DOCUMENT 601

ELECTRONICALLY FILED
2/11/2016 3:01 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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)
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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

STATES RESPONSE TO HUBBARDS

RENEWED MOTION TO DISMISS ON THEORY OF PROSECUTORIAL
MISCONDUCT AND FRAUD
Having repeatedly failed to offer any credible evidence of prosecutorial
misconduct, defendant Michael Gregory Hubbard (Hubbard) offers the affidavit
of Baron Coleman, a now-former confidential informant for the State, in a
desperate last minute attempt to avoid a trial on the 23 felony ethics violations that
the Lee County Special Grand Jury indicted him on over a year ago.
The Coleman affidavit is misleading because it omits the key fact that
Coleman has been a confidential informant for the State since the fall of 2012,
longer than he has been a daily radio show host or political consultant for Sandy
Toomer. As a consequence of this omission, the affidavit also fails to acknowledge
that the conversations that Deputy Attorney General Matt Hart had with Coleman
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were all lawful and appropriate because they were all conducted in the context of
Colemans status as an informant. The conversations were also productive, as
shown in Exhibit A, which the State is submitting to the Court ex parte and in
camera. Finally, unless the assertions in Colemans affidavit are read in light of his
status as a confidential informant, those assertions are irreconcilable with the
arguments and representations Coleman made as an officer of this Court at the
October 20 hearing when he orally moved for sanctions against the defense for
issuing a frivolous subpoena to him since he kn[e]w nothing about the grand
jury. Oct. 20 Hearing Trans. at 3:21 4:8.
Introduction
Hubbard has filed serial motions to dismiss for 14 months now. His theories
have ranged from improper grand jury empanelment to the grand jury exceeding its
jurisdiction to the expiration of the grand jurys term to selective prosecution to the
unconstitutionality of the Alabama Ethics Act. This Court has properly denied
nearly all of Hubbards motions.
Indeed, just hours after the Court entered an order denying three of
Hubbards motions to dismiss, Hubbard filed his Renewed Motion to Dismiss for
Prosecutorial Misconduct and Fraud (Renewed Motion) (Doc. 587). Hubbards
Renewed Motion is based entirely on the allegations contained in the Coleman
affidavit which was attached as Exhibit A to the Renewed Motion.
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Colemans affidavit is misleading because it omits the highly material fact

that Coleman had been an unpaid confidential informant for the State for over three
years before he signed the affidavit filed by the defense. Colemans services as an
informant predate his positions as daily radio show host and political consultant for
Toomer, and all of the conversations that Hart had with Coleman were lawful and
appropriate because they were related to Colemans service as an informant who
provided information to the State. The purpose of those conversations, the vast
majority of which were initiated by Coleman, was for Coleman to convey
information to the State, not for Hart to convey information to Coleman. Further,
as set forth in the attached affidavit of Jack Campbell who currently co-hosts a
daily radio show with Coleman and is a partner with Coleman in a political
consulting business, Coleman previously told Campbell that Hart did not reveal
any grand jury information to him.
Setting aside the misleading nature of Colemans affidavit, even if it were
true, it would be insufficient to support dismissal of the indictment. The Coleman
affidavit does not allege that Hart leaked grand jury information or that he violated
the Alabama Rules of Professional Conduct. Instead, it purports to describe
instances of conduct that Coleman says may or may not be improper. As shown by
the Campbell affidavit, when those communications are placed in the context of
Coleman being a confidential informant, it becomes clear that Colemans affidavit
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is misleading. To be sure, Colemans affidavit is carefully crafted to imply

prosecutorial misconduct without actually alleging that Hart violated any laws or
rules. Regardless, neither Colemans affidavit nor the Renewed Motion even
attempts to explain how any of the conduct described could have impacted the
grand jurys decision to indict which is required before dismissal.
Argument
I.

Baron Coleman has been a confidential informant for the

State since the fall of 2012, a fact which demonstrates that
Harts conversations with him were lawful and appropriate,
but was omitted by Coleman in his affidavit.

