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Kellum holds onto Court of Criminal Court of Appeals seat

While there is still a general election on Nov. 3, Tuesday’s victory effectively re-elected Kellum to her third term as no Democrat or independent qualified to run for the race.

Brandon Moseley

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Judge Beth Kellum

Incumbent Alabama’s Court of Criminal Appeals Judge Beth Kellum won the Republican primary for her seat on the court, likely assuring that she will return to the court after the general election.

With 100 percent of precincts reporting unofficial results, Beth Kellum had 56 percent while challenger Will Smith received 44 percent.

“Thank you to everyone who made the effort to vote in today’s “pandemic election,“ Kellum said in a statement. “It has been one of the great honors of my life to represent you on the Court of Criminal Appeals for the past 12 years. It was a hard fought race, and I am thankful for the people of Alabama and for the trust you put in me to serve the great State of Alabama. I look forward to serving you for another six years!”

Smith conceded the race in a statement.

“This Sunday, one of the hymns we sang in church was Have Faith In God. The chorus of the song has played in my mind ever since. So first and foremost, I want to thank God for giving me faith and provision along the way of this campaign journey,” Smith said. “I want to thank the Republican voters who braved the unusual circumstances of this time to vote for me today. These conservative grassroots supporters have supported my campaign, defended my character and championed our sacred beliefs of faith and family and our American ideals of liberty, freedom and constitutional government.”

“I am forever grateful to my wife, Laura,” Smith continued. “She has been my rock and encourager. She has always been so supportive and understanding throughout the demands of this campaign journey. I love her and I am blessed to have her as my wife.”

“I enjoyed traveling to the four corners of our great state and meeting so many of her wonderful people,” Smith added. “This race was one of grassroots conservatives against the big money interests of Montgomery which contributed over $80,000 to the incumbent. The results of the March 3rd Republican Primary showed me trailing the two-term incumbent by a margin of 43% to 37%. It was amazing we were within 6 percentage points of the two-term incumbent despite being outspent over 15 to 1 during the primary. Today, the voters spoke and re-elected the incumbent to her third term. I congratulate Judge Kellum on her victory tonight.”

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Alabama Republican Party Chairman Terry Lathan issued a statement following Kellum’s win for the GOP nomination for the Alabama Criminal Court of Appeals.

“While we had two exceptional candidates for the Criminal Court of Appeals, Alabama Republican voters have selected a highly qualified legal mind to be their nominee for the Alabama Criminal Court of Appeals,” Lathan said. “Beth Kellum has proven herself to a be a strong judge during her previous two terms on the bench. Combined with her extensive legal career, we are confident Judge Kellum will win re-election and return to this seat on November 3rd. We look forward to her continued service with the upmost integrity and seriousness she has shown Alabama as a judge.”

“We extend our gratitude to Will Smith for his willingness to serve — not just in this position but in his previous post as a Lauderdale County Commissioner,” Lathan added. “He is a great example of a true statesman.”

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Kellum is an Alabama native who grew up in Vance in Tuscaloosa County. She graduated from Brookwood High School in 1977. She has a bachelor’s degree from the University of Alabama and a law degree from the University of Alabama School of Law.

Kellum was hired in 1985 by Attorney General Charles Graddick as an assistant attorney general. She worked in the criminal appeals division where she primarily prosecuted appeals before the Court of Criminal Appeals and the Alabama Supreme Court.

She later worked as a staff attorney for the Court of Criminal Appeals from 1987 until 1990. Kellum went into private practice with the Montgomery law firm of Robison & Belser, P.A., working on a wide variety of civil and criminal cases in state and federal courts.

In 1997, she went back to the Court of Criminal Appeals to work as a senior staff attorney for the newly-elected Judge Jean Brown. She worked as a senior staff attorney for the Alabama Supreme Court from 1999 until 2001, before returning to the Court of Criminal Appeals as the senior staff attorney for then newly-elected Judge Kelli Wise.

Kellum was elected to the Court of Criminal Appeals in November 2008 and was re-elected in 2014. While there is still a general election on Nov. 3, Tuesday’s victory effectively re-elected Kellum to her third term as no Democrat or independent qualified to run for the race.

