1. law, govt and politics

DOCUMENT 150
ELECTRONICALLY FILED
4/13/2015 12:29 PM
43-CC-2014-000565.00
CIRCUIT COURT OF
LEE COUNTY, ALABAMA
MARY B. ROBERSON, CLERK
IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA
STATE OF ALABAMA,
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v.
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MICHAEL GREGORY HUBBARD, )
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Defendant.
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CASE NO.
CC-2014-000565
STATE’S RESPONSE IN OPPOSITION TO DEFENDANT’S
SUPPLEMENT TO MOTIONS TO DISMISS INDICTMENT:
PROSECUTORIAL MISCONDUCT AND REPLY IN SUPPORT OF
MOTION TO QUASH
The State of Alabama submits its Response in Opposition to defendant
Michael Gregory Hubbard’s (“Hubbard”) filing titled “Supplement to Motions to
Dismiss Indictment: Prosecutorial Misconduct” (“Supplement”) and its Reply in
Support of its Motion to Quash.1 The State has already shown why Hubbard’s three
previously filed motions to dismiss are meritless and due to be denied, and the State
adopts and incorporates its responses to those motions here. As demonstrated
below, the Supplement is just as meritless as those previously filed motions and
represents the latest in a series of efforts to use documents created by former Deputy
1
Hubbard filed his Supplement to Motions to Dismiss Indictment: Prosecutorial
Misconduct on March 30, 2015 and filed his Opposition to State’s Motion to Quash and Further
Objection to Hubbard’s Request for Evidentiary Hearing on April 10, 2015. This pleading
responds to both of those filings.
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Attorney General Henry T. “Sonny” Reagan (“Reagan”) at the behest of counsel he
shares with Hubbard to baselessly impugn the prosecution of this case. Hubbard’s
Opposition to the State’s Motion to Quash and Further Objection to Hubbard’s
Request for Evidentiary Hearing (“Opposition”) also continues to make vague
allegations of so-called prosecutorial misconduct without supporting them with any
evidence. Hubbard fails to show why the twenty-three subpoenas he issued to
individuals ranging from the Governor to the Attorney General to the Ethics
Commission should not be quashed because the subpoenas constitute improper
attempts to obtain discovery he cannot get under Rule 16. The subpoenas further
seek information protected by multiple privileges and protections. Hubbard’s abuse
of Rule 17 subpoenas would set a terrible precedent by allowing criminal defendants
to subpoena employees or former employees of the agency prosecuting them to
conduct a baseless fishing expedition. For its response and reply, the State shows as
follows:
INTRODUCTION
This is a public corruption case where Hubbard is charged with using his
elected position in the House of Representatives (and previous position as Chairman
of the Alabama Republican Party) to make money and obtain financial favors from
lobbyists and others with interests before the Legislature. Specifically, a grand jury,
after taking testimony from over 150 witnesses for 46 days, returned a twenty-three
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count indictment charging Hubbard with using of his office as Chairman of the
Alabama Republican Party to obtain over one million dollars in personal gain for
himself, Craftmaster or the Auburn Network (Counts 1-4); soliciting and receiving
$5,000.00 per month from principal American Pharmacy Cooperative, Inc.
(“APCI”) and for voting in favor of legislation that uniquely benefited APCI,
(Counts 5-6); using his office for personal gain through his $12,000.00 per month
contract with Southeast Alabama Gas District (“SEAGD”) (Counts 7-9); soliciting
and receiving $7,500.00 per month from principal Edgenuity/E2020 (Count 10);
using of his office for personal gain through his $10,000.00 per month contract
with Bobby Abrams’ businesses (Counts 11-14); soliciting and receiving
$600,000.00 from principals for Craftmaster (Counts 15-19); and soliciting and
receiving financial favors from lobbyists and principals to help Auburn Network
obtain more clients (Counts 20-23).
Hubbard’s new motion to dismiss, like the last three, has nothing to do with
the crimes with which he has been charged. Instead, Hubbard continues to distract
from the merits of the case against him through utterly baseless and previously
debunked allegations of prosecutorial misconduct. Hubbard regurgitates many of the
same arguments contained in his past motions without curing their original
deficiencies, requiring their denial for the same reasons already shown to this Court.
To the extent Hubbard’s new motion contains arguments not asserted within
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previous motions to dismiss, those arguments are equally baseless for the reasons
stated below.
Hubbard has also failed to explain why established Alabama law prohibiting
defendants from obtaining discovery from the State through subpoenas does not
apply to him. His arguments in response to the State’s Motion to Quash consist more
of rhetoric than reason, and fail to address the clear legal authorities and precedent
the State cited in the Motion to Quash that demonstrate all of his subpoenas are due
to be quashed. In other words, far from being an attempt to deny Hubbard his right
to call witnesses in support of his defense (Opposition at 1-3), the State’s Motion to
Quash is a direct and thorough demonstration that Hubbard’s subpoenas are
improper attempts to wrest control of these proceedings from the Court, circumvent
the Rules of Criminal Procedure, run roughshod over multiple privileges and
protections, invade the province of the grand jury, and create the dangerous, absurd,
and unworkable precedent whereby criminal defendants would be allowed to abuse
Rule 17 by sending subpoenas to employees or former employees of the agency
prosecuting them in order to launch fishing expeditions into baseless collateral
claims.
While the use of Rule 17 subpoenas to launch baseless fishing expeditions
into the prosecution should not be sanctioned in any case, Hubbard’s abuse of the
Rule 17 process is particularly egregious since he seeks to justify the subpoenas to
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current and former employees of the Attorney General’s Office with the statements
contained in the Reagan memoranda which were drafted for the express purpose of
interfering with the grand jury’s investigation by an individual who Hubbard now
admits was improperly leaking information to him and who was represented by
counsel he shared with Hubbard. To make matter worse, this shared representation
was hidden from the State for over a year and only disclosed when the State
discovered Reagan’s activities and sought to question him about them. In other
words, allowing Hubbard’s subpoenas based on the Reagan memoranda to stand
would validate Hubbard and his counsel’s collaboration with Reagan to interfere
with the State’s investigation and incentivize similar conduct by other criminal
defendants and their counsel.2
Accordingly, the State respectfully requests that this Court enter an Order
denying all of Hubbard’s Motions to Dismiss and granting the State’s Motion to
Quash.
LEGAL STANDARD
FOR PROSECUTORIAL MISCONDUCT CLAIM
Although Hubbard’s Supplement and Opposition to the State’s Motion to
Quash purport to be focused on prosecutorial misconduct, neither of these pleadings
2
Hubbard and his counsel’s collaboration with Reagan to create the memoranda, shape
their contents for the purpose of interfering with and undermining the grand jury’s investigation,
and then obscure his and his counsel’s involvement in the collaborative effort contradict
Hubbard’s suggestion that he is seeking to “shin[e] the light” in this case.
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even include the relevant legal standard for such a claim. Hubbard’s failure to even
acknowledge this standard provides a basis for this Court to deny the relief he seeks.
Had Hubbard even presented an argument applying this standard, the facts before
the Court show that he cannot satisfy the extremely high standard for indictment
dismissals based on prosecutorial misconduct.
In order for the indictment against him to be dismissed for prosecutorial
misconduct, Hubbard must show that there was misconduct by the prosecution and
that it resulted in prejudice to his substantial rights. See United States v. Winters, No.
12–60378, 2013 WL 3089514, at *5 (5th Cir. June 20, 2013) (to establish the
defense of prosecutorial misconduct, the defendant must show that (1) the
prosecutor engaged in improper conduct and (2) the prosecutor’s improper conduct
affected the defendant’s substantial rights); United States v. McKenzie, 678 F.2d
629, 631 (5th Cir.1979) (even upon a showing of the “most egregious prosecutorial
misconduct,” the indictment may only be dismissed upon proof of actual prejudice,
“when prosecutorial misconduct amounts to overbearing the will of the grand jury
so that the indictment is, in effect, that of the prosecutor rather than the grand jury.”)
(emphasis added); accord United States v. Two Eagle, 318 F.3d 785, 793 (8th Cir.
2003); see also Bank of Nova Scotia v. United States, 487 U.S. 250, 263-64 (1988)
(“We conclude that the District Court had no authority to dismiss the indictment on
the basis of prosecutorial misconduct absent a finding that petitioners were
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prejudiced by such misconduct. The prejudicial inquiry must focus on whether any
violations had an effect on the grand jury’s decision to indict. If violations did
substantially influence this decision, or if there is grave doubt that the decision to
indict was free from such substantial influence, the violations cannot be deemed
harmless. The record will not support the conclusion that petitioners can meet this
standard.”).
Further, to the extent Hubbard alleges so-called prosecutorial misconduct
occurred after the indictment was returned by the grand jury, then those allegations
are not relevant here. The remedy Hubbard has requested for the alleged misconduct
is dismissal. Any allegations involving post-indictment actions, as a rule, do not
provide a basis for dismissal. See United States v. Shelley, 405 F.3d 1195, 1207 n.7
(11th Cir. 2005) (Tjoflat, J., specially concurring) (The remedy for prosecutorial
misconduct is ordinarily not dismissal of the indictment unless the misconduct
“infected the indictment itself,” such as in grand jury proceedings); see also Surreply
to Amended Motion for Production, 16 n.3. Instead, the remedy for post-indictment
misconduct, if any were actually shown, would be specialized venire or venue
change, relief Hubbard has not requested. See Surreply to Amended Motion for
Production, 21.
Given that a defendant carries a heavy burden in order to meet this standard,
“dismissal of an indictment for prosecutorial misconduct is an extreme sanction
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which should be infrequently utilized.” United States v. Shelley, 405 F.3d 1195,
1202 (11th Cir. 2005) (further citations omitted); see also United States v. Jackson,
22 F. Supp. 3d 636, 645 (E.D. La. 2014) (quoting United States v. Civella, 648 F.2d
1167, 1173 (8th Cir. 1981)) (holding in the course of denying a claim for
prosecutorial misconduct based on pre-indictment publicity that “[d]ismissal of an
indictment based on bias of the grand jury caused by publicity ‘is an extreme
remedy,’ and the defendant’s burden ‘is a heavy one.’”).
With respect to Hubbard’s Opposition to the State’s Motion to Quash, at the
upcoming pretrial hearing Hubbard is not seeking to subpoena witnesses to contest
his guilt or to address the charges in the indictment. Rather, he is seeking to put the
State on trial, before ever satisfying his threshold burden of coming forward with
“evidence tending to show the existence of the essential elements” of his
prosecutorial misconduct claim, namely, misconduct and actual prejudice.
