By Bill Britt
Alabama Political Reporter
MONTGOMERY—State Rep. Barry Moore, R-Enterprise, has asked the Alabama Court of Criminal Appeals to stay his felony trail before Circuit Court Judge Jacob A.Walker, III.
Moore’s attorney, Bill Baxley, has filed a petition for Writ of Mandamus, pursuant to rule 21, of the Alabama Rules of Appellate Procedure.
Moore appears to be seeking a ruling on a court proceeding that has not yet occurred.
In the 89 page petition Baxley makes essentially the same argument that was rejected by Judge Walker, last month.
It has been suggested that Moore is shopping for a politically-friendly court to save him from a felony criminal trial.
A petition for Writ of Mandamus, also known as an “extraordinary writ,” is designed when a lower court decision would cause immediate harm to a defendant. It is used when a defendant, “seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable.” However, in Moore’s case, he would have sufficient time and a legal right to an appeal after the completion of his trial in Lee County.
It is believed by several attorneys close to the case that Baxley’s maneuvers are simply a test of white collar criminal attorney J. Mark White’s strategy to clear Speaker of the House Mike Hubbard, if he is indicted. It is thought that Moore is just a pawn to help Hubbard find a winning strategy for himself.
Hubbard has been revealed as the center character under investigations by the Lee County Grand Jury and Moore is seen as collateral to the overall investigation.
“Moore is not the brightest bulb in the lamp, and it makes sense for them to use him to test Mark White’s legal strategy. If he is convicted, they can go back to the drawing board and try again. Not a great loss, if it helps Mike survive,” said an attorney with knowledge of White’s tactics.
The petition before the Court of Criminal Appeals is basically the same as the “Motion to Dismiss,” rejected by Judge Walker. The only real exception is the introduction of the Letter from Attorney General Luther Strange, authorizing Davis to oversee the investigation of Hubbard and others.
Baxley states that the Attorney General’s Office redacted the letter that was released with Judge Walker’s rejection of the Moore appeal. In fact it was not the AG but under Judge Walker’s direction that a portion of the letter was redacted.
In the petition before the court, Baxley again asserts that acting Attorney General W. Van Davis has no standing before the court, stating that Davis was acting before the Lee County Special Grand Jury without “any oath, without any election so to serve, and without any legally required appointment by the Governor of Alabama.”
Judge Walker rejected this 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.”
According to State law the Attorney General has full legal authority to appoint a District Attorney to represent him in any case and in all jurisdictions throughout the State. Davis is a supernumerary District Attorney who may be called back to work on the request of the AG.
If Moore is looking for a politically sympathetic court, perhaps he thinks that the Republican dominated Court of Appeals is a place that may give him a favorable hearing. In the past, Hubbard has suggested that the Republican-controlled Alabama Supreme Court was politically inclined to rule favorably toward Republican positions. To believe that the Alabama Court of Criminal Appeals would be political motivated should be an offense to those who seat on the bench.
Alabama Court of Criminal Appeals is comprised of Presiding Judge Mary Becker Windom, Judge Samuel Henry Welch, Judge J. Elizabeth Kellum, Judge Liles C. Burke and Judge J. Michael Joiner, all Republicans.
Judge Windom is the wife of former Lt. Gov. Steve Windom, who has a successful lobbying firm with many issues before Moore and especially Hubbard.
In 2013, Judge Windom received $1,500 in campaign contributions for Speaker Hubbard’s Storm PAC. It has been stated by two individuals who wish to remain anonymous, that Judge Kellum received a campaign contribution from Storm PAC, but that she later returned the contribution. There is no record of the contribution or its return. Judge Kellum’s office said she was unavailable for comment as she was out to town for the week.
If Moore is thinking along the same lines as Hubbard when he said, “we have nine of nine judges,” on the Supreme Court, then perhaps greater attention needs to be paid to the actions of the members of the Court of Appeals. However, there is nothing that would indicate that the Judges would be swayed by anything other than the law.
It has been said that Hubbard may be indicted, but would never be convicted in an Alabama court.
Perhaps the Moore case is a test of the judicial system itself.
The Attorney General’s Office has filed a response saying the appeal is premature.