By Bill Britt
Alabama Political Reporter
OPELIKA—On Monday, Circuit Court Judge Jacob Walker III heard testimony regarding alleged prosecutorial misconduct in the case against House Speaker Mike Hubbard (R-Auburn).
Hubbard and his legal team, led by J. Mark White, have abandoned claiming his innocence in favor of a different strategy: having the 23 felony charges dismissed of the grounds that the prosecution broke the law, other lawmakers have committed the same crimes without punishment, and the laws passed by the Republican supermajority in 2010 were unconstitutional.
Represented by a small army of attorneys, Hubbard seemed anxious to lead his own defense, swaying in his seat, leaning forward to offer commentary. Notably wider in girth, Hubbard wore a slick, ill-fitting suit, with his hair greased tightly to his head. One observer noted, he looked more like a mafioso than the sitting Speaker of the Alabama House of Representatives.
Disgraced former Deputy Attorney General Henry T. “Sonny” Reagan was Hubbard’s star witness on prosecutorial misconduct. For almost four hours, White led the former prosecutor through a rehash of his personnel compliant against Matt Hart, Chief of the Attorney General’s Special Prosecution Divison, a complaint that was rejected by the Attorney General, the State Ethics Commission, and the State personnel board.
Andrew Brasher, the Attorney General’s Solicitor General, cross examined Reagan, who stammered, and halted when questioned about hiring Rob Riley as his attorney. After several minutes, he admitted that Riley was indeed hired to aid in his defense before the Lee County Grand Jury. Reagan also admitted that when faced with the Grand Jury questioning, he invoked his 5th Amendment Right to avoid self incrimination.
Under cross examination, Reagan confessed that he tried to have the Lee County Grand Jury abolished after he gave testimony.
Earlier in the hearing, White made a show of alleged threats that Reagan claimed were made against Speaker Mike Hubbard by Hart. Reagan claimed Hart had said he would level a 155 Howitzer field artillery weapon at Hubbard to make him confess. He also accused Hart of threatening to drag Hubbard before the Grand Jury, and tighten a noose around his neck until he confessed, or resigned from the House. Reagan said these threats led him to fear for Hubbard’s safety, and prompted him to keep a record of his conversations with Hart.
On cross, Brasher asked Reagan if he really believed that Hart owned a Howitzer. He also asked if Reagan thought Hart would actually put a noose around Hubbard’s neck in front of 18 members of the Grand Jury. To this Reagan continued to express his worry that Hart might actually harm Hubbard.
In what was more spectacle than legal argument, White played for the big headline that might influence the Lee County jury pool. White has a reputation as more of a spin doctor than a trial lawyer, and has played most in the media like an old fiddle.
Judge Walker seemed attentive, but dispassionate as the proceedings wore on.
The hearing on prosecutorial misconduct according to Judge Walker would only consider acts as defined in the Bank of Nova Scotia, et al. v. United States. In 1998, the US Supreme Court found the lower court could not dismiss on the grounds of prosecutorial misconduct unless the conduct met very strict standards. The court held, “Under the standard of prejudice that courts should apply, in assessing such claims, dismissal of the indictment is appropriate only ‘if it is established that the violation substantially influenced the grand jury’s decision to indict,’ or if there is ‘grave doubt’ that the decision to indict was free from the substantial influence of such violations….”
Judge Walker has previously said, that only actions taken inside the Lee County Grand Jury would be considered.
The Testimony in Monday’s hearing ran far afield of the Nova Scotia standard set by Judge Walker.
Reagan offered no new evidence, only a rehashing of the accusations he has previously made against Hart.
Attorney General Strange wrote of Reagan, “Mr. Reagan again created a situation in which his duties of loyalty and confidentiality to the State of Alabama and to the Office with respect to the Hubbard investigation, conflicted with and were compromised by his own personal interests.”
More testimony will be heard on Tuesday.