See
United States v. Armstrong, 517 U.S. 456, 468 (1996) (quoting United States v.
Berrios, 501 F.2d 1207, 1211 (2nd Cir. 1974)) (setting forth standard criminal
defendants must meet to obtain discovery into selective prosecution claim). This
Court should hold Hubbard to that clear legal standard, and not allow him to hijack
these proceedings and deflect attention away from his own guilt or innocence.
Since Hubbard cannot meet the standard, his Motion to Dismiss should be denied
and his subpoenas should be quashed.
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ARGUMENT
I.
The indictment should not be dismissed because Reagan’s
statements do not sufficiently or credibly show prosecutorial
misconduct.
The Supplement’s allegations of prosecutorial misconduct are grounded on
the statements of Reagan. Notably, the defense now concedes that Reagan was, in
fact, leaking information to them. Likewise, the defense does not dispute that
Reagan’s statements were drafted on the advice of attorneys he shared with persons
under investigation by the Lee County Special Grand Jury. The facts before the
Court demonstrate that Reagan had an irreconcilable conflict of interest in this
matter, that Reagan and the defense failed to disclose this irreconcilable conflict to
the State until after Reagan had created the statements on which Hubbard’s
Supplement and Opposition hinge, and that his statements were drafted for the
specific purpose of undermining the grand jury’s investigation.
A. Hubbard’s arguments based on the Reagan materials are
due to be stricken or, at a minimum, should not be
considered until this Court rules on the State’s Motion to
Quash.
Consistent with his previously filed motions to dismiss, Hubbard continues to
rely on statements contained in memos drafted by Reagan in his Supplement. See
Supplement at 2-7. As discussed in Section I.B, the Reagan memos have no
credibility since they were drafted on the advice of counsel Reagan shared with
then-indicted Rep. Barry Moore and Hubbard for the purpose of interfering with the
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investigatory work of the grand jury. In fact, as also discussed in Section I.B,
Hubbard concedes in his Supplement that Reagan leaked materials to him, (see
Supplement at 10 (“Hubbard will demonstrate at the evidentiary hearing the source
of the leaks and that demonstration will not be limited to merely Mr. Reagan.”)
(emphasis added)), further undermining Reagan’s credibility and Hubbard’s
arguments based on Reagan’s statements. To be sure, this Court has already seen
evidence showing that Hubbard was aware that Reagan attempted to impede or
obstruct the grand jury investigation from its inception in December 2012. See
Exhibits K and L to State’s Response to Motion to Dismiss on the Theory that the
Grand Jury Exceeded its Jurisdiction.
While the complete lack of credibility in the Reagan statements requires that
Hubbard’s arguments based upon them be denied, the Court need not reach those
arguments, as Hubbard improperly obtained the memos he relies upon, which means
they should be stricken. Hubbard received the Reagan memoranda attached to his
Supplement in response to a subpoena he sent to Reagan related to the April 15,
2015 hearing. See Supplement at 3 (“The following facts, extracted from documents
obtained via subpoena from former Deputy Attorney General Sonny Reagan,
confirm these assertions….”); March 20, 2015 letter from Baxley to White, included
in Exhibit A to Supplement (“Enclosed are the materials called for [in] the subpoena
you served on my client, Sonny Reagan.”). The State has moved to quash the
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subpoena to Reagan, and the State’s motion is set to be heard first at the April 15,
2015 hearing. Should the Court grant the State’s motion as to the Reagan subpoena,
then Hubbard’s arguments based on the Reagan memoranda should be stricken since
the evidence he relied on in making those arguments was improperly obtained.
Not only were the Reagan memoranda in Exhibit A to the Supplement
obtained via an improper subpoena, Baxley and Rob Riley (an attorney representing
both Reagan and Hubbard), knew two weeks before Baxley gave the memoranda to
White that the State was asserting the materials sought in the subpoena were
privileged. In a March 6, 2015 letter from Van Davis, both Baxley and Riley were
notified that the State, in its capacity “as Reagan’s former client,” had and would
“invoke all applicable privileges with regard to [Reagan’s] testimony and production
of records,” and also would “file a motion to quash the subpoena issued to Mr.
Reagan.” See Van Davis letter of March 6, 2015 and associated certified mail
receipts to Baxley and Riley, attached as Exhibit A. Baxley and Riley were also on
notice that the State was not “waiving and [had] not waived any privilege with
respect to any and all testimony, information, documents, or other materials sought
by the subpoena.”3 Id. In direct defiance of the State’s assertion of applicable
3
Hubbard appears to argue that the State waived its privileges with regard to the Reagan
memos because Davis made a public statement regarding the Attorney General’s decision to
place Reagan on administrative leave. See Opposition, at p. 17. This is nonsensical. Davis did not
attach the Reagan memos to his public statement.
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privileges and in an attempt to preempt the State’s filing of its motion to quash
asserting those privileges, Baxley provided the privileged materials to Mark White.
In addition to being an improper attempt to circumvent the State’s assertion of
privileges and its motion to quash which was filed three days after Baxley sent the
materials to White, Baxley’s production of the materials directly to White in
advance of the hearing circumvented the Alabama Rules of Criminal Procedure.
Specifically, Rule 17.3(b) requires that subpoenaed documents “be produced before
the court … prior to the time when they are to be offered in evidence.” Ala. R.
Crim. Pro. 17.3(b) (emphasis added). Further, once such materials are produced to
the court, “the court may permit the parties and their attorneys to inspect them,
or portions thereof.” Id. (emphasis added).4 As a result, if Baxley (or Riley)
wished to produce the documents in advance of the hearing on behalf of Reagan, the
proper procedure under the rules would have been to give them to this Court so that
this Court could determine whether and to what extent the parties should be allowed
to inspect them. The production of the Reagan memoranda directly to White,
coupled with their being the centerpiece of the Supplement, further demonstrate that
the memoranda as well as the arguments based upon them are improper and due to
4
Baxley was aware that this was the proper procedure because this issue was litigated
after the State moved to quash a subpoena duces tecum to Josh Pipkin in State v. Barry Moore.
Counsel for Moore directed Pipkin to produce the documents directly to him prior to the hearing
and the State objected to that improper procedure. The Court later ordered Pipkin to submit the
materials to the Court first before those materials were provided to the parties under the terms of
a protective order.
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be stricken. At a minimum, this Court should defer any consideration of them
pending consideration of the State’s motion to quash.
Finally, it is worth noting the stark contrast between the State’s objection to
Hubbard releasing the improperly obtained Reagan memos and Hubbard’s
complaints about the State’s Response and attached exhibits submitted in opposition
to his Motion for More Definite Statement. Each and every one of the exhibits
attached to the State’s Response to Hubbard’s Motion for More Definite Statement
was provided to Hubbard in discovery. Further, the State expects to offer these
materials as evidence at trial. Almost all of these exhibits contain Hubbard’s own
statements, which are not hearsay and are therefore highly probable of being
admitted at trial. See Rule 801(d)(2), Ala. R. Evid. (“Statements that are not
hearsay. A statement is not hearsay if (2) Admission by party Opponent. The
statement is offered against a party and is (A) the party’s own statement ….”); see
Irvin v. State, 940 So. 2d 331, 356-57 (Ala. Crim. App. 2005) (“In any event, the
[defendant’s] statements were admissible as admissions of a party-opponent.”).
Although Hubbard claims these exhibits were “privileged” “confidential” and
“private” (Supplement, at 13), he has failed to identify or assert any such privilege.
In sum, these documents were provided in discovery to the defense, are highly
probative and admissible evidence of the crimes charged in the indictment, and the
State intends to offer each and every one of the documents at trial.
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In contrast, the Reagan memos will never be seen by the jury in this case.
Not only are these statements hearsay, but they also have no possible bearing on
any fact of consequence in this case. In other words, they are absolutely irrelevant
to Hubbard’s guilt or innocence. Further, the Reagan memos consist entirely of
information he supposedly observed within the Attorney General’s Office while
serving as a prosecutor. Reagan’s alleged conversations with the undersigned are
unquestionably protected by multiple privileges. See State’s Motion to Quash, at
pp. 11-16; Section V, infra.
Briefly summarized, the Reagan memoranda were improperly provided to
White by Baxley in an attempt to circumvent the Alabama Rules of Criminal
Procedure and deprive this Court of its authority to rule on the State’s assertion of
privilege over the memoranda. Additionally, even though White knew the State
had moved to quash the production of the Reagan memoranda and asserted
privilege over them, he similarly usurped this Court’s authority to rule on the
State’s Motion to Quash by attaching the documents to a public filing. These facts,
coupled with the fact that the memoranda are highly unlikely to be admitted, or
even offered, as evidence at trial, underscore the State’s point: Hubbard’s
arguments based on the Reagan memoranda should be disregarded and the
memoranda should be stricken from the record.
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B. The Reagan memoranda are not credible and were written by an
individual the defense concedes was leaking information to them.
As shown in the State’s Response in Opposition to Defendant’s Motion to
Dismiss Indictment on Theory That Grand Jury Exceeded Its Jurisdiction as to
Another Matter (“Exceeded Jurisdiction Response”), Reagan shares counsel, namely
Rob Riley, with Hubbard, a shared representation which predates the memoranda
Hubbard quotes in his Supplement.
Exceeded Jurisdiction Response at 4-5;
Supplement at 3-6. The State has further shown through email exchanges between
Hubbard and former Governor Bob Riley that Reagan communicated with Rob
Riley in December 2012 and Hubbard’s then chief of staff Josh Blades in January
2013 regarding the State’s grand jury investigation of Hubbard.
Exceeded
Jurisdiction Response at 5-6.
Finally, with respect to the Reagan memoranda which form the foundation for
Hubbard’s Supplement, the State has previously shown that they were part of a
premeditated and concerted effort to undermine the prosecution of Rep. Barry
Moore.
Specifically, after submitting the memoranda attached to Hubbard’s
Supplement to various officials in the Attorney General’s Office for the purpose of
papering the undersigned’s personnel file, acting on the advice of Bill Baxley who
represented both Reagan and Moore, Reagan drafted a false personnel complaint on
July 22, 2014 for the purpose of triggering an internal investigation into the
undersigned. Exceeded Jurisdiction Response at 6-7. Just two days after Reagan
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drafted the false complaint, which was not publicly known at that time, Baxley
moved in the Moore case to compel the production of the undersigned’s personnel
files, even asking specifically for any personnel complaints. Id. at 7.
