in the circuit court of lee county, alabama state …media.al.com/news_impact/other/here is...

1

IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA, )

)

)

)

v. ) CASE NO. CC-2014-000565

)

)

)

MICHAEL GREGORY HUBBARD, )

)

Defendant. )

STATE’S SURREPLY TO HUBBARD’S REPLY TO

STATE’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION

FOR MORE DEFINITE STATEMENT

The State of Alabama, hereby submits its Surreply to defendant Michael

Gregory Hubbard’s (“Hubbard”) Reply to the State’s Response in Opposition to

Defendant’s Motion for More Definite Statement. Hubbard has failed to show

“good cause” for the granting of his motion. For that reason, and those stated

below, Hubbard’s motion is due to be denied.

1. Hubbard filed a Motion for More Definite Statement on December 22,

2014. On January 28, 2015, counsel for Hubbard sent a letter to the State in which,

among other things, defense counsel agreed that the State’s Response to Hubbard’s

Motion for More Definite Statement would be due on Friday, February 27, 2015.

(See Letter, at ¶ 2, attached hereto as Exhibit A) (defense counsel wrote: “This is

ELECTRONICALLY FILED3/9/2015 1:41 PM

43-CC-2014-000565.00CIRCUIT COURT OF

LEE COUNTY, ALABAMAMARY B. ROBERSON, CLERK

2

acceptable” regarding the proposed deadline). At a scheduling conference on

January 30, 2015, Hubbard confirmed his agreement that the State could have until

February 27, 2015, to respond to the Motion. (January 30, 2015 Tr., at p. 4,

attached hereto as Exhibit B.) Consistent with Hubbard’s agreement, this Court

entered an Order, which stated: “The State is to respond to Hubbard’s Motion for

Definite Statement by February 27, 2015.” (February 5, 2015 Order, at p. 2, ¶5). In

compliance with this Court’s Order, the State filed its Response in Opposition to

Hubbard’s Motion for More Definite Statement on February 27, 2015.

2. Despite his agreement to the February 27 deadline, and even though

the Court’s Order established that deadline, counsel for Hubbard issued a press

release on February 27 in which he alleged that the timing of the State’s filing was

politically motivated. The press release stated in part: “This filing – just days

before the start of the 2015 legislative session – yet again raises questions about

political timing and motivations surrounding this matter.” (Statement of J. Mark

White for Hubbard Legal Team, attached hereto as Exhibit C) (emphasis added).

The State clearly filed its Response as ordered by the Court and as agreed by

Hubbard, and his counsel knew that. Counsel’s public statement to the media is

therefore indefensible.

3. On March 4, 2015, Hubbard filed a Reply in support of his Motion for

More Definite Statement in which he fails to address his burden to show “good

3

cause” for the granting of his motion. Instead, Hubbard misapplies Alabama law,

raises irrelevant federal filing rules (which obviously do not apply in this state

court case), and attempts to re-litigate the issue of whether State filings should be

made under seal (although notably he now appears to expand his previous

arguments beyond just filings referencing 404(b) evidence to any State filings that

address the merits of the case). Tellingly, Hubbard completely ignores his burden

to show “good cause” before his motion for more definite statement can be

granted. See Rule 13.2(e) Ala. R. Crim. P. (“A motion for more definite statement

may be made at any time prior to entry of the defendant’s plea, which motion shall

be granted for good cause shown.”) (emphasis added); see also Hugh Maddox,

ALABAMA RULES OF CRIMINAL PROCEDURE, §13.2 at p. 466) (stating that “…the

Committee’s comment that ‘it is contemplated that motions for more definite

statement will not be routinely made or granted’ seems to indicate that the

Committee did not intend for the motion for more definite statement to be used

as a discovery rule.”) (emphasis added).

4. Instead of even attempting to show “good cause,” Hubbard attempts

to shift his burden to the State. (See Hubbard’ Reply at p. 3) (stating that “The

State cannot satisfy its burden by supplying examples of what Hubbard ‘might’ be

charged with.”) (emphasis added). The State has no burden to satisfy in opposing

Hubbard’s Motion for More Definite Statement; rather, it is Hubbard’s burden to

4

show “good cause” why his motion should be granted. See Rule 13.2(e) Ala. R.

Crim. P. Hubbard’s failure to even articulate a basis for “good cause” is reason

enough to deny his motion.

5. Even if Hubbard had attempted to satisfy his burden, Hubbard still

cannot show “good cause” because, as set forth in the State’s detailed Response,

the indictment and discovery clearly inform Hubbard “with a reasonable certainty

of the nature of the accusation against him so that he may prepare his defense.”

Shouldis v. State, 953 So.2d 1275, 1283 (Ala. Crim. App. 2006). That is, the

State’s discovery has provided “any critical details that are available to the State”

to Hubbard and have now been “gathered by the defendant through … other

pretrial discovery procedures.” R.A.S. v. State, 718 So.2d 117, 121 (Ala. 1998)

(emphasis added).

6. Hubbard ignores the fact that the indictment and the discovery inform

him of the nature of the accusation against him and instead continues to request a

“bill of particulars” – even though he “is not entitled to a bill of particulars under

Alabama law.” Johnson v. State, 335 So.2d 663, 672 (Ala. Crim. App. 1976).

Hubbard is likewise incorrect that he is entitled to have the State explain how it

will prove its case at trial. See Hunt v. State, 642 So.2d 999, 1026 (Ala. Crim. App.

1993) (“The government need only allege the essential facts necessary to apprise a

defendant of the crime charged and not its theory of the case.”) (internal citations

5

and quotations omitted). Accordingly, Hubbard’s motion is due to be denied

because he has not carried his burden to show “good cause.”