Baron Coleman has been an unpaid confidential informant for the State since
the fall of 2012. His services as a confidential informant pre-date his political
consulting business and his activities as a member of the media. Over the course of
his three years as a confidential informant, Coleman periodically communicated
with Hart in order to convey information to the State. See Ex. B, Campbell Aff. at
5-6. In the course of those communications, the vast majority of which were
initiated by Coleman, Hart would sometimes inquire about Colemans knowledge
regarding certain topics or might ask questions of Coleman in order to get further
details about the information that Coleman was conveying. See id. at 6. The
information that Coleman provided to Hart proved valuable in both the Hubbard
investigation that led to this case and in other investigations, as shown in Exhibit A
which the State is submitting ex parte and in camera to the Court for its review.
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The purpose of these conversations was always for Coleman to convey

information to the State and/or for the State to seek information from Coleman for
law enforcement purposes. None of the conversations was for the purpose of Hart
conveying protected grand jury information to Coleman. In fact, Coleman does not
allege that Hart gave him protected grand jury information, stating instead that he
received information [Coleman] concluded was discussed in the Lee County
Special Grand Jury. Coleman Aff. at 5. In other words, Colemans affidavit
reflects that Hart did not provide him with grand jury information, only that
Coleman concluded certain unspecified information from his conversations with
Hart had gone before the grand jury.
Jack Campbells affidavit clarifies what Coleman meant when he stated he
concluded he received information discussed in the grand jury. As Campbell
explains, Coleman was the States unpaid confidential informant and, in that
capacity, had conversations with Hart about the Hubbard case and provided
information to Hart about Hubbard. Campbell Aff. at 5-6. But Coleman told
Campbell on several occasions that Hart did not tell Coleman any secret grand
jury information and that Hart did not otherwise unlawfully provide Coleman with
information. Id. at 6. Instead, Coleman explained to Campbell that [Coleman]
could sometimes tell from Harts line of questioning who might have been brought
before the Lee County Special Grand Jury to testify, but that Hart never told or
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confirmed to Coleman the identity of any witnesses that testified. Id. at 7.

Coleman also told Campbell that Hart never told him what was going on with the
grand jury. Id.; see also March 29, 2015 episode of The Voice of Alabama
Politics, available at https://www.youtube.com/watch?v=801zsYBbDl0, at 19:4050 (Coleman, referencing filings by Hubbard: Now, my name was in some of the
filings as [a person] supposedly receiving leaks. No leaks over here.). In other
words, Colemans conclusions that information discussed in the grand jury was
included in conversations he had with Hart were nothing more than unconfirmed
speculation he derived from his informant communications with Hart.
Campbells affidavit, along with the affidavits of Sandy Toomer and John
Rice, also refutes Colemans allegation that he used information from Hart to
create a whisper campaign against Hubbard in Lee County during the 2010
elections. Campbell Aff. at 10. Instead, Campbell directly states that no secret
grand jury information or otherwise unlawful information was used in a whisper
campaign in Lee County. Although the campaign did use certain information
about Hubbards activities, none of that information came from Hart or the grand
jury. Id. Likewise, Sandy Toomer, the candidate for whom Coleman worked in
the 2014 Lee County Republican primary election, was also unaware of any
whisper campaign against Hubbard, and did not direct anyone to use information
about the Hubbard investigation in his campaign. Affidavit of Sandy Toomer,
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attached hereto as Exh. C, at 7; see also Affidavit of John Rice, attached hereto
as Exh. D, at 7-8 (stating he did not know of any whisper campaign using
information from Hart about the grand jury investigation, and he was unaware of
Coleman sharing information from the grand jury to anyone involved in the
Toomer campaign).
Further, Campbells affidavit explains how Coleman got the information that
he claims he used in the whisper campaign. Coleman claimed that the
information he used included the identities of people testifying in front of the
Grand Jury, assurances that the investigation would result in the indictment of
Mike Hubbard, and assurances that the Attorney Generals office had sufficient
information to counter any perceived prejudice or trouble inside the office.
Coleman Aff. at 8. With respect to the identity of witnesses, Campbell recounted
how he and Coleman walked around the parking lot of the Lee County Justice
Center looking at license plates. Campbell Aff. at 11; see also Rice Aff., at 9
(recounting that Rice went to Justice Center parking lot three times to try to
identify grand jury witnesses, and that Coleman accompanied Rice on one of these
trips). If Coleman were being told who was testifying, he obviously would have no
need to snoop in the parking lot.
With respect to the assurance that Hubbard would be indicted and that the
Attorney Generals Office could counter any prejudice or trouble in the office,
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since Coleman, as a confidential informant, was supplying the State with