Faced with this indisputable evidence that Reagan was having improper,
secret, and unauthorized communications with members of both Hubbard and
Moore’s defense teams designed to undermine the grand jury, Hubbard does not
dispute the State’s evidence or provide an explanation for why he was having
improper communications with a Deputy Attorney General in the prosecutor’s
office. Instead, Hubbard concedes in his Supplement that Reagan was in fact leaking
material related to the grand jury’s investigation. Supplement at 10 (“Hubbard will
demonstrate at the evidentiary hearing the source of the leaks and that
demonstration will not be limited to merely Mr. Reagan.”) (emphasis added).
This concession is fatal to Hubbard’s argument that undersigned used “the
Special Grand Jury to investigate personal allegations made against him relating to
matters outside the venue and jurisdiction of Lee County.” Opposition, p. 3. That
proposition is now completely untenable in light of Hubbard’s concession that
Reagan was leaking information to him.
Hubbard’s concession about Reagan
leaking information to him is also fatal to his Exceeded Jurisdiction Motion and Part
III of his Supplement (p. 11-13), since the arguments contained in both of those
documents also require that the Reagan investigation had to fall outside of the venue
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and jurisdiction of the grand jury. In other words, consistent with Hubbard’s
concession that Reagan was leaking information to him, the grand jury clearly had
jurisdiction to inquire into Reagan’s activities and to subpoena records related to
Reagan’s false complaint.
Since the discredited Reagan memoranda Hubbard relies on in his
Supplement are thinly veiled advocacy pieces drafted for the express purpose of
undermining the grand jury and any prosecutions resulting from the grand jury’s
investigatory efforts, the assertions contained in them are not credible. As the State
previously chronicled in its Exceeded Jurisdiction Response, at the time Reagan
drafted the memoranda, he was represented by two attorneys representing
individuals under indictment or investigation by the grand jury. After the State
uncovered the plot to use the Reagan memoranda to undermine the grand jury,
Reagan engaged in a series of evasive actions undertaken through counsel he shared
with Moore and Hubbard, including declining to be interviewed by the Acting
Attorney General about his activity, moving unsuccessfully to quash his grand jury
subpoena, taking litigating positions adverse to the Attorney General, announcing in
open court that he would invoke his right against self-incrimination instead of
testifying to the grand jury, and filing mandamus petitions seeking to invalidate his
grand jury testimony and/or force the Lee County Circuit Court to disband the grand
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jury entirely. These actions definitively show that the memoranda on which Hubbard
places so much emphasis have no credibility whatsoever.
II.
The Supplement fails to identify a single instance of
prosecutorial misconduct.
In its GJSA Response, the State showed that, despite attaching nearly 250
pages of exhibits to his Motion to Dismiss Indictment: Violations of Grand Jury
Secrecy Act, Hubbard had failed to identify a single piece of information disclosed
in violation of the Grand Jury Secrecy Act. See GJSA Response at 11-22. Instead,
as summarized in the GJSA Response, close review of the exhibits attached to
Hubbard’s Motion “reveals that they stem from coverage of public events, or are the
fruits of investigatory journalism, or are based upon speculation or opinion about
what might have transpired before the grand jury – none of which is prohibited by
the Act and all of which is protected by the First Amendment.” GJSA Response at
5.
Now that the State has refuted his previous allegations of prosecutorial
misconduct, Hubbard purports to identify new instances of misconduct in his
Supplement. Hubbard’s new allegations of prosecutorial misconduct are as baseless
as his previous ones, as shown in the sections that follow.
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A. The Supplement fails to identify any information
disclosed in violation of the Grand Jury Secrecy Act.
The Grand Jury Secrecy Act specifically identifies the information it protects
from disclosure. The protected information is defined in Sections 215 and 216 of
the Act. By their express terms, the prohibitions in both sections apply only to “past
or present grand juror[s], past or present grand jury witness[es] or grand jury
reporter[s] or stenographer[s].” Ala. Code §§ 12-16-215, 12-16-216 (emphasis
added).
Section 215 prohibits these individuals from “willfully . . . reveal[ing],
disclos[ing] or divulge[ing] or attempt[ing] or endeavor[ing] to reveal, disclose or
divulge or cause to be revealed, disclosed or divulged, any knowledge or
information pertaining to any grand juror's questions, considerations, debates,
deliberations, opinions or votes on any case, evidence, or other matter taken
within or occurring before any grand jury of this state.” Id. § 12-16-215
(emphasis added).
Section 216 prohibits these same individuals from “willfully . . . reveal[ing],
disclos[ing] or divulge[ing] or endeavor[ing] to reveal, disclose or divulge or
caus[ing] to be revealed, disclosed or divulged, any knowledge of the form, nature
or content of any physical evidence presented to any grand jury of this state or
any knowledge of the form, nature or content of any question propounded to
any person within or before any grand jury or any comment made by any
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person in response thereto or any other evidence, testimony or conversation
occurring or taken therein.” Id. § 12-16-216 (emphasis added).
Hubbard’s burden under these two statutes is clear. To demonstrate that a
violation of the Act occurred, he must show that (1) an individual listed in the statute
– a grand juror, grand jury witness, or grand jury reporter or stenographer (2)
willfully disclosed or attempted to disclose or caused to be disclosed (3) knowledge
or information pertaining to any grand juror’s questions, deliberations, opinions or
votes, the evidence considered, or any other questions, testimony, or matter taken
within or occurring before the grand jury. As the State previously affirmed, and
now reaffirms, “no prosecutor involved in this case disclosed protected grand jury
material to any party not authorized by law to receive it, and the materials submitted
by Hubbard do not demonstrate otherwise.” GJSA Response at 12 n.6.
Nothing in Hubbard’s Supplement demonstrates otherwise. The only new
instance of allegedly improper disclosure of information Hubbard identifies is his
questioning of the timing of an AL.com story covering the State’s Response in
Opposition to Hubbard’s Motion for More Definite Statement. Supplement at 7-8.
Hubbard makes no challenge to the information or content of the story, complaining
only that the timing of its release seems to indicate the reporter received a copy of
the State’s Response before it was filed. Moreover, Hubbard fails to cite any statute,
rule or case which would even prohibit the conduct he alleges. Regardless, this so20
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called allegation of prosecutorial misconduct cannot form the legal basis of a
violation of the Grand Jury Secrecy Act.
Apparently unable to identify any other new even arguable violations of the
Grand Jury Secrecy Act, Hubbard returns to two previously asserted allegations of
misconduct, namely, the undersigned’s conversation with radio talk show host
Leland Whaley and the timing of the indictment. Supplement at 8-9. The transcript
of the Whaley call, attached as Exhibit C to the Supplement, speaks for itself and
demonstrates conclusively that no misconduct occurred. The State’s summary of
why the transcript of the undersigned’s conversation with radio talk show host Dale
Jackson did not aid Hubbard in his quest for discovery of prosecutorial misconduct
also captures the reasons the Whaley transcript does not aid Hubbard in his
prosecutorial misconduct claim:
The … evidence Hubbard has offered in support of his claim that the
prosecution has disclosed confidential grand jury information is an offthe-record conversation, and therefore not intended for public
dissemination, between the undersigned and a radio talk show host. ...
The conversation contained no confidential grand jury information.
Moreover, since that conversation took place after the indictment was
issued, Hubbard cannot show that the conversation in any way
influenced the grand jury proceedings which resulted in the indictment.
State’s Surreply to Amended Motion for Production at 18 (emphasis in original).5 As
such, since no misconduct occurred in the conversation with Whaley, then it too
5
Hubbard’s footnote accuses the undersigned of “strategic[ally] place[ing] … documents
in plain view [in his vehicle] as a tactic to alert any snooping reporters as to the reason why Hart
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cannot serve as a basis to dismiss the indictment. Hubbard’s continued complaint
regarding the timing of the indictment is addressed in the section that follows.
B. The timing of the indictment was due to statute of
limitations issues with four of the counts.
Hubbard again raises the incendiary and debunked allegation that the timing
of the indictment in relation to Hubbard’s election was politically motivated.
Supplement at 9. The State has already disproven this baseless allegation:
Although Mr. Hubbard and others have asserted that the timing of the
indictment was due to political motivations of those involved, it was
not. Specifically, several counts in the indictment had a four-year
statute of limitations. Some of those counts would have expired just
mere days after the indictment was presented to the grand jury. If those
violations were to be prosecuted, the indictment had to be presented at
that time.
State’s Surreply to Defendant’s Amended Motion for Production at 11 (quoting
Statement of W. Van Davis, November 18, 2014). Hubbard has failed to challenge
the State’s legitimate and necessary reasons for presenting the indictment when it
did. Nor could he. As such, Hubbard’s continued insistence that the timing of the
indictment evidences misconduct is nothing more than groundless rhetoric, which
does not support his request to dismiss the indictment.
was in Lee County” is absurd. Supplement at 7, n. 20. To the State’s knowledge, no reporter
ever observed any grand jury documents in the undersigned’s vehicle.
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C. The State’s response to Hubbard’s Motion for More
Definite Statement was proper and consistent with
Alabama law.
Hubbard also makes the facially absurd argument that the indictment should
be dismissed because the State filed a Response to Hubbard’s Motion for More
Definite Statement. See Supplement at 10-11, 13-14. Obviously, Hubbard’s
continued and unsupported criticisms of the State’s response cannot constitute
grounds for dismissing the indictment.
Further, the propriety of the State’s response has been fully briefed and is
pending before the Court. The State expressly adopts and incorporates its Response
and Surreply to Hubbard’s Motion for More Definite Statement in response to
Hubbard’s current attempt to have a second bite at the apple on the subject. Without
waiving any of those arguments or attempting to respond to all of the arguments
contained within the Supplement related to the Motion for More Definite Statement
that the State has previously refuted, the State notes:
 Hubbard still refuses to recognize or attempt to meet his burden
to show good cause before he is entitled to have his motion
granted. See Rule 13.2(e) Ala. R. Crim. P. (“A motion for more
definite statement may be made at any time prior to entry of the
defendant’s plea, which motion shall be granted for good cause
shown.”) (emphasis added).
