state response to motion to dismiss hubbard case

7/25/2019 State response to motion to dismiss Hubbard case

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IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA, )

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)

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v. ) CASE NO. CC-2014-000565

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MICHAEL GREGORY HUBBARD, )

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Defendant. )

STATESRESPONSE TO HUBBARDS

RENEWED MOTION TO DISMISS ON THEORY OF PROSECUTORIAL

MISCONDUCT AND FRAUD

Having repeatedly failed to offer any credible evidence of prosecutorial

misconduct, defendant Michael Gregory Hubbard (Hubbard) offers the affidavit

of Baron Coleman, a now-former confidential informant for the State, in a

desperate last minute attempt to avoid a trial on the 23 felony ethics violations that

the Lee County Special Grand Jury indicted him on over a year ago.

The Coleman affidavit is misleading because it omits the key fact that

Coleman has been a confidential informant for the State since the fall of 2012,

longer than he has been a daily radio show host or political consultant for Sandy

Toomer. As a consequence of this omission, the affidavit also fails to acknowledge

that the conversations that Deputy Attorney General Matt Hart had with Coleman

ELECTRONICALLY FILED2/11/2016 3:01 PM

43-CC-2014-000565.00CIRCUIT COURT OF

LEE COUNTY, ALABAMAMARY B. ROBERSON, CLERK

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were all lawful and appropriate because they were all conducted in the context of

Colemans status as an informant. The conversations were also productive, as

shown in Exhibit A, which the State is submitting to the Court ex parte and in

camera. Finally, unless the assertions in Colemans affidavit are read in light of his

status as a confidential informant, those assertions are irreconcilable with the

arguments and representations Coleman made as an officer of this Court at the

October 20 hearing when he orally moved for sanctions against the defense for

issuing a frivolous subpoena to him since he kn[e]w nothing about the grand

jury. Oct. 20 Hearing Trans. at 3:21 4:8.

Introduction

Hubbard has filed serial motions to dismiss for 14 months now. His theories

have ranged from improper grand jury empanelment to the grand jury exceeding its

jurisdiction to the expiration of the grand jurys term to selective prosecution to the

unconstitutionality of the Alabama Ethics Act. This Court has properly denied

nearly all of Hubbards motions.

Indeed, just hours after the Court entered an order denying three of

Hubbards motions to dismiss, Hubbard filed his Renewed Motion to Dismiss for

Prosecutorial Misconduct and Fraud (Renewed Motion) (Doc. 587). Hubbards

Renewed Motion is based entirely on the allegations contained in the Coleman

affidavit which was attached as Exhibit A to the Renewed Motion.

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Colemans affidavit is misleading because it omits the highly material fact

that Coleman had been an unpaid confidential informant for the State for over three

years before he signed the affidavit filed by the defense . Colemans services as an

informant predate his positions as daily radio show host and political consultant for

Toomer, and all of the conversations that Hart had with Coleman were lawful and

appropriate because they were related to Colemans service as an informant who

provided information to the State. The purpose of those conversations, the vast

majority of which were initiated by Coleman, was for Coleman to convey

information to the State, not for Hart to convey information to Coleman. Further,

as set forth in the attached affidavit of Jack Campbell who currently co-hosts a

daily radio show with Coleman and is a partner with Coleman in a political

consulting business, Coleman previously told Campbell that Hart did not reveal

any grand jury information to him.

Setting aside the misleading nature of Colemans affidavit, even if it were

true, it would be insufficient to support dismissal of the indictment. The Coleman

affidavit does not allege that Hart leaked grand jury information or that he violated

the Alabama Rules of Professional Conduct. Instead, it purports to describe

instances of conduct that Coleman says may or may not be improper. As shown by

the Campbell affidavit, when those communications are placed in the context of

Coleman being a confidential informant, it becomes clear that Colemans affidavit

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is misleading. To be sure, Colemans affidavit is carefully crafted to imply

prosecutorial misconduct without actually alleging that Hart violated any laws or

rules. Regardless, neither Colemans affidavit nor the Renewed Motion even

attempts to explain how any of the conduct described could have impacted the

grand jurys decision to indict which is required before dismissal.

Argument

I. Baron Coleman has been a confidential informant for the

State since the fall of 2012, a fact which demonstrates that

Harts conversations with himwere lawful and appropriate,but was omitted by Coleman in his affidavit.

