked at me with a puzzled look. Probably a lot of you are also wondering what I’m talking about when I refer to Buck’s Pocket.

For decades, losing political candidates in Alabama have been exiled to Buck’s Pocket.  It is uncertain when or how the colloquialism began, but political insiders have used this terminology for at least 60 years.  Alabama author, Winston Groom, wrote a colorful allegorical novel about Alabama politics and he referred to a defeated gubernatorial candidate having to go to Buck’s Pocket.  Most observers credit Big Jim Folsom with creating the term.  He would refer to the pilgrimage and ultimate arrival of his opponents to the political purgatory reserved for losing gubernatorial candidates.

This brings me to another contention surrounding Buck’s Pocket. Many argue that Buck’s Pocket is reserved for losing candidates in the governor’s race. Others say Buck’s Pocket is the proverbial graveyard for all losing candidates in Alabama.

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One thing that all insiders agree on is that once you are sent to Buck’s pocket you eat poke salad for every meal. Groom also suggested that you were relegated to this mythical rural resting place forever. However, history has proven that a good many defeated Alabama politicians have risen from the grave and left Buck’s Pocket to live another day. Roy Moore may be a good example. He has risen from the grave before. He is only 70, and he may grow weary of eating poke sallet.

Most folks don’t know that there really is a Buck’s Pocket. Big Jim would campaign extensively in rural North Alabama often one on one on county roads. One day while stumping in the remote Sand Mountain area of DeKalb County he wound up in an area referred to as Buck’s Pocket. It was a beautiful and pristine area, but it was sure enough back in the woods. Big Jim who loved the country and loved country folks was said to say that, “I love the country but I sure wouldn’t want to be sent to Buck’s Pocket to live.”

Buck’s pocket is now not a mythical place. If you are traveling up the interstate past Gadsden, on the way to Chattanooga, you will see it. There is a Buck’s Pocket State Park in DeKalb County, thanks to Big Jim.

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So the next time you hear an old timer refer to a defeated candidate as going to Buck’s Pocket, you will know what they are talking about.

See you next week.

Steve Flowers is Alabama’s leading political columnist. His weekly column appears in over 60 Alabama newspapers. He served 16 years in the state legislature. Steve may be reached at www.steveflowers.us.

 

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In Case You Missed It

Hubbard’s Lee County Trial Finally Ends in Silence

Bill Britt

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By Bill Britt
Alabama Political Reporter

MONTGOMERY—The post-trial appeal of convicted felon and former Speaker of the House, Mike Hubbard, finally expired on September 8, in silence, according to the Attorney General’s office calculations.

For almost four years, Hubbard, aided by his criminal lawyers, used the State House, the Governor’s Office and some within the Attorney General’s office to deny, deflect and delay justice. Hubbard stormed the State House presiding over an orgy of greed and corruption. Those days are over for Hubbard and so is any appeal before the circuit court of Lee County.

Under Rule 24.4 of the Alabama Rules of Criminal Procedure, Hubbard’s motion for a new trial, dismissal and/or an investigation by the Lee County Sheriff were denied by operation of law because Judge Jacob Walker, III, did nothing.

Under the Rules of Criminal Procedure, “no motion for a new trial or motion… shall remain pending in the trial court for more than sixty days after the pronouncement of sentence.” Hubbard’s sentencing July 8, on 12 felony counts of public corruption, means as of September 8, the calendar has run out for him, with Judge Walker deciding not to rule at all.

Under Rule 24.4: Denial by operation of law. “A failure by the trial court to rule on such a motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day.”

At his post-trial hearing, Hubbard’s attorneys made their last stand in Lee County, with Bill Baxley arguing that his client was blindsided, bushwhacked and bamboozled, to no avail.

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The Lee County case of the State of Alabama versus Michael G. Hubbard is over. He has a right to appeal his conviction to the Alabama Court of Criminal Appeals within 42 days, which expires on October 20.

Hubbard’s past efforts show he will seek every avenue available to delay his incarceration.

Every previous motion that Hubbard has set before the Court of Criminal Appeals, was denied without opinion. Many believe this same fate awaits Hubbard’s next appeal before the high court.

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Hubbard’s days of freedom are rapidly coming to an end. His appeal was silently denied and most didn’t even notice. He is rapidly becoming yesterday’s news.

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In Case You Missed It

Hubbard’s Post-Trial Snoozer

Bill Britt

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By Bill Britt
Alabama Political Reporter

OPELIKA—While searching for any thread of an argument that might lead to a new trial for convicted felon Mike Hubbard—once the most powerful politico in the state—attorney Bill Baxley whined, fretted and accused state prosecutors of blindsiding, bushwhacking and bamboozling his client.

Having written about Hubbard’s misdeeds since late 2012, the courtroom drama ending with his conviction makes Baxley’s latest attempt at the September 2 hearing feel like Hubbard trial 2.0 ad nauseam. Only Baxley’s fantastical leaps of legal logic and strained linguistic gymnastics kept the proceedings remotely interesting. Baxley argued several points, only winning on one issue with Judge Walker’s ruling that Hubbard would not be required to pay $1.125 million in restitution, as the prosecution asked.

