AlaFile E-Notice

43-CC-2014-000565.00
Judge: HON. JACOB A. WALKER III
To: JOHN MARK WHITE
mwhite@whitearnolddowd.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT CRIMINAL COURT OF LEE COUNTY, ALABAMA
STATE OF ALABAMA V. HUBBARD MICHAEL GREGORY
43-CC-2014-000565.00
The following matter was FILED on 8/26/2015 1:32:01 PM
D001 HUBBARD MICHAEL GREGORY
MOTION TO DISMISS
[Filer: WHITE JOHN MARK]
Notice Date:

8/26/2015 1:32:01 PM

MARY B. ROBERSON
CIRCUIT COURT CLERK
LEE COUNTY, ALABAMA
2311 GATEWAY DRIVE
ROOM 104
OPELIKA, AL 36801
334-737-3526
mary.roberson@alacourt.gov

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ELECTRONICALLY FILED
8/26/2015 1:31 PM
43-CC-2014-000565.00
CIRCUIT COURT OF
LEE COUNTY, ALABAMA
MARY B. ROBERSON, CLERK

IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA
v.
MICHAEL GREGORY HUBBARD,
Defendant.

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Case No. CC 2014-565

______________________________________________________________________________
HUBBARDS MOTION TO DISMISS FOR THE STATES
RECENT VIOLATION OF GRAND JURY SECRECY,
OR IN THE ALTERNATIVE,
FOR THE APPOINTMENT OF INDEPENDENT COUNSEL
______________________________________________________________________________

Michael G. Hubbard (Hubbard), by and through the undersigned counsel, hereby

requests that this Court enter an order dismissing this case based on the States willful and
intentional disclosure of the identities of 12 witnesses who testified before the Lee County Special
Grand Jury. In the alternative, Hubbard requests that this Court enter an order instituting the
investigation and prosecution of the most recent and heinous violation (as well as other violations)
of Alabamas Grand Jury Secrecy Act by the appointment of independent counsel either by this
Court or by the Governor of Alabama. 1
The States Recent and Blatant Violation of Grand Jury Secrecy.
1.

On August 6, 2015, the State intentionally and blatantly violated the Grand Jury

Secrecy Act. On that date, contrary to the established practice in this case of filing pleadings
referencing grand jury witnesses and testimony under seal, the State filed a Motion to Quash
Hubbards Subpoena to Grand Jury Court Reporter. That motion was not filed under seal.
Attached to that motion was States Exhibit C which is a letter of May 18, 2015, from W. Van
1

See Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 68 (Ala. 2009).

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Davis to J. Mark White. In that letter, Mr. Davis disclosed the names of ten witnesses who had
testified before the Lee County Special Grand Jury:
Regarding your request for audio recordings, the State already produced
transcripts of grand jury testimony of -----, -----, -----, -----, -----, -----, and -----, on
February 17, 2015, and of -----, -----, -----, -----, and -----, on April 30, 2015.
May 18, 2015, letter from W. Van Davis to J. Mark White with the names of grand jury witnesses
redacted. Prior to August 6, this letter had never been filed publicly. This disclosure was an affront
to this Court and a blatant violation of the Grand Jury Secrecy Act. The damage caused by this
disclosure cannot be repaired.
2.

Following the August 6, 2015, public filing by the State, however, this information

was reported on August 24, 2015 by a news blogger. 2 While this bloggers insinuations are
incorrect and inaccurate, the prejudice occurred and it occurred as a direct consequence of the
States intentional disclosure of grand jury witness information into the public domain. The names
of the grand jury witnesses identified in the States August 6, 2015 public filing also have been
reported by the mainstream media including the Associated Press. 3 There is no way the damage
resulting from the States highly prejudicial publication can be undone. There is no way to put
the genie back in the bottle. Ex parte A.B., 950 So. 2d 1142, 1148 (Ala. 2006) (once information
has become available through the discovery process, a subsequent successful appeal cannot restore
the valuable secretive nature of the information). A stone once hurled can never be recalled. Hines

