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Stealing the Statehouse

Hubbard Once Again Argues State Had No Authority To Indict

By Bill Britt
Alabama Political Reporter

MONTGOMERY—According to the most recent filing by his criminal defense team, Speaker Mike Hubbard’s indictment was “found without legal evidence” and therefore is subject to dismissal. In other words, Hubbard’s legal teams argues the evidence of his crimes was obtained illegally because of flaws in the process.


Hubbard who stands accused by the State of Alabama of 23 felony counts of public corruption, has repeatedly said that he looked forward to his day in court.

Meanwhile, his criminal defense team, led by J. Mark White, continues to file motions to prevent that day from ever happening.

Last week, Hubbard filed a supplemental motion to dismiss his indictment, because the Special Grand Jury was not properly impaneled. This is an argument that White and others have made in the past to no avail. According to the motion filed on June 10, 2015, Attorney General Luther Strange did not have the authority to appoint W. Van Davis, “Acting Attorney General.” And even if Strange did properly appoint Davis, he could not oversee Hubbard’s prosecution because he has a private law practice.

White also contends that “Special Prosecutor” Matt Hart, has no authority because of his job title, therefore he “lacked the statutory authority to administer oaths to witnesses before the Special Grand Jury.” As a result, all the evidence against Hubbard was obtained improperly.

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This is the same argument made by attorney Bill Baxley in the Rep. Barry Moore perjury case.

Lee Country Circuit Court Judge Jacob Walker III, rejected that thinking in the Moore case as well as the State Supreme Court by refusing to weigh-in on the matter.

As of late, Team Hubbard has limited its argument to a simple refrain: The Lee County Special Grand Jury was improperly impaneled, therefore the indictments must be dismissed.

As recently as April, Judge Walker informed the defense he had already ruled that the Grand Jury was properly impaneled, and that the likelihood of reversing his ruling was very remote.

In fact, Judge Walker is the one who impaneled the Grand Jury in the first place. This fact was addressed by State Prosecutor Michael Duffy when he reminded White of the “elephant in the room” during the most recent motions hearings.

However, White would have the Judge believe Strange did not properly appoint Davis to perform any function. In his letter, Strange requests Davis serve in his stead in the Lee County proceedings. Strange writes, “By this letter, you are hereby authorized to exercise the full powers vested in me in those matters.”

What is the matter Strange is referring to? The first paragraph says, “I appreciate your agreement, pursuant to Section 36-15-15 of the Code of Alabama, to assume oversight of the State’s interests in the current investigative matters relating to State representative Mike Hubbard, to include all criminal matters arising from that investigation.”

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According to the letter from Strange to Davis, he states from the beginning that Davis had the broad authority with, “investigative matters relating to State representative Mike Hubbard, to include all criminal matters arising from that investigation.”

This is not good enough according to White.

White takes exception with the term “Acting Attorney General,” saying only the Governor has authority to appoint someone to that position.

In interrogatories filed by Strange on May, 27, when asked by what procedures was Davis appointed, Strange answered, “I asked Davis to assume the investigation pursuant to his powers and authority as a supernumerary district attorney as provided by Alabama Code §§ 12-17-184, 12-17-216, and 36-15-15.”

This section of code has been used by many AGs over the years; to appoint district attorneys to act on their behalf, without controversy.

Strange later said, “I often ask district attorneys and supernumerary district attorneys to handle investigations or prosecutions when, for whatever reason, I believe their expertise or resources are needed.”

White continues to argue about oaths of office, myriad matters of semantics, even saying that Special Prosecution Divison Chief Matt Hart, could not legally act in the Lee County Grand Jury, because his job title as “Public Corruption Special Prosecutor,” is not an official designation with the State Personnel Board.

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Attorneys who spoke on background characterize these latest motions as “a waste of time,” and “meaningless.”

The State has until June 25 to answer the motions. This is the day after Judge Walker has set a procedural hearing for June 24, which is believed to address scheduling issues.

The media’s coverage of the June 10 motion centered around why Strange recused himself from the Hubbard investigation, that was reported here, back in 2012, as well as last month.


Bill Britt
Written By

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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