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Stealing the Statehouse

State Files Brief in Moore Case

Bill Britt

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By Bill Britt
Alabama Political Reporter

MONTGOMERY—At around 2:00 p.m., the Prosecutors in the Barry Moore perjury and lying case, filed a brief in opposition to Moore’s attorney’s motion.

The brief, filed by Acting Attorney General Van Davis and Matt Hart, is in support of its arguments before the court on May 20.

The brief argues four points:

  • Moore’s arguments to dismiss the perjury charges are based on outdated language and otherwise misapply Alabama law.
  • The prosecutors have clear authority to appear before the Lee County Special Grand Jury and prosecute Moore for the crimes with which he has been charged.
  • Moore’s subpoena to the Attorney General’s Office should be quashed.
  • Moore’s remaining arguments are without merit.

The State recessed that the court enter an order (1) denying Moore’s Motion to Dismiss; (2) quashing Moore’s Subpoena Duces Tecum to the Attorney General’s Office; and (3) striking the “Defendant’s Brief in Opposition to Motion to Quash Subpoena Duces Tecum” as an untimely Reply Brief in Support of Moore’s Motion to Dismiss.

Judge Walker is expected to rule on the hearing next week.

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IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA,
v.  CASE NO. CC-2014-000226

FELIX BARRY MOORE,
Defendant.

STATE’S BRIEF IN SUPPORT OF
ITS ARGUMENTS AT THE MAY 20, 2014 HEARING

Public Service Announcement

The State of Alabama hereby submits its Brief in Support of its Arguments
at the May 20, 2014 Hearing. This Court has allowed the State to respond to
defendant Felix Barry Moore’s (“Moore”) arguments raised orally at the hearing,
as well as to Moore’s “Brief in Opposition to Motion to Quash Subpoena Duces
Tecum,” which was filed after the hearing. For the reasons stated below, Moore’s
Motion to Dismiss is due to be denied, his subpoena duces tecum to the Attorney
General’s Office should be quashed, and Moore’s untimely Brief should be struck.

INTRODUCTION
Moore has failed to provide this Court with any legitimate reasons to dismiss
the charges against him. Instead, the defense makes hyper-technical assertions
based on antiquated legal language that have no applicability here. The Indictment is sufficient to put Moore on notice of the crimes with which he has been charged
and is otherwise proper under modern Alabama law.

Moore similarly misapplies Alabama law regarding the authority of the
prosecutors in this case. The authority of Supernumerary District Attorney W. Van
Davis to act as the Attorney General in this case is based on Alabama Attorney
General Luther Strange’s directing Davis to handle this matter pursuant to § 36-15-
15, Ala. Code (1975). The reasons underlying the appointment do not in any way
limit or remove the authority of the Attorney General to direct another prosecutor
to act on his behalf. Ignoring this clear legal authority, Moore plays semantics with
the phrase “Acting Attorney General” to support his nonsensical arguments.
Whatever title or label given to Davis is immaterial because his authority to act in
this case is proper and Moore has no evidence to show otherwise.

Additionally, Moore failed to respond to the State’s Motion to Quash and it
is otherwise due to be granted. Moore’s “Brief in Opposition to Motion to Quash
Subpoena Duces Tecum” has nothing to do with the subpoena and is, in reality, an
untimely Reply Brief in Support of his Motion to Dismiss. As such, it is due to be
stricken. Finally, there is no merit to any of Moore’s remaining arguments to
dismiss the charges against him.

ARGUMENT

I. Moore’s arguments to dismiss the perjury charges are based on
outdated language and otherwise misapply Alabama law.

Under modern Alabama law, an indictment “is sufficient [if it] substantially
follows the language of the statute, provided the statute prescribes with
definiteness the constituents of the offense.” Ex parte Allred, 393 So.2d 1030,
1032 (Ala. 1980). The Indictment need only contain “a statement of legal
conclusion” and “it is not required that an indictment plead evidentiary facts
necessary to a conviction.” Rule 13.2, Ala. R. Crim. P., Committee Comments
(citing Hochman v. State, 91 So.2d 500, 501 (Ala. 1956)).