Before the hearing began, Hubbard’s criminal defense team filed a motion to unseal all court documents related to the case, except one document. Baxley indicated that Judge Jacob Walker knew “the one” he referred too. After some legal wrangling by the prosecution and with Judge Walker, the defense was directed to construct a list of documents to be unsealed. Judge Walker’s decision was followed by Baxley huffing and puffing. Finally, he made reference to testimony given by Professor Bennett L. Gershman a “so-called” expert in prosecutorial misconduct. Hubbard filed to have Gershman’s testimony unsealed in 2015, to no avail.

Testimony given by former State Ethics Directors James “Jim” Sumner is central to Hubbard’s motion to dismiss or grant a new trial, neither of which is likely to occur. But, Baxley and company need to earn the additional $50,000 plus Hubbard recently raised from “friends.” Baxley argued it was improper for the State to present “expert” testimony about what various portions of the ethics statute mean, and whether certain phrases or clauses within those statutes would or would not encompass certain situations or events. The court seemed unmoved by Baxley’s logic since Judge Walker certified Sumner as an expert.

During the two-hour hearing, Baxley’s delaying tactics appeared to try Judge Walker’s patience, especially when the defense claimed they were unprepared to hear testimony concerning jury misconduct. Judge Walker said he set aside other cases to hear Hubbard’s claims of jury misconduct, a surprising claim that surfaced quickly after Hubbard’s conviction.

Hubbard’s criminal defense team citing an affidavit from a panel member filed a motion just days after Hubbard’s conviction calling for an investigation into jury misconduct by an impartial third party. In searching for a neutral investigator, Baxley determined Hubbard’s friend Lee County Sheriff Jay Jones was the best choice.

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From the bench, Judge Walker informed Baxley that there is no legal basis for an outside investigation, and that testimony would be taken before his court to settle the matter. Baxley claimed the defense was once again unprepared for such at the hearing, and the juror who reported the alleged misconduct was unavailable.

Judge Walker questioned the two bailiffs and the court administrators who oversaw Hubbard’s trial. Bailiff Bobby Bond testified that he was instructed by court administrator Patricia Campbell, to caution a juror who reportedly was talking under her breath at the beginning of Hubbard’s trial. Bond said he issued the warning, but the juror denied the allegations and no further complaints were noted. Both Bailiffs who rotated sitting next to the jury box during the proceedings testified they never heard chatter from any jurors.

Under oath, Campbell confirmed she had received the complaint and reported it to Judge Walker, who ordered her to address the situation through the bailiffs. Baxley asked Campbell what was said. She remembered the accusing juror of claiming a fellow juror said, “Yes, now the truth comes out.”

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Defense co-council Lance Bell rose to claim that Hubbard had not received a fair trial an assertion soon rebutted by the prosecution.
He, along with Baxley said the jury was not impartial, and Hubbard should receive, at least, a new trial. Arguing for the prosecution, Assistant Attorney General Katie Langer cited case law and explained the split verdict showed they were, in fact, impartial because otherwise, the trial would have ended with a hung jury.

As Judge Walker pointed out several times, the clock is ticking with very few days remaining before the 60 day deadline brings all proceeding before his court to a close. The trial judge may rule on these motion or simply wait out the clock.

 

Photo Credit: Albert Cesare/Montgomery Advertiser/Pool

 

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In Case You Missed It

Attorney General Reacts to Hubbard Loyalist’s Plans for Ethics Reform

Bill Britt

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By Bill Britt
Alabama Political Reporter

MONTGOMERY—Alabama House Ethics Committee Chairman, Mike Ball (R-Madison), announced his plans (yesterday) to form a commission to review the state’s ethics laws. Ball, a staunch defender of convicted felon and former House Speaker, Mike Hubbard, told WHNT-TV in Huntsville that his committee would “review the State’s Ethics laws and recommend improvements in time for the opening of the Alabama Legislature next year.”

However, just hours after APR published its story on Ball’s plan, Attorney General Luther Strange, sent his comments.  “I am strongly opposed to Rep. Mike Ball’s idea of a commission to review Alabama’s ethics law. The whole point of such a commission would be to undermine the law,” said Strange.  “Alabamians want our ethics laws enforced, not gutted.”

Ball also said he wanted an “open and honest” process, stating, “Our best chance for success is for it to be carefully looked at, out in the open.” Ball claims he is determined to stop three ethics bills from coming to the House because he didn’t want them “lost in the mix, however, there is a reason to believe other forces are at work, especially given Speaker McCutcheon’s promise of principled leadership.”

It would be difficult to fathom a Hubbard loyalist overseeing a commission to amend laws that landed his former boss in prison.

The day after Hubbard’s indictment, Ball stood by his side at a pep rally proclaiming his boss’s innocence while sporting an “I Like Mike” sticker on his lapel.

Ball regularly appeared on talk radio accusing State prosecutors of conducting a political witch hunt to ensnare Hubbard.

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In April 2015, Ball testified in a pre-trial hearing that Hubbard’s arrest was politically motivated. Under oath, Ball said the ethics laws needed amending to avoid prosecutions like Hubbard’s in the future.

Presiding Circuit Court Judge Jacob Walker, III allowed Ball to testify, even though he said Ball’s testimony was not relevant to Hubbard’s indictments. Judge Walker ruled that accusations against Special Division’s Chief Matt Hart were not only irrelevant, but unfounded.

Ball is one of the remaining Hubbard loyalists at the State House.

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