Bill Britt, Grand Jury Indicted Hubbard After His Testimony, Alabama Political Reporter, Aug.
24, 2015 (http://alreporter.com/archives/2015/146-state/8146-grand-jury-indicted-hubbard-afterhis-testimony.html).
3

See Mike Cason, Letter Reveals Names of Some Lee County Grand Jury Witnesses, Aug. 24,
2015, AL.COM. (http://www.al.com/news/index.ssf/2015/08/letter_reveals_names_of_some_l.
html#incart_river); AP, Hubbards Challenge to Ethics Law Remains Sealed,
TUSCALOOSANEWS.COM, Aug. 25, 2015 (http://www.tuscaloosanews.com/article/20150825/APN
/308259830).
2

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v. State, 384 So. 2d 1171, 1184 (Ala. Crim. App. 1980). The State fired its bullet directly at
Hubbard and nothing this Court can do can recall that shot.
3.

By intentionally disclosing the names of grand jury witnesses in a public filing, the

State has violated the spirit and indeed the very letter of the Grand Jury Secrecy Act. 4 In enacting
the Grand Jury Secrecy Act the Legislature specifically concluded:
The Legislature hereby finds, declares and determines that it is essential to the fair
and impartial administration of justice that all grand jury proceedings be secret and
that the secrecy of such proceedings remain inviolate. The provisions of this
division are to be construed for the accomplishment of this purpose and to promote
the following:
***
(2) That those persons who have information or knowledge with respect to
the commission of crimes or criminal acts be encouraged to testify freely
and truthfully before an appropriate grand jury without fear or apprehension
that their testimony may be subsequently disclosed, or that they may be
subject to injury in their person or property as a result thereof.
Ala. Code 12-16-214. A prosecutor should not disclose information relating to grand jury
witnesses, . . . Bennett L. Gershman, PROSECUTORIAL MISCONDUCT 6:3, p. 280 (2nd ed. 2014).
4.

[T]the grand jury exception is limited to material which, if disclosed, would tend

to reveal some secret aspect of the grand jury's investigation, such ... as the identities of witnesses
or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations
or questions of jurors, and the like. Senate of P.R. v. U.S. Dep't of Justice, 823 F.2d 574, 582
(D.C.Cir.1987). Murphy v. Executive Office for United States Attorneys, 11 F. Supp. 3d 1, 6
(D.D.C. 2013) order vacated in part on reconsideration on other grounds, 11 F. Supp. 3d 7 (D.D.C.
2014) aff'd sub nom. Murphy v. Executive Office for U.S. Attorneys, 789 F.3d 204 (D.C. Cir. 2015).

The defense will not restate the controlling legal principles of grand jury secrecy. Those were
adequately set forth in his Motion to Dismiss Indictment: Violations of Grand Jury Secrecy Act
filed Dec. 19, 2014 at pp. 44-55.
3

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[T]he scope of the secrecy is necessarily broad ... encompass[ing] not only the direct revelation
of grand jury transcripts but also the disclosure of information which would reveal the identities
of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation,
the deliberations or questions of the jurors, and the like. Fund for Constitutional Gov't v. Nat'l
Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981) (quoting Dresser Industries, Inc, 628
F.2d at 1382). Moore v. Hartman, No. CV 92-2288, 2015 WL 1812852, at *45 (D.D.C. Apr. 17,
2015). (emphasis added).
5.

The secrecy requirement is broader than it may appear from the face of the rule

itself and encompasses anything that might reveal what transpired in the grand jury room,
including the identities of witnesses, the strategy or direction of the investigation, or the
deliberations or questions of the jurors. In re Grand Jury Subpoena Duces Tecum, 782 F. Supp.
1518, 1521 (N.D. Ala. 1992) (emphasis added). This is the law in Alabama: the names of grand
jury witnesses are not discoverable and are entitled to the rule of grand jury secrecy.
There is no precedent in Alabama for discovery of the names and addresses
of the grand jury members. Discovery is not constitutionally required; it is
specifically afforded in a criminal case by Rule 16, Ala.R.Crim.P. Rule 16 contains
no provision that sanctions the discovery of the names of the grand jury members.
Indeed, the names of prosecution witnesses are not even discoverable. Rule 16.1(e),
Ala.R.Crim.P.
State v. Matthews, 724 So. 2d 1140, 1142 (Ala. Crim. App.), aff'd sub nom. Ex parte Matthews,
724 So. 2d 1143 (Ala. 1998).
The States conduct reflects a callous disregard of grand jury secrecy requirements.
6.