Baron Coleman has been an unpaid confidential informant for the State since

the fall of 2012. His services as a confidential informant pre-date his political

consulting business and his activities as a member of the media. Over the course of

his three years as a confidential informant, Coleman periodically communicated

with Hart in order to convey information to the State. See Ex. B, Campbell Aff. at

5-6. In the course of those communications, the vast majority of which were

initiated by Coleman, Hart would sometimes inquire about Colemans knowledge

regarding certain topics or might ask questions of Coleman in order to get further

details about the information that Coleman was conveying. See id. at 6. The

information that Coleman provided to Hart proved valuable in both the Hubbard

investigation that led to this case and in other investigations, as shown in Exhibit A

which the State is submitting ex parteand in camerato the Court for its review.

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The purpose of these conversations was always for Coleman to convey

information to the State and/or for the State to seek information from Coleman for

law enforcement purposes. None of the conversations was for the purpose of Hart

conveying protected grand jury information to Coleman. In fact, Coleman does not

allege that Hart gave him protected grand jury information, stating instead that he

received information [Coleman] concluded was discussed in the Lee County

Special Grand Jury. Coleman Aff. at 5. In other words, Colemans affidavit

reflects that Hart did not provide him with grand jury information, only that

Coleman concluded certain unspecified information from his conversations with

Hart had gone before the grand jury.

Jack Campbells affidavit clarifies what Coleman meant when he stated he

concluded he received information discussed in the grand jury. As Campbell

explains, Coleman was the States unpaid confidential informant and, in that

capacity, had conversations with Hart about the Hubbard case and provided

information to Hart about Hubbard. Campbell Aff. at 5-6. But Coleman told

Campbell on several occasions that Hart did not tell Coleman any secret grand

jury information and that Hart did not otherwise unlawfully provide Coleman with

information. Id. at 6. Instead, Coleman explained to Campbell that [Coleman]

could sometimes tell from Harts line of questioning who might have been brought

before the Lee County Special Grand Jury to testify, but that Hart never told or

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confirmed to Coleman the identity of any witnesses that testified. Id. at 7.

Coleman also told Campbell that Hart never told him what was going on with the

grand jury. Id.; see also March 29, 2015 episode of The Voice of Alabama

Politics, available at https://www.youtube.com/watch?v=801zsYBbDl0, at 19:40-

50 (Coleman, referencing filings by Hubbard: Now, my name was in some of the

filings as [a person] supposedly receiving leaks. No leaks over here.). In other

words, Colemans conclusions that information discussed in the grand jury was

included in conversations he had with Hart were nothing more than unconfirmed

speculation he derived from his informant communications with Hart.

Campbells affidavit, along with the affidavits of Sandy Toomer and John

Rice, also refutes Colemans allegation that he used information from Hart to

create a whisper campaign against Hubbard in Lee County during the 2010

elections. Campbell Aff. at 10. Instead, Campbell directly states that no secret

grand jury information or otherwise unlawful information was used in a whisper

campaign in Lee County. Although the campaign did use certain information

about Hubbards activities, none of that information came from Hart or the grand

jury. Id. Likewise, Sandy Toomer, the candidate for whom Coleman worked in

the 2014 Lee County Republican primary election, was also unaware of any

whisper campaign against Hubbard, and did not direct anyone to use information

about the Hubbard investigation in his campaign. Affidavit of Sandy Toomer,

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attached hereto as Exh. C, at 7; see alsoAffidavit of John Rice, attached hereto

as Exh. D, at 7-8 (stating he did not know of any whisper campaign using

information from Hart about the grand jury investigation, and he was unaware of

Coleman sharing information from the grand jury to anyone involved in the

Toomer campaign).

Further, Campbells affidavit explains how Coleman got the information that

he claims he used in the whisper campaign. Coleman claimed that the

information he used included the identities of people testifying in front of the

Grand Jury, assurances that the investigation would result in the indictment of

Mike Hubbard, and assurances that the Attorney Generals office had sufficient

information to counter any perceived prejudice or trouble inside the office.

Coleman Aff. at 8. With respect to the identity of witnesses, Campbell recounted

how he and Coleman walked around the parking lot of the Lee County Justice

Center looking at license plates. Campbell Aff. at 11; see alsoRice Aff., at 9

(recounting that Rice went to Justice Center parking lot three times to try to

identify grand jury witnesses, and that Coleman accompanied Rice on one of these

trips). If Coleman were being told who was testifying, he obviously would have no

need to snoop in the parking lot.

With respect to the assurance that Hubbard would be indicted and that the

Attorney Generals Office could counter any prejudice or trouble in the office,

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since Coleman, as a confidential informant, was supplying the State with

information against Hubbard, he could easily speculate based on the information

that he was providing to the State that Hubbard would be indicted or that internal

office issues could be handled. Such speculation would also be consistent with

Coleman drawing speculative conclusions based on his conversations with Hart.

Campbell Aff. at 7. There is also nothing improper with assuring a confidential

informant, like Coleman, that the State had the resources and wherewithal to

perform their law enforcement duties, including defending against false

accusations of purported misconduct. In any event, the communications between

Hart and Coleman were not unlawful or improper under the circumstances.