Alabama is one of the few states to elect its judges in partisan elections.

Brandon Moseley is a senior reporter with eight and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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Plaintiffs ask for panel of judges to reconsider ruling on Alabama voter ID law

Eddie Burkhalter

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(STOCK PHOTO)

Plaintiffs suing Alabama Secretary of State John Merrill alleging the state’s voter ID law discriminates against minorities on Monday asked a panel of judges to reconsider an appeals court decision that affirmed the law. 

The NAACP Legal Defense and Educational Fund on Monday filed a petition Monday asking that all of the judges on the Eleventh Circuit Court of Appeals reconsider the July 21 decision by a panel of three judges that fell 2-1 in favor of the state’s voter ID law. 

The 2011 law requires voters in Alabama to show a valid, government-issued photo ID to vote. The NAACP, Greater Birmingham Ministries and several minority voters sued, arguing that lawmakers knowingly crafted the law to prevent Black people and other minorities, who are less likely to have such photo IDs, from voting. 

The three-judge panel of the 11th Circuit Court of Appeals in its July 21 opinion found that the burden of Alabama’s voter ID law is minimal, and does not“violate the Fourteenth and Fifteenth Amendments of the Constitution, nor does it violate the Voting Rights Act.”

Merrill has argued that the state’s voter ID law is meant to deter in-person voting fraud and that the state makes available mobile photo ID units able to provide voters with the necessary IDs.

District Judge Darrin Gayles in his dissenting opinion wrote that voter fraud in Alabama is rare, and that “while there have been some limited cases of absentee voter fraud, in-person voter fraud is virtually non-existent.”

Gayles wrote that Merrill presented evidence of just two instances of in-person voter fraud in Alabama’s history.

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“Despite the lack of in-person voter fraud, Secretary Merrill claims Alabama enacted the Photo ID Law to combat voter fraud and to restore confidence in elections — a dubious position in light of the facts,” Gayles wrote.

Gayles noted that former State Sen. Larry Dixon, R-Montgomery, before his retirement in 2010, sponsored similar voter ID bills.

“During this time, Senator Dixon made repeated comments linking photo identification legislation to race, including ‘the fact you don’t have to show an ID is very beneficial to the Black power structure and the rest of the Democrats’ and that voting without photo identification ‘benefits Black elected leaders, and that’s why they’re opposed to it,'” Gayles wrote in his dissenting opinion.

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“It is clear from the statements of the legislators who enacted Alabama’s photo ID law that they passed it for the unconstitutional purpose of discriminating against voters of color,” said LDF senior counsel Natasha Merle in a statement Monday. “As long as this law is intact, Black and Latinx Alabamians will continue to be disproportionately excluded from the state’s electoral process.”

Attorneys in the filing Monday told the court that “roughly 118,000 Alabamians lack qualifying photo ID, and Black and Latinx voters are twice as likely to lack qualifying ID as compared to white voters. Given this evidence, a trial was required to determine whether HB19 violates the Fourteenth and Fifteenth Amendments.”

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DA defends imprisonment of disabled vet for marijuana charges

Brandon Moseley

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Sean Worsley (VIA ALABAMA APPLESEED)

West Alabama District Attorney Andy Hamlin defended the court decision to revoke Sean Worsley’s probation, sending the Black disabled veteran to state prison for 60 months on felony marijuana charges. Hamlin spoke to APR in a phone interview about the case.

Sean Worsley is a Black disabled veteran who was arrested on felony marijuana charges in Gordo in Pickens County in August 2016.

Advocates for marijuana legalization, sentencing reform and for veterans have denounced Worsley’s treatment by the Alabama court system. On April 28 a circuit judge in Alabama revoked the Arizona man’s Alabama probation, so he faces spending 60 months of his life as a guest of the Alabama Department of Corrections.

Hamlin is the district attorney for Alabama’s Fourth Judicial Circuit, which includes Fayette, Lamar and Pickens counties.

“One thing that is being lost in this is that he was noncompliant,” Hamlin said.

Hamlin said that Worsley was dismissed from the VA drug treatment program because he was noncompliant with the conditions of the program. That Worsley receive drug treatment for his marijuana addiction was a condition of his probation agreement.