7. Hubbard’s Reply also improperly attacks the motives of the

prosecution by citation to inapplicable federal court filing rules. Confirming the

inapplicability of the federal rules he cites, Hubbard’s Reply concedes that

Alabama law does not require the redaction of identifying information from

documents filed in criminal cases. (See Hubbard Reply, at ¶¶9-13). Further,

Hubbard ignores the fact that the State’s detailed Response Brief and exhibits are

clearly permissible under Alabama law:

While the sufficiency of a criminal indictment is determined from its

“face” and within “the four corners” of the indictment, any

“vagueness” or “uncertainty” in Hunt's understanding of the

indictment was removed by the Attorney General's lengthy response

to Hunt's motion for a more definite statement. … In response to

Hunt's motion for a more definite statement, the Attorney General

filed a lengthy written response and attached extensive exhibits

including Hunt's income tax returns.

Hunt, 642 So.2d at 1026, 1031. Since the federal law Hubbard cites does not apply

in state court, the only relevant law here is Hunt, which clearly permits the State to

respond in the manner in which it did. Consistent with Hunt, the State properly

filed a lengthy and detailed Response to Hubbard’s Motion for More Definite

Statement with extensive exhibits containing documents produced to Hubbard in

discovery. Accordingly, the State’s filing was not only appropriate under Alabama

law, but was also responsive to Hubbard’s Motion.

6

8. Hubbard’s Reply also attempts to re-litigate his motion to require the

State to file 404(b) material under seal. That motion was previously briefed and

orally argued on January 30, 2015. (See Ex. B). Following briefing and oral

argument, this Court resolved Hubbard’s motion by entry of an Order on February

5, 2015, which did not require the State to file any pleadings or documents under

seal. Hubbard’s current argument that nothing should be filed by the State until the

Court has ruled on its admissibility would practically require the State to make all

pre-trial filings under seal. In other words, it would require the parties to litigate in

secret, which this Court clearly rejected in its February 5, 2015 Order.1

9. In sum, Hubbard’s Motion for More Definite Statement asked the

State to put some meat on the bones of the indictment. In line with Hunt, the State

did that. Hubbard’s complaint that the result of his request was exposure of his

wrongdoing should fall on deaf ears. See Quotations of Benjamin Franklin,

Applewood Books, at p. 22 (“He that blows the coals . . . has no right to complain

if the sparks fly in his face.”).

1 Hubbard’s citation to the Bobo decision again has no bearing on the issue before the

Court. The State again notes for the record that the Eleventh Circuit issued the following

decision in a later appeal in that case: “[I]n the interest of eliminating any doubt of judicial

fairness and impartiality, we direct that this case be reassigned to a different judge upon remand

for further proceedings.” Bobo v. United States, 185 Fed. Appx. 885, 888 (11th Cir. 2006) (per

curiam).

7

In accordance with the foregoing, the State respectfully requests that this

Court enter an Order denying defendant Michael Gregory Hubbard’s Motion for

More Definite Statement.

Respectfully submitted this 9th

day of March 2015.

W. VAN DAVIS

ACTING ATTORNEY GENERAL

/s/ Miles M. Hart

Miles M. Hart

Deputy Attorney General

Chief, Special Prosecutions Division

[email protected]

OF COUNSEL:

W. Van Davis

Supernumerary District Attorney,

Acting Attorney General

423 23rd

St. North

Pell City, AL 35125-1740

[email protected]

Michael B. Duffy


[email protected]

OFFICE OF THE ATTORNEY GENERAL

STATE OF ALABAMA

501 Washington Avenue

P.O. Box 300152

Montgomery, AL 36130-0152

(334) 242-7300

(334) 242-4890 – FAX

mailto:[email protected]



8

CERTIFICATE OF SERVICE

I hereby certify that I have, this the 9th day of March 2015, electronically

filed the foregoing using the AlaFile system which will send notification of such

filing to the following registered persons, and that those persons not registered with

the AlaFile system were served a copy of the foregoing by U. S. mail:

J. Mark White, Esq.

Augusta Dowd, Esq.

William Bowen, Esq.

William Chambers Waller, Esq.

White Arnold & Dowd P.C.

2025 Third Avenue North, Suite 500

Birmingham, AL 35203

Phone: (205) 323-1888

FAX: (205) 323-8907

[email protected]

[email protected]

[email protected]

[email protected]

R. Lance Bell

Trussell Funderburg Rea & Bell, PC

1905 1st Ave South

Pell City, AL 35125-1611

[email protected]

Phillip E. Adams, Jr.

Adams White Oliver Short & Forbus LLP

205 S 9th Street

Opelika, Alabama 36801

Phone: (334) 745-6466

Fax: (334) 749-2800

[email protected]

/s/ Miles M. Hart








EXHIBIT A

EXHIBIT B

1 IN THE CIRCUIT COURT

2 FOR THE COUNTY OF LEE

3 STATE OF ALABAMA

4 THIRTY-SEVENTH JUDICIAL CIRCUIT

5 CRIMINAL DIVISION

6 STATE OF ALABAMA,

7 PLAINTIFF,

8 VS. CASE NO:

9 MIKE HUBBARD

10 DEFENDANT.

11 ___________________/

12 PROCEEDINGS

13 BEFORE:

14 HONORABLE JACOB A. WALKER, III, CIRCUIT

15 COURT JUDGE, LEE COUNTY JUSTICE

16 CENTER. JANUARY 15, 2015

17 APPEARANCES:

18 FOR THE STATE:

19 HON. MATT HART

20

21 FOR THE DEFENDANT:

22 HON. MARK WHITE

23 HON. AUGUSTA DOWD

24 HON. WALLER

25 HON. PHIL ADAMS

1

1 PROCEEDINGS HAD IN OPEN COURT

2 JANUARY 30, 2015

3 (Parties present and the following

4 proceedings were had.)

5 DEPUTY: All rise.

6 (Parties comply.)

7 THE COURT: Y'all keep your

8 seats.

9 (Parties sit down.)

10 THE COURT: Y'all ended up at

11 the wrong tables.

12 MR. HART: I didn't do it,

13 Judge. You know that.

14 THE COURT: All right. Okay.

15 I guess, first, let's just kind of

16 work backwards. When do y'all want

17 it set?

