By Bill Britt
Alabama Political Reporter
MONTGOMERY—At the October 20 motions hearing to quash subpoenas issued by Speaker Mike Hubbard, a few things became apparent: Hubbard’s criminal defense attorney J. Mark White would ignore the trial judge’s order, and that the judge would equivocate on his orders if White whined long and loud enough.
Hubbard’s attorneys were ordered by Lee County Circuit Court Judge Jacob Walker III to file a complete witness list three weeks prior to the evidentiary hearing scheduled for October 26. However, Team Hubbard filed an amended list the night before Tuesday’s motions hearing without any penalty from Judge Walker.
Walker, who earlier also issued an order sua sponte, stating the October hearing would be narrow in scope and only apply to prosecutorial misconduct as defined in the Bank of Nova Scotia, et al. v. United States, but on Tuesday he seemed to broaden the scope after White pushed back.
In 1998, the US Supreme Court found the lower court could not dismiss on the grounds of prosecutorial misconduct unless the conduct met very strict standards. The court held, “Under the standard of prejudice that courts should apply, in assessing such claims, dismissal of the indictment is appropriate only ‘if it is established that the violation substantially influenced the grand jury’s decision to indict,’ or if there is ‘grave doubt’ that the decision to indict was free from the substantial influence of such violations….”
Judge Walker has previously said, that only actions taken inside the Lee County Grand Jury would be considered. Yet, on Tuesday, he left the door open for witnesses that had never set foot in the Grand Jury. Hubbard’s attorney argued they should be allowed to introduce evidence of selective prosecution and arguments to dismiss of the grounds that the laws under which Hubbard is charged are unconstitutional. Again, Judge Walker seemed to give an ambiguous answer to White, leaving speculation that such evidence would be allowed.
One thing seems clear: if this pattern continues, White is going to disobey Judge Walker’s orders, miss deadlines, and whine, if he doesn’t get his way.
Court observers think this is a troubling trend along with the fact that much of the proceedings are occurring during conference calls and in Judge Walker’s chamber and not in public court.
Hubbard, as Speaker of the Alabama House of Representatives, and local celebrity, is being shown a degree of deference not generally afforded other defendants. While Judge Walker is known as an honest and fair jurist, there is an emerging pattern of permitting Hubbard’s attorney far greater latitude than the law requires.
In Hubbard’s last-minute filing, he presented an amended witness list, pared down from 40 to 37 with changes to the line-up. Hubbard struck from his original witness list Robert Abrams, Billy Canary, Patricia Todd, Jessie Seroyer, and Ester Deneve. The general consensus around the courthouse is that Abrams and Canary would be forced to invoke their 5th amendment right, while Hammett would not provide friendly testimony. Todd is presumed to be stricken because the Alabama Ethics Commission restated their ethics opinion, which would have given her a right to lobby for her employer.
Added to the list were Howard P. Walthall, Sr., the Custodian of Records AL Ethics and the Custodian of Records AL Admin of Court.
Walthall has lectured on Alabama State law and has connections with former Gov. Bob Riley.
As for who will testify at the October 26 evidentiary hearing on prosecutorial misconduct, it is not completely clear from the Tuesday hearing. Judge Walker ordered that no one currently on staff with the Attorney General’s Office will be required to testify in court. If relevant, they will be required to give depositions. Others will be allowed, but the prosecution will also be given an opportunity to challenge each witness. White was asked to offer a proffer on witnesses, but he dodged the question with vague answers, which seemed to be accepted by the court.
All leading back to the question of why Hubbard is being treated with kid gloves?