“He would not conform. That is my understanding,” Hamlin said.

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Under Alabama law, possession of more than 2.2 pounds of marijuana is trafficking, a felony. Hamlin had considerably less than that. In non-trafficking cases there are several options that a person can be charged with. A key designation is whether the marijuana is “for personal use” or “for other than personal use.” In Worsley’s case, the arresting officer in Gordo made the determination that Worsley’s marijuana was for “other than personal use.”

Hamlin said that the arresting officer made the correct determination based on the evidence. In addition to the marijuana, Worsley had scales for measuring the marijuana and paper for rolling his own joints. The marijuana had also been removed from the prescription bottle it came in and been repackaged.

Hamlin said that the marijuana was for other than personal use was “a finding of fact. The charge was substantiated not only by the evidence; but it was spoken by the defendant in open court.” Hamlin is referring to Worsley’s admission of guilt when he pleaded guilty.

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Worsley and his wife Eboni maintain that the marijuana was bought legally in Arizona, where Worsley had a valid medical marijuana card.

APR asked if Alabama should be locking people up for five years for something that is legal in 33 states.

“We don’t make the law, we enforce it,” Hamlin said of his job as district attorney. “If you want to change the law, then run for the Legislature.”

APR asked why Worsley was charged with a Class C felony rather than another possible charge. Hamlin said that because it was a finding of fact that the marijuana was for other than personal use, it did not qualify to be treated as a Class D felony (which would have avoided imprisonment) or a Class A misdemeanor which could have brought a sentence of six months in the Pickens County jail. Hamlin maintained that under the sentencing guidelines, the Class C felony is the appropriate charge and is the charge it would have brought before the state passed sentencing reform in 2016.

State Sen. Cam Ward, R-Alabaster, chairs the Senate Judiciary Committee. Ward sponsored the sentencing reform legislation in 2016. He disagrees with the sentence and called it “egregious.”

Ward said that wording giving law enforcement the power to determine whether the marijuana was “for personal use” or was for “other than personal use” was already in Alabama law. The sentencing reform did not add that — but did not change that.

Hamlin said that Worsley was indicted by a Pickens County Grand Jury. APR asked how many Black people were on the grand jury. Hamlin said that he could not remember and it would be a violation of the secrecy of the grand jury process to share that.

Leah Nelson with Alabama Appleseed wrote a lengthy recap of the Worsley case. In it, Eboni Worsley argues that she has had to assume the role of Sean Worsley’s guardian following his being wounded in the Iraq War and his post-traumatic stress disorder.

APR asked Hamlin if he had a professional evaluate Worsley’s competency to stand trial and to enter into that plea agreement.

“No, because it was never alleged that he was not competent to stand trial,” Hamlin said. “He was very cognizant and coherent. If I thought he was entering a plea involuntarily I would not have gone through with it.”

“An assessment has never been done,” Hamlin said, because the defense never asked for it. It is up to the defense to request that.

APR asked if Worsley had competent legal counsel.

Hamlin said that Worsley was represented not only by a court appointed attorney, but his family hired an attorney out of Birmingham to represent him.

APR asked: this all began in 2016 when Chris McCool was the DA. He is now on the Criminal Court of Appeals. Did you inherit this case from the previous DA?

Hamlin said that he was the assistant DA under McCool and actually handled this case then. While DA, like judge, is an elected position in Alabama, Hamlin was appointed DA to fill the vacancy by Gov. Kay Ivey.

“He went to prison out of a probation revocation,” Hamlin said. “If he had gotten into some kind of treatment we absolutely would not be here.”

“This was the last resort with his probation revocation,” Hamlin said. “Talk to his Arizona probation officer. The reason we are here is because of his actions.”

“I am sympathetic with the situation,” Hamlin insisted.

APR said that we talked with a PTSD counselor on Monday who said that many of his clients with PTSD use marijuana to self-medicate their symptoms.

“I have great respect for him and his service, but the rule of law has to be maintained,” Hamlin told APR.

APR asked: some have suggested that Worsley received worse treatment from the court system than a white person would.