18 MR. WHITE: Judge, we -- I know

19 it would shock the Court, but we

20 have actually been in communications

21 with each other, and we have reached

22 some agreements --

23 THE COURT: Okay.

24 MR. WHITE: -- on what might

25 make sense. And working backwards

2

1 is probably a good place to start.

2 I will see if Mr. Hart agrees with

3 that.

4 THE COURT: All right.

5 MR. WHITE: But I think we have

6 looked at, as far as a trial date,

7 of -- the week of October the 19th,

8 is sort of what --

9 THE COURT: Okay.

10 Mr. WHITE: -- Mr. -- my

11 co-counsel here is coming back from

12 being out of the country, especially

13 for that case. I think that's

14 probably what works. And then we --

15 we have looked at the civil

16 calendar, criminal calendar.

17 THE COURT: Uh-huh (affirmative

18 response).

19 MR. WHITE: The one question we

20 don't know is, are we going to be in

21 this building or the new one?

22 THE COURT: Well -- well, we

23 will be here.

24 MR. WHITE: Okay.

25 THE COURT: No. No. They are

3

1 -- they are having a -- there is

2 going to be a nice, big courtroom

3 over there, but it's not going to be

4 finished.

5 MS. DOWD: Okay.

6 THE COURT: So it's going to be

7 just a nice, big concrete floor with

8 no Sheetrock or anything. So -- so

9 we will -- we will be right here.

10 MR. WHITE: Well, we didn't --

11 none of us intended, on either

12 side, to touch on a sore subject by

13 asking that question. And then,

14 Judge, we were looking at, as I

15 understand from the -- as we stand

16 here today, --


18 response).

19 MR. WHITE: -- the State has

20 responses due in February --


22 response).

23 MR. WHITE: -- on the motion

24 for a more definite, and on the

25 production. As I understand it,

4

1 Mr. Hart has got some additional

2 electronic problems on his

3 production --


5 response).

6 MR. WHITE: -- and is trying to

7 get an additional two weeks. Is

8 that right, Matt?

9 MR. HART: That's correct. Let

10 me just -- would you give him --

11 THE COURT: Now, what about --

12 okay. And do you want to address

13 that motion to seal or not seal the

14 404 B.

15 MR. HART: We will address that

16 one today, Your Honor, --

17 THE COURT: Okay.

18 MR. HART: -- because it will

19 affect all of the rest. I have

20 given one of those to the defense.

21 MR. WHITE: The 404 --

22 MR. HART: Yes.

23 THE COURT: Well, typically, I

24 mean, the -- the basic response is

25 filed, but whatever the supporting

5

1 documents are not filed.

2 MR. WHITE: And -- and Judge, I

3 think I can help you --

4 THE COURT: Okay.

5 MR. WHITE: -- with that. When

6 we filed the original 404 --

7 THE COURT: Yes.

8 MR. WHITE: -- and we are

9 putting the burden on you --

10 THE COURT: Yes.

11 MR. WHITE: -- about examining,

12 I -- I -- we were not aware of the

13 procedure that had been used in --

14 by Judge Cole. We are perfectly

15 fine --

16 THE COURT: Okay.

17 MR. WHITE: -- with them filing

18 the notice and to -- and putting the

19 burden on us to object. I think

20 Mr. Hart has some timing issues

21 that we have not been able to agree

22 on. He would rather -- I would --

23 we would like it sooner, and he

24 needs later. Is that correct?

25 THE COURT: Okay.

6

1 MR. HART: That -- that's

2 correct. Your Honor, we intend to

3 file our 404 B notice in accordance

4 with the rules. We didn't like

5 Judge Cole's procedure.

6 THE COURT: Okay.

7 MR. HART: We didn't agree to

8 it. It was very unusual, even in

9 that circuit. We are -- we want to

10 follow the local practice, which is

11 what we typically try to do. I have

12 talked to the DA's Office and looked

13 at several cases, even some high

14 profile cases, --


16 response).

17 MR. HART: -- Desmonte Leonard,

18 Harvey Updyke, and so forth. And we

19 are going to file our 404 B notice

20 just like they do in all those other

21 cases; --

22 THE COURT: Okay.

23 MR. HART: -- that's our

24 intent.

25 And timing-wise, we

7

1 are -- don't intend to give it to

2 them. We are going to give it -- we

3 propose to give it to them 90 days

4 before trial.


6 response).

7 MR. HART: That's plenty of

8 file to get it and use it and do

9 whatever they need to do with it.

10 THE COURT: Okay. Now, what I

11 have done in other things, when

12 they -- when they -- in other cases

13 when they had filed notice and --

14 and then if you wanted to have a

15 lengthy hearing about the 404 B, I

16 have made that a closed hearing.

17 MR. WHITE: Yes.

18 THE COURT: But that was -- but

19 that was only in -- in --

20 MR. WHITE: Here is --

21 THE COURT: -- capital murder

22 cases where the State was seeking

23 the death penalty --

24 MR. WHITE: -- here is what

25 I --

8

1 THE COURT: -- that I -- that I

2 can recall.

3 MR. WHITE: -- here is what we

4 are trying to avoid. He -- we are

5 trying to avoid having a bunch of

6 stuff that gets put in the public

7 record that is determined not to be

8 relevant --

9 THE COURT: Sure.

10 MR. WHITE: -- or admitted.

11 And whatever mechanism you have used

12 in the past for that is fine. I

13 sort -- I -- I thought it would be

14 easier on -- and -- on your time if

15 they filed the notice on a day

16 certain and produced the materials

17 to us and then we'd have "X" days to

18 object.

19 THE COURT: Okay.

20 MR. WHITE: We -- we,

21 obviously, don't agree that it needs

22 -- we -- we think it ought to be

23 sooner rather than later. That's

24 kind of where we are on the issue,

25 and it's time for you to rule is

9

1 kind of --

2 THE COURT: Okay.

3 MR. WHITE: -- what I think.

4 THE COURT: Well, what -- let

5 me give you a couple of possible --

6 MR. WHITE: Okay.

7 THE COURT: -- hearing dates.

8 MR. HART: And, Your Honor,

9 this hearing is for -- the one we

10 are talking about --

11 THE COURT: Well, if -- well,

12 one, this would be a hearing --

13 you know, let's say you -- you

14 can't agree on your -- the -- the

15 motion for a more definite

16 statement.