The States filing of August 6 is not the first time the State has breached the secrecy

of the grand jury. The State has engaged in numerous violations of the Grand Jury Secrecy Act
throughout the investigation and prosecution of Hubbard. Hubbard has repeatedly objected to the
States conduct in leaking information to the media. See, e.g., Motion to Dismiss Indictment:

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Violations of Grand Jury Secrecy Act filed Dec. 19, 2014. The defense has filed other motions
under seal both prior to and after the date of the indictment in this case complaining of and seeking
relief from these apparent grand jury leaks. Those motions remain pending. See Hubbards List
and Summary of Motions and Arguments filed July 31, 2015, in response to this Courts Order of
April 10, 2015.
7.

In the States Response In Opposition to Motion for More Definite Statement filed

Feb. 27, 2015, the State attached 93 exhibits. 5 That filing was more in the nature of a press release
containing examples 6 about the way the crimes charged in the indictment might have been
committed and was not responsive to Hubbards Motion for a More Definite Statement filed Dec.
22, 2014. 7 It is clear and can be proven by the defense that all but one of those publicly filed
exhibits had been obtained through the grand jury process and presented to the Lee County Special
Grand Jury. 8
8.

Most recently, during the public hearing held on August 17, 2015, but consistently

throughout these proceedings, this Court repeatedly expressed its concern that no grand jury

The States Response contained several exhibit numbers which, in turn, contained A, B, and C
sub-exhibits so even though the States exhibit numbers go up to 85, there are 93 separate
exhibits attached to the Response.
6

States Response In Opposition to Motion for More Definite Statement filed Feb. 27, 2015, n. 7.

Hubbards Reply to States Response in Opposition to Defendants Motion for More Definite
Statement filed Mar. 4, 2014, remains pending.
8

It seems disingenuous that the State had no hesitancy in using and disclosing documents obtained
through the grand jury in the States Response In Opposition to Motion for More Definite Statement
but has attempted to prevent the defense from using information obtained through independent
investigation by the defense where such information may be at odds with, corroborate, or reflect
testimony before the grand jury. See States Motion to Unseal Redacted Versions of Hubbards
Motions to Dismiss on Theories of the Unconstitutionality of the Alabama Ethics Act and Selective
and Vindictive Prosecutions announced and filed in open court on August 17, 2015.
5

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information be made public. That expression was occasioned by the States ambush announcement
in open court that it was filing under seal a motion to unseal previously filed sealed motions by
Hubbard one of which attacked the constitutionality of the Alabama Ethics Act. The State
announced in open court that Hubbard had filed under seal to prevent personal embarrassment.
Hubbard stated in response those motions were filed under seal because each motion recited grand
jury testimony obtained from the State as part of the States constitutionally mandated pretrial
production.
The Public Hearing on August 17, 2015
9.

The hearing on August 17th was not scheduled to include any discussion of

constitutional issues. By telephonic conference call of July 22, 2015, this Court permitted the
defense until August 13, 2015, to file its constitutional challenges to the Alabama Ethics Act. This
Court did not provide a date by which the State should respond, and the State represented to this
Court that it would not be prepared to respond by August 17.
10.