information against Hubbard, he could easily speculate based on the information
that he was providing to the State that Hubbard would be indicted or that internal
office issues could be handled. Such speculation would also be consistent with
Coleman drawing speculative conclusions based on his conversations with Hart.
Campbell Aff. at 7. There is also nothing improper with assuring a confidential
informant, like Coleman, that the State had the resources and wherewithal to
perform their law enforcement duties, including defending against false
accusations of purported misconduct. In any event, the communications between
Hart and Coleman were not unlawful or improper under the circumstances.
Finally, with respect to Colemans affidavit, his status as a confidential
informant also explains why Hart contacted him after Hart learned that the defense
had subpoenaed him in the fall of 2015. Coleman Aff. at 12. The reason Hart
contacted Coleman was to discuss whether the State and/or Coleman would be
asserting the confidential informant privilege in response to the defenses
subpoena. As Rule of Evidence 509 provides, the identity of a person who
provided information relating to or assisting in an investigation of a possible
violation of a law is privileged, and the State may refuse to disclose it. Ala. R.
Evid. 509(a); see also, e.g., Franks v. State, 651 So. 2d 1114, 111718 (Ala. Crim.
App. 1994) (discussing the prosecutions privilege to withhold the identity of an
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informant). Since Coleman as a confidential informant had provided information

relevant to the investigation of Hubbard and other matters,1 he would have been
covered under this privilege and either he or the State could have moved to quash
his subpoena based upon it. Alternatively, even if Coleman was required to testify,
this privilege could also have been applicable to certain questions or lines of
inquiry. The reason Hart contacted Coleman, therefore, was for the purpose of
alerting him to this privilege and its potential applicability to his testimony.

The State takes this privilege seriously and generally refuses to waive it. But an
informant may, by his own actions, directly or indirectly disclose his identity. See Ala. R. Evid.
509, cmt. Coleman has done so here, placing his status as an informant at issue by omitting any
mention of his status in his affidavit.
To correct Colemans misleading affidavit and answer Hubbards allegations of
prosecutorial misconduct, the State has been forced to disclose Colemans identity as an
informant. But the State continues to assert privilege over the communications between Coleman
and any Attorney Generals Office staff, some of which relate to ongoing investigations and
some of which, if made public, could damage the reputations of private individuals and public
figures. To demonstrate the privileged nature of the communications, the State is providing
certain records of Colemans conversations with Hart under seal and ex parte. These records, like
all [r]ecorded information received by a public officer in confidence, sensitive personnel
records, pending criminal investigations, and records the disclosure of which would be
detrimental to the best interests of the public[,] are some of the areas which may not be subject to
public disclosure. Stone v. Consolidated Pub. Co., 404 So. 2d 678, 681 (Ala. 1981). It is in the
publics interest to keep confidential the information Coleman provided to the State. Disclosure
would threaten ongoing investigations and could damage the reputations of many people. See
May v. State, 710 So. 2d 1362, 136869 (Ala. Crim. App. 1997); see also Ala. R. Crim. P.
16.1(e) (protecting from disclosure investigative memoranda and other reports created by
prosecutors and investigators).
Further, since Hubbard has previously disclosed privileged information over the States
assertion of privilege so as to deprive the Court of jurisdiction to decide the issue,
contemporaneously herewith, the State is moving for a protective order to prevent the disclosure
of any materials or information related to communications between Hart and Coleman in
advance of the February 16 hearing.

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In sum, the allegations contained in the Coleman affidavit are misleading

unless read in the proper context of Coleman being a confidential informant for the
State. When read in that light, it becomes clear that Harts conversations with
Coleman were lawful and appropriate because they were for the law enforcement
purpose of receiving, not giving, information. It further explains why Coleman
orally moved for sanctions and attorneys fees against the defense at the October
20, 2015 hearing in this case based on his contention that the defenses subpoena to
him was frivolous because he kn[e]w nothing about the grand jury. Oct. 20
Hearing Trans. at 3:21 4:8, 4:24-25; see id. at 7:2-11 (But nothing I can testify
to is going to fall under the Nova Scotia standard under any circumstances. I dont
know anything about a grand jury. I didnt appear in front of the Lee County grand
jury. I have not talked to anyone who was a grand juror or had any effect
whatsoever on the grand jury.). The reason Coleman could make these assertions
as an officer of the court, and go so far as to move for sanctions on October 20, is
that he was a confidential informant who had communicated information to the
State but who was provided no protected information about the grand jury.

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II.

Harts conversations with Coleman about a legal services

contract on January 19, 2016, and about an alleged grand
jury leak involving Rep. Ed Henry were for the purpose of
determining if Coleman, as a confidential informant, had
been compromised.