17 MR. HART: Okay. Okay.

18 THE COURT: Or you -- or you

19 can't -- you can't agree on your 404

20 B matters. That one could actually

21 be a little bit later, but I think

22 the one on the motion for a more

23 definite statement should be a

24 little sooner.

25 MR. HART: We don't disagree,

10

1 Judge. One -- one thing we're

2 trying to avoid -- let me tell you

3 what our -- if I may, our posture.

4 We don't need a hearing every

5 time -- I mean, first of all, under

6 the rules --

7 THE COURT: That -- that would

8 be good.

9 MR. HART: That was a good

10 point, wasn't it? Thank you, Your

11 Honor.

12 Under the Rules, 15

13 point four, motions to dismiss, in

14 particular, are intended to be

15 consolidated. You are supposed to

16 put all your grounds in one motion

17 to dismiss and not file one this

18 week and ask for a hearing and see

19 how that goes and then file one two

20 weeks from now and ask for a hearing

21 and see how that goes. The defense

22 has already stated in public and in

23 some of their communications and

24 filings and so forth -- for

25 instance, they intend to challenge

11

1 the constitutionality of the

2 statute. They know that now. They

3 know that before discovery and so

4 forth. Many things they know. They

5 have a schedule to do some of these

6 motions that they have --

7 THE COURT: Okay.

8 MR. HART: -- shared in part.

9 We want it all -- we want as few

10 hearings as we can have so we can

11 move orderly, and we want to know

12 what we are dealing with. We don't

13 want a motion to dismiss filed 30

14 days before trial.

15 THE COURT: Sure.

16 MR. HART: And that's where we

17 are headed. And that's what we

18 would like to avoid.

19 THE COURT: Well, what I am

20 anticipating any motion to dismiss,

21 any motion for a more definite

22 statement, trying to do it sometime

23 this spring. If you -- if you had

24 to have a hearing regarding any 404

25 B matter, evidentiary matter, that

12

1 could be, you know, later this

2 summer.

3 MR. WHITE: You have got two --

4 currently you have got two

5 motions -- well, really three

6 motions to dismiss pending.


8 response).

9 MR. WHITE: We broke them out

10 by subject, even though we filed

11 them pretty close. One of them is

12 based on the issue --


14 response).

15 MR. WHITE: -- as to the

16 appointment of the acting grand

17 jury. We would need to take

18 evidence on that. There is another

19 one on conduct of the grand jury.

20 We need to take evidence on that,

21 but I don't see any reason why we

22 couldn't get a -- two or three days

23 and do all that -- knock all that

24 out at the same time frame, Judge.

25 THE COURT: Okay.

13

1 MR. WHITE: We have indicated

2 to the State that we are, in fact,

3 going to raise some issues. By way

4 of example, the first four counts

5 are -- basically relate to conduct

6 while chairman of the political --


8 response).

9 MR. WHITE: -- party is

10 spending private money. You -- we

11 don't look far in the law library

12 for that one, because that hasn't

13 ever been used before.


15 response).

16 MR. WHITE: So you're going to

17 have both a facial issue and as

18 applied issue there. What we need,

19 though, is we need the response to

20 the more definite statement, and we

21 need the production. I don't

22 need -- we don't need it as much for

23 the current motions that are filed,

24 but for the other motions, --

25 THE COURT: Sure.

14

1 MR. WHITE: -- we absolutely

2 need them.

3 THE COURT: Well, let me give

4 you these dates and --

5 MR. WHITE: Okay.

6 THE COURT: -- really, going

7 into April 15th, 16th, and 17th, I

8 mean, I can move some things around

9 and give you basically two -- two

10 days or so --

11 MR. WHITE: Okay.

12 THE COURT: -- even back to

13 back right in there.

14 MR. WHITE: Okay.

15 THE COURT: If you wanted to go

16 to -- if you wanted to wait and go

17 to May 20th or May 22nd, but -- I

18 mean, I think those April dates

19 would be a little better.

20 MR. WHITE: I think we just

21 lock them down.

22 THE COURT: Okay. Well, do you

23 want to do it April 15th?

24 MR. WHITE: I think that works.

25 THE COURT: Okay.

15

1 MR. WHITE: I would like to do

2 -- anything other than what else I

3 am going to have to do on April the

4 15th, --

5 THE COURT: Right. And -- and

6 I wouldn't --

7 MR. WHITE: -- which is pay my

8 taxes.

9 THE COURT: -- I wouldn't

10 really see taking up any 404 B

11 matters or anything like that on

12 April 15th.

13 MS. DOWD: Your Honor, it would

14 -- this is Augusta Dowd. It would

15 be great if we could lock down those

16 dates. I will advise the --

17 THE COURT: Okay.

18 MS. DOWD: -- Court, I am in --

19 scheduled to start a jury trial

20 April 6th. If that case does, in

21 fact, go forward -- it depends

22 probably on the talents of the

23 mediator in the case who sits to my

24 left. But if that case probably

25 does go forward, I might request to

16

1 revisit that. We would discuss that

2 in the office.

3 THE COURT: Okay.

4 MR. ADAMS: I would ask the

5 Court not to comment on what

6 Ms. Dowd just said about the talent

7 of the mediator.

8 THE COURT: No. But it's -- I

9 am going to -- I will leave it on

10 the 15th, --

11 MS. DOWD: That would be

12 great.

13 THE COURT: -- and 16th or so.

14 MR. WHITE: Okay.

15 THE COURT: And then -- because

16 just looking at our calendar, I

17 can -- I can easily move some things

18 around on that date. And then --

19 and then when we are here on that

20 date, we will just say, well, when

21 do you want the other hearings.

