By Bill Britt
Alabama Political Reporter
MONTGOMERY—The pretrial hearing on Wednesday in Mike Hubbard’s felony criminal case was confusing and troubling. At issue before the court were the State’s motion on Rule 404(b), seven Motions in limine, and the admissibility of evidence. Judge Jacob Walker, III, was ready, the State was ready, but Hubbard’s attorney Bill Baxley claimed he didn’t know the hearing was about those matters and was not prepared to address them.
Although Judge Walker seemed visually unpleased with Baxley’s response, he let it slide and the hearing quickly de-evolved into a patchwork of musing by the Judge and arguments by the State. Nothing of substance was resolved.
What would have been Judge Walker’s reaction had Deputy Attorney General Matt Hart said, “Oh, Judge, I didn’t know we were going to cover that?” as Baxley did?
Baxley and second chair, Lance Bell, spent the first 10 minutes of the 30 minute hearing repeating over and over, “We can’t be ready, there’s no way we can be ready for trial.”
Baxley, with a straight face, told the Judge that he thought the purpose of the hearing was to set a date for trial, and he was prepared to argue for yet another continuance.
After the hearing, Judge Walker issued an order stating that the defense had until April 22 to file a motion to continue, and the State has until April 26 to respond, setting up what appears to be another delay in a case that is entering its second year.
Most troubling for those of us who have watched Hubbard’s attorneys turn Judge Walker’s court into a sideshow was that the Judge seemed to accept the idea that Baxley could reintroduce selective, and vindictive, prosecution and prosecutorial misconduct at trial.
This is an issue that has cost the court and the people months of time and money. Recently, Judge Walker issued an order stating the defense did not engage in selective or vindictive prosecution, and that prosecutorial misconduct did not occur.
The State reminded the Judge of that fact several times.
Bell confirmed introducing that to the jury was part of the defense’s game plan, saying they would call Baron Coleman and Hart to testify. Hart said this could prejudice the jury against the prosecution and lead to jury nullification.
“Jury nullification occurs when a jury returns a verdict of ‘Not Guilty,’ despite its belief that the defendant is guilty of the violation charged. The jury, in effect, nullifies a law that it believes is either immoral or wrongly applied to the defendant, whose fate they are charged with deciding.” Hart also stated that the State has spent months proving to the court that they were not the “bad guys,” and this would force them to convince a jury as well.
Deputy Attorney General John Gibbs said, that Coleman couldn’t give testimony to anything Hubbard is accused of doing in the indictments, but if something like prosecutorial misconduct is planted in the minds of the jurors, “That bell can’t be unrung.”
In the Rep. Barry Moore case, Judge Walker did grant the State Motion in limine to not allow the defense to bring up selective or vindictive prosecution, or prosecutorial misconduct. The Judge did not directly address the other five of the Motions in limine but did say that sentencing issues would not be allowed to be discussed during the trial.
The next issue that was monetarily discussed was the State’s motion on Rule 404(b).
Rule 404(b) “refers to ‘a crime, wrong, or other act’ and does not say that those other acts need ever have resulted in arrest, prosecution, or conviction or even be criminal,” according to a study made at Indiana University Law. The study states that under Rule 404(b), evidence may be admissible for any of nine other reasons, so as to show motive, opportunity, or intent.
Federal evidence review states, “…the rule allows the introduction of other acts evidence for limited purposes if it bears on a relevant issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Judge Walker said the State’s motion was overly vague, and if they wanted a ruling he would need more specifics, with names, acts and other pertinent information. Baxley objected to the entire notion of the 404(b), complaining how recent motions by the State were harming Hubbard, because it was being reported in the press. Baxley said that because of Judge Walker’s gag order, he was unable to counter the prosecution’s arguement “with the truth.”
Judge Walker said he would take all of this under advisement, and would most likely set another pretrial hearing for April 29.