Coleman is correct that Hart called him on January 19, 2016, eleven days
after a gag order was issued in this case. Coleman Aff. at 13. Coleman
erroneously alleges, however, that the call was for the purpose of intimidating him
from criticizing the States actions in the Hubbard case on Colemans radio show.
Id. In fact, the call was to evaluate whether he had been compromised as a
confidential informant, as turned out to be the case when he signed the affidavit
attached to Hubbards Renewed Motion less than two weeks later. The same is true
regarding the conversation described in Paragraphs 9-11 of Colemans affidavit
related to leak allegations involving Rep. Ed Henry Harts questioning of
Coleman then was to determine if Coleman could continue to be used as a
confidential informant. Accordingly, both calls were for lawful and appropriate
law enforcement purposes, not for the purpose of influencing the media.
Confidential informants are an integral component of law enforcement
because they are able to provide information to law enforcement officials that
would otherwise be unknown. Such information can result in the opening of an
investigation or be a key component of an ongoing investigation. Further, because
the informants are confidential, the informants are able to continue to gather
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information and convey it to law enforcement over time without the subject of an
investigation knowing about the informant.
The State has a strong interest in maintaining both the confidentiality and
integrity of its confidential informants. If an informant becomes unreliable or flips
to support a criminal defendant or potential criminal defendant, then the State must
assess the continued usefulness of that informant before it can utilize him or any
information that he might convey. The need to assess Colemans continued
usefulness explains both Harts January 19, 2016 call to him, as well as his
conversation with Coleman following an alleged leak involving Rep. Ed Henry.
Turning first to the January 19, 2016 call to Coleman, prior to that call,
Coleman had been a productive and verifiable informant for years. Importantly for
the present motion, his status as an informant pre-dated his position as both a daily
radio show host and a political consultant for Toomer. He had also been an active
informant who regularly provided the State with information. Before the Court
issued its gag order, the State had no reason to question whether Coleman had been
compromised.
After this Court issued the gag order, however, Coleman, on his radio show,
openly questioned the propriety of a legal services contract between the Attorney
Generals Office and an outside law firm, a contract that Hart answered questions
about before a legislative oversight committee. Colemans actions led the State to
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question whether he had been compromised as an informant since publicly

questioning the contract appeared inconsistent with his being both confidential and
productive informant for the State. Further, contemporaneously with questioning
the contract on his radio show, Coleman also emailed an Open Records request to
the Attorney Generals Office related to the contract. See Jan. 13, 2016 email from
Coleman to Mike Lewis, attached hereto as Exh. E.
Based on Colemans actions, the State had serious questions about whether
Coleman was compromised as a confidential informant. Hart therefore contacted
him on January 19, 2016, to gauge whether the States suspicions were justified.
The only reason Hart contacted Coleman was because of his status as a
confidential informant. The call was not for the purpose of influencing a member
of the media related to his coverage of this case. Coleman was free to comment as
he saw fit. Instead, the call was for the law enforcement purpose of determining
whether, in light of his comments and Open Records request, Coleman was
compromised as a confidential informant. The defenses filing of Colemans
affidavit confirms the States suspicions about Coleman and validates Harts call to
him based on those suspicions.
The same need to assess Colemans status, as well as to gather information
from him, also explains the conversation Coleman describes in Paragraphs 9-11 of
his affidavit concerning leak allegations involving Representative Ed Henry. While
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the State does not concede that Hart used the specific language Coleman attributes
to him, it does not deny that the conversation that he describes occurred. The
conversation took place in the course of the State investigating whether there was
in fact a grand jury leak as the defense had alleged because the State takes all such
allegations seriously and investigates them fully so as to protect and maintain the
integrity of its grand jury investigations.
The State, through Hart, contacted Coleman as part of its investigation into
the leak allegation because of his status as a confidential informant. Primarily, the
State wanted to assess if he had information as to whether there had been a leak
and, if there had been, who the source of the leak was. In the course of seeking this
information from Coleman, the State also wanted to assess whether he had
somehow been involved in the alleged leak (assuming one had occurred), impress
upon him how seriously it took such accusations, and emphasize the importance it
placed upon him maintaining his confidential status. While the State was not
opposed to calling Coleman before the grand jury regarding the leak allegations, to
do so would risk compromising him as a confidential informant which it wanted to
avoid doing if at all possible.

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III.

Colemans affidavit does not even facially allege a violation

of the Alabama Grand Jury Secrecy Act or the Alabama
Rules of Professional Conduct.

