By Bill Britt
Alabama Political Reporter
MONTGOMERY—In three, separate filings dated June 25, 2015, the State’s prosecution in the Mike Hubbard criminal case answered a laundry list of accusations made by Hubbard’s defense team.
Hubbard has filed motions to dismiss because he says the Grand Jury was not properly impaneled, and that there has been prosecutorial misconduct.
Hubbard has also sought to have past and present employees of the Attorney General’s Office called as witnesses in an evidentiary hearing which the State is seeking to quash.
Of the many notable revelations in the State’s filings, it shows that Hubbard obtained approximately $2,346,292.88 in personal gain for himself, or his businesses in violation of the State Ethic’s codes.
The records show that as Chairman of the Alabama Republican Party he obtain approximately $1,012,444.00 in personal gain for himself, Craftmaster, or the Auburn Network (Counts 1-4).
The State further showed the charges arise out of Hubbard’s soliciting and receiving approximately $733,848.88 in total “consulting contract” payments from American Pharmacy Cooperative, Inc. (“APCI”) (Counts 5-6), the Southeast Alabama Gas District (“SEAGD”) (Counts 7-9), Edgenuity/E2020 (Count 10), and Bobby Abrams’ businesses (Counts 11-14).
Finally, the State also showed that Hubbard was charged with soliciting and receiving $600,000.00 from principals for preferred stock shares in Craftmaster (Counts 15-19) and soliciting and receiving financial favors from lobbyists and principals to help Auburn Network obtain more clients (Counts 20-23).
The court filings also document obscene email communications between, then Deputy Assistant Attorney General Henry T. “Sonny” Reagan, and AG, Special Agent Howard “Gene” Sisson, in which they fondly compare the defense in the Rep. Barry Moore trial to a Dr. Dre song, “N**ga with a Gun,” which glorifies killing police, as well as spewing obscenities, like MF and GD. Scisson even states that his church sang the same song at a recent worship service but change the title to “Deacon with a gun.”
“These emails show that Sisson, in concert with Reagan, while both were still employees of the Attorney General’s Office, was cheerleading Moore’s defense and applauding Mark White’s and Bill Baxley’s efforts to get the charges against Moore dismissed,” according to the filings.
Last year, Hubbard was indicted by 18 citizens of Lee County who found probable cause to have him arrested and tried on 23 felony counts of public corruption. Hubbard, through his legal team, has filed a long list of motions in an attempt to stall, or have the case dismissed altogether.
In the latest filing, the State has asked trial Judge Jacob Walker III, to say “enough is enough” to Hubbard’s “ever-evolving and ever-baseless prosecutorial misconduct allegations…conspiracies.”
They asked the court to put an end to “the frivolous attacks,” made by Hubbard and his criminal defense team.
In its answer, the State maintains that Hubbard is trying to “rehash” legal arguments that were found baseless in the Rep. Barry Moore trial, as well as claiming conspiracies that clear evidence has refuted time and time again.
In Hubbard’s Supplement to Motion to Dismiss Indictment: Special Grand Jury Not Properly Impaneled, filed publicly on June 10, 2015, the State maintains that the filing is merely a “re-hash of the arguments rejected in State of Alabama v. Felix Barry Moore,” over which Judge Walker presided.
The State concludes, “Hubbard has failed to offer any reason for this Court to reconsider its prior decision that the prosecutors have authority to act in this matter.”
Hubbard’s legal team, like Moore’s, contends that W. Van Davis was not properly appointed and not qualified to serve as “Acting Attorney General.”
The State shows that Judge Walker’s court has already ruled that the Attorney General had the authority to direct Davis to lead the Lee Count Special Grand Jury.
Hubbard has asked the court to reverse itself based on former Governor Bob Riley’s appointment of Richard Allen as Acting Attorney General following former Attorney General Bill Pryor’s investiture as a Judge on the Eleventh Circuit Court of Appeals.