22 MR. WHITE: Okay.

23 MR. HART: Your Honor, we -- we

24 want to be heard on the other

25 hearings issue. We don't think -- I

17

1 mean -- okay. We can deal with it

2 in the future, but --

3 THE COURT: Sure. But I am not

4 talking about -- if you -- if you

5 needed a 404 B matter -- I mean,

6 what I would prefer to do -- I mean,

7 you don't have to do it this way --

8 and of course, it depends on what

9 you put them on notice of, too. You

10 know, you could do it right before

11 trial in October, if it's -- if it's

12 relatively short, but I prefer to do

13 it, you know, sometime in August or

14 sometime in September prior to the

15 hearing. And -- and then whether

16 it's an open hearing or a closed

17 hearing, quite frankly, depends on

18 what you have. And, of course -- I

19 mean -- and when I mentioned having

20 the closed hearing in other cases,

21 that was -- that's a death penalty

22 case, too. I mean, that's very --

23 you know, those are always, you

24 know, going to be much more

25 sensitive.

18

1 MR. HART: The State is in

2 accord, Your Honor, and --


4 response).

5 MR. HART: -- we would like a

6 final --


8 response).

9 MR. HART: -- if we can do it,

10 we would like to work through all

11 these motions of the very various

12 sort. There is going to be a lot of

13 unusual probably, relatively

14 speaking, --


16 response).

17 MR. HART: -- pretrial

18 litigation here. The 30 to 45 days

19 before trial, we would like to have

20 a final motion hearing somewhere in

21 that range.

22 THE COURT: Sure. I think we

23 can do that.

24 MR. HART: Okay.

25 THE COURT: But I don't -- but

19

1 would you rather -- I can -- I can

2 give you a date now possibly, or I

3 could -- I could just wait until

4 April and give you the date.

5 MR. WHITE: For a final

6 pretrial?


8 response).

9 MR. HART: We can do that. We

10 have proposed -- that piece of paper

11 I handed you, Your Honor, --

12 THE COURT: Okay.

13 MR. HART: -- and I have given

14 it to the defense, --


16 MR. HART: -- we communicated

17 in writing a couple of times about

18 this --


20 MR. HART: -- the -- the dates.


22 MR. HART: And if you look at

23 the final pretrial conference,

24 putting it on August 28th and then

25 back up the things.

20

1 THE COURT: Okay.

2 MR. HART: Now, the defense is

3 not -- I don't want to imply that

4 they have agreed with all of this.

5 For instance, our 404 B deadlines

6 and some other things, I gave you a

7 chart that shows what we are in

8 agreement on and what we are not.

9 MR. WHITE: Judge -- and I have

10 not had a chance to review the chart

11 where he purports to agree. But let

12 -- let me tell you this --

13 THE COURT: I think the 28th or

14 so would probably be okay.

15 MR. WHITE: The pretrial date

16 is fine, and I have no problem with

17 that date. The problem we have is

18 this, the State wants you to order

19 us to not be able to file any

20 further motions after a certain

21 date.

22 THE COURT: I really can't do

23 that.

24 MR. HART: That's not --

25 MR. WHITE: That's the end of

21

1 my argument.

2 MR. HART: -- that's not our

3 proposal, Judge. That's not our

4 proposal.

5 MR. WHITE: That's the end of

6 my argument.

7 MR. HART: Let me --

8 THE COURT: Okay.

9 MR. HART: -- let me just --

10 that's not -- that's not our

11 proposal, Judge.

12 THE COURT: Okay.

13 MR. HART: What we say is, we

14 would like the Court in the typical

15 administration of the case --


17 response).

18 MR. HART: -- to indicate to

19 the parties or direct the parties,

20 don't file something that you know

21 about that and that you can do it

22 otherwise --

23 THE COURT: Sure.

24 MR. HART: -- with no

25 problem --

22

1 THE COURT: That will be fine.

2 MR. HART: -- five days before

3 trial if -- for good cause they can

4 always do anything.

5 THE COURT: Okay.

6 MR. HART: We understand the

7 difference in --

8 THE COURT: Well, sure. I mean

9 -- and -- and I think, you know,

10 you're going to have motions for a

11 more definite statement. You are

12 going to have some -- it sounds like

13 some constitutional issues that are

14 going to be brought up. I mean, I

15 would like all of that to be

16 addressed, you know, in April, and

17 -- and then -- so, that, quite

18 frankly, all that can be resolved.

19 MR. WHITE: Yes. And -- and

20 some of that drives off this: If --

21 if the State at this point can say,

22 one, we are going to produce on "X"

23 day --


25 response).

23

1 MR. WHITE: -- and yes, it will

2 be in the electronic format --


4 response).

5 MR. WHITE: -- that we have

6 given them, then we will at least

7 know while we are waiting on it what

8 it's going to look like. If it's

9 going to come up in a rental truck

10 and it's all hard paper, we have got

11 an issue, so --

12 THE COURT: Okay.

13 MR. WHITE: -- that would help

14 us.

15 THE COURT: Right.

16 MR. HART: Your Honor, if

17 they --

18 THE COURT: Go ahead, Mr.

19 Hart.

20 MR. HART: Your Honor, we have

21 looked at -- now, they didn't

22 request the particular format that

23 they have asked for at this point

24 until the 21st of this month.


24

1 response).

2 MR. HART: We certainly have no

3 intention, of -- of course, of

4 getting a big box of paper and --


6 response).

7 MR. HART: -- driving up there

8 and delivering it to them that way.

9 We use a -- a program that is a

10 commercial program, Summation -- I'm

11 sure the Court has heard of that --

12 to bate stamp and do certain things.

13 But we are going to provide them --

14 and it's more than the rule requires

15 -- electronic copies, PDFs of all

16 these things. They've asked for a

17 bunch of other stuff. They want us

18 to break out meta data and do all

19 these kinds of things. There again,

20 looking at the local custom, we are

21 going beyond what is typically

22 done.