As explained in the preceding sections and further illuminated in Campbells

affidavit, Coleman was a confidential informant for the State for years before he
signed the affidavit attached to Hubbards Renewed Motion. While the affidavits
omission of Colemans status as a confidential informant makes it misleading, the
affidavit is very carefully worded and emphasizes that Coleman does not actually
allege that the events he describes constitute violations of either the Alabama
Grand Jury Secrecy Act or the Alabama Rules of Professional Conduct. Coleman
Aff. at 5, 15.
Consistent with Colemans refusal to allege any violations of the Grand Jury
Secrecy Act in his affidavit, Jack Wilson, a Special Agent with the Alabama Law
Enforcement Agency (ALEA), concluded after interviewing Coleman about the
allegations described in the Coleman affidavit, that Coleman had not alleged any
violation of criminal law. Affidavit of Jack Wilson, attached as Exh. F, at 4.
Accordingly, following the interview with Coleman, Wilson recommended that
no formal investigation be opened into the matter. Id. In accordance with
Wilsons recommendation, both Wilson and Secretary Spencer Collier, Alabamas
Secretary of Law Enforcement who is the head of ALEA, confirm that ALEA is
not investigating Mr. Hart or any other related matter concerning the Lee County
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Special Grand Jury. Affidavit of Secretary Collier, attached as Exh. G, at 6;

Wilson Aff. at 6. Secretary Collier also stated that Coleman initiated the contact
that led to the Wilson interview, (Collier Aff. at 3), which is inconsistent with
Colemans statement that law enforcement contacted him. Coleman Aff. at 14.
Finally, both Secretary Collier and Wilson affirm that Coleman never disclosed
that he had acted as a confidential informant for the Attorney Generals Office.
Collier Aff. at 5; Wilson Aff. at 5.
Clearly, given Colemans carefully worded affidavit and the fact that ALEA
declined to even investigate Colemans allegations, those allegations are
insufficient to support the accusations in the Renewed Motion. The allegations do
not show any misconduct, much less gross misconduct, nor do they show any
deliberate and blatant fraud upon this Court, or probable cause to believe that
Hart committed a felony violation of the Grand Jury Secrecy Act.2 In other words,
consistent with his past baseless motions to dismiss and other filings, most of
which this Court has already properly denied, Hubbards Renewed Motion is
composed of hyperbolic rhetoric that finds no support in law or fact. To the extent

Indeed, the plain language of the Grand Jury Secrecy Act also confirms that none of
Colemans allegations constitute a violation of that Act. Specifically, the two operative
provisions of the Act, Section 12-16-215 and 216, do not apply to prosecutors. While both of
those sections list people prohibited from disclosing certain information about grand juror
activities and evidence received by grand juries, prosecutors are conspicuously absent from both
lists.
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it could even be construed as legal argument, it is due to be denied for the reasons
set forth in the section that follows.
IV.

Hubbards Renewed Motion is due to be denied under any theory

of prosecutorial misconduct because it must show misconduct and
prejudice, but fails to show either.

As this Court is well aware, in order to be entitled to dismissal of the

indictment for prosecutorial misconduct, Hubbard must prove not only that
misconduct occurred, but also that the misconduct substantially influenced the
grand jurys decision to indict. Hubbards Renewed Motion shows neither and
therefore is due to be denied.
A. Hubbard has failed to show misconduct.
In his Renewed Motion, Hubbard asserts that alleged leaking of
confidential and privileged information to the media and the public amounts to
prosecutorial misconduct and warrants dismissal of the indictment.

Renewed

Motion at 1, 3.
As a preliminary matter, there is no evidence that any secret grand jury
material was disclosed in an improper manner to Coleman or anyone else. The
sealed exhibit that was mistakenly sent to a reporter contained only names of grand
jury witnesses the State had already disclosed to the defense; as the State has
explained in prior briefing, its position is that such information is not prohibited
from disclosure by law.

This Court has entered an order prohibiting such

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disclosure, however, and the State has obeyed that order, with the exception of the
referenced mistake. In any event, this Court addressed that mistake and the
defenses extrajudicial statements casting aspersions on the prosecution at every
turn throughout Hubbards criminal proceedings by entering its gag order
enjoining both sides.
While Hubbards Motion asserts that testimony of grand jury witnesses was
disclosed, the Coleman affidavit does not make that assertion.