Finally, with respect to Colemans affidavit, his status as a confidential

informant also explains why Hart contacted him after Hart learned that the defense

had subpoenaed him in the fall of 2015. Coleman Aff. at 12. The reason Hart

contacted Coleman was to discuss whether the State and/or Coleman would be

asserting the confidential informant privilege in response to the defenses

subpoena. As Rule of Evidence 509 provides, the identity of a person who

provided information relating to or assisting in an investigation of a possible

violation of a law is privileged, and the State may refuse to disclose it. Ala. R.

Evid. 509(a);see also, e.g.,Franks v. State, 651 So. 2d 1114, 111718 (Ala. Crim.

App. 1994) (discussing the prosecutions privilege to withhold the identity of an

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informant). Since Coleman as a confidential informant had provided information

relevant to the investigation of Hubbard and other matters,1he would have been

covered under this privilege and either he or the State could have moved to quash

his subpoena based upon it. Alternatively, even if Coleman was required to testify,

this privilege could also have been applicable to certain questions or lines of

inquiry. The reason Hart contacted Coleman, therefore, was for the purpose of

alerting him to this privilege and its potential applicability to his testimony.

1 The State takes this privilege seriously and generally refuses to waive it. But an

informant may, by his own actions, directly or indirectly disclose his identity. SeeAla. R. Evid.509, cmt. Coleman has done so here, placing his status as an informant at issue by omitting any

mention of his status in his affidavit.

To correct Colemans misleading affidavit and answer Hubbards allegations of

prosecutorial misconduct, the State has been forced to disclose Colemans identity as aninformant. But the State continues to assert privilege over the communications between Coleman

and any Attorney Generals Office staff, some of which relate to ongoing investigations and

some of which, if made public, could damage the reputations of private individuals and public

figures. To demonstrate the privileged nature of the communications, the State is providingcertain records of Colemans conversations with Hart under seal and ex parte. These records, like

all [r]ecorded information received by a public officer in confidence, sensitive personnel

records, pending criminal investigations, and records the disclosure of which would bedetrimental to the best interests of the public[,] are some of the areas which may not be subject to

public disclosure. Stone v. Consolidated Pub. Co., 404 So. 2d 678, 681 (Ala. 1981). It is in the

publics interest to keep confidential the information Coleman provided to the State. Disclosurewould threaten ongoing investigations and could damage the reputations of many people. See

May v. State, 710 So. 2d 1362, 136869 (Ala. Crim. App. 1997); see also Ala. R. Crim. P.

16.1(e) (protecting from disclosure investigative memoranda and other reports created by

prosecutors and investigators).Further, since Hubbard has previously disclosed privileged information over the States

assertion of privilege so as to deprive the Court of jurisdiction to decide the issue,

contemporaneously herewith, the State is moving for a protective order to prevent the disclosureof any materials or information related to communications between Hart and Coleman in

advance of the February 16 hearing.

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In sum, the allegations contained in the Coleman affidavit are misleading

unless read in the proper context of Coleman being a confidential informant for the

State. When read in that light, it becomes clear that Harts conversations with

Coleman were lawful and appropriate because they were for the law enforcement

purpose of receiving, not giving, information. It further explains why Coleman

orally moved for sanctions and attorneys fees against the defense at the October

20, 2015 hearing in this case based on his contention that the defenses subpoena to

him was frivolous because he kn[e]w nothing about the grand jury. Oct. 20

Hearing Trans. at 3:214:8, 4:24-25;see id. at 7:2-11 (But nothing I can testify

to is going to fall under theNova Scotia standard under any circumstances. I dont

know anything about a grand jury. I didnt appear in front of the Lee County grand

jury. I have not talked to anyone who was a grand juror or had any effect

whatsoever on the grand jury.). The reason Coleman could make these assertions

as an officer of the court, and go so far as to move for sanctions on October 20, is

that he was a confidential informant who had communicated information to the

State but who was provided no protected information about the grand jury.

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II.

Harts conversations with Coleman about a legal services

contract on January 19, 2016, and about an alleged grand

jury leak involving Rep. Ed Henry were for the purpose of

determining if Coleman, as a confidential informant, had

been compromised.

Coleman is correct that Hart called him on January 19, 2016, eleven days

after a gag order was issued in this case. Coleman Aff. at 13. Coleman

erroneously alleges, however, that the call was for the purpose of intimidating him

from criticizing the States actions in the Hubbard case on Colemans radio show.

