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Judge Says Davis Has Authority, Hubbard’s Attorney Questions Judge

Bill Britt

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By Bill Britt
Alabama Political Reporter
 
MONTGOMERY— On Friday, Circuit Court Judge, Jacob A Walker III, denied Rep. Barry Moore’s motion to dismiss the felony case against him in Lee County.
 
In his order, Judge Walker also released a letter showing were Attorney General Luther Strange has given W. Van Davis the authority to act on the Attorney General’s behalf in, “the State’s interests in the current investigative matters relating to State Representative Mike Hubbard…to include all criminal matters arising from that investigation.”
 
However, Hubbard’s white collar criminal defense lawyer, J. Mark White, isn’t buying Judge Walker’s decision, according to a report by the Associated Press.
 
Speaker of the House Mike Hubbard, R-Auburn, has been mentioned, not only in the Moore indictment, but in the conviction and plea agreement of disgraced lawmaker, Rep. Greg Wren, R-Auburn, as well. But, Hubbard and his defense lawyer, J. Mark White, have continued to argue that Hubbard was not a part of these investigations.
 
The letter attached to Judge Walker’s order makes it abundantly clear that Hubbard has been the subject of the criminal investigation from the start.
 
Of course Hubbard and White have also tried to spin their argument by saying that the investigation is a political witch hunt. While denying Hubbard’s involvement they would simultaneously have the public believe that the whole affair is concocted to damage Hubbard politically. The position of Hubbard and White would seem to lack any real cognitive consistency.
 
One of the arguments made by Moore’s attorney, Bill Baxley, was that Davis who was appointed acting Attorney General on January 31, 2013, did not have standing before the court. And therefore the entire Grand Jury proceedings were illegal.
 
 The Judge dismissed that argument saying, “The Court accepted an in camera document from the State which supports the position that Mr. Davis was appointed by the Attorney General to assume oversight of a legislative corruption investigation on or around January 31st, 2013, as well as any criminal matters arising from that investigation. Furthermore, the letter informs Mr. Davis that the chief of the special prosecution division will report directly to him. These actions appear to be supported by the authority of sections 12-17-184(10), 12-17-216 and 36-15-15 of the Code of Alabama. A redacted copy of the letter which was filed under seal is attached to this order as Exhibit A.”

Hubbard’s attorney questioned Judge Walker ruling according to an AP report, “His [Hubbard’s] attorney, Mark White, said Friday the letter raises more questions than it answers about whether Davis was properly appointed to oversee the investigation. He said that a section of state law the attorney general cited in the letter only refers to appointing active district attorneys, not former district attorneys, to help with investigations.”
 
White insinuates that the law applies only to “active district attorneys, not former district attorneys.” What White omits is the fact that Davis is a supernumerary district attorney.

This appears to be an attempt to spin the facts not only for the public,  while disparaging the judge’s order. Perhaps White hopes to continue this argument before the Alabama Court of Appeals.
White continues to spend the facts implying that Davis has no standing to conduct the investigation.
Davis, is a supernumerary District Attorney from St. Clair County.

A supernumerary is someone who has retired from their full-time court position, but continues to work on a part-time or as needed basis. Certainly, even White knows that a supernumerary is always available to be called back into action and never truly, inactive in the eyes of the State.

But as one observer said during the Moore motion dismiss  hearing, “When a client is guilty, never argue that they are innocent. Argue about the law.”
 
As far as the case against Moore/Hubbard being political motivated, Judge Walker’s action in delaying his ruling until after the June primaries should put an end to that argument; but, it most likely will not.
 
White and at least 4 other attorneys working with him were on hand during the Moore hearing to dismiss.  Many believe that White is managing both cases in a coordinated effort to exonerate Hubbard.

Insiders say it was Rob Riley, the son of former Gov. Bob Riley, who recommended White to represent Hubbard and that White put forward Baxley as attorney for Moore. Both former Gov. Riley and Hubbard have contributed heavily to Moore’s campaign fund, from which he has been paying his attorney’s fees.
 
Judge Walker dismissed all the arguments that Baxley made on Moore’s behalf, citing extensive case law.
 
Moore’s trial is set for September 15.
 
The question remains, will Baxley (on White’s orders) appeal Judge Walker’s ruling and if so will the Court of Appeals uphold the lower court actions?
 
In many quarters, there is a persistent current of distrust for the State’s judicial system. Speaker Hubbard is on record saying, “We have nine of nine justices,” on the State Supreme Court. That has been taken to mean that courts heavily weighted with Republican jurists can be counted on to favor Republican causes, or defendants,  despite the law.
 
Could this be what Hubbard and White are counting on? Does Hubbard’s think that the Alabama judicial system is corrupt?
 
The men and women who sit on the Court of Appeals have sworn an oath to uphold the law. There is no reason to believe that they would shrink from their duty. However, there is a general belief that party politics trump justice.
 