Hubbards

conclusory allegation that Hart violated the Grand Jury Secrecy Act is likewise
unsupported by the Coleman affidavit, and fails for the reasons set forth in the
other sections of this brief.
B. Hubbard has failed to show prejudice.
Even if Hubbard had shown misconduct, the Court would lack the power to
dismiss the indictment, because Hubbard has failed to show prejudice. As this
Court knows from all of the prior briefing, misconduct and prejudice are the two
essential elements of a prosecutorial misconduct claim. See, e.g., United States v.
Armstrong, 517 U.S. 456, 468 (1996) (the essential elements of a selectiveprosecution claim are discriminatory intent and discriminatory effect); Bank of
Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (a district court may not
dismiss an indictment for errors in grand jury proceedings unless such errors
prejudiced the defendants.).
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Hubbard asserts that the Court has an inherent power to dismiss the
indictment, and that it may do so in order to deter prosecutorial misconduct in the
future. Renewed Motion at 3. Thus, Hubbard suggests that he need not show
prejudice. As a matter of law, Hubbard is incorrect.
a. Hubbards own cited cases demonstrate that prejudice is an
essential element of a prosecutorial misconduct claim, and that
dismissal is unwarranted here.
In regard to Hubbards cited federal cases addressing the courts inherent
power to dismiss an indictment due to misconduct, and his suggestion that
prejudice is not required, he is incorrect and those cases do not support him.
Perhaps because Alabamas appellate courts have never upheld dismissal
of an indictment on prosecutorial misconduct grounds, Hubbard cites two
federal district court cases. Neither supports his request for dismissal. In the first
case he cites, United States v. Lyons, 352 F. Supp. 2d 1231 (M.D. Fla. 2004), the
court dismissed the indictment after finding misconduct in the form of numerous
and flagrant Brady and Giglio violations and prejudice in the form of the
defendant already serving the maximum sentence the government called for.
Id. at 1233, 1251-52. The court specifically noted that normally even for
numerous and flagrant Brady and Giglio violations the remedy would be a new
trial, not dismissal. Id. at 1250-51.

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In addition to the fact that the defendant had already served the maximum
sentence, the court noted that the governments case was weighted on suspect
evidentiary foundations. Id. at 1252. That is completely unlike the States case
here which is based on a mountain of credible evidence, much of which comes
directly from Hubbard himself in the form of inculpatory emails and memoranda
demonstrating his violations of Alabamas Ethics Law.
In the second case Hubbard cites, United States v. Trombetta, No. CRIM.
13-227-01, 2015 WL 4406426 (W.D. Pa. July 20, 2015), the court likewise made
clear that prejudice is an essential element of a prosecutorial misconduct claim,
and in a subsequent opinion, the court rejected the defendants dismissal request
and even canceled the evidentiary hearing because there was no showing
of prejudice. Id. at *1, 16, 36 (outlining actual and substantial prejudice as an
essential element); United States v. Trombetta, No. CR 13-227-01, 2015 WL
7289407, at *1 (W.D. Pa. Nov. 16, 2015) (canceling evidentiary hearing and
denying motion).
b. Alabama and federal case law demonstrates that prejudice is
an essential element of a prosecutorial misconduct claim
whether under a theory of vindictive prosecution or
animus and that dismissal is unwarranted here.
Not surprisingly, given that Hubbards own cited authority supports the
States position that prejudice is required, a review of Alabama and federal case