Ignoring current Alabama law, Moore argued at the hearing that the
indictment is defective because it does not allege that Moore’s testimony to the
grand jury was “willfully and corruptly” false. The Alabama Criminal Code,
however, does not recognize “willfully and corruptly” as a culpable mental state.
See § 13A-2-2, Ala. Code (1975) Commentary (“The four [mental] states are
‘intentionally,’ ‘knowingly,’ ‘recklessly’ and ‘criminal negligence’; and unless the
offense is one of strict liability, at least one of these mental states is essential for
liability.”) (emphasis added); Ex parte Seymour, 946 So. 2d 536, 537, note 2 (Ala.
2006) (listing the same four mental states). Since “the absence of a mens rea
averment in the indictment d[oes] not render the indictment fatally defective or void”, Moore’s Motion to Dismiss on this ground must be denied.1 A.L.L. v. State,
42 So. 3d 146, 150 (Ala. 2009) (citing Sullens v. State, 878 So. 2d 1216 (Ala.
Crim. App. 2003)).

Likewise, Moore’s argument that the indictment is “fatally flawed” because
it does not conform to the indictment forms in the code is also incorrect and based
on antiquated language. Specifically, because the crime of first-degree perjury has
changed since the indictment form in the Code was adopted, the form in the Code
is no longer applicable. See § 13A-10-103, Ala. Code (1975), Commentary (noting
that the perjury statutes have been repealed and replaced, but not amended, over
time); compare § 13A-10-101, Ala. Code (1975) (creating the offense of firstdegree
perjury in 1977) with §15-8-150, Ala. Code (1975) (amended multiple
times with the last amendment in 1961).2 Therefore, the indictment forms cited by
Moore at the hearing have no application to the validity of the Indictment here.3

{ 1 If Moore believes additional details about the offenses are needed, he can file a motion for more definite statement under Rule 13.2 (e), Ala. R. Crim. P. See A.L.L. v. State, 42 So. 3d 146, 150 (Ala. 2009).}

{ 2 See also Title 14, § 375, Code of Alabama (1940), attached hereto as “Exhibit A”; and Title 14, § 375, Code of Alabama (1958), attached hereto as “Exhibit B.” Both of these code sections include the element “willfully and corruptly swears or affirms falsely.” See id. In contrast, this element is not included in today’s Code. See § 13A-10-101, Ala. Code (1975) (Acts 1977, No. 607, p. 812, § 4905). Thus, the old indictment form language from 1961 has no application to the new code section creating the crime of perjury in the first degree in 1977.}

{ 3 The State objected at the hearing to Moore’s citation of § 15-8-150, Ala. Code (1975), as well as other statutes and cases, because he failed to raise those arguments in his Motion to Dismiss. See Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012) (“…we do not consider arguments not raised in a party’s initial brief and made for the first time at oral argument…”) (internal citations and quotations omitted).}

Moreover, even if the old statute forms have some application to the new
perjury statute, those forms are only considered to be sufficient under the code –
they are not required or mandatory. See Matthews v. State, 401 So. 2d 241, 245
(Ala. Crim. App. 1981) (completely ignoring the robbery indictment form and
holding that the language of the robbery indictment was valid);4 see also Schwartz
v. State, 37 Ala. 460, 465-66 (1861) (“Several of the Code forms of indictments are
defective … for they omit to aver many facts, which are necessary to be proved to
insure a conviction. … while these forms may be sufficient, the failure to use
the form language is not fatal to the indictment.”) (emphasis added); James v.
State, 16 So. 94, 97 (Ala. 1894) (“…we do not accord to this form the force of
law further than is required by section 4899 of the Code, which merely provides
that the forms prescribed, in all cases in which they are applicable, are sufficient;
and analogous forms may be used in other cases.”) (emphasis added); Golden v.
State, 103 So. 2d 52, 56 (Ala. Ct. App. 1958) (“The Code forms of indictment do
not preclude the use of other expressions.”).