Judge Walker handed the Moore camp a stunning defeat on Friday. He also opened the State’s eyes to the on going criminal investigation of Speaker Hubbard.
 
White has questioned Judge Walker.
 
Time will tell how that works out for his client and if the State courts are based on the rule of law, or the party of men.

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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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Health

Alabama hospitals nearing COVID-19 summer surge levels

Wednesday was the 18th straight day with more than 1,000 people in hospitals in Alabama with COVID-19. 

Eddie Burkhalter

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UAB Chief of Hospital Medicine Dr. Kierstin Kennedy.

Alabama hospitals reported caring for 1,483 people infected with COVID-19 on Wednesday, the highest number of patients since Aug. 11, when the state was enduring its summer surge. Wednesday was also the 18th straight day with more than 1,000 people in hospitals in Alabama with COVID-19. 

The seven-day average of hospitalizations was 1,370 on Wednesday, the 36th straight day of that average rising. The Alabama Department of Public Health reported 2,453 new cases Wednesday. The 14-day average of new cases was — for the eighth day in a row — at a record high of 2,192. 

Across the country, more than 80,000 people were hospitalized for COVID-19 on Tuesday, a record high and the 15th straight day of record hospitalizations nationwide, according to the COVID Tracking Project, a coronavirus tracking website.

The CDC this week recommended people not travel for Thanksgiving to help prevent the spread of coronavirus. 

“The only way for us to successfully get through this pandemic is if we work together,” said Dr. Kierstin Kennedy, UAB’s chief of hospital medicine, in a message Tuesday. “There’s no one subset of the community that’s going to be able to carry the weight of this pandemic and so we all have to take part in wearing our masks, keeping our distance, making sure that we’re washing our hands.” 

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Kennedy said the best way she can describe the current situation is “Russian Roulette.” 

“Not only in the form of, maybe you get it and you don’t get sick or maybe you get it and you end up in the ICU,” Kennedy said, “but if you do end up sick, are you going to get to the hospital at a time when we’ve got capacity, and we’ve got enough people to take care of you? And that is a scary thought.” 

The Alabama Department of Public Health on Wednesday reported an increase of 60 confirmed and probable COVID-19 deaths. Deaths take time to confirm and the date a death is reported does not necessarily reflect the date on which the individual died. At least 23 of those deaths occurred in November, and 30 occurred in other months. Seven were undated. Data for the last two to three weeks are incomplete.

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As of Wednesday, at least 3,532 Alabamians have died of COVID-19, according to the Department of Public Health. During November, at least 195 people have died in Alabama from COVID-19. But ADPH is sure to add more to the month’s tally in the weeks to come as data becomes more complete.

ADPH on Wednesday announced a change that nearly doubled the department’s estimate of people who have recovered from COVID-19, bringing that figure up to 161,946. That change also alters APR’s estimates of how many cases are considered active.

ADPH’s Infectious Disease and Outbreak team “updated some parameters” in the department’s Alabama NEDSS Base Surveillance System, which resulted in the increase, the department said.

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Corruption

Judge reduces former Alabama Speaker Mike Hubbard’s prison sentence

The trial court judge ordered his 48-month sentence reduced to 28 months.

Eddie Burkhalter

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Former Alabama House Speaker Mike Hubbard was booked into jail to begin serving his four-year sentence for ethics violations in September. (VIA LEE COUNTY DETENTION CENTER)

Lee County Circuit Court Judge Jacob Walker on Wednesday reduced former Alabama House Speaker Mike Hubbard’s prison sentence from four years to just more than two. 

Walker in his order filed Wednesday noted that Hubbard was sentenced to fours years on Aug. 9, 2016, after being convicted of 12 felony ethics charges for misusing his office for personal gain, but that on Aug. 27, 2018, the Alabama Court of Criminal Appeals reversed convictions on five of those counts. The Alabama Supreme Court later struck down another count.

Hubbard’s attorneys on Sept. 18 filed a motion to revise his sentence, to which the state objected, according to court records, arguing that “Hubbard’s refusal to admit any guilt or express any remorse makes him wholly unfit to receive any leniency.”   

Walker in his order cited state code and wrote that the power of the courts to grant probation “is a matter of grace and lies entirely within the sound discretion of the trial court.” 

“Furthermore, the Court must consider the nature of the Defendant’s crimes. Acts of public corruption harm not just those directly involved, but harm society as a whole,” Walker wrote.

Walker ruled that because six of Hubbard’s original felony counts were later reversed, his entrance should be changed to reflect that, and ordered his 48-month sentence reduced to 28 months. 

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Alabama Attorney General Steve Marshall on Wednesday said Walker’s decision to reduce Hubbard’s sentence was the wrong message to send.

