By Bill Britt
Alabama Political Reporter
MONTGOMERY—New court documents in Speaker Mike Hubbard’s criminal case reveal, that he and his attorney have been improperly using subpoenas, by disregarding Rule 17.3, to gather documents, records and interviews.
Rule 17.3. Subpoena duces tecum, reads as follows:
(a) PRODUCTION OF BOOKS, PAPERS, ETC. A subpoena may command the person to whom it is directed to produce the books, papers, documents, or other objects which may be designated therein.
(b) PRODUCTION PRIOR TO TRIAL AND FOR INSPECTION. The court may direct that books, papers, documents, or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence. Upon their production, the court may permit the parties and their attorneys to inspect them, or portions thereof.
(c) DISMISSAL OR MODIFICATION. The court, on motion made promptly, may dismiss or modify a subpoena duces tecum if compliance therewith would be unreasonable, oppressive, or unlawful.
According to the State’s latest motion, “On October 14, 2015, Hubbard had the Clerk issue a subpoena to Administrative Office of Courts AOC seeking the production of records identifying the AlaCourt users that accessed the publicly filed documents in this case. AOC filed a motion to quash the subpoena on October 21, 2015. At the hearing on October 28, 2015 and again on November 9th the State objected to these documents. AOC and the defense later reached an agreement about the production of some of the subpoenaed records.”
However, Hubbard’s legal team appears to have asked that the documents be sent directly J. Mark White’s office, and not to the Court, which is in direct violation of Rule 17.3.
According to the record, “A third party in response to a Rule 17.3 subpoena must first be produced to the Court. Only then may the records be provided to both parties – a decision which rests entirely in the sound discretion of the Court.”
On December 9, Trial Judge Jacob Walker III ordered, that the information sent to White be placed under an immediate protective order, stating, “The production is not to be disseminated, copied, or used for any purpose until further Court Order.
However, Hubbard’s criminal lawyers had possession of the documents and would have had ample time to examine them thoroughly.
A prominent defense attorney and former prosecutor speaking on background described this tactic respectively as “not so artfully breaking the rules,” and “high-handed cheating.”
The defense attorney said this should draw a sanction from Judge Walker. “He can’t allow them to blatantly disrespect the court, or he will look like Judge Lance Ito.” Judge Ito was the trial Judge in the O.J. Simpson murder case, where Ito lost control of the court, letting it slip into a carnival of mock justice.
Not only did Hubbard’s lawyers use the Court’s subpoena power to obtain documents for themselves, and prevented the Court from determining whether or not the parties should receive the documents, they also “contacted at least one individual named in the AlaCourt records and questioned that person about accessing the Hubbard court file,” according to the State’s motion.
The prosecution further noted, “And the State objects to any further use of these documents or the information in them, both because they are irrelevant and because the defense should not have obtained them in the first place.”
The State also points out that Hubbard, in his scheme to prove prosecutorial misconduct, had his attorneys issue seventy-five (75) subpoenas for records or testimony from individuals, and yet only called nine witnesses over the course of nine hearings. “Hubbard has abused subpoenas throughout these proceedings,” declared the State…These subpoenas were nothing more than baseless fishing expeditions.”
According to the motion, “This improper use of subpoena is clearly not without its costs, since it has delayed these proceedings, caused unnecessary work for the Court and the State, and forced (or threatened to force) individuals to appear in Court for no apparent reason since they had no relevant information to offer.
Judge Walker has scheduled a hearing regarding the AOC document on December 21.
