By Chip Brownlee
Alabama Political Reporter
MONTGOMERY — A judge has agreed to add to the court’s record portions of a pretrial hearing last year. During the hearing, former House Speaker Mike Hubbard’s original legal team was given permission to withdraw from his case.
The judge ruled in favor of State prosecutors who asked for the record to be supplemented.
Late last month, prosecutors for the Attorney General’s Special Prosecutions Division filed a motion with the Lee County Circuit Court requesting to add the portions of the hearing on Jan. 8 when Hubbard’s former attorneys, Mark White and Augusta Dowd, were taken off of his case.
Mark White
Prosecutors want the portions of the record added back before the case goes to appeal in the Alabama Court of Criminal Appeals.
Jacob Walker, Lee County Circuit Court judge, also issued a gag order during the hearing at the Lee County Justice Center in Opelika, Alabama, that day.
The gag order prohibited any lawyer on the case from speaking with the press for the remainder of the trial and lasted until June 2016.
The lawyers’ motion to withdraw from the case was filed under seal but was later published by APR. Walker heard White and Dowd’s reasons for leaving the case during a closed hearing, which was redacted from the Court record.
Walker’s order, issued on Wednesday, will add the portions of the transcript back to the record but they will remain under seal. He gave discretion to the Alabama Court of Criminal Appeals, which is now hearing Hubbard’s appeal, in determining whom the record should be disclosed to.
Hubbard’s lead defense attorney, former Alabama Lt. Gov. and Attorney General Bill Baxley, filed a motion with the Court objecting to the prosecutor’s requests.
“The State was correctly barred from attending this hearing,” Baxley wrote. “Now the State is attempting to discover the privileged substance of this hearing. This hearing has nothing to do with the merits of this case or appeal and is being sought only as an effort by the State to improperly pry into the attorney-client relationship of the Defendant and prior counsel.”
Prosecutors said they were requesting the supplement because an order requested the full transcript of the Jan. 8 hearing among others, but portions were still omitted.
They gave no further reasons why they wished to see the transcript.
White and Dowd served as attorneys for the then-Speaker from October 2014, when Hubbard was first indicted on 23 felony ethics charges, until January 2016. At the January hearing, White said he would not go into details about why they were quitting but said a “conflict of interest” had arisen.
Hubbard’s campaign fund paid the law firm of White Arnold and Down more than $220,000 in legal fees in 2014 and $35,000 2015, according to campaign finance disclosures. He spent another $270,000 on legal fees in 2016, $150,000 of which went to Baxley’s law firm.
Another possible delay in Hubbard’s appeal
Hubbard’s appeals trial may be delayed again. Lee County Circuit Clerk Mary Roberson filed a motion on Wednesday requesting another time extension of 28 days to allow her office to file the Court Record of Appeal.
The Court of Criminal Appeals granted a separate extension last month, giving the Lee County Circuit Court until Wednesday to submit the record, which includes motions, orders and documents from the entirety of Hubbard’s felony ethics trial.
The case involved multiple felony charges and consisted of well over 550 filings, Roberson said in her motion.
“While this number of filings alone are rare in a criminal case and would warrant an extension of time, many of these filings are Under Seal, which will make preparation of the Clerk’s Record even more complex,” she wrote. “The Clerk’s Record will be voluminous in its transcript and exhibits.”
In addition to the case’s complex filings, Roberson also said the Circuit Clerk’s Office in Lee County is currently understaffed and has been for years. Only one Court Specialist is assigned to handle all appeals in Lee County, she said.
The appeal record filing deadline was extended for the first time on Nov. 10. At the time, the Court of Criminal Appeals gave the Lee County Circuit Court until Dec. 28 to complete and certify the court reporter’s transcript.
Hubbard first filed his notice of appeal on Oct. 5. The former House Speaker’s lead defense attorney Bill Baxley said at the time that juror and prosecutorial misconduct would be at the forefront of Hubbard’s arguments in the appeal.
Hubbard was automatically removed from office in June 2016 after being found guilty of 12 felony ethics violations — violations of the same ethics law he himself helped push through the Legislature in December 2010 during his first special legislative session as Speaker.
The defense has yet to submit any briefs in the appeals case, according to available documents. They’re waiting on the court to update the records. Hubbard will remain out on bond until the conclusion of his appeal.
Email Chip Brownlee at cbrownlee@alreporter.com or follow him on Twitter.
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