“Mr. Hubbard was convicted of the intentional violation of Alabama’s ethics laws, the same laws he championed in the legislature only later to brazenly disregard for his personal enrichment,” Marshall said in a statement. “Even as he sits in state prison as a six-time felon, Mike Hubbard continues to deny any guilt or offer any remorse for his actions in violation of the law.  Reducing his original four-year sentence sends precisely the wrong message to would-be violators of Alabama’s ethics laws.”

Hubbard was booked into the Lee County Jail on Sept. 11, more than four years after his conviction. On Nov. 5 he was taken into custody by the Department of Corrections.

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News

Nick Saban tests positive for COVID-19, has “mild symptoms”

It’s unlikely Saban will be able to coach in person during Saturday’s Iron Bowl against Auburn.

Eddie Burkhalter

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University of Alabama head football coach Nick Saban.

University of Alabama head football coach Nick Saban has tested positive for COVID-19 ahead of the Iron Bowl and has mild symptoms, according to a statement from the university on Wednesday. 

“This morning we received notification that Coach Saban tested positive for COVID-19,” said Dr. Jimmy Robinson and Jeff Allan, associate athletic director, in the statement. “He has very mild symptoms, so this test will not be categorized as a false positive. He will follow all appropriate guidelines and isolate at home.” 

Saban had previously tested positive before Alabama’s game against Georgia but was asymptomatic and subsequently tested negative three times, a sign that the positive test could have been a false positive. He returned to coach that game. 

It’s unlikely Saban will be able to coach in person during Saturday’s Iron Bowl against Auburn, given the Centers for Disease Control and Prevention’s guidelines for quarantining after testing positive and with symptoms. Neither Saban nor the university had spoken about that possibility as of Wednesday morning.

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National

Civil rights leader Bruce Boynton dies at 83

The Dallas County Courthouse Annex will be renamed in honor of Boynton and fellow Civil Rights Movement leader J.L. Chestnut.

Brandon Moseley

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Selma attorney and Civil Rights Movement leader Bruce Carver Boynton

Selma attorney and Civil Rights Movement leader Bruce Carver Boynton died from cancer in a Montgomery hospital on Monday. He was 83. The Dallas County Courthouse Annex will be renamed in honor of Boynton and fellow Civil Rights Movement leader J.L. Chestnut.

“We’ve lost a giant of the Civil Rights Movement,” said Congresswoman Terri Sewell, D-Alabama. “Son of Amelia Boynton Robinson, Bruce Boynton was a Selma native whose refusal to leave a “whites-only” section of a bus station restaurant led to the landmark SCOTUS decision in Boynton v. Virginia overturning racial segregation in public transportation, sparking the Freedom Rides and end of Jim Crow. Let us be inspired by his commitment to keep striving and working toward a more perfect union.”

Boynton attended Howard University Law School in Washington D.C. He was arrested in Richmond, Virginia, in his senior year of law school for refusing to leave a “whites-only” section of a bus station restaurant. That arrest and conviction would be appealed all the way to the U.S. Supreme Court where Boynton and civil rights advocates prevailed in the landmark case 1060 Boynton vs. Virginia.

Boynton’s case was handled by famed civil rights era attorney Thurgood Marshal, who would go on to serve on the U.S. Supreme Court. The 1960 7-to-2 decision ruled that federal prohibitions barring segregation on interstate buses also applied to bus stations and other interstate travel facilities.

The decision inspired the “Freedom Rides” movement. Some Freedom Riders were attacked when they came to Alabama.

While Boynton received a high score on the Alabama Bar exam, the Alabama Bar prevented him from working in the state for years due to that 1958 trespassing conviction. Undeterred, Boynton worked in Tennessee during the years, bringing school desegregation lawsuits.

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Sherrilyn Ifill with the NAACP Legal Defense Fund said on social media: “NAACP LDF represented Bruce Boynton, who was an unplanned Freedom Rider (he simply wanted to buy a sandwich in a Va bus station stop & when denied was willing to sue & his case went to the SCOTUS) and later Bruce’s mother Amelia Boynton (in Selma after Bloody Sunday).”

His mother, Amelia Boynton, was an early organizer of the voting rights movement. During the Selma to Montgomery Voting Rights March in 1965, she was beaten on the Edmund Pettus Bridge. She later co-founded the National Voting Rights Museum and annual Bridge Crossing Jubilee in Selma. His father S.W. Boynton was also active in the Civil Rights Movement.

Bruce Boynton worked for several years at a Washington D.C. law firm but spent most of his long, illustrious legal career in Selma, Alabama, with a focus on civil rights cases. He was the first Black special prosecutor in Alabama history and at one point he represented Stokely Carmichael.

This year has seen the passing of a number of prominent Civil Rights Movement leaders, including Troy native Georgia Congressman John Lewis.

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