 Hubbard continues to seek a bill of particulars, (see Supplement
at 11 (“Hubbard requested the State to describe the manner in
which the State alleges that the crimes charged in the indictment
were committed”) (emphasis in original)), even though he is not
entitled to one under Alabama law. See Johnson v. State, 335
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So.2d 663, 672 (Ala. Crim. App. 1976) (a defendant “is not
entitled to a bill of particulars under Alabama law.”).
 The State’s Response to Hubbard’s Motion for More Definite
Statement does not constitute an improper opinion on his guilt,
(Supplement at 10-11), as it merely describes the charges against
him and proves he cannot meet his burden to show good cause.
Further, the law cited by Hubbard on this point is inapposite as it
applies to arguments during trial, not pre-trial filings.
 The exhibits to the State’s Response to Hubbard’s Motion for
More Definite Statement were not required to be “authenticated
or admitted into evidence” prior to filing, (Supplement at 10), as
authentication and admissibility relate to trial evidence, and the
State followed the procedure affirmed in Hunt v. State, 642
So.2d 999, 1026, 1031 (Ala. Crim. App. 1993). See also Section
I.A above (contrasting potential admissibility of exhibits to
State’s Response consisting largely of statements by Hubbard to
the potential admissibility of the discredited Reagan
memoranda).
 Although he has abandoned his citations to inapposite federal
law he made in his Reply to State’s Response in Opposition to
Defendant’s Motion for More Definite Statement, (Reply at 710), Hubbard has still not identified any applicable law that
required (or authorized) the State to redact “personal telephone
numbers and records and bank account numbers” in exhibits.
Supplement at 13-14.
 Hubbard also ignores that he specifically asked the State to
provide detailed bank account information in his Motion for
More Definite Statement. See Motion for More Definite
Statement at ¶¶ 5(a)(v) (requesting the Court to order the State to
identify “a specific description of any ‘check’ or ‘checks’
received; i.e., the date, check number, amount, account, drawer,
payee, and the drawer or payor bank” with respect to counts 1, 2,
3, 4, 7, and 11); 5(c)(viii) (seeking same information with respect
to counts 6 and 10); and 5(e)(iv) (seeking same information with
respect to count 14). As a result, the State’s response and
attached exhibits were directly responsive to Hubbard’s request.
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Based on these reasons, and those stated in the State’s above referenced
pleadings, Hubbard cannot show that his indictment should be dismissed based on
the State’s Response to his Motion for More Definite Statement. Further, Hubbard’s
transparent attempt to re-litigate his failed motion to require the State to litigate his
criminal case in secret is equally unavailing and does not support his request to
dismiss the charges against him.
D. The State’s conduct before the grand jury was entirely
proper.
Based on transcripts the State provided during discovery, Hubbard accuses
the State of misconduct before the grand jury. Specifically, Hubbard contends the
alleged misconduct consisted of (a) questions regarding who a witness’s attorney
was, how the witness selected the attorney, and whether anyone had offered to pay
for the witness’s attorney (Supplement at 14); (b) raising a question in the mind of
the grand jurors about the character of defense counsel (Supplement at 14); (c)
expressing opinions about witness credibility (Supplement at 17); (d) testifying
through questions to Bob Riley (Supplement at 18); and (e) having an agenda to
secure an indictment by any means (Supplement at 19).
A review of the grand jury transcripts proves all of Hubbard’s allegations to
be baseless. Accordingly, contemporaneous with this filing, the State is submitting a
CD for this Court’s in camera review, which contains the following grand jury
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transcripts that have already been provided to Hubbard in discovery: (1) Will
Brooke; (2) Jimmy Rane; (3) Bob Riley; (4) Minda Riley Campbell; (5) Billy
Canary; and (6) Rob Burton.
Additionally, Hubbard’s allegations of prosecutorial misconduct are
insufficient on their face. The State’s questioning of a witness about the identity of
their legal counsel, how the witness selected his/her counsel, and whether someone
offered to pay for the witness’s counsel are obviously reasonable and appropriate.
See, e.g., Ex parte Clark, 630 So. 2d 493, 497 (Ala. Crim. App. 1993) (“Bank
records of receipts and disbursements in lawyers' trust accounts are not privileged
communications.”); In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th
Cir. 1992) (“The identity of a client and the receipt of attorney's fees normally are
not privileged matters.”).
Moreover, the questions were especially appropriate under the circumstances.
For example, when Will Brooke appeared before the grand jury, he was
accompanied by his attorney, Mark White – the same attorney representing
Hubbard. Similarly, Jim Pratt, another attorney representing Hubbard, accompanied
Jimmy Rane during his appearance before the grand jury.6 Also, Hubbard’s attorney,
Rob Riley, represents both Bob Riley and Minda Riley Campbell and accompanied
both of them to grand jury. Hubbard sharing legal counsel with these witnesses by
6
After Hubbard was indicted, the State was notified that Brooke and Rane retained new
counsel.
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itself provided a basis for the grand jury to inquire into the circumstances of the
legal representation of those witnesses.
The State’s questioning of those witnesses was also proper because Hubbard
sharing legal counsel with these witnesses presented unique grand jury secrecy
issues. Specifically, while the Grand Jury Secrecy Act prohibits a witness from
disclosing to anyone what occurred within the confines of the grand jury room, it
does not prohibit a witness from discussing those matters with their personal
attorney. See § 12-16-222, Ala. Code (1975) (“No provision of this division shall be
construed to deny a witness or criminal defendant the right to confer with or be
represented by counsel concerning his appearance within or testimony before a duly
empaneled grand jury…”).
Since a witness is permitted to discuss what occurred within the confines of
the grand jury room with their attorney, the fact that a witness is represented by an
attorney who also represents a person under investigation is exceptionally relevant
and material to the grand jury’s inquiry. To be sure, the failure to inquire into those
matters could have potentially jeopardized the integrity of the grand jury’s
investigation. That is, knowing that information discussed with a witness in grand
jury could potentially be shared with Hubbard’s counsel directly affects the kinds of
questions asked and evidence shown during the examination. Thus, questioning a
witness on their decision to share legal counsel with Hubbard is not a personal attack
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on his defense counsel; rather, it is merely a proper method of, among other things,
maintaining the integrity of the investigation. Hubbard’s allegation that it was
misconduct for the grand jury to inquire into the circumstances of his sharing legal
counsel with material witnesses in the State’s case is therefore without merit.
Furthermore, the allegation that the undersigned unduly influenced the grand
jury while questioning Will Brooke (an attorney); Bob Riley (a two-term governor);
Jimmy Rane (a former judge); Minda Riley Campbell (an attorney and long-time
lobbyist); Billy Canary (a veteran political consultant and lobbyist); and Rob Burton
(a CEO of a major construction company) is absolutely unconvincing. Hubbard’s
specific allegation that the undersigned’s questions to former-governor Bob Riley
somehow constituted testimony sufficient to strip the grand jury of its independence
(Supplement at 18) or constituted bullying of the witness (id. n.32) fails in light of
the enormous amount of evidence the grand jury considered before it returned the
indictment.
Moreover, it is implausible to suggest that the questioning amounted to
bullying a sophisticated two-term former governor with extensive political,
lobbying, and business experience, or any of the other witnesses – all of whom are
sophisticated and well-educated individuals with political, business, or legal
backgrounds. In fact, the transcripts reveal that each witness was advised they could
speak with their attorneys at reasonable intervals during questioning and their
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testimony further reveals that each witness agreed that he or she was treated
professionally during questioning. Additionally, these witnesses were represented by
some of the most experienced and well-known white collar criminal defense
attorneys in this State who accompanied their clients to the grand jury (with all but
two of them sharing counsel with Hubbard). Surely, these attorneys could and would
have raised any issue to the Court regarding the propriety of any questioning by the
undersigned at that time. The fact that none of these lawyers did so is telling.
As to Hubbard’s accusation that the grand jury transcripts produced to the
defense reveal an agenda to secure an indictment at the expense of truth, this claim is
conclusively refuted by publically-available facts. The grand jury met 46 days over
a twelve-month period, heard testimony from over 150 witnesses and reviewed
hundreds of thousands of subpoenaed documents prior to indicting Hubbard.
Further, as shown by the State’s Response to Hubbard’s Motion for More Definite
Statement and the exhibits attached thereto, Hubbard’s own statements contained in
emails he exchanged with various individuals support the counts in the indictment.
In other words, the indictment, based on the enormous amount of evidence the grand
jury considered, was the product of a thorough and lengthy investigative process not
some improper agenda.
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Accordingly, for these reasons, and based upon the transcripts themselves,
Hubbard has failed to show that the undersigned committed any misconduct in its
questioning of witnesses sufficient to warrant the dismissal of the indictment.
III.
The Supplement does not and cannot show prejudice resulting
from the alleged misconduct.
As demonstrated in Section II, Hubbard has not identified a single instance of
prosecutorial misconduct. Assuming for the sake of argument, however, that he
could demonstrate misconduct, his Supplement would still fail because he could not
show prejudice resulting from any misconduct sufficient to have the indictment
against him dismissed.
Under Bank of Nova Scotia, “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.” Bank of Nova Scotia, 487 U.S. at
256 (quoting United States v. Mechanik, 475 U.S. 66, 78 (1986) (O’Connor, J.
concurring)). Since the misconduct must have influenced the grand jury’s decision
to indict, post-indictment misconduct is irrelevant.
Accordingly, every single
instance of misconduct that Hubbard cites in his Supplement, except his allegations
based on transcripts of pre-indictment grand jury proceedings, provides no basis for
dismissal of the indictment.
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As covered in Section II.D, the State has submitted the grand jury transcripts
for in camera review, and those transcripts speak for themselves and disprove
Hubbard’s allegations. Even if this Court were to find some isolated incident of
misconduct in those transcripts, however, such an incident would still not warrant
dismissal because of the thoroughness of the grand jury’s investigation which
included meeting 46 days over a twelve month period, hearing testimony from over
150 witnesses, and reviewing hundreds of thousands of subpoenaed documents. See
Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988) (finding instances of
alleged prosecutorial misconduct to not require dismissal of the indictment since
they “occurred as isolated episodes in the course of a 20–month investigation, an
investigation involving dozens of witnesses and thousands of documents”).
IV.
The grand jury remains impaneled and its investigatory work is
ongoing.