“That is an absolute pile of crap,” Hamlin said. “That is ridiculous and insulting that they would even say that.”

APR asked if Hamlin has sent anybody else to state prison on felony marijuana charges.

“Yes, I have,” Hamlin said.

Hamlin shared the court order revoking Worsley’s probation:

“The Defendant admitted violating the terms of his/her probation as alleged by the State. The Court further notes that this was the Defendant’s 4th felony conviction. The Defendant was previously allowed to participate in a drug rehabilitation program but refused to comply with program requirements and had failed to report to probation for over two years. Upon consideration of the evidence presented by the State at the Defendant’s probation revocation hearing, the Court finds the above-named Defendant to be in violation of the above listed probation condition(s) and the Court is reasonably satisfied from the evidence that a violation of the conditions or regulations of probation occurred as specified in the Order of Probation, of which the Defendant has received a written copy. Accordingly, the Defendant’s probation is hereby REVOKED. The Defendant shall receive credit for all time served on this charge. DONE this 28th day of April, 2020.”

Chey Garrigan is the chief executive director of the Alabama Cannabis Industry Association. Garrigan said that Worsley should not spend years of his life in Alabama’s dangerous and overcrowded prison system.

“The events that led to the imprisonment of Sean Worley, is NOT the FOCUS!” Garrigan said. “The focus is Alabama needs a medical cannabis program to include: the immediate release of non-violent offenders with any type of marijuana charges.”

“Sean Worsley matters,” Garrigan said. “A medical cannabis program in Alabama will boost the economy and create high paying jobs. If Alabama had a medical cannabis program, he would most likely not be imprisoned today.”

Garrigan is urging the court to commute the remainder of Worsley’s sentence and release him on time served.

Ward estimates that out of the 23,000 inmates in the Alabama Department of Corrections, 60 or 70 are there for marijuana charges only. Most of those are for trafficking.

Michael Fritz is the general counsel for the ALCIA.

“The ALCIA is fighting to allow those already suffering to have access to proper medication without the fear of becoming a felon,” Fritz said. “Sean Worsley is a prime example of why we are fighting. Medical Marijuana can help our veterans that suffer from PTSD, anxiety as well as pain from physically disabilities.”

Hamlin said that Worsley now has six felony convictions in multiple states.

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Law grads concerned over in-person Alabama bar exams amid COVID-19 surge

Test-takers in Alabama are required to sign a waiver noting that they’re taking the test at their own risk.

Eddie Burkhalter

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Recent law school graduates in Alabama say they’re concerned they have to take the state’s bar exam in person later this month, or during an alternate exam session set for September, even as the state endures surging COVID-19 cases and a pandemic that appears to be nowhere near under control.

For now, the state’s two-day bar exam is set for July 18 and 19 at the BJCC convention center in Birmingham, and, as of last week, the Alabama Supreme Court approved an optional alternative session of Sept. 30 and Oct. 1. 

The Alabama State Bar is taking some safety precautions for test days, including temperature checks, staggered entry times, social distancing and a requirement to wear masks while entering and exiting the building, but with the uncertainty of whether the virus will still be surging across the state in September, and the danger of contracting coronavirus during the lengthy two-day exam, some recent graduates for weeks have been calling for the state bar and the state Supreme Court to offer other options. 

Test-takers in Alabama are also required to sign a waiver noting that they’re taking the test at their own risk. By signing the waiver, they forgo the ability to sue the Alabama State Bar or the Alabama Board of Bar Examiners in the event that they contract coronavirus. 

“I acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that I may be exposed to or infected by COVID-19 by attending the July 2020 Alabama Bar examination or the September 2020 Alabama Bar examination,” the waiver reads. “And that such exposure or infection may result in personal injury, illness, personal disability, and death.” 

And it isn’t just the recent graduates who are concerned. In a tweet on July 11, Dr. Michael Saag, renowned UAB infectious disease expert and HIV-Aids researcher, expressed concern over an in-person bar exam in Alabama. 

“I don’t see how this can be done safely with the degree of SARS-CoV-2 transmission going on in our community right now,” Saag said in the tweet. 