Id. In fact, the call was to evaluate whether he had been compromised as a

confidential informant, as turned out to be the case when he signed the affidavit

attached to Hubbards Renewed Motionless than two weeks later. The same is true

regarding the conversation described in Paragraphs 9-11 of Colemans affidavit

related to leak allegations involving Rep. Ed Henry Harts questioning of

Coleman then was to determine if Coleman could continue to be used as a

confidential informant. Accordingly, both calls were for lawful and appropriate

law enforcement purposes, not for the purpose of influencing the media.

Confidential informants are an integral component of law enforcement

because they are able to provide information to law enforcement officials that

would otherwise be unknown. Such information can result in the opening of an

investigation or be a key component of an ongoing investigation. Further, because

the informants are confidential, the informants are able to continue to gather

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information and convey it to law enforcement over time without the subject of an

investigation knowing about the informant.

The State has a strong interest in maintaining both the confidentiality and

integrity of its confidential informants. If an informant becomes unreliable or flips

to support a criminal defendant or potential criminal defendant, then the State must

assess the continued usefulness of that informant before it can utilize him or any

information that he might convey. The need to assess Colemans continued

usefulness explains both Harts January 19, 2016 call to him, as well as his

conversation with Coleman following an alleged leak involving Rep. Ed Henry.

Turning first to the January 19, 2016 call to Coleman, prior to that call,

Coleman had been a productive and verifiable informant for years. Importantly for

the present motion, his status as an informant pre-dated his position as both a daily

radio show host and a political consultant for Toomer. He had also been an active

informant who regularly provided the State with information. Before the Court

issued its gag order, the State had no reason to question whether Coleman had been

compromised.

After this Court issued the gag order, however, Coleman, on his radio show,

openly questioned the propriety of a legal services contract between the Attorney

Generals Officeand an outside law firm, a contract that Hart answered questions

about before a legislative oversight committee. Colemans actions led the State to

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question whether he had been compromised as an informant since publicly

questioning the contract appeared inconsistent with his being both confidential and

productive informant for the State. Further, contemporaneously with questioning

the contract on his radio show, Coleman also emailed an Open Records request to

the Attorney Generals Officerelated to the contract. See Jan. 13, 2016 email from

Coleman to Mike Lewis, attached hereto as Exh. E.

Based on Colemans actions, the State had serious questions about whether

Coleman was compromised as a confidential informant. Hart therefore contacted

him on January 19, 2016, to gauge whether the Statessuspicions were justified.

The only reason Hart contacted Coleman was because of his status as a

confidential informant. The call was not for the purpose of influencing a member

of the media related to his coverage of this case. Coleman was free to comment as

he saw fit. Instead, the call was for the law enforcement purpose of determining

whether, in light of his comments and Open Records request, Coleman was

compromised as a confidential informant. The defenses filing of Colemans

affidavit confirms the States suspicions about Coleman and validates Harts call to

him based on those suspicions.

The same need to assess Colemansstatus, as well as to gather information

from him, also explains the conversation Coleman describes in Paragraphs 9-11 of

his affidavit concerning leak allegations involving Representative Ed Henry. While

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the State does not concede that Hart used the specific language Coleman attributes

to him, it does not deny that the conversation that he describes occurred. The

conversation took place in the course of the State investigating whether there was

in fact a grand jury leak as the defense had alleged because the State takes all such

allegations seriously and investigates them fully so as to protect and maintain the

integrity of its grand jury investigations.

The State, through Hart, contacted Coleman as part of its investigation into

the leak allegation because of his status as a confidential informant. Primarily, the

State wanted to assess if he had information as to whether there had been a leak

and, if there had been, who the source of the leak was. In the course of seeking this

information from Coleman, the State also wanted to assess whether he had

somehow been involved in the alleged leak (assuming one had occurred), impress

upon him how seriously it took such accusations, and emphasize the importance it

placed upon him maintaining his confidential status. While the State was not

opposed to calling Coleman before the grand jury regarding the leak allegations, to

do so would risk compromising him as a confidential informant which it wanted to

avoid doing if at all possible.

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III.

Colemans affidavit does not even facially allege a violation

of the Alabama Grand Jury Secrecy Act or the Alabama

Rules of Professional Conduct.

As explained in the preceding sections and further illuminated in Campbells

affidavit, Coleman was a confidential informant for the State for years before he

signed the affidavit attached to Hubbards Renewed Motion. While the affidavits

omission of Colemans status as a confidential informant makes it misleading, the

affidavit is very carefully worded and emphasizes that Coleman does not actually

allege that the events he describes constitute violations of either the Alabama

Grand Jury Secrecy Act or the Alabama Rules of Professional Conduct. Coleman

Aff. at 5, 15.