In his Supplement, Hubbard asks whether “the Special Grand Jury [is] being
used to intimidate and menace?” and then states that “[t]he Acting Attorney General
is cautioned that the Special Grand Jury can no longer be employed to gather
evidence against Hubbard.” Supplement at 16. Although the question does not
deserve an answer, the grand jury is not being used to intimidate and menace, but it
continues to meet as “an investigatory body charged with the responsibility of
determining whether or not a crime has been committed.” United States v. R.
Enterprises, Inc., 498 U.S. 292, 297 (1991). With regard to Hubbard’s caution to
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the State, as the cases he cites in his Supplement explain (Supplement at 16-17), the
State may not use the grand jury for the sole purpose of gathering further evidence
against him to support the charges on which he has been indicted. The State has
made its discovery production to Hubbard in accordance with the rules with respect
to those charges and is not using the grand jury to gather further evidence as to the
23 counts in the indictment. Nothing in the law, however, prevents the grand jury
from continuing to investigate whether Hubbard or other individuals have taken
other actions that fall within the grand jury’s jurisdiction that could be charged in
another indictment. See R. Enterprises, Inc., 498 U.S. at 297 (the “function of the
grand jury is to inquire into all information that might possibly bear on its
investigation until it has identified an offense or has satisfied itself that none has
occurred” meaning that grand jury investigations are “not fully carried out until
every available clue has been run down and all witnesses examined in every proper
way to find if a crime has been committed.”) (further citation omitted).
Hubbard’s repeated insistence on being allowed to second-guess the grand
jury’s ongoing investigation is expressly prohibited by Alabama law. Opposition at
4-7. Moreover, the theory Hubbard puts forward for why he should be allowed to do
so – that the grand jury “exceeded its jurisdiction” in investigating Reagan (an
argument previously ruled on and rejected by Judge Hughes, and fatally undermined
by Hubbard’s concession in his Supplement that Reagan was leaking information to
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him as discussed in Section I.B above) – remains legally insufficient as a basis for
dismissal of the indictment against him which was based on the enormous amount of
evidence the grand jury carefully considered.
V.
Hubbard’s subpoenas are being used as an improper discovery
device and otherwise seek information from current or former
employees of the Attorney General’s Office that is protected by
numerous privileges.
A. The subpoenas are due to be quashed because they are
being used as an improper discovery device.
As an initial matter, this Court does not have to reach Hubbard’s arguments
concerning whether any privileges apply to the subpoenas to current and former
Attorney General’s Office employees because the State has asserted that the
subpoenas were improper end-runs around the discovery provisions of the Alabama
Rules of Criminal Procedure, (Motion to Quash at 7-10). In his Opposition, Hubbard
fails to address the controlling Alabama case law that prohibits a defendant from
using a Rule 17 subpoena to obtain discovery from the State. Opposition at 3-4.
Hubbard, instead, argues that this prohibition does not apply to him because
he is seeking information to support his “various motions”. Id. at 3. This is a
distinction without a difference. There is no doubt Hubbard seeks documents and
information from the law enforcement office that is prosecuting him. The purpose
behind his request is irrelevant. Alabama law is clear: the only way a defendant may
obtain documents or information from the State in an indicted case prior to trial is
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through a Rule 16 discovery request. See Motion to Quash at 7-10. Neither the
Office of Attorney General nor its employees is a third party “witness” to this case.
Thus, he may not use a Rule 17 subpoena to obtain anything from the State.
As the State has already pointed out, the method for Hubbard to obtain the
information he seeks is to make a Rule 16 discovery request that meets the threshold
requirements outlined by the United States Supreme Court: a showing of misconduct
and actual prejudice. The reason for this threshold requirement is that prosecutors
are presumed to have “properly discharged their official duties” unless there is “clear
evidence to the contrary”. United States v. Armstrong, 517 U.S. 456, 464 (1996).
The Fourth Circuit Court of Appeals has further explained that discovery into a
prosecutorial misconduct claim cannot be permitted until the defendant has
overcome this presumption with evidence supporting his claim:
Because of this necessary presumption of prosecutorial regularity, a
presumption of vindictive prosecution, or any other type of selective
prosecution, must be supported by a showing sufficiently strong to
overcome the presumption of prosecutorial regularity. Indeed, even
before a court allows a defendant to have discovery on the
government's prosecutorial decisions, the defendant must
overcome a significant barrier by advancing objective evidence
tending to show the existence of prosecutorial misconduct. The
standard is a rigorous one. … Just as the standard for ultimately
proving a selective prosecution claim is a rigorous one, so too is the
evidentiary threshold for obtaining discovery from the government to
support such a claim. A significant barrier to discovery is necessary
because discovery imposes many of the costs present when the
government must respond to a prima facie case of selective
prosecution; it diverts governmental resources and discloses
prosecutorial strategies.
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United States v. Wilson, 262 F.3d 305, 315 (4th Cir. 2001) (internal citations and
quotations omitted). Since Hubbard cannot meet this standard, he has unsurprisingly
chosen to ignore it entirely and instead seeks to circumvent the standard by sending
subpoenas to the Attorney General’s Office. That is improper and the subpoenas are
therefore due to be quashed.
B. The law enforcement privilege applies in criminal cases.
In his Opposition, Hubbard makes the nonsensical argument that the law
enforcement privilege does not apply in criminal cases. (Opposition at 8-10). Ala.
Code § 12-21-3.1 does not need to mention criminal subpoenas, because the
Alabama Rules of Criminal Procedure themselves already protect information
subject to the law enforcement privilege. See Ala. R. Crim. P. 16.1(c) & (e); 17.3
and Committee Comments; State v. Lewis, 36 So.3d 72 (Ala. Crim. App. 2008)
(affirming trial court’s quashing of defendant’s subpoena duces tecum to Mobile
County District Attorney’s Office); Sale v. State, 570 So.2d 862, 863 (Ala. Crim.
App. 1990) (holding that trial court’s refusal to enforce subpoena duces tecum to a
police department and Sherriff’s Office did not violate defendant’s right to
compulsory process because, among other things, “the defendant was seeking to use
the subpoenas duces tecum as a method of discovery”). Accordingly, any
communications between or among Office of the Attorney General personnel that
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Hubbard seeks to obtain here are protected from disclosure by the law enforcement
privilege.
C. The information sought in the subpoenas, as well as Davis’s
letters to current and former employees of the Attorney
General’s Office regarding the subpoenas, is protected by the
attorney-client privilege and the work-product doctrine.
In the lead-up to the April 15 hearing, Hubbard has sent out at least twentythree subpoenas to individuals and agencies ranging from the Governor to the
Attorney General to W. Van Davis to the Ethics Commission. The State moved to
quash all of the subpoenas on multiple grounds. See State’s Motion to Quash and
Further Objection to Hubbard’s Requests for Evidentiary Hearing (“Motion to
Quash”), and State’s Supplemental Motion to Quash Subpoenas Issued to Governor
Robert Bentley, W. Van Davis, and the Custodian of Records for the Alabama
Ethics Commission; see also Motion to Quash at 2, n.1 (“To the extent Hubbard has
issued other subpoenas of which the State is not aware, the State moves to quash
those subpoenas as well”).
Thirteen of the subpoenas the State has moved to quash were directed to
either current or former employees of the Attorney General’s Office. As the State
set forth in its Motion to Quash, the subpoenas sought “information that is protected
by the law enforcement privilege, the executive privilege, the deliberative process
privilege, the attorney-client privilege, and the attorney work product doctrine.”
Motion to Quash at 11-17. As further explained in the Motion to Quash, allowing
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the subpoenas would establish a terrible precedent whereby every criminal
defendant could subpoena the office of the prosecutor prosecuting him, contrary to
Alabama law governing discovery in criminal cases.
Prior to filing the Motion to Quash, Davis sent letters to current and former
employees of the Attorney General’s Office regarding the subpoenas issued by
Hubbard in this case. The letters were sent under the attorney-client privilege so the
State will not disclose their contents here.7 In response to the letter sent to Claire
Haynes, legislative affairs director for the Attorney General’s Office, Michael Kidd,
her personal attorney, sent a letter to the State, copying this Court and counsel for
Hubbard, Mark White. In his letter, Kidd characterizes the contents of the State’s
letter to Haynes but he does not actually quote from it. He offers his opinion that
unrepresented subpoena recipients may be “misled into believing they are excused
from attendance due to the instructions of your letter,” encourages the State to
discuss the matter with the defense, and states he found the “tone of the letter … to
be coercive and threatening ….”
7
On March 6, 2015, the State sent a letter to Reagan’s lawyers wherein Davis, the
representative of Reagan’s former client in this matter, invoked all applicable privileges with
regard to the information sought by the subpoenas to Reagan. The State did not send the letter to
Reagan’s lawyers under the attorney-client privilege because, among other things, Reagan’s
continued sharing of legal counsel with Hubbard constitutes an irreconcilable conflict of interest
which the State does not waive. The State’s recognition of this fact here, however, does not
affect the continued application of its privileges to prior communications, particularly those that
occurred before the State uncovered Reagan’s conflict of interest. See Ala. R. Prof. 1.6.
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The contents of the Kidd letter, coupled with the fact that both the Court and
defense counsel were copied on it, are clearly intended to be favorable to the defense
and its baseless prosecutorial misconduct narrative. Strikingly, the version of the
Kidd letter attached to Hubbard’s Supplement is different from the version the State
received directly from Kidd, a copy of which is attached as Exhibit B.
The version attached to Hubbard’s Supplement was not signed:
The version the State received from Kidd was signed:
Further, the formatting of the letterhead on the two letters is clearly different. The
version attached to Hubbard’s Supplement included lowercase letterhead, and the
fax number was misaligned, indicating homemade letterhead in draft form:
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The version the State received from Kidd included uppercase letterhead, and the fax
number was aligned, indicating a finalized form:
These differences suggest that the defense may have been privy to a draft copy of
the letter, if indeed they did not write the letter for Kidd before he signed and
delivered it to the State, potentially allowing them to coordinate and shape its
contents for the purposes of their Supplement.8
The State responded to the Kidd letter on March 25, 2015, copying the Court
and Mark White on its response. A copy of the State’s response to Kidd is attached
hereto as Exhibit C. As the State explained in that response,
8
The State also notes for the record that while defense counsel for Hubbard states the
defense has subpoenaed the privileged Van Davis letter to which Kidd was responding
(Supplement at 20 n. 34), Hubbard’s counsel does not state that they have not seen the privileged
Davis letter, Hubbard’s counsel does not state that Kidd did not furnish a copy of the privileged
letter to the defense, and Hubbard’s counsel does not state that they have not asked Kidd for a
copy of the privileged Davis letter, and Hubbard’s counsel does not state that they did not
participate in producing the Kidd letter.