The State says this argument is “makes no sense,” because one situation is not like the other.
Hubbard’s attorney, J. Mark White, here again is covering ground already rejected in the Moore case, where Moore’s attorney, Bill Baxley, unsuccessfully argued that only the Governor could appoint an “Acting Attorney General.”
The State points to precedent for the Attorney General to direct a special prosecutor to handle a prosecution upon the Attorney General’s recusal and for that prosecutor to use the moniker “Acting Attorney General.”
In November 2006, former Attorney General Troy King recused himself from the Post-secondary Education investigation and appointed the District Attorney Richard Minor, to assume oversight of the State’s interest in that matter pursuant to §36-15-15.
In Exhibit B the State shows “Acting Attorney General” is moniker was used by Minor to investigate, prosecute, and convict Roy Johnson.
The State points to the historical precedent for the term “Acting Attorney General” being used when an Attorney General has rescued.
Hubbard’s legal team has also argued before the court, that because Davis maintains a private law practice, and represents clients in other cases, he is disqualified in repressing the State in the Hubbard matter.
“Assuming, for the sake of argument, that Davis has run afoul of a technical provision preventing him from representing private clients while he serves as Acting Attorney General, that fact (if true) would not affect his authority here,” according to the State.
They also conclude that Hubbard has no standing in the Walker Court to challenge Davis’ representation of clients in other cases pending before other courts.
Hubbard’s attorneys also asked the court to dismiss the charges against Hubbard claiming prosecutor Matt Hart lacked authority to swear in witnesses before the Grand Jury, because his “Job Title” was not listed with the State Personnel Board.
While Hart’s job title is, “Public Corruption Special Prosecutor,” this does not change the fact that he was appointed by Attorney General Strange to a non-merit position as a prosecutor in the Attorney General’s Office, which means he is a Deputy Attorney General. See 36-15-5.1, Ala Code, according to the State’s filings.
White, Hubbard’s criminal defense attorney, has fostered the idea of prosecutorial misconduct, based primarily on statements made by former Deputy Assistant Attorney General Reagan. Reagan was allowed to leave the AG’s Office rather than be fired for aiding the defense in the Hubbard case, as well as leaking Grand Jury information to Hubbard, former Gov. Bob Riley and his son, Rob.
The State says that these accusation are baseless and “consist more of rhetoric than reason.” And that he is increasingly desperate… [and] openly refuses to accept any evidence that his allegations or theories are legally or factually deficient.”
Since December 2014, Hubbard has filed motions, quoting “Hitler and Lenin; insinuated that the Grand Jury investigation into his activities was run like the English Star Chamber; and accused the prosecutors, and the Attorney General himself, of destroying and/or manufacturing evidence.”
The State maintains that these actions are tactics, designed to divert attention away from the merits of the criminal case adjacent him, while setting up a false narrative whereby Hubbard, spins, “new equally desperate conspiracies.”
According to the State, Hubbard has claimed the letter appointing Van Davis, Acting Attorney General was backdated, “even though he has received sworn testimony and metadata refuting it.” Yet, he has failed to provided evidence to support his allegation and “failed to disclose the purported source of the allegation.”
According to the State’s filling, “Hubbard also refuses to accept the metadata from the PDF showing that the letter was not backdated, even though Mark White indicated previously that the defense would do so at the April 30, 2015 hearing.”
The State says, “Hubbard’s never-ending parade of frivolous misconduct allegations is not without cost…and the unnecessary and burdensome drain on the State’s resources is, in part, the rationale for the US Supreme Court rulings that have found in favor of the “presumption that prosecutors act properly in carrying out their official duties.”
They further state, “The costs to the State are particularly regrettable here because they were incurred as a result of Hubbard’s specious and unsupported allegations – not actual evidence.”
According to law, a evidence of both misconduct and prejudice must be shown before defendant can file for prosecutorial misconduct discovery. Something Judge Walker, has said that Hubbard’s team has yet to produce.