{ 4 The Matthews case was cited by the defense for the first time at the hearing for the proposition that “If there is no indictment form for an offense set out in Code § 15-8-150, then an indictment which closely parallels the language of the statute creating the offense is generally valid.” 401 So. 2d at 245. Thus, even the Matthews Court approved indictment language that did not follow the form language. The other cases cited by Moore all involved indictments for charges that did not have an indictment form in the Code, so the Court did look at whether the indictment sufficiently tracked the language of the statute and that it contained all of the elements of the crime in it. See Jackson v. State, 516 So. 2d 726 (Ala. Crim. App. 1985); Hewett v. State, 520 So.2d 200 (Ala. Crim. App. 1987).}

Moore’s reliance on Section 15-8-36 is also misplaced. Just like the
indictment forms, this section merely goes to sufficiency, not necessity. See § 15-
8-36, Ala Code (1975) (“it is sufficient to state the substance of the proceedings,
the name of the court or officer before whom the oath was taken and that such
court or officer had authority to administer it…”) (emphasis added). In other
words, this statute does not require the Indictment to plead this information; rather,
the statute merely proscribes that doing so is “sufficient.”

To be clear, the Indictment necessarily includes the allegation that Moore
was in fact under oath, that the oath was properly administered by a person with
authority to do so, and that he lied under oath because it alleges that Moore did
“swear falsely” while testifying in an “official proceeding.” See § 13A-10-
100(b)(1), Ala. Code (1975) (defining the term “swear falsely” as “[t]he making of
a false statement under oath… which the [witness] does not believe to be true.”)
(emphasis added); and see § 13A-10-100(b)(5), Ala. Code (1975) (defining
“official proceeding” as “[a]ny proceeding heard before any legislative, judicial,
administrative or other government agency or official authorized to hear
evidence under oath.”) (emphasis added). As such, the indictment need only state
the “legal conclusion” that Moore did “swear falsely” in an “official proceeding”
to be sufficient. See Rule 13.2, Ala. R. Crim. P., Committee Comments. Moore’s
Motion to Dismiss on this ground is therefore due to be denied.

II. The prosecutors have clear authority to appear before the Lee County
Special Grand Jury and prosecute Moore for the crimes with which he
has been charged.

Without any evidence to support his argument, Moore attempts to challenge
the authority of the prosecutors to appear before the Lee County Special Grand
Jury or otherwise prosecute him for lying to the grand jury. This argument makes
no sense and solely relies on the semantics of the phrase “Acting Attorney
General.”

As the State has now shown the Court in camera,5 Alabama Attorney
General Luther Strange directed Supernumerary District Attorney W. Van Davis to
act in this matter pursuant to General Strange’s authority under § 36-15-15, Ala.
Code (1975). This section does not require the Attorney General to provide a
reason for directing another prosecutor to act on his behalf, and there is no textual
limitation on the Attorney General’s discretion to invoke this statute. See id. The
Attorney General can direct a supernumerary district attorney to act in a
prosecution because the district attorney has special expertise, because the district
attorney requests the work, because the Attorney General’s Office lacks resources,
or for any other reason whatsoever. Regardless of the reasons underlying the
Attorney General’s decision, the Attorney General’s authority to direct a
prosecutor to handle a matter is absolute. In other words, the power of the

( 5 On May 20, 2014, the State filed under seal with the court reporter for this Court’s in camera review of the January 31, 2013 letter from General Strange appointing Davis in this matter.)

Attorney General under this section cannot be limited or removed by the facts
underlying the decision to direct another prosecutor to act on behalf of the
Attorney General.

Therefore, under this section, Attorney General Strange has the authority to
direct Supernumerary District Attorney Davis to act on his behalf in this matter and
to direct Davis to have the final decision making ability without any additional
involvement from the Attorney General.6 The reason or reasons that General
Strange directed Davis to act in this matter have absolutely no bearing on the
question of General Strange’s authority to invoke the statute or of Davis’s
authority when acting pursuant to the statute.