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The State filed a motion to quash on March 23rd wherein it set forth
arguments addressed to the subpoena your client received related to
the upcoming April 15, 2015 hearing. The issue is therefore pending
before the Court. Because your letter addressed privileged matters,
the State will not address them here, and that decision should not be
read as agreement with anything contained in your letter.
The State has therefore asserted and taken care to preserve all applicable privileges
over the letters to the current and former employees of the Attorney General’s
Office.
Hubbard now argues that the attorney-client privilege does not apply to either
the letters or to the information he subpoenaed from the current or former employees
of the Attorney General’s Office, even though all of that information arises out of
those persons’ employment with the Office either as members of the legal teams
representing the client, the State, or as representatives of the client, the State, or
both. Supplement at 19-24.
The information sought in the subpoenas to the current and former employees
of the Attorney General’s Office, as well as the letters Davis sent regarding those
subpoenas, is clearly protected by the attorney-client privilege. As set forth in the
Alabama Rules of Evidence:
A client has a privilege to refuse to disclose and to prevent any other
person from disclosing a confidential communication made for the
purpose of facilitating the rendition of professional legal services to the
client (1) between the client or a representative of the client and the
client’s attorney or a representative of the attorney, (2) between the
attorney and a representative of the attorney, (3) by the client or a
representative of the client or the client’s attorney or representative of
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the attorney to an attorney or a representative of an attorney
representing another party concerning a matter of common interest, (4)
between representatives of the client and between the client and a
representative of the client resulting from the specific request of, or at
the express direction of, an attorney, or (5) among attorneys and their
representatives representing the same client.
Alabama Rule of Evidence 502(b).
The client here is the State of Alabama. By sending the subpoenas, Hubbard
apparently believes that the subpoenaed current and former employees of the
Attorney General’s Office possess information relevant to either the case against
him or to the collateral claims he has asserted. Hubbard’s transparent attempt to
obfuscate this fact by asserting “the State does not and cannot know what testimony
Hubbard seeks from the subpoenaed witnesses” does not affect the State’s ability to
invoke the privilege. Opposition at 3.9 It is clear that Hubbard seeks to obtain the
actual communications and not merely the underlying facts. Any information that
Hubbard seeks here would certainly have been conveyed to those employees while
they were acting within the scope of their employment with the Attorney General’s
Office, and only because they were employees of the Office and either part of the
legal teams representing the State or as representatives of the State or both.
9
In addition, that statement does not make sense, because in the preceding section
Hubbard outlines his ten point offer of proof for the evidentiary hearing (Opposition at 2-3).
None of the points are valid. The first four points are based on the discredited Reagan
memoranda. The fifth and sixth points have been adjudicated by the courts and rejected. The
seventh and eighth points are invalidated on a reading of the transcripts in the record. The ninth
point is based on the discredited Kidd letter and privileged communications. The tenth point
seems based on the defendant’s Motion to Compel Brady Production, to which the State has
responded and demonstrated is due to be denied.
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Each of the individuals subpoenaed either provides legal services directly to
the State of Alabama (Attorney General Strange, Chief Deputy Attorney General
Kevin Turner, Supernumerary District Attorney Van Davis) or assists attorneys in
providing legal services to the State of Alabama (all other current or former
employees) meaning that each of them qualifies as either an attorney10 or a
representative of an attorney11 representing the State of Alabama as a client.
Moreover, those persons also qualify as representatives of the client, the State.12
Since any information sought through the subpoenas would have been
communicated to the individual by either an attorney or a representative of an
attorney for the purpose of facilitating the rendition of legal services to the State of
Alabama, and the communication would clearly have been confidential and not
intended for disclosure to third parties,13 the attorney-client privilege clearly applies
to the information sought by the subpoenas.
10
See Alabama Rule of Evidence 502(a)(3) (“‘Attorney’ is a person authorized … to
engage in the practice of law in any state or nation.”).
11
See Alabama Rule of Evidence 502(a)(4) (“‘Representative of the attorney” is a person
employed by the attorney to assist the attorney in rendering professional legal services.”).
12
See Alabama Rule of Evidence 502(a)(2) (“‘Representative of the client’ is: (i) a
person having authority to obtain professional legal services or to act on legal advice rendered on
behalf of the client or (ii) any other person who, for the purpose of effecting legal representation
for the client, makes or receives a confidential communication while acting in the scope of
employment for the client.”).
13
See Alabama Rule of Evidence 502(a)(5) (“A communication is ‘confidential’ if not
intended to be disclosed to third parties other than those to whom disclosure is made in
furtherance of the rendition of professional legal services to the client or those to whom
disclosure is reasonably necessary for the transmission of the communication.”).
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In order for Davis to carry out his duties in this matter as lawyer for the State,
the discussions between and among Davis and members of the Attorney General’s
Office, as lawyers for the State, representatives of those lawyers, or representatives
of the State, must remain under the protection of the attorney-client privilege. For
example, as shown during the Barry Moore trial, the State first learned of the
recorded conversations between Moore and Josh Pipkin from Sonny Reagan. See
Exhibit D, Testimony of Special Agent Keith Baker, at p. 568 (“The information
came to the Attorney General's Office through a -- an attorney within our office,
Sonny Reagan, who had received the information from an attorney from
Enterprise.”). The discussions that Reagan had with the prosecutors and
investigators in this case about those tapes, which led to an investigation into
allegations related to Enterprise Electronics Corporation, was obviously privileged
until it was disclosed during Agent Baker’s testimony. 14 Notably, those discussions
do not appear in any of the Reagan memos submitted by Hubbard.
Hubbard’s argument that the undersigned’s alleged conversations with
Reagan “cannot, under any circumstances, be considered confidential” is therefore
incorrect. (Opposition, at 18, 21). As shown above, the undersigned was permitted to
have conversations with Reagan – as well as any other employee in the Attorney
14
The State expressly notes that its reference to information previously disclosed during
the Moore trial does not waive any privilege with regard to any other communications with
Reagan.
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General’s Office – about this matter that were intended to be privileged when they
were made and remain privileged. Thus, the State has properly invoked the privilege
with respect to any information Hubbard seeks through his subpoenas. To be clear,
without waiving any privileges, the undersigned categorically denies the accusations
of prosecutorial misconduct in the Reagan memos.
As to the letter Davis sent to the current and former employees, that also is
included within the State’s attorney-client privilege because it was sent by a lawyer
for the State of Alabama, Davis, to the State of Alabama’s attorneys or
representatives of those attorneys or representatives of the State for the purpose of
rendering legal services to the State of Alabama related to the subpoenas and this
matter.
Hubbard’s arguments to the contrary are erroneous because they fail to
recognize that all of the subpoenaed individuals, including Davis, represent or are
representatives of the same client: the State of Alabama. Hubbard’s arguments
reinforce the State’s contention that not quashing the subpoenas would set a terrible
precedent. As the State has previously explained:
permitting a defendant to subpoena records and testimony from the
office that is prosecuting him would be contrary to Alabama law and
would set a very bad precedent that would seriously undermine and
threaten law enforcement in this State. Every day, law enforcement
officials investigate and prosecute criminal defendants – all under the
protections of Alabama law that prevent defendants from doing exactly
what Hubbard is attempting to do here. That is, if every indicted
defendant were able to subpoena the office of the prosecutors in a case,
44
DOCUMENT 150
then law enforcement would be irreparably damaged, unable to carry
out their duties. This is precisely why the law enforcement
investigation and related privileges and the discovery provisions of the
Rules of Criminal Procedure exist. The subpoenas should be quashed.
Motion to Quash at 17.
Hubbard’s new argument, that the appointment of a
supernumerary district attorney or special prosecutor to oversee an investigation or
prosecution results in waiver of attorney-client privilege as to information
communicated to employees of a law enforcement agency regarding the
investigation or prosecution, is meritless and would set an even worse precedent that
would seriously undermine law enforcement efforts and functionally destroy the
ability of any official to utilize the services of supernumerary district attorneys or
other special prosecutors. Accordingly, Hubbard’s arguments should be rejected.
In addition, as outlined in the State’s Motion to Quash, because the materials
sought were prepared in anticipation of litigation or preparation for trial, they are
likewise protected by the work-product doctrine. See Motion to Quash at 16.
Hubbard’s assertion in his Opposition that the State has not set forth sufficient facts
to properly invoke the work product doctrine is belied by the evidence set forth
above, as well as Hubbard’s blanket subpoenas which facially seek the State’s work
product.
D. Hubbard’s accusation of witness tampering is baseless.
Despite the fact that Hubbard should not have seen the privileged letters
Davis sent to current and former employees of the Attorney General’s Office, and
45
DOCUMENT 150
despite the fact that Hubbard and his counsel have not said whether they have seen
any of those privileged letters, Hubbard claims that Davis may have committed
witness tampering through the letters. Hubbard’s only possible basis for this claim
is the Kidd letter which, as explained above, does not actually quote or reveal the
contents of the State’s letter, choosing instead to characterize the letter’s tone,
lecture the State to consult with defense counsel, and opine as to how Kidd believed
the letter might be viewed by unrepresented subpoena recipients. The fact that
Hubbard attached a draft copy of the letter to the Supplement – a letter that may well
have been written for Kidd by Hubbard’s counsel – only further demonstrates that
the Kidd letter is an advocacy piece drafted to aid Hubbard’s defense and is
therefore entitled to no weight.
Since Hubbard has not said whether he has seen a copy of the State’s
privileged letters, his assertion that they may constitute witness tampering is
speculative at best. Furthermore, Hubbard continues to ignore that Davis is the
representative for the State of Alabama and the Office of Attorney General in this
case. Given that, among other things, employees of the Attorney General’s Office
are prohibited from disclosing confidential information, Davis is unquestionably
permitted to take any lawful action to prevent the disclosure of confidential or
privileged information by any employee. Again, while the State will not waive its
46
DOCUMENT 150
privilege with regard to is interoffice communications, the undersigned emphatically
denies that any such communications were improper.
E. The executive and deliberative process privileges protect the
information sought in the subpoenas.
The State has previously asserted that the information sought through the
subpoenas is protected by the executive and deliberative process privileges. See
Motion to Quash at 14; see also Supplemental Motion to Quash at 5-6 (asserting
executive privilege over information sought through subpoena to Governor Bentley).