23 THE COURT: Well, it -- well,

24 this is kind of getting way ahead,

25 but I mean, do you anticipate the

25

1 State filing a motion to join all of

2 these indictments together in one

3 trial?

4 MR. HART: I don't know, Your

5 Honor.

6 THE COURT: Okay.

7 MR. HART: I don't know. And

8 we -- our time line -- we asked for

9 two more weeks. We have got

10 technical issues. I could have my

11 agent lay them out for you. I won't

12 bore you with it unless you desire

13 that. And we are in contact with

14 the company. We have had some

15 problems with our -- issues. So we

16 are asking until February the 17th

17 to deliver these. We have got a lot

18 of it done.

19 THE COURT: Okay.

20 MR. HART: But not all of it.

21 And then our response to the motion

22 for a more definite statement we

23 would like to give them on February

24 27th.

25 THE COURT: Okay.

26

1 MR. HART: That's shortly after

2 that.

3 MR. WHITE: Let me make sure I

4 understand. You asked -- you

5 mentioned all the indictments.


7 response). All the counts.

8 MR. WHITE: The counts. Okay.

9 THE COURT: Now, you are --

10 it's one indictment, but all the

11 counts.

12 MR. WHITE: Fine. We --

13 THE COURT: I'm sorry.

14 MR. WHITE: Yeah.

15 THE COURT: I scared you.

16 MR. WHITE: Yes. You can

17 understand why I might ask the

18 question.

19 THE COURT: Yes.

20 MS. DOWD: Judge --

21 THE COURT: Yes, ma'am.

22 MS. DOWD: Judge, one thing

23 that's a concern to me is, I have

24 heard -- and I appreciate the

25 response --

27


2 response).

3 MS. DOWD: -- on the discovery,

4 because we will get in February.


6 response).

7 MS. DOWD: What is of concern

8 to me is an effort by the State to

9 set and to say to the Court --


11 response).

12 MS. DOWD: -- we want

13 constitutional issues addressed, we

14 want everything addressed by April,

15 but yet, I am not -- I don't know

16 under the current framework whether

17 the State intends to -- to give us

18 our bill of particulars response

19 and -- and whether that will raise

20 new issues or additional issues.

21 THE COURT: Well -- but we will

22 have to just take that up in April

23 and see. I mean, I would just -- I

24 would prefer for it to be, you know,

25 that way, but there could always be

28

1 -- you know, there could always be

2 an exception to it. I am not -- I

3 am not going to issue some type of,

4 you know, firm order that says, you

5 know, you can't raise a

6 constitutional issue --

7 MR. WHITE: Thank you.

8 THE COURT: -- after April

9 17th. I would prefer for all of

10 that to be taken up in that April

11 hearing so that -- you know, if

12 there needs to be some type of

13 ruling beyond this court, you know,

14 that can all be addressed and -- and

15 -- well before October.

16 MS. DOWD: Yes, sir. And

17 that's --

18 THE COURT: And I hope well

19 before August 28th or whenever the

20 pretrial date is.

21 MS. DOWD: That's exactly my

22 point.


24 response).

25 MS. DOWD: And I think I didn't

29

1 communicate it effectively. Under

2 the --


4 response).

5 MS. DOWD: -- under the current

6 framework, will we have their bill

7 of particulars actually filed as

8 opposed to the briefing on timing or

9 what they need to say?

10 THE COURT: I would hope so.

11 MS. DOWD: That's the question.

12 THE COURT: So -- now, the

13 other -- now, let -- let me address

14 the -- of course, y'all -- we

15 were -- we thought we were going to

16 have a hearing earlier this month

17 and -- and because of -- there was

18 some witnesses or some documents

19 for witnesses out of -- out of

20 Birmingham that were subpoenaed and

21 that then those witnesses just

22 produced their documents or more or

23 less some type of disc or hard drive

24 and -- and left it with the Circuit

25 Clerk. I think the defense then

30

1 wanted to get a copy of it so I had

2 the Clerk take those -- you know,

3 what was filed and put it with the

4 court reporter. The reason I was

5 hesitant to -- to just release that

6 was because I felt that the Clerk

7 had been placed into the chain of

8 evidence. And -- and so I want to

9 know how to handle that. I don't

10 know if it's better to handle it to

11 just let the -- if y'all want a

12 transcript of what that is, let the

13 court reporter just -- just type it

14 up and give you both a transcript

15 and send it out to you, but I was

16 very hesitant to get the Circuit

17 Clerk in a chain of evidence and

18 then to release something and -- and

19 then the next thing you know, you

20 know, they are in the chain and --

21 and she is having to testify in the

22 case.

23 MR. WHITE: Well, Judge, the

24 purpose in making it returnable was

25 just to preserve it.

31

1 THE COURT: Sure.

2 MR. WHITE: And -- and you're

3 absolutely right. We didn't want to

4 get in the chain of evidence --


6 response).

7 MR. WHITE: -- and Mary may

8 never forgive me for doing that, but

9 I will take the heat for that.

10 THE COURT: Yeah.

11 MR. WHITE: I think your idea

12 is correct. We can either copy it

13 on a -- the other -- one of them has

14 been transcribed.

15 THE COURT: Okay.

16 MR. WHITE: -- and the State

17 has filed it in -- as an attachment

18 to one of the pleadings. It's the

19 other one.


21 response).

22 MR. WHITE: We are happy to

23 have the court reporter transcribe

24 it. We are happy to have a copy

25 made of it.

32

1 THE COURT: Okay.

2 MR. WHITE: And that those two

3 can just stay in the safe or

4 whatever.

5 THE COURT: Sure. That would

6 be fine. But they are -- they are

7 with -- they are with Ms. Smith

8 right now.

9 MR. WHITE: Okay.

10 THE COURT: So -- so they are

11 actually in -- in an evidence

12 locker.

13 MR. WHITE: So with -- with

14 your permission, we will just make

15 arrangements to --

16 THE COURT: Right. Sure.

17 MR. HART: No objection.

18 MR. WHITE: -- get a

19 transcript.