Consistent with Colemansrefusal to allege any violations of the Grand Jury

Secrecy Act in his affidavit, Jack Wilson, a Special Agent with the Alabama Law

Enforcement Agency (ALEA), concluded after interviewing Coleman about the

allegations described in the Coleman affidavit, that Coleman had not alleged any

violation of criminal law. Affidavit of Jack Wilson, attached as Exh. F, at 4.

Accordingly, following the interview with Coleman, Wilson recommended that

no formal investigation be opened into the matter. Id. In accordance with

Wilsons recommendation, both Wilson and Secretary Spencer Collier, Alabamas

Secretary of Law Enforcement who is the head of ALEA, confirm that ALEA is

not investigating Mr. Hart or any other related matter concerning the Lee County

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Special Grand Jury. Affidavit of Secretary Collier, attached as Exh. G, at 6;

Wilson Aff. at 6. Secretary Collier also stated that Coleman initiated the contact

that led to the Wilson interview, (Collier Aff. at 3), which is inconsistent with

Colemans statement that law enforcement contactedhim. Coleman Aff. at 14.

Finally, both Secretary Collier and Wilson affirm that Coleman never disclosed

that he had acted as a confidential informant for the Attorney Generals Office.

Collier Aff. at 5; Wilson Aff. at 5.

Clearly, given Colemans carefully worded affidavit and the fact that ALEA

declined to even investigate Colemans allegations, those allegations are

insufficient to support the accusations in the Renewed Motion. The allegations do

not show any misconduct, much less gross misconduct, nor do they show any

deliberate and blatant fraud upon this Court, or probable cause to believe that

Hart committed a felony violation of the Grand Jury Secrecy Act.2In other words,

consistent with his past baseless motions to dismiss and other filings, most of

which this Court has already properly denied, Hubbards Renewed Motion is

composed of hyperbolic rhetoric that finds no support in law or fact. To the extent

2 Indeed, the plain language of the Grand Jury Secrecy Act also confirms that none of

Colemans allegations constitute a violation of that Act. Specifically, the two operativeprovisions of the Act, Section 12-16-215 and 216, do not apply to prosecutors. While both of

those sections list people prohibited from disclosing certain information about grand juror

activities and evidence received by grand juries, prosecutors are conspicuously absent from both

lists.

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it could even be construed as legal argument, it is due to be denied for the reasons

set forth in the section that follows.

IV.

Hubbards Renewed Motion is due to be deniedunder any theory

of prosecutorial misconduct because it must show misconduct and

prejudice, but fails to show either.

As this Court is well aware, in order to be entitled to dismissal of the

indictment for prosecutorial misconduct, Hubbard must prove not only that

misconduct occurred, but also that the misconduct substantially influenced the

grand jurys decision to indict. Hubbards Renewed Motion shows neither and

therefore is due to be denied.

A.

Hubbard has failed to show misconduct.

In his Renewed Motion, Hubbard asserts that alleged leaking of

confidential and privileged information to the media and the public amounts to

prosecutorial misconduct and warrants dismissal of the indictment. Renewed

Motion at 1, 3.

As a preliminary matter, there is no evidence that any secret grand jury

material was disclosed in an improper manner to Coleman or anyone else. The

sealed exhibit that was mistakenly sent to a reporter contained only names of grand

jury witnesses the State had already disclosed to the defense; as the State has

explained in prior briefing, its position is that such information is not prohibited

from disclosure by law. This Court has entered an order prohibiting such

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disclosure, however, and the State has obeyed that order, with the exception of the

referenced mistake. In any event, this Court addressed that mistake and the

defenses extrajudicial statements casting aspersions on the prosecution at every

turn throughout Hubbards criminal proceedings by entering its gag order

enjoining both sides.

While Hubbards Motion asserts that testimony of grand jury witnesses was

disclosed, the Coleman affidavit does not make that assertion. Hubbards

conclusory allegation that Hart violated the Grand Jury Secrecy Act is likewise

unsupported by the Coleman affidavit, and fails for the reasons set forth in the

other sections of this brief.

B.

Hubbard has failed to show prejudice.

Even if Hubbard had shown misconduct, the Court would lack the power to

dismiss the indictment, because Hubbard has failed to show prejudice. As this

Court knows from all of the prior briefing, misconductandprejudiceare the two

essential elements of a prosecutorial misconduct claim. See, e.g., United States v.

Armstrong, 517 U.S. 456, 468 (1996) (the essential elements of a selective-

prosecution claim are discriminatory intent and discriminatory effect); Bank of

Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (a district court may not

dismiss an indictment for errors in grand jury proceedings unless such errors

prejudiced the defendants.).

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Hubbard asserts that the Court has an inherent power to dismiss the

indictment, and that it may do so in order to deter prosecutorial misconduct in the

future. Renewed Motion at 3. Thus, Hubbard suggests that he need not show

prejudice. As a matter of law, Hubbard is incorrect.

a.

