By Bill Britt
Alabama Politcal Reporter
OPELIKA—In what one veteran attorney called a desperate move, Michael G. Hubbard took the stand in his own defense today, the tenth day of his criminal trial.
The day began with Hubbard’s attorney, Bill Baxley, continuing his cross examination of former Governor Bob Riley, who was trying to woo the jury with his “political” charm.
Under cross examination, Baxley attempted to solicit Riley’s thoughts on the Ethics Laws. That led to an immediate objection by Lead Prosecutor, Matt Hart, which Judge Jacob Walker, III, sustained. Again, Baxley asked Riley to give his opinion on the Ethic Laws, to which Hart objected again. This resulted in Judge Walker telling Baxley, that line of questioning was not going to be allowed, and that he should move on. Baxley ignored the Judge’s instruction and attempted a third bite at the apple. Hart objected, and said the State would ask for sanctions against Baxley, if he continued. This led to a contentious sidebar, during which Baxley could be heard pleading with the Judge, and Hart saying we handled this yesterday. Apparently, there had been a hearing, without the jury or press in attendance, in which Judge Walker disallowed any testimony from Riley about his interpretation of the Ethics Laws. Baxley moved on, questioning Riley about economic development issues. Once again, Hart objected, and the Judge told Baxley to try something else. Riley’s testimony ended with a whimper, not with a bang, as Baxley had planned.
After a sidebar, Judge Walker gave the jurors an extended lunch break of an hour and forty minutes.
Next, the court took up the defense’s perfunctory attempt to have Hubbard acquitted, because the State had not reached its burden of proof. However, Judge Walker, after much wrangling over each of the 23 counts, declared that the State had met its burden, and ruled the trial would move forward.
Perhaps more telling of how the trial is proceeding, was what the jury didn’t hear.
With the jury in recess, Baxley sought to introduce testimony from Kitty Brown, a partner at White, Arnold and Dowd. Baxley wanted to introduce a memo that she had constructed during a meeting with Hubbard, J. Mark White, then-Ethics Director, Jim Sumner, and his legal counsel, Hugh Evans, III. Brown’s memo was intended to show that Hubbard had informed the Ethics Commission of his contract with American Pharmacy Cooperative, Inc. (APCI), before he voted on the measure. However, Brown’s memo did not have the date of when Hubbard first contacted Sumner, and she could not recall it.
In his testimony, Sumner stated Hubbard called him after the vote and said he wanted to speak to him. He thought his Chief of Staff, Josh Blades, may have done something wrong. Judge Walker denied the Defense’s request to introduce the memo and Brown’s testimony.
Apparently, over the lunch break, Hubbard’s defense team had filed a motion to have Riley recalled to the witness stand, to give his opinion on the Ethics Laws. Eventually, Judge Walker ruled that he would not allow Riley back on the stand.
The reason that Hubbard took the stand after lunch? Judge Walker did not allow Baxley’s first two witnesses, Brown and Riley.
With the jury reconvened, Baxley attempted, yet again, to have Riley called as a witness. The Judge told Baxley to call his next witness, which was Hubbard.
On the stand, Hubbard seemed confident and thoroughly coached for his testimony. For around 50 minutes, the jurors were treated to Hubbard’s recollection of his humble beginnings, his triumphs in sports, his marriage, his lovely wife and children. During this portion Hubbard tried to crack a few jokes, but the jury wasn’t laughing. As attorney David McKnight walked Hubbard through his testimony in which he explained, that he had done nothing wrong, had sought the Ethics Commission’s approval on every turn, never questioned the actions that he was accused of, he simply put them in a different context.
The risk of Hubbard taking the stand in his own defense, is that he will have to face the formidable Lead Prosecutor, Matt Hart.