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law establishes that the indictment may not be dismissed on grounds of vindictive
prosecution or animus, because Hubbard has failed to show prejudice.
Hubbard has asserted that the Court should dismiss the indictment on
grounds of selective and vindictive prosecution. The Court has denied Hubbards
request on selective prosecution grounds, but has reserved judgment on vindictive
prosecution. February 2, 2016 Order at 1 n.1, 3-4.
The Alabama Court of Criminal Appeals has recognized that a defendant can
bring a claim for vindictive prosecution. See Turner v. State, 924 So. 2d 737,
750 (Ala. Crim. App. 2002) (citing Hunt v. State, 642 So.2d 999, 1030 (Ala. Crim.
App. 1993), aff'd, 642 So.2d 1060 (Ala. 1994); United States v. Goodwin, 457 U.S.
368 (1982)). But the vindictiveness that court recognized was using the charging
process in a way that penalizes the exercise of constitutional or statutory rights.
Id. (internal quote marks omitted). The classic example is when the prosecutor
brings new charges after the defendant files a motion to dismiss or prevails on
appeal, but even then the prosecutor is entitled to show a lack of actual
vindictiveness. United States v. Barner, 441 F.3d 1310, 1317 n.6 (11th Cir. 2006).
When, as here, there is no presumption of vindictiveness, the defendant must prove
actual vindictiveness to establish misconduct. Id. at 1317.
There is no evidence or even a well-pleaded claim that the State used the
charging process to penalize Hubbard for exercising his constitutional or statutory
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rights. Instead, just as the Ethics Commission found in Hunt, here the grand jury
found probable cause to believe that [Hubbard] had violated the terms of the
Ethics Act and accordingly indicted him. 642 So. 2d at 1031.
Another way to describe the elements of prosecutorial vindictiveness is
animus plus causation. Barner, 441 F.3d at 1322 (citing United States v. Wilson,
262 F.3d 305, 314 (4th Cir. 2001)). On that basis, a vindictive prosecution claim
may be brought on a theory of animus. To establish such a claim, the defendant
must show that (1) the prosecutor acted with genuine animus toward the
defendant, and (2) the defendant would not have been prosecuted but for that
animus. Baker v. Thomas, No. CIV.A. 206CV201-MHT, 2008 WL 2225753, at
*8 (M.D. Ala. May 27, 2008) (quoting United States v. Goodwin, 457 U.S. 368,
372 (1982)). There is no evidence here that those prosecuting Hubbard acted with
genuine animus toward him, or that he would not have been prosecuted but for any
such animus.
C. A violation of the ethical rules could theoretically amount to
prosecutorial misconduct, but only if prejudice is shown, which
Hubbard has not done.
The Alabama Supreme Court has considered and denied a request for
dismissal on grounds that the ethical rules were violated. In Ex parte Gonzalez,
686 So. 2d 204, 206-07 (Ala. 1996), the court denied the dismissal request because
the defendant failed to cite a specific rule and because the federal case the
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defendant cited was not binding and in any event was distinguishable as the
defendant in the case at bar failed to show prejudice.
The Alabama Court of Criminal Appeals has recognized the possibility that
prosecutorial misconduct in the form of a violation of the ethical rules could
amount to denial of a fair trial, but prejudice must be shown. In Hall v. State, 820
So. 2d 113, 136 (Ala. Crim. App. 1999) aff'd sub nom. Ex parte Hall, 820 So. 2d
152 (Ala. 2001), the defendant argued he was denied a fair trial because of the
prosecutors allegedly improper (under Ala. R. Prof. Cond. 3.6) and highly
prejudicial extrajudicial statements to the media that the defendant had a prior
record, that satanic symbols were involved in the crime, and that if the defendant
was lucky to survive certain injuries the prosecutor would seek the death penalty.
The court held there was no violation of the defendants constitutional rights,
because voir dire was extensive and [e]ach prospective juror indicated that he
or she could base his or her decision on the evidence presented at trial. Id. (citing
Whisenhant v. State, 555 So.2d 219, 224-25 (Ala. Crim. App. 1988), aff'd, 555
So.2d 235 (Ala. 1989), cert. denied, 496 U.S. 943 (1990) (holding no abuse of
discretion for trial court to deny motion for change of venue in light of the lack of
prejudicial effects of the news conference in question as evidenced by trial
courts polling of prospective jurors prior to jury selection and excusing those who
indicated they could not be fair and impartial)); see also Hunt, 642 So. 2d at 102923

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32 (rejecting Hunts claim that the Attorney General violated the Rules of
Professional Conduct when he openly generated prejudicial [pre-trial] publicity
against Guy Hunt in the media because the information disseminated was highly
relevant to the charges.).
Federal courts that have countenanced such a claim likewise require a
showing of prejudice. See, e.g., United States v. Jackson, 22 F. Supp. 3d 636, 64146 (E.D. La. 2014) (denying motion to dismiss based on alleged prosecutorial
misconduct and pretrial publicity due to prosecutor posting comments on news
website, because actual prejudice must be shown for dismissal and there is no
indication that any of the comments biased the six Grand Juries involved in the
investigation, or particularly the one that actually returned the indictment in this
case.); United States v. McDade, No. CRIM. A. 92-249, 1992 WL 187036, at *4
(E.D. Pa. July 30, 1992) (even assuming conflict of interest or appearance of
impropriety, denying motion to dismiss because [e]ven when courts find that a
prosecutor has violated ethical rules, they may not dismiss the indictment unless
the defendant can show that the misconduct amounted to more than harmless error,
that it substantially influenced the jurys decision to indict.) (citing Bank of Nova
Scotia v. United States, 487 U.S. 250, 256 (1988); United States v. Birdman, 602
F.2d 547, 557 (3d Cir. 1979); United States v. Riccobene, 451 F.2d 586 (3d Cir.
1971); United States v. Bruzgo, 373 F.2d 383, 384 (3d Cir. 1967)); id. at *4
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(When an abundance of competent evidence supports the indictment and there

has been no material effect on the grand jurys decision to indict, the defendant has
not met his high burden of proving prejudice.) (quoting Riccobene, 451 F.2d at
587).
The only ethical rules cited in Hubbards Motion are 3.3, regarding candor
toward the tribunal, and 8.3, regarding the reporting of misconduct. Hubbard
makes only conclusory and circular arguments, and fails to show that either rule
has been violated. Misreading and misstating the Coleman affidavit, Hubbard
asserts that misconduct has occurred and concludes in circular fashion that the
prosecutors have failed to be candid with the Court regarding that assumed (but
unproven) misconduct by failing to report that assumed (but unproven)
misconduct. Hubbard certainly has not shown, or even attempted to show, that any
such assumed misconduct affected the grand jurys decision to indict or that he will
be unable to receive a fair trial due to any such assumed misconduct.
D. Prejudice means unfair or unlawful prejudice that is
incurable through means other than dismissal, which Hubbard has
not shown.
It goes without saying that disclosure of merely unfavorable information is
not the kind of prejudice that must be shown to prevail on a prosecutorial
misconduct claim. As the Hunt court put it: The question in this case is not
whether the actions of the attorney general have prejudiced Hunt, but whether
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those actions have unfairly or unlawfully prejudiced Hunt. We find that they have
not. 642 So. 2d at 1030.
As set forth in the cases above, if the prejudice can be cured such as
through voir dire procedures or change of venue dismissal is not an option
available to the Court. The prejudice Hubbard suggests (but fails to demonstrate)
is not the kind of prejudice that warrants dismissal.
V.