Moore’s only argument is based on mere semantics – not the authority of the
Attorney General to direct a prosecutor to act on his behalf. Moore’s argument
attempts to ascribe some special meaning to the phrase “Acting Attorney General,”
but there is no magic to that phrase. “Acting Attorney General” is merely how the
State has been referring to Supernumerary District Attorney Davis’s role in this
investigation and prosecution. It is undisputed that Davis is a supernumerary
district attorney who has been directed by the Attorney General to act in this matter

6 The fact that the Attorney General directed Davis to handle this matter with final decision making authority without General Strange’s involvement is consistent with the plain language of the statute. See § 36-15-15, Ala. Code (1975) (“Such district attorney shall have and exercise in such other circuit all the powers and authority imposed by law upon the district attorney of such other circuit…”) (emphasis added).}

under § 36-15-15, Ala. Code. Davis has authority under the statute and the
Attorney General’s letter, regardless of what the State calls him.

Moore improperly invokes the use of the term “Acting Attorney General”
under Article V, Section 136 of the Alabama Constitution to support his argument.
See Ala. Const. art. V, § 136. But this section of the Constitution has no
application here. To be sure, this section only applies where the office of the
Attorney General is vacant and the Governor is required to fill that vacancy. No
such vacancy, however, has occurred here. Accordingly, since Luther Strange has
not vacated the Office of the Alabama Attorney General, he is clearly still
authorized to direct Davis to “act” on his behalf in this matter. Regardless of the
title assigned to Davis, his authority to act in this case is proper and Moore has no
evidence to show otherwise.

Further, the Attorney General is also authorized to direct any prosecutor in
his office to assist Davis in this case. Since Attorney General Strange has directed
the Chief of the Special Prosecutions Division, Miles M. Hart, to report directly to
Davis in this case, then Davis is authorized to utilize Hart and any other personnel
or resource available to the Special Prosecutions Division.7 See § 36-15-17, Ala.

7 Moore incorrectly cites Rule 1.10, Ala. R. Prof. Conduct, to support his argument that Deputy Attorneys General Hart and Duffy are disqualified. The applicable Rule is 1.11, which does not impute one government attorney’s disqualification to the entire governmental agency. See Rule 1.11, Ala. R. Prof. Conduct; see also United States v. Caggiano, 660 F.2d 184, 190 (6th Cir. 1981) (“There is, of course, quite a difference in the relationship between law partners and associates in private law firms and lawyers representing the government. … disqualification of}

Code (1975) (“when so directed by the Attorney General, the assistants to the
Attorney General . . . may perform such other duties as may be directed by the
Attorney General.”); see also § 36-15-1(12), Ala. Code (1975) (“The duties
imposed by this section upon the Attorney General and his or her assistants shall
be performed by the Attorney General personally or by his or her assistants under
his or her supervision, direction, and control.”) (emphasis added); § 36-15-13,
Ala. Code (1975) (“The Attorney General, either in person or by assistant, may
appear before any grand jury in this state and present any matter or charge
to them for investigation, and prepare and present to the grand jury
indictments for any violation of the laws of this state … to the same extent as
district attorneys may now or hereafter do.”) (emphasis added).8

Accordingly, the prosecutors were authorized to seek the indictment against
Moore from the Lee County Special Grand Jury and have the authority to
prosecute this case. Moore’s semantics-based argument is therefore without any
legal or evidentiary support and his Motion to Dismiss on these grounds is due to
be denied.

(an entire government department, because of a conflict of interest of a government attorney arising from his former employment, would not be appropriate.”).

(8 At the hearing, counsel for Moore incorrectly asserted that prosecutors from the Attorney General’s Office could not appear before a grand jury or otherwise prosecute a case without filing something with the Circuit Clerk’s Office. There is no requirement to do so under Section 36-15-13, Ala. Code (1975). Instead, this section specifically authorizes prosecutors from the Attorney General’s Office to appear before any grand jury in this state and present an indictment.)