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Alabama is one of 20 states that are still moving forward with in-person bar exams, according to The Washington Post

A white paper published on March 22 by the Center for Interdisciplinary Law and Policy Studies at Ohio State University’s Moritz College of Law noted that COVID-19 had disrupted public life and that “jurisdictions will not be able to administer the July 2020 bar exam in the usual manner.” 

“Even if some of the most rigorous restrictions have been lifted by July 28, prohibitions on large gatherings are likely to remain. Attempting to administer the bar exam to hundreds of test takers in a single room would endanger the test takers, staff administering the exam, and the public health,” researchers wrote in the study. 

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The study offered six options for state bars to make changes to ensure the safety of test-takers and staff, which include postponing exams, administering them online, giving exams in small groups, issuing emergency diploma privilege (which allows graduates of law schools to practice without taking a bar exam), adopting an emergency diploma privilege-plus (whereby state bars can add additional educational requirements to practice without taking the exam) and creating a supervisory practice program, where recent graduates practice under a licensed attorney.

“A lot of nervous people getting ready to take the bar exam,” said Birmingham lawyer and executive director of the Alabama State Bar, Phillip McCallum, speaking to APR on July 10. 

McCallum said the Alabama Supreme Court is the ruling authority over the state bar, and that “it’s their decision, and their decision has been made for many, many months, and that is the bar exam is proceeding as expected.” 

McCallum said that during the week prior, several states began delaying state bar exams amid the COVID-19 pandemic, which set off questions among recent law school graduates about what might happen in Alabama, he said. 

“Anything can happen,” McCallum said. “The pandemic can continue to escalate and we can somehow get canceled. I mean anything, anything can happen.”

But the decision would be the Supreme Court’s to make, he said. 

McCallum told APR on July 10 that the state bar had discussed with the Supreme Court a potential alternative testing date, and that he expected an order from the court on that in the coming days. 

The state Supreme Court issued that order on July 12, which directed the July 28-29 testing session to remain, but gave the alternate date of Sept. 30-Oct. 1. 

Among the safety precautions established by the state bar are that masks be worn entering and exiting the BJCC, but that examinees can take their masks off during the timed portion of the exam, although “the Alabama State Bar strongly encourages the wearing of a mask/face covering at all times.” 

Jefferson County’s health order stipulates masks be worn at all times in public places, but exempts private meetings, which the state bar exam falls into. 

“I do know I graduated with a few people who have very serious health conditions, and there’s a real chance that they could end up on a ventilator,” a recent law school graduate in Alabama told APR last week. 

He and several other recent law school graduates who contacted APR in recent days asked not to be named, as there’s a fear that voicing complaints over the matter could lead to a bad outcome in the character and fitness requirements graduates must pass for admission to the bar. 

The recent graduate in Alabama said many are asking for online bar exams, and understand that although areas in the state do not have broadband internet access, it’s the best option to take the exam safely and get to work quickly. Alabama isn’t likely to allow for diploma privilege, he said, but he described it as the second-best option.  

“I think the online version would be the best of both worlds, because the Board of Law Examiners has a duty to protect the public from people who are not qualified to be attorneys,” he said. 

The worst option, he said, would be to delay the tests for many months. Law school graduates pay anywhere between $1,500 to $2,500 to take seven-week preparatory classes in the leadup to a bar exam, he said, and he and many others were already doing so.

Postponing the test would mean restarting those classes from the beginning, he said. 

“Way back in the spring, the State Bar and the court were at least aware of different options, because states around us have started changing their plans to sort of accommodate,” he said.  “And it seems like every step of the way the state bar, the Board of Law Examiners, the court, hasn’t really done anything to improve the situation.” 

Plans call for temperatures to be checked upon entry to the BJCC, but the graduates noted that many people with COVID-19 are asymptomatic and can still spread the virus. 

Three months before Alabama’s Supreme Court did so, the Georgia Supreme Court on April 17 delayed the state’s bar exam, pushing it back from July 28-29 to Sept. 9-10, and the Supreme Court of Florida on July 1 agreed to move the state’s bar exams online after weeks of pleas from law students, according to the Miami Herald.