Hubbards own cited cases demonstrate that prejudice is an

essential element of a prosecutorial misconduct claim, and that

dismissal is unwarranted here.

In regard to Hubbards cited federal cases addressing the courts inherent

power to dismiss an indictment due to misconduct, and his suggestion that

prejudice is not required, he is incorrect and those cases do not support him.

Perhaps because Alabamas appellate courts have never upheld dismissal

of an indictment on prosecutorial misconduct grounds, Hubbard cites two

federal district court cases. Neither supports his request for dismissal. In the first

case he cites, United States v. Lyons, 352 F. Supp. 2d 1231 (M.D. Fla. 2004), the

court dismissed the indictment after finding misconductin the form of numerous

and flagrant Brady and Giglio violations and prejudice in the form of the

defendant already serving the maximum sentence the government called for.

Id. at 1233, 1251-52. The court specifically noted that normally even for

numerous and flagrant Bradyand Giglioviolations the remedy would be a new

trial, not dismissal. Id.at 1250-51.

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In addition to the fact that the defendant had already served the maximum

sentence, the court noted that the governments case was weighted on suspect

evidentiary foundations. Id.at 1252. That is completely unlike the States case

here which is based on a mountain of credible evidence, much of which comes

directly from Hubbard himself in the form of inculpatory emails and memoranda

demonstrating his violations of Alabamas Ethics Law.

In the second case Hubbard cites, United States v. Trombetta, No. CRIM.

13-227-01, 2015 WL 4406426 (W.D. Pa. July 20, 2015), the court likewise made

clear that prejudice is an essential elementof a prosecutorial misconduct claim,

and in a subsequent opinion, the court rejected the defendants dismissal request

and even canceled the evidentiary hearing because there was no showing

of prejudice. Id.at *1, 16, 36 (outlining actual and substantial prejudice as an

essential element); United States v. Trombetta, No. CR 13-227-01, 2015 WL

7289407, at *1 (W.D. Pa. Nov. 16, 2015) (canceling evidentiary hearing and

denying motion).

b.

Alabama and federal case law demonstrates that prejudice is

an essential element of a prosecutorial misconduct claim

whether under a theory of vindictive prosecution or

animus and that dismissal is unwarranted here.

Not surprisingly, given that Hubbards own cited authority supports the

States position that prejudice is required, a review of Alabama and federal case

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law establishes that the indictment may not be dismissed on grounds of vindictive

prosecution or animus, because Hubbard has failed to show prejudice.

Hubbard has asserted that the Court should dismiss the indictment on

grounds of selective and vindictive prosecution. The Court has denied Hubbards

request on selective prosecution grounds, but has reserved judgment on vindictive

prosecution. February 2, 2016 Order at 1 n.1, 3-4.

The Alabama Court of Criminal Appeals has recognized that a defendant can

bring a claim for vindictive prosecution. See Turner v. State, 924 So. 2d 737,

750 (Ala. Crim. App. 2002) (citingHunt v. State, 642 So.2d 999, 1030 (Ala. Crim.

App. 1993), aff'd, 642 So.2d 1060 (Ala. 1994); United States v. Goodwin, 457 U.S.

368 (1982)). But the vindictiveness that court recognized was using the charging

process in a way that penalizes the exercise of constitutional or statutory rights.

Id. (internal quote marks omitted). The classic example is when the prosecutor

brings new charges after the defendant files a motion to dismiss or prevails on

appeal, but even then the prosecutor is entitled to show a lack of actual

vindictiveness. United States v. Barner, 441 F.3d 1310, 1317 n.6 (11th Cir. 2006).

When, as here, there is no presumption of vindictiveness, the defendant must prove

actual vindictiveness to establish misconduct. Id.at 1317.

There is no evidence or even a well-pleaded claim that the State used the

charging process to penalize Hubbard for exercising his constitutional or statutory

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rights. Instead, just as the Ethics Commission found in Hunt, here the grand jury

found probable cause to believe that [Hubbard] had violated the terms of the

Ethics Act and accordingly indicted him. 642 So. 2d at 1031.

Another way to describe the elements of prosecutorial vindictiveness is

animus plus causation.Barner, 441 F.3d at 1322 (citing United States v. Wilson,

262 F.3d 305, 314 (4th Cir. 2001)). On that basis, a vindictive prosecution claim

may be brought on a theory of animus. To establish such a claim, the defendant

must show that (1) the prosecutor acted with genuine animus toward the

defendant, and (2) the defendant would not have been prosecuted but for that

animus. Baker v. Thomas, No. CIV.A. 206CV201-MHT, 2008 WL 2225753, at

*8 (M.D. Ala. May 27, 2008) (quoting United States v. Goodwin, 457 U.S. 368,

372 (1982)). There is no evidence here that those prosecuting Hubbard acted with

genuine animus toward him, or that he would not have been prosecuted but for any

such animus.