 III. Moore’s subpoena to the Attorney General’s Office should be quashed.

Moore essentially concedes that he has no evidence to challenge the
authority of the prosecutors in this case. Moore’s subpoena is nothing more than a
fishing expedition for evidence to support his arguments. Alabama law does not
permit him to use a subpoena for this purpose. See State v. Reynolds, 819 So. 2d
72, 79 (Ala. Crim. App. 1999) (“A subpoena duces tecum may not be used in the
hope of finding something helpful to the defense. Generally, a subpoena duces
tecum may not be used as a fishing expedition for the purpose of discovery or to
ascertain the existence of evidence.”) (emphasis added). Instead, Moore’s only
procedural device to potentially obtain this information is through discovery under
Rule 16, Ala. R. Crim. P. (not a Rule 17.3 subpoena). See Rule 17.3, Ala. R. Crim.
P., Committee Comments (“This rule is not intended to be a discovery device
because Rule 16 provides for discovery. This rule is to be used to inspect evidence
held by witnesses and to require its production at trial or prior to trial.”).

Accordingly, Moore’s subpoena is due to be quashed.

Moore failed to respond to any of these arguments. Although Moore’s
attorneys provided the State at the May 20th hearing with an unfiled copy of their
“Brief in Opposition to Motion to Quash Subpoena Duces Tecum”, this pleading does not address any of the issues raised in the State’s Motion to Quash.9 To be
sure, the twelve-page Brief only uses the word “subpoena” three times and does
not even assert that the subpoena should be enforced; rather, Moore expressly
requests that the Indictment be dismissed and that the Lee County Special Grand
Jury “be discharged”. (See Brief, at pp. 1-12). Moore’s Brief is therefore not just
incorrectly styled, but is actually an untimely Reply in Support of his Motion to
Dismiss. As the State noted in its Motion to Quash, the time for filing that pleading
expired on May 13, 2014. (See State’s Motion to Quash, p. 2, note 1) (citing Rule
34.1, Ala. R. Crim. P.).

Therefore, the State moves to strike “Defendant’s Brief in Opposition to
Motion to Quash Subpoena Duces Tecum” as an untimely Reply Brief in Support
of Moore’s Motion to Dismiss and respectfully requests that this Court disregard
Moore’s arguments raised in this pleading. And, since Moore failed to file a proper
response to the State’s Motion to Quash, the State submits that its motion is due to
be granted. See Rule 34.1, Ala. R. Crim. P. (“If no response is filed, the motion
shall be deemed submitted on the record before the court.”).

IV. Moore’s remaining arguments are without merit.

Moore’s other arguments are also without merit. First, there can be no doubt
that Moore has failed to satisfy his burden to support his argument that Section 36-

(9It appears that Moore filed his brief with the Clerk in person shortly after the May 20th hearing and then electronically filed a copy of this pleading on May 21, 2014.)

15-62.1, Ala. Code (1975), is unconstitutional. Moore has not articulated any
reason why this statute is unconstitutional as it is written or as applied to him in
this case. Accordingly, Moore has failed to overcome the “presumption…that
statutes are constitutional” and his Motion to Dismiss on this ground should be
denied. State v. Spurlock, 393 So. 2d 1052, 1055-56 (Ala. Crim. App. 1981) (“[The
Alabama Court of Criminal Appeals] will not hold [statutes] unconstitutional
unless convinced beyond a reasonable doubt of their unconstitutionality. The
party challenging the constitutionality of a statute has the burden of
establishing its invalidity.”) (emphasis added).

Second, Moore has failed to show that it was not proper for him to be
charged by the same grand jury that heard his false testimony. Moore’s reliance on
Section 12-16-207, Ala. Code is misplaced here because Moore’s false testimony
was not an offense against any grand jurors’ “person or property.” Instead, the
crime of perjury results in harm to society and the proper administration of the
justice system. See Bogle v. State, 477 So.2d 507, 509 (Ala Crim. App. 1985); see
also United States v. Two Eagle, 318 F.3d 785, 793 (8th Cir. 2003) (“No sound
reason is advanced … for departing in this case from the settled practice of
permitting the same grand jury which heard the witness to file an indictment
charging him with perjury.”) (emphasis added). As such, Moore’s argument that
the grand jury was the victim and therefore had no power to indict him is without
merit.