Similarly, the State has also asserted that the deliberative process privilege applies to
the information sought through the subpoenas. See Motion to Quash at 14-16; see
also Supplemental Motion to Quash at 6-7 (asserting deliberative process privilege
over information sought from Governor Bentley).
In his Supplement, Hubbard titles a section “There is no executive privilege
regarding the subpoenas,” (Supplement at 24), but does not actually argue that the
executive privilege or the deliberative process privilege do not apply to the
information he seeks. Instead, he declares that the State has nakedly asserted the
executive privilege without showing that the information sought would seriously
impair the State’s ability to function. Supplement at 24. Without any further
argument, he quotes a passage from Assured Investors Life Ins. Co. v. National
Union Associates, Inc., 362 So. 2d 228, 233 (Ala. 1978), overruled on other
grounds, Ex parte Norfolk Southern Ry. Co., 897 So. 2d 290 (Ala. 2004) for the
47
DOCUMENT 150
proposition that the governmental interest in favor of maintaining confidentiality
must be weighed against the need for the discovery sought. Supplement at 24-25.
In other words, despite its section heading, Hubbard’s real argument is that the
governmental interest in confidentiality over the information should give way to his
interest in the discovery sought.
There are two main flaws with this argument. First, Hubbard has yet to fully
identify the information he seeks through his subpoenas so as to enable the State to
respond directly to his requests. He has issued blanket subpoenas for testimony to
the Attorney General and numerous members of the Attorney General’s staff, as
well as to Governor Bentley and Van Davis, without specifying the topics on which
he seeks discovery. The State’s assertion of executive and deliberative process
privilege therefore fairly meets the substance of his subpoenas. Should Hubbard
specify the topics upon which he seeks testimony, the State would evaluate the
topics he identifies and further specifically explain whether and how the executive
and/or deliberative process applied to the information sought.
The second flaw in Hubbard’s argument is that, to the extent he has identified
specific documents he is seeking from individuals, as shown above, the State clearly
explained why those documents would be protected by the deliberative process
privilege, which is a sub-category of the executive privilege meaning that if it
applies then the executive privilege logically must apply.
48
Hubbard makes no
DOCUMENT 150
attempt to address the reasons set forth in the State’s response meaning those
reasons stand unrebutted. As a result, since the State has set forth its interest in the
confidentiality of the documents but Hubbard has not set forth why his interest in
discovering them outweighs the State’s interest, any application of a balancing test
weighs in favor of confidentiality.
In his Opposition, Hubbard alters the focus of his arguments from a balancing
test approach to simply shifting his burden to the State. See Opposition at 10-14.
That is, because the subpoenas facially seek privileged information, then the
testimony sought is “presumptively privileged”. United States v. Nixon, 418 U.S.
683, 708-713 (1974). The State does not have to show that the information would
seriously impair the State’s ability to function; rather, Hubbard has to first show that
he is entitled to the material. Hubbard makes no showing here and instead continues
to be coy in explaining exactly what information he seeks.15 That is not enough to
overcome the presumption. Even if he could, the State submits its ability to function
would be seriously impaired here because every appointed special prosecutor would
be unable to perform their duties if the defendant can simply subpoena documents
15
Hubbard claims the subpoenaed witnesses are not being called to “second guess” the
decision making process (which is obviously protected by the privilege), but claims they are
being called to “present evidence relating to allegedly illegal appointments, abuse of grand jury
process, and prosecutorial misconduct.” (Opposition at p. 14). This assertion is inconsistent with
Hubbard’s previous arguments. Hubbard has clearly already made arguments second guessing
the recusal of the Attorney General, the appointment of Davis, subpoenaing Reagan, and
numerous other decisions made by the members of the Attorney General’s Office and the grand
jury itself. As such, all of these decisions, which Hubbard seeks to nit-pick through the
questioning of witnesses, are unquestionably protected by the privilege.
49
DOCUMENT 150
and testimony from the Attorney General’s Office. The subpoenas to the Attorney
General’s Office should be quashed.
VI.
The State has not withheld any Brady material from the defense.
In his Opposition, Hubbard raises – for the very first time – his allegation that
the State has “conceal[ed]” and “fail[ed] to produce exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963).” Opposition, p. 3. Other than
this broad assertion, Hubbard does not provide any other legal argument or a factual
basis for this conclusory statement in his Opposition, nor does he identify the
material he contends the State has improperly withheld. The State notes that its
determination on producing Brady material is final unless the defense brings to the
Court’s attention other evidence it believes should be produced as exculpatory.
Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987). Since Hubbard has not
identified a single piece of evidence to which he is entitled that was not produced,
then this argument fails as a matter of law.
To the extent Hubbard relies upon his Motion to Compel Brady Production
for support, the State reiterates its Response to that motion:
The State has complied with its obligations under Brady v. Maryland,
373 U.S. 83 (1963) and its progeny. Hubbard has failed to identify
any alleged exculpatory material that has not been produced. Instead,
Hubbard improperly seeks to obtain the State’s work product and has
failed to show either necessity or bad faith to overcome the
presumption that the State has no obligation to share its work product
with the defense. … The title of Hubbard’s Motion is misleading. The
State has already produced the material required under Brady v.
50
DOCUMENT 150
Maryland, 373 U.S. 83 (1963) and its progeny, as Hubbard
recognizes. (Motion, 1.) The relief Hubbard is actually seeking is not
production of Brady material, but rather production of the State’s
work product. State’s Response to Motion to Compel Brady
Production, pp. 1, 3.
The State further submits that both parties are currently engaging in a
dialogue regarding the State’s discovery production. The Court’s assistance on
some of those issues should therefore not be required. See Exhibit E,
Correspondence regarding discovery.
VII. The State’s objections to the subpoenas to the Ethics Commission and
Hubbard’s outside technical consultant are proper and Hubbard has
yet again failed to show he is entitled to an evidentiary hearing.
Hubbard makes the odd assertion that the State has no standing to challenge
the subpoena issued to the Ethics Commission in this case. Opposition at 24-25. This
argument is flawed. First, the subpoena itself seeks information related to a
prosecutor in this case. Clearly, the State may object to a subpoena seeking
information about a prosecutor representing the State in this case. Second, as shown
in the Motion to Quash, the Office of Attorney General routinely handles
prosecutions on behalf of the Ethics Commission. As such, these law enforcement
entities work together under the protection of the law enforcement privilege and
other applicable protections. See e.g., § 36-25-4(11)(b) Ala. Code (“Except as
necessary to permit the sharing of information and evidence with the Attorney
General or a district attorney, a complaint filed pursuant to this chapter, together
51
DOCUMENT 150
with any statement, evidence, or information received from the complainant,
witnesses, or other persons shall be protected by and subject to the same restrictions
relating to secrecy and nondisclosure of information, conversation, knowledge, or
evidence of Sections 12-16-214 to 12-16-216 … Such restrictions shall also apply
to all information and evidence supplied to the Attorney General or district
attorney.”) (emphasis added). Accordingly, the State has both a “personal right”
and a “privilege relating to the documents being sought” and therefore has standing
to object to the subpoena. Opposition at 25.
Hubbard also claims that the State’s moving to quash the subpoena to his
outside technical consultant is “baseless”, even though he does not address the
State’s arguments presented in its Motion to Quash. Again, Hubbard’s consultant
has already submitted an affidavit to this Court. Any further testimony would be
redundant and unnecessary. Nonetheless, Hubbard has not presented any legal
grounds to conduct an evidentiary hearing or call any witnesses whatsoever.
Indeed, the State has repeatedly shown that Hubbard has failed to demonstrate
he is entitled to an evidentiary hearing and that he has repeatedly attempted to grant
his own discovery motions and evidentiary hearing requests through the issuance of
improper subpoenas. See Motion to Quash at 3-5 & n.2 (chronicling Hubbard’s
history of requesting evidentiary hearings, as well as the State’s oppositions thereto,
and Hubbard’s attempts to unilaterally transform both the January 7 scheduling
52
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conference and the April 15 hearing into evidentiary hearings through the issuance
of subpoenas for information that is subject to pending motions).
Hubbard continues to try and make this case about everyone’s conduct other
than his own and once again requests an evidentiary hearing, this time stating that
“the allegations contained in Hubbard’s motions and the conflicting denials
contained in the most recent responses by the State present serious and significant
issues of fact and law which can only be resolved” at an evidentiary hearing.
Supplement at 27. Hubbard’s latest argument for an evidentiary hearing, like his
previous ones, fails because the only “conflicting denials” in the State’s responses
that relate to factual matters concern the completely discredited allegations
contained in the Reagan memos. The State’s clear refutation of any credibility and
reliability Hubbard would ask this Court to give the Reagan memoranda
demonstrates that the basis of Hubbard’s request for an evidentiary hearing is no
basis at all.16
There are in fact no other conflicting denials in the State’s responses that
require the presentation of evidence. The materials attached to Hubbard’s motions,
16
It is worth noting in this regard that Reagan, through Baxley, continues his efforts to
avoid having to testify regarding the memoranda he drafted. See March 20, 2015 letter from
Baxley to White, included in Exhibit A to Supplement (“Enclosed are the materials called for
[in] the subpoena you served on my client, Sonny Reagan. I sincerely hope that this will
obviate the necessity of our actually having to appear yet again in a court proceeding in Lee
County. Please let me know if we can be excused from appearing on the 15 th. If our
attendance is necessary, naturally we will comply with the subpoena but it would be nice to
have as much notice as possible and even nicer not to have to go.”) (emphasis added).
53
DOCUMENT 150
as well as the State’s responses, speak for themselves. The Dale Jackson and Leland
Whaley transcripts, as well as the transcript of Josh Pipkin’s remarks Hubbard
claimed violated the Grand Jury Secrecy Act, have all been filed with this Court so
the Court can evaluate them for itself. Relatedly, the State has submitted all of the
grand jury transcripts it produced to the defense in discovery for in camera review
so there is no need to hear evidence related to those either.
In other words, this Court has received all of the evidentiary and other
materials it needs to decide the motions without any further evidentiary presentation.
As a result, Hubbard’s latest request for an evidentiary hearing, like all of his past
requests, amounts to nothing more than a request to derail the proceedings. There
being no legal basis for an evidentiary hearing, his request is due to be denied.
CONCLUSION
In accordance with the foregoing, the State respectfully requests this Court
enter an Order granting the State’s Motion to Quash and denying all of Hubbard’s
Motions to Dismiss.