“By pushing forward with an in-person exam this July, the State Bar and Supreme Court have shown a concerning lack of interest in the wellbeing of those of us who are trying to enter the profession,” the recent graduate wrote to APR in a message following the state’s Supreme Court’s July 12 ruling. “The optional September 30-October 1 exam is thinly reasoned as all modeling indicates COVID-19 will be just as bad, if not worse, at that time. The State Bar and the Court are hurting us examinees, but they’re also hurting themselves by threatening the public’s health and by engendering resentment among their newest members.”

Many recent law school graduates come from more affluent homes, the recent grad said, but many are also single parents with little income who have surmounted great obstacles to put themselves through law school while working jobs and raising children. 

While students are told over and over that they’ll pass the bar, and that it’s a test on minimum competency, he said, “I feel like this year it can’t test minimum competency, because I feel like this is testing access to resources.” 

“Who has access to money to last them a few extra weeks? Who has access to childcare?” he said. 

Alabama on Wednesday saw the largest increase to the state’s COVID-19 death toll in a single day, with 47 deaths reported — and just a day after the increasing death toll set its previous one-day record Tuesday. 

Nearly 20 percent of the state’s total COVID-19 death toll of 1,183 has been reported in the last two weeks. 

State Health Officer Dr. Scott Harris in a press conference Wednesday said more than 2,000 people across the state were currently hospitalized for confirmed or suspected coronavirus — and about 30 hospitals statewide had very limited intensive care bed availability.

The state on Wednesday saw 1,784 new coronavirus cases, which was the third highest single-day increase of cases since the start of the pandemic. The other two record-high single days were set within the last week.

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Police may serve search warrants out of their jurisdiction, Alabama AG says

Brandon Moseley

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Alabama Attorney General Steve Marshall said Tuesday that recent actions by the Alabama Court of Criminal Appeals and the Alabama Supreme Court have clarified that Alabama law allows law enforcement officers in the state to serve search warrants outside their territorial jurisdiction as long as a judge within the jurisdiction of service approves the warrant.

“The influence of the internet in the spread of criminal activity across jurisdictions has highlighted the need for timely collection of evidence critical to stopping crimes and securing convictions,” Marshall said. “These court actions remove any doubt that law enforcement has the authority to gather vital evidence across jurisdictions. I’m pleased the Attorney General’s Office played a role in this effort.”

In May 2018, Jeffrey Dale Hunt was indicted for over 6,500 counts for possession and production of child pornography. In that case, law enforcement officers in Lauderdale County seized evidence in nearby Colbert County. Hunt’s legal defense sought to suppress the evidence gathered by a Florence police detective at Hunt’s workplace in Colbert County. The Florence police detective had secured the warrant from a Colbert County judge prior to serving it.

In June 2019, a Lauderdale County circuit court judge granted Hunt’s motion to suppress the evidence. Lauderdale County District Attorney Chris Connolly appealed that decision to the Alabama Court of Criminal Appeals. Marshall supported Connolly’s appeal.

In handling the appeal, the attorney general argued that the circuit court had erred in granting the motion to suppress evidence collected from Hunt’s electronic devices at his workplace. The AG’s office argued that the Alabama Rules of Criminal Procedure allow Alabama law enforcement officers to serve locally-approved warrants outside their territorial jurisdictions.

In its March 13, 2020, opinion, the Alabama Court of Criminal Appeals agreed. Hunt then appealed the court’s ruling to the Alabama Supreme Court. On July 10, 2020, the court denied Hunt’s petition for certiorari review.

Marshall wrote that the combined court actions not only allow the suppressed evidence in Hunt’s case to be readmitted, but they also serve to clarify for the first time in Alabama criminal case law that search warrants can be served by law enforcement officers outside their territorial jurisdictions provided a local judge within the jurisdiction of service approves the warrant.

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The victory before the Supreme Court will allow the Lauderdale County District Attorney’s prosecution of the Hunt case now to proceed.

Marshall thanked Assistant Attorney General Kristi Wilkerson, Solicitor General Edmund LaCour and Deputy Solicitor General Barrett Bowdre for their efforts in working this important pre-trial appeal case. The attorney general also expressed appreciation to the Lauderdale County District Attorney’s Office for its close cooperation in the successful appeal.

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