Third, Moore’s argument that the charges in the Indictment are
multiplicitous is equally incorrect. The charges for perjury and providing false
statements require proof of different elements and therefore do not violate the
prohibition against double jeopardy. See, e.g., Dedeaux v. State, 976 So. 2d 1045,
1048 (Ala. Crim. App. 2005) (“Alabama law clearly permits multiple punishments
for multiple statutory offenses occurring out of the same course of events. When
determining whether two offenses constitute the same offense for double-jeopardy
purposes, this Court looks to see whether each offense contains an element not
contained in the other.”).

Here, the perjury charge requires proof that the false statement was made in
an “official proceeding” (i.e., the Lee County Special Grand Jury). § 13A-10-101,
Ala. Code (1975). This element is not required under the providing false statement
charge – instead, the State is only required to prove that the false statement was
made in a “matter under investigation by the Attorney General, or a prosecutor or
investigator of his or her office.” (§ 36-15-62.1, Ala. Code (1975).10 Accordingly,

{ 10 Section 36-15-62.1 is broader in application than first-degree perjury. While perjury charges only apply to false statements given under oath in an official proceeding, the providing false statement statute does not require the statement to be given under oath or during an official proceeding. Instead, that statue applies to any false statement made – whether under oath or not – in any setting (e.g., interviews, grand jury, trial, etc.) provided that it occurred in a “matter under)}

the Indictment properly charges the two instances of Moore’s false testimony
under both statutes. See Ex parte Dawson, 675 So. 2d 905, 907 (Ala. 1996) (“[A]s
long as each statutory offense requires proof of additional facts, the double
jeopardy prohibition is not implicated.”).

Finally, Moore’s argument that prosecutors are witnesses or victims in this
case is incorrect under the plain language of Section 36-15-62.1. As the statute and
the Indictment make clear, the prosecutors’ names are in the Indictment to identify
the “prosecutor” who is conducting the “matter under investigation.” § 36-15-62.1,
Ala. Code (1975). In other words, identifying the prosecutors is not to show that
they are “witnesses” or “victims” to the crime; rather, the inclusion of the names of
the prosecutors merely puts Moore on notice of the specific crimes with which he
has been charged. Accordingly, the prosecutors are neither “witnesses” nor
“victims” in this case.

CONCLUSION

In accordance with the foregoing, the State respectfully requests that this
Court enter an Order (1) denying Moore’s Motion to Dismiss; (2) quashing
Moore’s Subpoena Duces Tecum to the Attorney General’s Office; and (3) striking
the “Defendant’s Brief in Opposition to Motion to Quash Subpoena Duces Tecum”
as an untimely Reply Brief in Support of Moore’s Motion to Dismiss.

(investigation by the Attorney General or a prosecutor or investigator of his or her office.” § 36-15-62.1, Ala. Code.)

Respectfully submitted this 23rd day of May 2014.

W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Michael B. Duffy
Michael B. Duffy
Deputy Attorney General
[email protected]

OF COUNSEL:
W. Van Davis
Acting Attorney General
423 23rd St. North
Pell City, AL 35125-1740
[email protected]

Miles M. Hart
Chief, Special Prosecutions Division
[email protected]

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
16

CERTIFICATE OF SERVICE
I hereby certify that I have, this the 23rd day of May 2014, 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:

Gregory B. McCain, Esq.
P.O. Box 1331
Dothan, Alabama 36302-1331
(334) 673-8522 Office
(334) 673-1422 Fax
[email protected]

Derek E. Yarbrough, Esq.
Motley Motley & Yarbrough, LLC
117 East Main Street
Dothan, Alabama 36301-1721
(334) 793-0051 Office
(334) 793-9845 Fax
[email protected]

William J. Baxley, Esq.
Joel E. Dillard, Esq.
Baxley, Dillard, Mcknight & James
2008 Third Avenue South
Birmingham, AL 35233
Telephone: 205.271.1100
Telecopier: 205.271.1108
[email protected]
[email protected]

/s/ Michael B. Duffy
Deputy Attorney General

ELECTRONICALLY FILED
5/23/2014 2:08 PM
43-CC-2014-000226.00
CIRCUIT COURT OF
LEE COUNTY, ALABAMA
MARY B. ROBERSON, CLERK

 

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] 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.

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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.

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.”

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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.

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.

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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.

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.

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

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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