b coleman

1

IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA

v.

MICHAEL GREGORY HUBBARD,Defendant.

))))))

Case No. CC 2014-565

______________________________________________________________________________

HUBBARD’S RENEWED MOTION TO DISMISSFOR PROSECUTORIAL MISCONDUCT AND FRAUD

______________________________________________________________________________

Michael G. Hubbard (“Hubbard”), by and through the undersigned counsel, has repeatedly

complained to this Court of the prosecution’s misconduct in “leaking” confidential and privileged

information to the media and the public in an effort to prejudice and destroy Hubbard. See, most

recently, Hubbard’s Motion for Deposition of Prosecutor Miles Matthew Hart, Jan. 6, 2016, Doc.

550. Those leaks have included information which falls within the sanctity of Alabama’s Grand

Jury Secrecy Act. Most recently, this Court felt compelled to enter a “gag order” in response to

the prosecution’s misconduct in feeding a sealed pleading to a news blogger. See Order, Jan. 8,

2016, Doc. 556.

In response to Hubbard’s allegations, the prosecutors, feigning a posture of surprise and

offense that anyone would even dare question their integrity, have vehemently denied any

impropriety and have condemned Hubbard for making such “scurrilous” accusations.

Yet, the attached Exhibit “A,” affidavit of Baron Coleman, positively and directly refutes

the prosecutors’ denials and demonstrates that not only has prosecutor Matt Hart engaged in gross

misconduct but also that Mr. Hart has perpetrated a deliberate and blatant fraud upon this Court.

Indeed, the affidavit provides, at the very least, probable cause to believe that Mr. Hart has

ELECTRONICALLY FILED2/2/2016 4:28 PM

43-CC-2014-000565.00CIRCUIT COURT OF

LEE COUNTY, ALABAMAMARY B. ROBERSON, CLERK

DOCUMENT 587

2

committed the felony of violating Alabama’s Grand Jury Secrecy Act. Ala. Code § 12-16-225.1

The affidavit constitutes direct evidence of the facts that:

• Hart disclosed secret grand jury information to Mr. Coleman including the testimony of witnesses who testified before the Lee County Special Grand Jury.

• Hart provided Coleman with information that Hart intended Coleman to use against Hubbard in a political campaign.

• Hart provided grand jury information to Coleman knowing that Coleman would disseminate that information in the community in order to prejudice Hubbard in his criminal case and convince the public of Hubbard’s guilt.

• Hart threatened to call Coleman as a witness before the grand jury where it would be “painful.”

• Hart threatened Coleman and told him it would be “a fucking mess” if Coleman revealed that he had a pipeline of information out of the Attorney General’s office.

• In addition, Hart attempted to intimidate Coleman into not revealing additional information concerning Hart’s use of the Spotswood law firm in drafting pleadings in Hubbard’s criminal case.

Based on the retaliation the Attorney General’s Office has exercised against Sonny Reagan, Gene

Sisson, and other former employees of that Office and “due to the obvious hostility” his affidavit

reflects, Coleman’s fear of harm and retaliation is understandable and reasonable.

To the extent other members of the Attorney General’s office have been aware of Mr.

Hart’s misconduct, their silence and denials in Court and in the State’s pleadings will offer no safe

refuge, for every attorney owes an ethical and professional obligation of candor toward the

tribunal, Rule 3.3, Ala. R. Prof. Cond., and additional obligations to maintain the integrity of the

legal profession and report professional misconduct. Rule 8.3, Ala. R. Prof. Cond.

1 Ala. Code § 12-16-225 provides “Any person violating the provisions of Sections 12-16-215through 12-16-218 of this division [Secret Grand Jury Proceedings], shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than three years, or fined not more than $5,000, or both.”

DOCUMENT 587

3

For these reasons, Hubbard requests that this Court conduct an evidentiary hearing at which

Mr. Hart is placed under oath, and the defense is allowed to examine him on the witness stand in

addition to other witnesses the defense might call. Hubbard asserts that even without such an

evidentiary hearing there is substantial evidence of prosecutorial misconduct, violations of Ala.

Code § 12-16-2015 et. seq., and the Alabama Rules of Professional Conduct. Therefore, this Court

should dismiss this prosecution with prejudice in the interest of justice and in order to deter similar

prosecutorial misconduct in the future.

It is, however, within a district court's inherent power to dismiss an indictment on grounds of prosecutorial misconduct. Jordan, 316 F.3d at 1248–49. Although dismissal of an indictment for prosecutorial misconduct is an extreme sanction, it is a sanction within a court's discretion if sufficiently egregious prosecutorial misconduct has occurred and has prejudiced the defendant. See id. at 1249; United States v. O'Keefe, 825 F.2d 314, 318 (11th Cir.1987).

United States v. Lyons, 352 F. Supp. 2d 1231, 1251 (M.D. Fla. 2004). “A court has the inherent

supervisory power to dismiss an indictment or suppress evidence, if prosecutors are found to have

otherwise engaged in misconduct that must be discouraged or punished.” United States v.

Trombetta, No. CRIM. 13-227-01, 2015 WL 4406426, at *36 (W.D. Pa. July 20, 2015).

Respectfully submitted this 2nd day of February, 2016.

/s/ R. Lance BellR. Lance Bell (BEL044)Trussell Funderburg Rea & Bell, P.C.1905 1st Ave SouthPell City, AL 35125-1611Phone: (205) 338-7273Fax: (205) 338-6094Email: [email protected]

/s/ Phillip E. Adams, Jr. Phillip E. Adams, Jr. (ADA025) Blake L. Oliver (OLI020) Adams White Oliver Short & Forbus, LLP P. O. box 2069 Opelika, Alabama 36803-2069Phone: (334) 745-6466

DOCUMENT 587

4

Fax: (334) 749-3238Email: [email protected] [email protected]

Attorneys for Michael Gregory Hubbard

DOCUMENT 587

5

CERTIFICATE OF SERVICE

I hereby certify that I have on this 2nd day of February, 2016, electronically filed the foregoing with the Clerk of the Court using the AlaFile system which will send notification of such filing to the following counsel of record at their e-mail addresses registered with AlaFile.

William Van Davis Law Office of W. Van Davis 423 23rd St North Pell City, AL 35125-1740Email: [email protected]

M. Matthew Hart Michael B. Duffy Andrew Brasher Office of the Attorney General PO Box 300152 Montgomery, AL 36130-0152 Email: [email protected]

[email protected] [email protected]

/s/ R. Lance BellOf Counsel

DOCUMENT 587

b coleman

Documents