C.

A violation of the ethical rules could theoretically amount to

prosecutorial misconduct, but only if prejudice is shown, which

Hubbard has not done.

The Alabama Supreme Court has considered and denied a request for

dismissal on grounds that the ethical rules were violated. In Ex parte Gonzalez,

686 So. 2d 204, 206-07 (Ala. 1996), the court denied the dismissal request because

the defendant failed to cite a specific rule and because the federal case the

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defendant cited was not binding and in any event was distinguishable as the

defendant in the case at bar failed to show prejudice.

The Alabama Court of Criminal Appeals has recognized the possibility that

prosecutorial misconduct in the form of a violation of the ethical rules could

amount to denial of a fair trial, but prejudice must be shown. InHall v. State, 820

So. 2d 113, 136 (Ala. Crim. App. 1999) aff'd sub nom. Ex parte Hall, 820 So. 2d

152 (Ala. 2001), the defendant argued he was denied a fair trial because of the

prosecutors allegedly improper (under Ala. R. Prof. Cond. 3.6) and highly

prejudicial extrajudicial statements to the media that the defendant had a prior

record, that satanic symbols were involved in the crime, and that if the defendant

was lucky to survive certain injuries the prosecutor would seek the death penalty.

The court held there was no violation of the defendants constitutional rights,

because voir dire was extensive and [e]ach prospective juror indicated that he

or she could base his or her decision on the evidence presented at trial.Id.(citing

Whisenhant v. State, 555 So.2d 219, 224-25 (Ala. Crim. App. 1988), aff'd, 555

So.2d 235 (Ala. 1989), cert. denied, 496 U.S. 943 (1990) (holding no abuse of

discretion for trial court to deny motion for change of venue in light of the lack of

prejudicial effects of the news conference in question as evidenced by trial

courts polling of prospective jurors prior to jury selection and excusing those who

indicated they could not be fair and impartial));see also Hunt, 642 So. 2d at 1029-

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32 (rejecting Hunts claim that the Attorney General violated the Rules of

Professional Conduct when he openly generated prejudicial [pre-trial] publicity

against Guy Hunt in the media because the information disseminated was highly

relevant to the charges.).

Federal courts that have countenanced such a claim likewise require a

showing of prejudice. See, e.g., United States v. Jackson, 22 F. Supp. 3d 636, 641-

46 (E.D. La. 2014) (denying motion to dismiss based on alleged prosecutorial

misconduct and pretrial publicity due to prosecutor posting comments on news

website, because actual prejudice must be shown for dismissal and there is no

indication that any of the comments biased the six Grand Juries involved in the

investigation, or particularly the one that actually returned the indictment in this

case.); United States v. McDade, No. CRIM. A. 92-249, 1992 WL 187036, at *4

(E.D. Pa. July 30, 1992) (even assuming conflict of interest or appearance of

impropriety, denying motion to dismiss because [e]ven when courts find that a

prosecutor has violated ethical rules, they may not dismiss the indictment unless

the defendant can show that the misconduct amounted to more than harmless error,

that it substantially influenced the jurys decision to indict.) (citing Bank of Nova

Scotia v. United States, 487 U.S. 250, 256 (1988); United States v. Birdman, 602

F.2d 547, 557 (3d Cir. 1979); United States v. Riccobene, 451 F.2d 586 (3d Cir.

1971); United States v. Bruzgo, 373 F.2d 383, 384 (3d Cir. 1967)); id. at *4

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(When an abundance of competent evidence supports the indictment and there

has been no material effect on the grand jurys decision to indict, the defendant has

not met his high burden of proving prejudice.) (quoting Riccobene, 451 F.2d at

587).

The only ethical rules cited in Hubbards Motion are 3.3, regarding candor

toward the tribunal, and 8.3, regarding the reporting of misconduct. Hubbard

makes only conclusory and circular arguments, and fails to show that either rule

has been violated. Misreading and misstating the Coleman affidavit, Hubbard

asserts that misconduct has occurred and concludes in circular fashion that the

prosecutors have failed to be candid with the Court regarding that assumed (but

unproven) misconduct by failing to report that assumed (but unproven)

misconduct. Hubbard certainly has not shown, or even attempted to show, that any

such assumed misconduct affected the grand jurys decision to indict or that he will

be unable to receive a fair trial due to any such assumed misconduct.

D.

Prejudice means unfair or unlawful prejudice that is

incurable through means other than dismissal, which Hubbard has

not shown.