Furthermore, in response to this Courts Order of July 10, 2015, in which this Court

directed both the State and the defense to submit within 21 days a list of which motions they
specifically want to be addressed, the State filed its List of Motions to be Heard at August 17,
2015 Hearing on July 31, 2015. The State only requested this Court to address two motions to
quash and to establish a schedule for briefing and hearing Hubbards constitutional challenge to
the Ethics Act. The States List of Motions to be Heard did not include any motion to unseal.
Indeed, the State was only concerned with a briefing and hearing schedule on that motion:
The State submits that the only other matter that should be taken up by the
Court on August 17 is establishing a schedule for briefing and hearing Hubbards
motion challenging the constitutionality of the Alabama Ethics Law to be filed on
August 13, 2015. The State specifically requests that the Court entertain argument
on whether Hubbards constitutional challenge can and should be heard at the
pretrial conference on August 28, 2015.
6

DOCUMENT 331

States List of Motions to be Heard at August 17, 2015 Hearing (filed July 31, 2015) at p. 2.
11.

However, at the hearing on August 17, the State publically and without any prior

knowledge by the defense, announced in open court that it was filing under seal its Motion to
Unseal Redacted Versions of Hubbards Motions to Dismiss on Theories of the Unconstitutionality
of the Alabama Ethics Act and Selective and Vindictive Prosecutions. Hubbard submits that the
States announcement and filing of a sealed motion in open court with no prior notice despite
this Courts order of July 10 was a deliberate and underhanded sideshow designed to afford the
State an improper opportunity to publicly prejudice Hubbard without allowing Hubbard any notice
or reasonable opportunity to respond. Apparently, this Court realized the prejudicial nature of the
States conduct and issued its Order of August 24, 2015, requiring all motions, pleadings, and/or
attached exhibits filed by either party referencing Grand Jury testimony or naming Grand Jury
witnesses must be filed under seal.
12.

Following the hearing, on August 20, 2015, this Court held a telephonic conference

with the attorneys regarding certain motions to dismiss which had been filed under seal. During
this call, this Court reaffirmed its order of August 14 requiring the defense to redact and modify
motions previously filed under seal so that the motions could be filed publically. The Court was
specifically concerned that no one would be able to determine that any named individual had
testified before the Lee County Special Grand Jury by reading the defense pleading and comparing
it to another motion filed by the State.
13.

On August 21, 2015, this Court held a second telephonic conference among the

attorneys regarding certain under seal filings. During this call, this Court stated that, although he
had indicated in open court on August 17, 2015, and in the previous conference call that he was
inclined to grant the States Motion to Unseal Redacted Versions of Hubbards Motions to Dismiss
on Theories of the Unconstitutionality of the Alabama Ethics Act and Selective and Vindictive
7

DOCUMENT 331

Prosecution (filed in open court and under seal on August 17, 2015), he could not grant that motion
because [the States motion] definitely names who appeared in front of the grand jury. The
States motion identified five grand jury witnesses by name. Following this Courts comment, the
State immediately offered to redact the motion. This Court allowed the State to redact and refile
its motion with the offending language blacked out.
14.

The State was well aware that the publication of the names of witnesses before the

grand jury violated the very orders of this Court. This is demonstrated by the States rush to redact
its Motion to Unseal Redacted Versions of Hubbards Motions to Dismiss on Theories of the
Unconstitutionality of the Alabama Ethics Act and selective and Vindictive Prosecution (August
17, 2015), once this Court called the States attention to the fact that the State had identified grand
jury witnesses in the States Motion to Unseal.
15.

The illegalities the State has perpetrated in this case are no less offensive and

improper than what the Attorney General of Pennsylvania has been criminally charged with.
Richard Perez-Pena, Pennsylvania Attorney General, Kathleen Kane, Charged in Leak Case, THE
NEW YORK TIMES, Aug. 6, 2015. 9
16.