Even before his indictment, Hubbard was crying about a political witch hunt. He has repeatedly accused General Strange and others of a political prosecution saying the timing and the indictments were politically motivated.
In numerous filings, the State has shown that the statute of limitations would have expired just days after the indictment was presented for the four charges relating to Hubbard essentially embezzling approximately one million dollars in Alabama Republican Party (“ALGOP”),” according to the records.
“Second, the State showed that the prosecutors did not indict Hubbard; rather, the Grand Jury – comprised of eighteen Lee County citizens – voted to indict Hubbard on twenty-three Ethics Law felonies.” This decision was reached following, “a lengthy year-long investigation, taking testimony from over 150 witnesses, and subpoenaing hundreds of thousands of documents.”
Hubbard has accused the State of playing politics when it released the “More Definite Statement,” five days before the start of the 2015 Regular Legislative Session. However, records show that Hubbard’s attorneys agreed to that date, and that the filing was at their request.
White agreed that the State’s Response to Hubbard’s Motion for More Definite Statement would be due on Friday, February 27, 2015.
White confirms to the State, “This is acceptable” regarding the proposed date.
Hubbard has also charged that Lee County Grand Jury exceed its jurisdiction by subpoenaing Sonny Reagan to testify.
Hubbard has claimed that this was due to an office dispute, but the real reason was Reagan’s subpoena was revealed in emails which show Reagan leaking Grand Jury information.
(1) A December 13, 2012 email from Hubbard to former Governor Riley showing that Reagan provided confidential information to Hubbard’s lawyer, Rob Riley, regarding the Montgomery County Grand Jury subpoena to the Alabama Republican Party (“ALGOP”)
(2) A January 18, 2013 email from Hubbard to former Governor Riley where Hubbard discusses that Grand Jury’s evaluation of the allegations they were investigating, which he learned from Reagan via Hubbard’s then-Chief of Staff, Josh Blades.
(3) Reagan’s undisclosed representation in the Lee County Grand Jury matter by attorney Rob Riley – the same attorney Rob Riley who represents Hubbard in this matter.
The latest court filings once again show that Rob Riley has been Hubbard’s attorney since the beginning, a fact that no other news media has chosen to report.
The State concludes that Reagan’s allegations against Hart are thoroughly discredited not only by these actions, but also by the fact they he was instructed to draft his “personnel complaint memo on July 22, 2014 on the advice of attorney Bill Baxley, resulting in Baxley filing his first discovery requests in the Moore prosecution just two days later seeking the prosecutor’s personnel files, including that very same fabricated personnel complaint memo.”
The prosecution’s filing also maintains that Sisson has no credibility because he, in concert with Reagan, worked to undermine the Lee County investigation. The State points back to the fact that Sisson was working in cooperation with Reagan to undermine the Lee County Grand Jury citing the email is which Reagan writes, to Sisson saying, “Rep. Moore (Baxley) gave 44 reasons why the indictment should be dismissed. If you Google ‘44 reasons’ you come up with the below lyrics. You think maybe Bill Baxley, Mark White, et al, is sending a message to the prosecution?”
This exhibit shows Sisson forwarding of the Moore pleading for dismissal to a former employee that no longer worked within the Attorney General’s Office. The email begins, “I’m sure you are following the ‘investigation’ going on in Lee county [sic]. …” The document reads, “Clearly then, Sisson, like Reagan, was disloyal to his client and employer, the State of Alabama – the entity prosecuting Moore.”
The State concludes its filings by saying, “Only this Court has the ability to end the frivolous attacks. Accordingly, the State respectfully requests that this Court enter an order denying Hubbard’s motions to dismiss, as well as all supplements thereto, and denying all of his discovery requests related to prosecutorial misconduct, including but not limited to quashing all of the subpoenas to current and former Attorney General Office employees.”