It goes without saying that disclosure of merely unfavorable information is

not the kind of prejudice that must be shown to prevail on a prosecutorial

misconduct claim. As the Hunt court put it: The question in this case is not

whether the actions of the attorney general have prejudiced Hunt, but whether

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those actions have unfairly or unlawfully prejudiced Hunt. We find that they have

not. 642 So. 2d at 1030.

As set forth in the cases above, if the prejudice can be cured such as

through voir dire procedures or change of venue dismissal is not an option

available to the Court. The prejudice Hubbard suggests (but fails to demonstrate)

is not the kind of prejudice that warrants dismissal.

V. This Court should require the defense to come forward with legal

precedent authorizing the taking of testimony from a prosecutor

pre-trial before requiring any prosecutor to testify as a witness.

At bottom, the Renewed Motion is yet another ploy to force Hart to testify

so that the defense may then move to disqualify him from the case. The court has

previously instructed the defense that if it wanted a prosecutors testimony, it

would need to cite a case authorizing that testimony. Despite numerous

opportunities to do so, the defense has never cited such a case. Instead, in the

Renewed Motion, the defense has submitted a highly misleading affidavit from a

former confidential informant for the State to try to convince this Court to order

Harts testimony. The defense should not be allowed to use such tactics to

essentially pick its own prosecutor for this case.

The State submits that the sworn testimony in the Coleman, Campbell,

Toomer, Rice, Collier, and Wilson affidavits is sufficient so that no further

evidence need be received before the Court denies the defenses motion. The

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evidence before the Court demonstrates that the defense is, yet again, distorting the

facts, misstating the law, and grasping at straws for the purpose of avoiding a trial

on the merits and that the Renewed Motion is due to be denied.

Conclusion

The State respectfully requests that this Court deny Hubbards Renewed

Motion to Dismiss for Prosecutorial Misconduct and Fraud.

Respectfully submitted this 11th day of February 2016.

W. VAN DAVISACTING ATTORNEY GENERAL

/s/ W. Van Davis

W. Van DavisSupernumerary District Attorney,

Acting Attorney General423 23rdSt. North

Pell City, AL 35125-1740

[email protected]

OF COUNSEL:

Miles M. HartDeputy Attorney General

Chief, Special Prosecutions Division

[email protected]

Michael B. DuffyDeputy Attorney General

[email protected]

OFFICE OF THE ATTORNEY GENERALSTATE OF ALABAMA

501 Washington Avenue

P.O. Box 300152Montgomery, AL 36130-0152

(334) 242-7300(334) 242-4890FAX

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CERTIFICATE OF SERVICE

I hereby certify that I have, this the 11th day of February 2016,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 foregoingby U. S. mail:

R. Lance Bell

Trussell Funderburg Rea & Bell, PC

1905 1stAve South

Pell City, AL [email protected]

Phillip E. Adams, Jr.

Blake OliverAdams White Oliver Short & Forbus LLP205 S 9th Street

Opelika, Alabama 36801Phone: (334) 745-6466

Fax: (334) [email protected]

[email protected]

/s/ W. Van Davis

Acting Attorney General

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EXHIBIT A

Filed Under Seal

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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From:Baron Coleman [ ]

Sent:Wednesday, January 13, 2016 3:59 PM

To:Lewis, Mike < >

Subject:Question for Mr. Lewis re: Spotswood Contract

Dear Mr. Lewis,

I host a daily news show on the radio on 93.1fm in Montgomery. I usually cover interestingitems of note in the contract review committee meetings. Today, I noticed a $1 million contractfor Bob Spotswoods law firm. A screen shot is attached. The contract is marked disclosureand immigration. I checked with the governors office, and they deny knowing anything aboutthis contract and insist this is not related to Mr. Spotswood representing Alabama in the refugeelawsuit.

I go on the air at 9:00 am tomorrow and would appreciate knowing a little about this contract soas not to stoke unnecessary alarm.

My questions are as follows:

1. Is this contract related to Governor Bentleys refugee lawsuit?2. Is this lawsuit related to an immigration lawsuit?3. What do the disclosure an immigration markings on this contract mean to you?4. Is Spotswoods firm helping with any other matters in the AGs office?5. It is reported an AG employee, Matt Hart, was present at the contract review committee. Isthis contract related to any cases he is working? If so, which one(s)? Is Matt Hart working animmigration case?

Thank you for your time and attention on this important matter involving a seven-figure legalcontract. I can be reached at this email address or on my cell phone at

Sincerely,

Baron Coleman

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Baron ColemanBaron Coleman Law Firm

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EXHIBIT F

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EXHIBIT G

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state response to motion to dismiss hubbard case

Documents