20 THE COURT: Because, again, I

21 -- I just -- I thought, you know,

22 the court reporters are accustomed

23 to handling evidence, and just

24 didn't want it down in --

25 MR. WHITE: If you need me to

33

1 say on the record that we are

2 satisfied if Ms. Smith --

3 THE COURT: Right.

4 MR. WHITE: -- has them, that

5 that -- there is no issue of the

6 chain of custody as it involves the

7 Circuit Clerk.

8 THE COURT: Because -- because

9 at some point the Circuit Clerk's

10 Office will be moving to the new

11 facility.

12 MR. WHITE: Yes. That's fine.

13 THE COURT: So --

14 MR. WHITE: -- if the court

15 reporter has them, we are -- that --

16 THE COURT: Okay.

17 MR. WHITE: -- we will

18 stipulate that's -- that's the

19 evidence.

20 THE COURT: As far as -- you

21 know, some of the media is here,

22 when we get into the trial -- you

23 know, something, you know, that -- I

24 mean, everything, you know, is fine,

25 obviously, about covering the trial.

34

1 There -- there are issues about

2 sending out real time tweets while

3 people are testifying. I think

4 just, quite frankly, other witnesses

5 who are being sequestered could,

6 quite frankly, read those, and so

7 that's just an issue we will

8 probably take up when we get closer

9 to trial. But I just want to make

10 everybody, you know, aware of that

11 and people -- people want to tweet,

12 they want to have real time

13 reporting, and I understand y'all's

14 desire to do that, but at the same

15 time, if -- if a witness is outside

16 the courtrooms, they can't hear what

17 one witness is saying, but they can

18 just look on their cell phone and

19 read the tweets; they essentially

20 know what the witness is testifying

21 to before they testify. And -- and

22 that's come up in other trials, and

23 it's just part of handling cases in

24 the 21st Century. So -- so I just

25 want to -- you know, just make --

35

1 make the media aware of that and --

2 and just also make the media aware

3 of why we have to have that rule.

4 It's not that we are trying to limit

5 your ability to report. Now, if we

6 are in a break, you know, you can go

7 outside and whatever you feel like

8 you need to report report. But,

9 again, that's just something we are

10 trying to handle, not so much to

11 limit -- not to limit what you're

12 reporting necessarily, but to limit

13 what witnesses have the ability to

14 read, and witnesses are here in the

15 Justice Center and we know where

16 they are, then that's one thing.

17 But we don't know -- there

18 may be potential witnesses away from

19 the Justice Center, and we just have

20 no way of knowing what they are --

21 what they are monitoring, and -- and

22 it's just a -- it's just an issue

23 that's coming up over and over and

24 over again.

25 MR. WHITE: I --

36

1 THE COURT: The -- the same as,

2 you know, telling jurors don't post

3 things on Facebook. I mean, I never

4 -- you never used to have to give

5 that curative instruction. But --

6 but that's just part of it. Do

7 y'all have anything else you want to

8 take up?

9 MR. WHITE: Judge, I think that

10 probably has covered most of it.

11 One thing that -- on -- on -- as I

12 remember the rule, I can't remember

13 if it finally got in or not, but

14 there was a contemplation even

15 before --


17 response).

18 MR. WHITE: -- when that first

19 media plan rule came out. But there

20 was a contemplation where there

21 could, in fact, be a media plan that

22 would involve not only the parties

23 but also the --

24 THE COURT: Now, we have a --

25 we have a set plan, if you want to

37

1 go get it from Ms. Campbell.

2 MR. WHITE: Yes.

3 THE COURT: And if -- anything

4 y'all want to take up in -- you

5 know, in April about it, you know,

6 that's fine, but we have kind of a

7 set plan.

8 MR. WHITE: Okay. But I -- I

9 think -- I think we can probably get

10 it --

11 THE COURT: But it basically

12 involves having one pool camera, one

13 -- one -- which is, you know, what I

14 would call a T.V. camera, a video

15 camera, another -- you know, one

16 still camera and --

17 MR. WHITE: Does it track the

18 date plan? I mean, the -- one of

19 the rules? Is it different -- is it

20 local?

21 THE COURT: It -- pretty

22 much, --

23 MR. WHITE: Okay.

24 THE COURT: -- but I mean, you

25 can take -- you can take a look at

38

1 it.

2 MR. WHITE: Okay.

3 THE COURT: But then a lot of

4 it is, quite frankly -- you know,

5 even though we have the media room,

6 the -- the acoustics in there are

7 just not great. So that's why most

8 of the media is in here so they can

9 actually hear. So -- but -- and --

10 and we have tried to work with that.

11 The -- but that's -- that's the

12 only --

13 MR. WHITE: My only other

14 question was, I assume you are going

15 to put an order out?

16 THE COURT: Yes, sir.

17 MR. WHITE: Or are you going to

18 -- you don't need a draft order?

19 THE COURT: No, sir. I will

20 send you one.

21 MR. WHITE: Okay.

22 THE COURT: And then -- oh. Do

23 you want to use -- I mean, this is

24 way early. But do you want to use a

25 juror questionnaire?

39

1 MR. WHITE: We will.

2 THE COURT: Okay.

3 MR. HART: The State will, Your

4 Honor.

5 THE COURT: Okay. We basically

6 have a form questionnaire that we

7 use that -- it's a questionnaire --

8 we pulled it from a case with --

9 Justice Maddox actually, you know,

10 said, well, this -- this

11 questionnaire would be pretty good.

12 So we think that because Justice

13 Maddox listed that, you know, it --

14 it has Appellate muster and then

15 past Appellate muster. And so --

16 but, you know -- so if y'all want to

17 ever take a look at that, there

18 should be -- Ms. Campbell should

19 have a copy of that, too.

20 MR. WHITE: Okay.

21 THE COURT: But anyway -- do

22 y'all have anything?

23 MR. WHITE: That's all I --

24 THE COURT: Anything else,

25 Mr. White or --

40

1 MR. WHITE: -- can think of.

2 MR. HART: You are going to put

3 up -- just to be clear, Judge -- and

4 I think you did clarify this, but I

5 am looking at our first response.