Respectfully submitted this 13th day of April 2015.
W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Miles M. Hart
Miles M. Hart
Deputy Attorney General
Chief, Special Prosecutions Division
[email protected]
54
DOCUMENT 150
OF COUNSEL:
W. Van Davis
Supernumerary District Attorney,
Acting Attorney General
423 23rd St. North
Pell City, AL 35125-1740
[email protected]
Michael B. Duffy
Deputy Attorney General
[email protected]
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, AL 36130-0152
(334) 242-7300
(334) 242-4890 – FAX
55
DOCUMENT 150
CERTIFICATE OF SERVICE
I hereby certify that I have, this the 13th day of April 2015, 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 foregoing by U. S. mail:
J. Mark White, Esq.
Augusta Dowd, Esq.
William Bowen, Esq.
William Chambers Waller, Esq.
White Arnold & Dowd P.C.
2025 Third Avenue North, Suite 500
Birmingham, AL 35203
Phone: (205) 323-1888
FAX: (205) 323-8907
[email protected]
[email protected]
[email protected]
[email protected]
R. Lance Bell
Trussell Funderburg Rea & Bell, PC
1905 1st Ave South
Pell City, AL 35125-1611
[email protected]
Phillip E. Adams, Jr.
Adams White Oliver Short & Forbus LLP
205 S 9th Street
Opelika, Alabama 36801
Phone: (334) 745-6466
Fax: (334) 749-2800
[email protected]
/s/ Miles M. Hart
Deputy Attorney General
56
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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566
THE WITNESS:
1
KEITH BAKER,
2
A witness, after having been first duly
3
sworn, testified as follows:
4
DIRECT EXAMINATION
5
BY MR. HART:
6
7
I do.
Q.
Would you state your name for the ladies and
gentlemen of the jury, please, sir?
8
9
A.
Keith Baker.
10
Q.
What do you do, Mr. Baker?
11
A.
I am a Special Agent with the Alabama
Attorney General's Office.
12
13
Q.
Do you work in any particular portion of that
office?
14
15
A.
I work in the Special Prosecutions Division.
16
Q.
And what are your duties, generally speaking,
17
as an agent in the Special Prosecutions
18
Division.
19
A.
that arise across the State.
20
21
Primarily deal with public corruption matters
Q.
Okay.
And how long have you been in that
job?
22
23
A.
Since July of 2013.
24
Q.
And what did you do prior to July of 2013?
25
A.
I spent a little over 25 years as a special
DOCUMENT 150
567
agent with the FBI.
1
2
Q.
And did your duties in the FBI include
investigating public corruption?
3
4
A.
It did.
5
Q.
In the last twelve or fifteen months or so,
6
have you been assigned primarily to any
7
particular matter in the Attorney General's
8
Office?
9
A.
I have.
10
Q.
What matter is that?
11
A.
I have been primarily assigned to the public
12
corruption investigation of Speaker Mike
13
Hubbard.
14
Q.
During your work on the matter, did you
15
investigate any actions by State Officials
16
related to Enterprise Electronics
17
Corporation?
18
A.
I did.
19
Q.
Which officials did you review and
20
investigate their activities related to
21
Enterprise Electronics Corporation?
22
A.
Moore.
23
24
25
Speaker Mike Hubbard and Representative Barry
Q.
Okay.
How did you first hear -- how did you
and others working with you first hear of the
DOCUMENT 150
568
1
allegations related to Enterprise Electrics
2
Corporation?
3
A.
The information came to the Attorney
4
General's Office through a -- an attorney
5
within our office, Sonny Reagan, who had
6
received the information from an attorney
7
from Enterprise.
8
Q.
Approximately when did that -- that
information first come to the office?
9
Do you
recall?
10
11
A.
Sometime in the fall of 2013.
12
Q.
Okay.
Did you identify any potential
13
violations of the law that required
14
investigation that were related to Enterprise
15
Electronics Corporation?
16
MR. BAXLEY:
Your Honor, we --
17
we object.
His identification -- he
18
is -- he is not an expert.
19
the Judge's job and the jury's job,
20
not his, to identify violations of
21
the law.
22
MR. HART:
23
THE COURT:
24
MR. HART:
25
THE COURT:
That's
Your -Overruled, --- Honor --- if it falls
DOCUMENT 150
EXHIBIT E
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STATE oF ALABAMA
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OFFIcE oF THE ATTonNeY GENERAL
5OI }YASHINGTON AVENUE
P.O.
BOX300t52
MONTGOMERY AL
36t3(>('I52
t3341242-7300
March 17,2015
W.AGO.AUEAMA.GOV
J. Mark White, Esq.
White Arnold & Dowd P.C.
2025 Third Avenue North, Suite 500
Birmingham, AL 35203
VIA EMAIL AND U.S. MAIL
Re: State of Alabama v. Michael Gregory Hubbord, Circuit Court of Lee County
Dear Mark:
I am in receipt of your filing entitled, "Motion to Compel Brady Production"
filed on March 5,2015. Based on your filing, it appears thatyou are having some
difficulty opening/accessing some of the documents in the State's production. We
are more than happy to work with you to resolve any technical issues regarding our
production. To that end, please write to me with dates/times when we can meet and
confer telephonically on these issues. It probably makes sense for our technical
people to be involved in these discussions.
Also, we would like to point out that our production includes documents
obtained by the State from third parties, some of which were not accessible by the
State due to software or other technical reasons. Rather than withhold these
documents from you, we produced them to allow you the same access to the
materials as the State. That is, with the exception of some emails, which were
converted to PDF format in order to bates label them, you received the materials
from the State in the manner in which it received them from the third party.
To be clear, if the State provided you with a set of emails from a third PartY,
then none of those emails were withheld or omitted from the State's production.
Although this would include some obviously irrelevant or "spam" emails, these
were included in the State's production to ensure that you were able to review the
same materials which the State reviewed.
DOCUMENT 150
We assumed you preferred to review all of the materials for yourself to
determine what is and what is not relevant. It appears from your filing that you
believe this was done to pad or lard up the State's production. That is not true. We
gave you what we got because we wanted you to be able to review third party
productions in the same or substantially similar manner in which they were
reviewed by the State.
Also, in my experience, as I'm sure is yours, lawyers often engage in a
dialogue to work to resolve any discovery issues before involving the court,
especially where those issues relate to technical production matters. We did not
receive any communications from you regarding discovery issues prior to you
filing your Motion to Compel.
In view of the above, we would like to work with you on these technical
issues before responding to your Motion to Compel. I am hopeful that we can
resolve these matters prior to the scheduled oral argument on all pending motions
before the Court on April 15th.
Sincerely,
ilwv'/"(
W. Van Davis
Cc:
Miles M. Hart
Michael B. Duffy
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Duffy, Michael
From:
Sent:
To:
Cc:
Subject:
Linda G. Flippo [[email protected]]
Tuesday, April 07, 2015 8:33 PM
Duffy, Michael
Augusta S. Dowd
Hubbard - Follow Up to Meet and Confer
Mike,
As we agreed in follow our meet and confer this afternoon, I am following up with you directly to
provide Bates numbers for a sampling of the types of documents in the State’s production that we are
unable to access. As we stated on the call, this is intended as a sampling and does not cure the
global issues regarding the State’s lack of compliance with our ESI specifications, including but not
limited to our request for the production of searchable records with accompanying load files.
Although you were provided with our ESI specifications on January 21st, at no time prior to the State’s
production on February 17th, did you raise any issues with those specifications. Van Davis, in his
March 31, 2015 letter to Mark White, represented that “[t]he State has no better way to search those
documents than [we] do” yet what we heard today in your refusal to answer the simple question of
whether the State has these records in a searchable format, is contrary to what Van represented.
In addition to addressing some of the access issues regarding the records that were produced, we
also request that you provide information regarding records that were not produced. In looking at the
“Item” numbers of the documents you produced, and assuming that 128 is your highest “Item”
number, we note approximately 48 missing “Item” numbers. Specifically, there are no “Items”
numbered 3, 14-16, 19-25, 34-36, 40, 42, 50, 60, 62, 63, 69, 70, 74, 76, 78, 80, 81, 85-88, 93, 95-97,
100-102, or 106-115. Please advise as to what documents correspond to the missing “Item”
numbers.
We look forward to these issues being resolved before or during the April 15th hearing.
In the meantime, please check your electronic versions of the following documents and advise
whether you have the capability of reviewing these records through electronic means:
Path:
E-Mail from Summation-AG00000001-AG2284158\#2 – Republican Party AG841247-AG2161782 –
Part 1 of 2\AG841247-AG1033626\Items which would not convert to PDF
Bates numbers:
Chrome HTML files: AG0920071, 920677, 928940 and 1024247
“File” files: AG0842742 through AG0967926 where the type of file listed in the Properties says “File”
Path:
E-Mail from Summation-AG00000001-AG2284158\#41 – IMG AG457963-AG505750\Objects which
would not convert to PDF
1
DOCUMENT 150
Bates numbers:
E-mail files: AG0460594 through 505424 where the type of file listed in the Properties says “E-mail
Message (.eml).”
“File” files: AG0476274, 476724, 476726, 477032, 477038, 478044 and 485523 where the type of
file listed in Properties says “File”
Path:
E-Mail from Summation-AG00000001-AG2284158\#26 Department of Commerce AG190217AG203739\Objects which would not convert to PDF
Bates numbers:
PowerPoint files: AG0195859, 198311, 198312, 198441
Path:
E-Mail from Summation-AG00000001-AG2284158\#52 and #53 Ferrell Patrick AG158797AG172109\Items which could not be converted to pdf
Bates numbers:
Chrome files: AG0159376, 166349
Path:
E-Mail from Summation-AG00000001-AG2284158\#90 – Bob Riley and Associates AG505751AG841246\Object which would not convert to PDF
Bates numbers:
“File” files: AG597618 through 841224 where the type of file listed in the Properties says “File”
“Memo” files: AG0616101, 616103 and 616107
Thank you.
Linda
---------------------------Linda G. Flippo
Attorney
2025 Third Avenue North, Suite 500
Birmingham, AL 35203
P 205-323-1888 F 205-323-8907
E [email protected]
2
DOCUMENT 150
Right-click
here to
download
pictures. To
help protect
y our priv acy ,
Outlo ok
prev ented
auto matic
download of
this pictu re
from the
In ternet.
White A rnold
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