In early May, defense attorneys presented evidence they say that shows Ethics Commission lawyers engaged in selective and vindictive prosecution when they sought indictments against Scott Phillips and Onis “Trey” Glenn III. The defense also argued before Jefferson County Circuit Court Judge Stephen Wallace that the commission had violated the men’s right to due process.
Alabama Political Reporter obtained a transcript of the hearing at which defense lawyers Bill Athenas, Matt Hart, Joe Espy and Ben Espy raise troubling questions about the indictments. Athenas and Hart represent Glenn. Joe Espy and Ben Espy are attorneys for Phillips.
Glenn, until his indictment in November 2018, served as President Donald Trump’s Southeast EPA administrator. Phillips is a former Alabama Environmental Management commissioner.
Both men, according to a statement from the Ethics Commission at the time of the indictments, are charged with multiple counts of violating state ethics laws.
During the proceeding on May 8, Ethics Commission lawyer Cynthia Propst Raulston gave what seemed to be a deliberately obtuse answer to Wallace’s question about the possibility that she leaked grand jury information. Raulston said it would be “irresponsible to respond” to the judge’s question because they were discussing a possible violation of a “criminal statute,” which led the defense to ask if Raulston was invoking her 5th Amendment privilege to avoid self-incrimination.
Raulston’s response is just one example of a series of baffling questions raised after Phillips and Glenn were indicted in November 2018.
Chief among the questions hanging over the indictments was why Raulston and Ethics Commission Director Tom Albritton claim that then-Jefferson County District Attorney Mike Anderton asked them to assist him with the case against Phillips and Glenn when in fact it was Albritton and Raulston who asked Anderton to take the case. Another major question was whether this action by Albritton and Raulston violates Phillips’ and Glenn’s right to due process?
Another question before the court is what role GASP, a prominent environmental group, played in the indictments and whether the group’s involvement led to selective and vindictive prosecution.
Another question adresses why Albritton and Raulston leaked the indictments to Al.com before Phillips and Glenn were notified or arrested.
In a sworn statement given on Feb. 9, 2019, Anderton said it was Ethics Commission lawyers who approached him, as first reported by APR.
Recent testimony shows that GASP lawyers approached Anderton with information on Glenn and Phillips earlier than the Ethics Commission’s involvement. Anderton declined to act on the allegation made by GASP.
Raulston revealed in the May hearing that GASP attorneys contacted her, and she recommended that they file an ethics complaint. Raulston’s sister, Stacie Propst, served as a high-ranking official at GASP at the time.
Sometime after GASP met with Raulston, she and Albritton determined to seek changes against Phillips and Glenn.
But as the defense pointed out to Judge Wallace, the ethics law procedures were ignored with Raulston and Albritton bypassing the commission heading straight to a grand jury.
The defense attorneys say this action violated the defendants’ due process rights to a probable cause finding, hearing and response. The rules for cases handled by the Ethics Commission are different from those under which other prosecutors operate.
“By failing to follow the Legislature’s clear directives in the Ethics Act, the Staff acted without legal authority, and no source of legal authority inside or outside of the Act can cure that deficiency,” defense attorneys wrote in briefs to Judge Wallace. “Clear and binding legal precedent requires the dismissal of the indictment under these circumstances.”
Wallace seemed to indicate that he understood that Raulston had “torqued and manipulated” the process to bring it before a grand jury, avoiding the legal steps prescribed for the Ethics Commission.
Raulston argued the commission had not jumped its place in line because the Jefferson County D.A. already had the case before she approached him. But as the defense noted, the D.A. had seen the information but declined it.
As Phillips’ attorney Joe Espy stated, “Not only did they [Jefferson County D.A.] decline it. They were never going to pursue this case. They shut it down for two years.”
Court records show that Raulston met with GASP representatives and that they informed her that Anderton would not prosecute the case.
After Glenn and Phillips were indicted, GASP celebrated on social media posting, “Just so y’all know, Gasp made this possible. We were the ones whose presentation was shared by Glenn and Phillips. We paid for the exhibits in PACER so we could piece this story together. We did the leg work and the organizing. We need your support to keep doing it!”
The defense wants discovery on the group’s involvement, including communications between GASP and the Ethics Commission. They want to know what information they provided, what sort of discussion there was about the need to get a high profile target and whether that impacted the charging decisions made.
At the May hearing, Wallace asked why neither the state’s attorney general nor the Jefferson County D.A. was assisting her with the case. Raulston didn’t supply a coherent answer.
However, APR sources within the Attorney General’s Office say the attorney general turned down Albritton and Raulston’s request to intervene, citing procedural mistakes made by the commission lawyers.
Internally, A.G. attorneys acknowledge the same concerns as the defense team asserts that Albritton and Raulston went beyond the scope of what is legally allowed for the Commission.
On June 25, Wallace will hear further arguments on the motion to dismiss.
It is believed that Albritton and Raulston may be called as witnesses during the proceedings.