6 We are going to get that discovery

7 on the 17th.

8 THE COURT: Okay. February

9 17th. All right.

10 MR. HART: Yes, Your Honor.

11 And then our response to their

12 motion for a more definite statement

13 on February 27th. Is that where we

14 are --

15 THE COURT: Okay. Okay. Okay.

16 MR. WHITE: One of those is

17 slightly different than your

18 existing order.

19 THE COURT: Okay. And then

20 April 15th for the motions.

21 MR. HART: We may have moved

22 it because we moved the discovery

23 date.

24 THE COURT: October 19th for

25 the trial. Around August 28th for

41

1 the pretrial.

2 How long do y'all

3 think the trial is going to take?

4 Two weeks?

5 MR. HART: I think it's -- I am

6 sorry. The State's portion is going

7 to take two weeks, Your Honor. I am

8 not sure about the defense.

9 THE COURT: Three weeks?

10 MR. WHITE: Once I get the more

11 definite statement response, I will

12 be able to tell you.

13 THE COURT: Okay. Okay. Do

14 y'all want to do -- well, I am

15 getting way ahead of you. Do you

16 want to break down individual voir

17 dire like we do in capital murder

18 cases, or do y'all want to give

19 people about how we have done

20 that?

21 (No response.)

22 THE COURT: That's basically

23 putting them in panels and bringing

24 them in in smaller groups for

25 each --

42

1 MR. WHITE: We -- we are going

2 to have to --

3 THE COURT: -- each -- for all

4 the questions?

5 MR. WHITE: -- I think we are

6 going to have to do something. Yes,

7 sir.

8 THE COURT: Okay.

9 MR. WHITE: Yes.

10 THE COURT: All right. We will

11 also talk to you about exactly how

12 many you would want summoned because

13 we can -- we can bring in extra

14 jurors if need be. So --

15 MR. WALLER: Take that up on

16 the April date or --

17 THE COURT: Well, probably

18 should take it up in April because

19 if -- if you are going to summon

20 extra jurors August 28th may be too

21 late.

22 MR. WHITE: Yeah. I think it

23 is.

24 THE COURT: And the -- and the

25 Court Administrator's Office would

43

1 like to know probably as soon as

2 possible.

3 MR. WHITE: April is fine.

4 THE COURT: Okay.

5 MR. HART: Very well, Your

6 Honor.

7 THE COURT: All right. But the

8 way we have done it is -- is

9 basically we will go through and --

10 and qualify them as -- in a big

11 group and try to have as many people

12 as we can fit in here to go through

13 and call the case for trial and --

14 and -- and let you do your voir dire

15 questions and then try to bring them

16 in -- in panels of, say, 12 or so

17 and let you do your follow-up

18 questions, and then if you want to

19 have individual follow-up questions

20 with a particular juror, you can

21 just say, well, I need juror so and

22 so and juror so and so remain and

23 excuse the rest of the panel. And

24 then they can be brought in

25 individually. Just -- just try to

44

1 work it that way. And then that way

2 the jurors come in at different

3 times and -- and they --

4 hopefully -- you know, they just

5 aren't having to wait here at the --

6 at the Justice Center the entire

7 time during -- during jury

8 selection. It's a little more

9 convenient for them to do it that

10 way.

11 MR. WHITE: Okay. I think we

12 are -- I have got -- now that I am

13 knowledgeable on the Casper method,

14 I am getting there.

15 THE COURT: Okay.

16 MR. WHITE: So I will be ready

17 -- we will -- we will have an idea

18 in April for you.

19 THE COURT: Okay. All right.

20 All right.

21 MR. WHITE: Thank you, Judge.

22 Appreciate it.


24 (Proceedings were

25 concluded.)

45

1 CERTIFICATE OF COMPLETION

2 OF REPORTER'S TRANSCRIPT

3

4 I CERTIFY THAT I HAVE THIS DATE

5 COMPLETED THE ORIGINAL OF A TRUE AND CORRECT

6 TRANSCRIPT OF THE EVIDENCE AND MATTERS

7 DESIGNATED BY THE PARTIES. ALL PAGES ARE

8 NUMBERED SERIALLY, IN THE UPPER RIGHT CORNER

9 OF THE PAGE, PREFACED BY AN INDEX AND ENDING

10 WITH THE NUMBER APPEARING TOP RIGHT OF THIS

11 CERTIFICATE.

12

13

14 DATED this 20TH day of 2015.

15

16

17 /s/ JJJJaaaa nnnn eeee tttt CCCC.... SSSSmmmmiiii tttt hhhh

18

19

20 Janet C. Smith, CSR 195

21

22

23

24

25

46

1

2

3

4

5

6

7

8

9

10

11

12 12

13

14

15

16

17

18

19

20

21

22

23

24

25

47

EXHIBIT C

White Arnold & Dowd P.C. 2025 Third Avenue North, Suite 500

Birmingham, AL 35203

For Immediate Release Contact: J. Mark White February 27, 2015 Phone: 205-323-1888

Statement of J. Mark White for Hubbard Legal Team Today’s filing is bizarre, improper, and non-responsive. It is more argument and political statement than pleading. It is replete with false statements and empty rhetoric. Apparently designed to further mislead the public, the filing demonstrates a basic lack of knowledge about the state ethics laws and the relevant facts in this matter. By design, Alabama has a citizen legislature, not a full-time legislature. It’s no secret that Mike Hubbard is a longtime businessman. It’s not improper for him to conduct personal business. This filing – just days before the start of the 2015 legislative session – yet again raises questions about political timing and motivations surrounding this matter. But Mike Hubbard won’t be distracted. He is focused on the legislative session and on doing the business of the people of Alabama. We will file appropriate responses with the court and welcome the long-awaited opportunity to expose the strange and curious ways this investigation has been conducted.

in the circuit court of lee county, alabama state …media.al.com/news_impact/other/here is...

Documents