This Court should require the defense to come forward with legal
precedent authorizing the taking of testimony from a prosecutor
pre-trial before requiring any prosecutor to testify as a witness.

At bottom, the Renewed Motion is yet another ploy to force Hart to testify
so that the defense may then move to disqualify him from the case. The court has
previously instructed the defense that if it wanted a prosecutors testimony, it
would need to cite a case authorizing that testimony. Despite numerous
opportunities to do so, the defense has never cited such a case. Instead, in the
Renewed Motion, the defense has submitted a highly misleading affidavit from a
former confidential informant for the State to try to convince this Court to order
Harts testimony. The defense should not be allowed to use such tactics to
essentially pick its own prosecutor for this case.
The State submits that the sworn testimony in the Coleman, Campbell,
Toomer, Rice, Collier, and Wilson affidavits is sufficient so that no further
evidence need be received before the Court denies the defenses motion. The
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evidence before the Court demonstrates that the defense is, yet again, distorting the
facts, misstating the law, and grasping at straws for the purpose of avoiding a trial
on the merits and that the Renewed Motion is due to be denied.
Conclusion
The State respectfully requests that this Court deny Hubbards Renewed
Motion to Dismiss for Prosecutorial Misconduct and Fraud.
Respectfully submitted this 11th day of February 2016.
W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ W. Van Davis
W. Van Davis
Supernumerary District Attorney,
Acting Attorney General
423 23rd St. North
Pell City, AL 35125-1740
vandclaw@centurylink.net
OF COUNSEL:
Miles M. Hart
Deputy Attorney General
Chief, Special Prosecutions Division
mhart@ago.state.al.us
Michael B. Duffy
Deputy Attorney General
mduffy@ago.state.al.us
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
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CERTIFICATE OF SERVICE
I hereby certify that I have, this the 11th day of February 2016,
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:
R. Lance Bell
Trussell Funderburg Rea & Bell, PC
1905 1st Ave South
Pell City, AL 35125-1611
lance@tfrblaw.com
Phillip E. Adams, Jr.
Blake Oliver
Adams White Oliver Short & Forbus LLP
205 S 9th Street
Opelika, Alabama 36801
Phone: (334) 745-6466
Fax: (334) 749-2800
padams@adamswhite.com
boliver@adamswhite.com
/s/ W. Van Davis
Acting Attorney General

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EXHIBIT A
Filed Under Seal

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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From: Baron Coleman [

]
Sent: Wednesday, January 13, 2016 3:59 PM
To: Lewis, Mike <
>
Subject: Question for Mr. Lewis re: Spotswood Contract

Dear Mr. Lewis,

I host a daily news show on the radio on 93.1fm in Montgomery. I usually cover interesting
items of note in the contract review committee meetings. Today, I noticed a $1 million contract
for Bob Spotswoods law firm. A screen shot is attached. The contract is marked disclosure
and immigration. I checked with the governors office, and they deny knowing anything about
this contract and insist this is not related to Mr. Spotswood representing Alabama in the refugee
lawsuit.
I go on the air at 9:00 am tomorrow and would appreciate knowing a little about this contract so
as not to stoke unnecessary alarm.
My questions are as follows:
1. Is this contract related to Governor Bentleys refugee lawsuit?
2. Is this lawsuit related to an immigration lawsuit?
3. What do the disclosure an immigration markings on this contract mean to you?
4. Is Spotswoods firm helping with any other matters in the AGs office?
5. It is reported an AG employee, Matt Hart, was present at the contract review committee. Is
this contract related to any cases he is working? If so, which one(s)? Is Matt Hart working an
immigration case?
Thank you for your time and attention on this important matter involving a seven-figure legal
contract. I can be reached at this email address or on my cell phone at
Sincerely,
Baron Coleman

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Baron Coleman
Baron Coleman Law Firm

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EXHIBIT F

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EXHIBIT G

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