Recently, a panel of the Fifth Circuit Court of Appeals staunchly condemned three

U.S. Attorneys for posting anonymous comments to online newspaper articles regarding a pending
criminal case. See United States v. Kenneth Bowen, No. 13-31078, 2015 WL 4925029, at *14-15
(5th Cir. Aug. 18, 2015). The Courts comments in that case are equally applicable here:
Prosecutors maintain the integrity, fairness and objectivity of the criminal justice
system in part by refraining from speaking in public about pending and impending
cases except in very limited circumstances. The government's own list of applicable
regulations and ethical rules demonstrates that the prosecutors obligation of silence
extends beyond confidential and grand jury matters and beyond the prosecution
9

Located at http://www.nytimes.com/2015/08/07/us/pennsylvania-attorney-general-kathleenkane-charged-in-leak-case.html.
8

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team narrowly defined to include only those who participate in a particular case.
Further, there is no dividing line between the prosecutors professional and private
lives with respect to these duties. Had Perricone, Mann, or Dobinski [the
prosecutors] frequented a bar or habitually called in to a radio talk show and blown
off steam about the Danziger Bridge prosecution in the terms they used online, their
misconduct would have been the same as it is with their anonymous online
commentary. The reasons for prosecutorial self-restraint are manifest.
Although [s]tatements to the press may be an integral part of a
prosecutor's job, and ... may serve a vital public function, that
function is strictly limited by the prosecutor's overarching duty to
do justice. Those who wield the power to make public statements
about criminal cases must be guided solely by their sense of public
responsibility for the attainment of justice.
Aversa v. United States, 99 F.3d 1200, 1216 (1st Cir.1996) (quoting Souza v. Pina,
53 F.3d 423, 427 (1st Cir.1995)). Insulating the prosecution and trial from bias,
prejudice, misinformation, and evidence revealed outside the courtroom are crucial
to the fairness of our processes. Equally important, the prosecutor must respect the
presumption of innocence even as he seeks to bring a defendant to justice.
Justice Sutherland eloquently captured the prosecutor's calling. A
government prosecutor
is the representative not of an ordinary party to a controversy, but of
a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but
that justice shall be done. As such he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that
guilt shall not escape or innocence suffer. He may prosecute with
earnestness and vigorindeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike foul ones. It is as much
his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring
about a just one.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935),
overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct.
270, 4 L.Ed.2d 252 (1960). In short, that the prosecutors' misconduct was so
incongruous with their duties buttresses our conclusion that this is the rare case
involving Brecht error.
Bowen, 2015 WL 4925029, at *14-15. 10

10

In Bowen, a divided Fifth Circuit panel affirmed a district-court ruling granting a new trial to
New Orleans police officers who had been convicted of serious crimes for their roles in the postHurricane Katrina shootings at Danziger Bridge and in an ensuing alleged cover-up. The majority
9

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Professor Bennett L. Gershman

Bennett L. Gershman is a Professor of Law at Pace Law school in New York. He is an
accredited expert on prosecutorial misconduct. See Bennett L. Gershman, PROSECUTORIAL
MISCONDUCT (2nd ed. 2014). His affidavit concerning the prosecutorial misconduct in this case
was identified and received under seal as Exhibit 128 at the hearing on August 17, 2015. This
Court is requested to review and consider that affidavit in ruling on this motion.
Relief Requested
The defense requests that this Court enter an order dismissing the indictment based upon
the prosecutorial misconduct of the State.
In the alternative, the defense requests that this Court enter an order instituting the
investigation of the most recent and heinous violation (as well as other violations) of Alabamas
Grand Jury Secrecy Act by the appointment of independent counsel either by this Court of by the
Governor of Alabama. 11 Once the guilty party (or parties) has been determined, this Court should
impose severe sanctions, including but not limited to the dismissal of this case. In addition to the
criminal penalties imposed for a violation of the Grand Jury Secrecy Act, Ala. Code 12-16-225
(shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more
than three years, or fined not more than $5,000.00, or both), the Grand Jury Secrecy Act
specifically provides that the circuit courts of this state [shall not] be precluded from utilizing any

found that three U.S. Attorneys committed gross ethical lapses in posting online, anonymous
comments to newspaper articles about the case throughout its duration. Most pernicious, these
attorneys online comments knowingly contributed to the mob mentality potentially inherent in
instantaneous, unbridled, passionate online discourse. These prosecutors created an air of bullying
against the defendants whose rights they, . . . were sworn to respect. Bowen, 2015 WL 4925029,
at *18.
11

See Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 68 (Ala. 2009).
10

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contempt powers or sanctions which may apply to acts or events which violate the provisions of
this division. Further, the circuit judges of this state may issue whatever other reasonable orders
as may be necessary to accomplish the purposes of this division. Ala. Code 12-16-226.
Conclusion
To date, the State has engaged in the following conduct in violation of its ethical obligations
and, more egregiously, in violation of the Alabama Grand Jury Secrecy Act. Such conduct includes
but is not limited to:

Publicly releasing documents obtained by grand jury subpoenas in the States Response
in Opposition to Defendants Motion for More Definite Statement filed on February 27,
2015;

Publicly releasing the identity of a recipient of a grand jury subpoena in the States
Response in Opposition to Defendants Motion to Dismiss Indictment on Theory That
There Were Violations of Grand Jury Secrecy Act filed on March 23, 2015;

Publicly releasing the identity of a grand jury witness in the States Response to Courts
July 10, 2015 Order Regarding Discovery Issues filed on July 24, 2015; and

Publicly releasing the identity of numerous grand jury witnesses in the States Motion
to Quash Hubbards Subpoena to Grand Jury Court Reporter filed on August 6, 2015.

There is no doubt that the State illegally disclosed the identity of multiple witnesses who
testified before the Lee County Special Grand Jury. This Court must insure that the statutory law
is enforced and that its own rules are consistently and equally followed by both the State and the
defense. The State must not be permitted to pick and choose which rules to follow and when to
follow them. The prosecution must not be afforded leniency while the defense is required to
stringently redact pleadings. The State has violated the rules of this court and the law of this State.
This Court must not blindly look the other way. This Court must impose consequences.
Respectfully submitted this the 26th day of August, 2015.
/s/ J. Mark White
J. Mark White (WHI001)
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Augusta S. Dowd (DOW003)

William M. Bowen, Jr. (BOW012)
W. Chambers Waller (WAL242)
White Arnold & Dowd P.C.
2025 Third Avenue North, Suite 500
Birmingham, Alabama 35203
Phone: (205) 323-1888
Fax: (205) 323-8907
Email: mwhite@whitearnolddowd.com
adowd@whitearnolddowd.com
wmbowen@whitearnolddowd.com
cwaller@whitearnolddowd.com
/s/ R. Lance Bell
R. Lance Bell (BEL044)
Trussell Funderburg Rea & Bell, P.C.
1905 1st Ave South
Pell City, AL 35125-1611
Phone: (205) 338-7273
Fax: (205) 338-6094
Email: lance@tfrblaw.com
/s/ Phillip E. Adams, Jr.
Phillip E. Adams, Jr. (ADA025)
Adams White Oliver Short & Forbus, LLP
P. O. box 2069
Opelika, Alabama 36803-2069
Phone: (334) 745-6466
Fax: (334) 749-3238
Email: padams@adamswhite.co
Attorneys for Michael G. Hubbard

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CERTIFICATE OF SERVICE
I hereby certify that I have on this the 26th day of August, 2015, electronically filed the
foregoing with the Clerk of the Court using the AlaFile system which will send notification of such
filing to the following counsel of record at their e-mail addresses registered with AlaFile and that
I have served a copy of the foregoing upon Governor Bentley by email at the address listed below.
William Van Davis
Law Office of W. Van Davis
423 23rd St North
Pell City, AL 35125-1740
Email: vandclaw@centurylink.net
M. Matthew Hart
Michael B. Duffy
Andrew Brasher
Office of the Attorney General
PO Box 300152
Montgomery, AL 36130-0152
Email: mhart@ago.state.al.us
mduffy@ago.state.al.us
abrasher@ ago.state.al.us
Hon. Robert J. Bentley
c/o David B. Byrne, Jr., Esq.
600 Dexter Avenue Suite NB-05
Montgomery, AL 36130-3024
Email: david.byrne@governor.alabama.gov
/s/ J. Mark White
J. Mark White
Of counsel

13