DOCUMENT 129

ELECTRONICALLY FILED
3/23/2015 1:56 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,

)
)
)
)
v.
)
)
)
)
MICHAEL GREGORY HUBBARD, )
)
Defendant.
)

CASE NO.

CC-2014-000565

STATES RESPONSE IN OPPOSITION TO

DEFENDANTS MOTION TO DISMISS INDICTMENT ON THEORY
THAT THERE WERE VIOLATIONS OF GRAND JURY SECRECY ACT
The State of Alabama submits its response in opposition to defendant
Michael Gregory Hubbards (Hubbard) motion to dismiss the indictment on the
theory that there were violations of the Grand Jury Secrecy Act, titled Motion to
Dismiss Indictment: Violations of Grand Jury Secrecy Act. Hubbard argues that
the indictment should be dismissed because information protected by the Alabama
Grand Jury Secrecy Act, Ala. Code 12-16-214 et seq. (the Act), was allegedly
disclosed and allegedly prejudiced him before the grand jury. Hubbard presents no
evidence in support of those allegations.1 The publications he attaches disclose no
1

The State adopts and incorporates its Motion to Quash Subpoenas and Further
Objection to Hubbards Requests for an Evidentiary Hearing as if fully set forth herein. As
shown in that pleading, although Hubbard suggests that the State disclosed protected material, he
has presented no evidence to support that claim, and the material before the Court demonstrates
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protected material, and there is absolutely no evidence that those accounts

overwhelmed the independent judgments of the grand jurors.
In other words, Hubbards Motion fails because it does not show that any
information protected by the Act was actually leaked. While Hubbard purports to
support his arguments by citing to media articles and other publications, the articles
and publications arise out of media coverage of public events, or are the fruits of
investigatory journalism, or are speculative in nature. Additionally, even assuming
Hubbard could show that one or more of the articles contain information disclosed in
violation of the Act, he does not and cannot show any prejudice. Hubbard has failed
to show that any of that commentary regarding what members of the public thought
might be transpiring before the grand jury unduly influenced or overwhelmed the
grand jurys ability to reach an independent decision to indict on the basis of the
actual evidence it received and considered. Hubbards burden is particularly high in
this case given the large amount of testimonial and documentary evidence the grand
jury reviewed before returning the indictment. Accordingly, because Hubbard has
failed to show that any violation of the Act occurred or that the grand jurys
independent judgment was displaced, his Motion is due to be denied without an
evidentiary hearing.

no prosecutorial misconduct. Accordingly, there is no basis, under the law, to order an

evidentiary hearing. (See also States Surreply to Amended Motion for Production.)
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Finally, as discussed below, an evidentiary hearing is not necessary because,

even though Hubbard attached 242 pages of exhibits to his Motion, he identified no
further information he believes he should have presented to enable the Court to rule.
The publications Hubbard relies upon speak for themselves and this Court need not
receive any testimony or other evidence to determine that Hubbard has failed to
identify any violations of the Act.
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,
comprised of eighteen citizens from Lee County, returned a twenty-three count
indictment charging Hubbard with six counts of violating 36-25-5(a), Use of Office
for Personal Gain (Counts 1, 2, 3, 4, 7, 11); one count of violating 36-25-5(b),
Voting for legislation with a conflict of interest (Count 5); eleven counts of violating
36-25-5.1(a), Soliciting or receiving a thing of value from a lobbyist or principal
(Counts 6, 10, 15, 16, 17, 18, 19, 20, 21, 22, 23); four counts of violating 36-251.1, Lobbying an executive department or agency for a fee (Counts 8, 9, 12, 13); and
one count of violating 36-25-5(c), Use of Equipment, materials, etc. (Count 14).
As documented in the Statement of Facts below, the grand jury met for 46 days over
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the course of a year, heard testimony from over 150 witnesses, and reviewed
hundreds of thousands of subpoenaed documents before indicting Hubbard.
In his Motion, Hubbard attacks the grand jurys judgment in returning the
indictment against him. His argument boils down to a contention that despite the
substantial amount of time the grand jury devoted to receiving and reviewing
evidence over the course of a year, the grand jurys independent judgment was
overwhelmed by news reports and other publications speculating about the grand
jurys inquiry.
The vehicle through which Hubbard attacks the grand jurys judgment is the
Grand Jury Secrecy Act. Specifically, he contends that information was disclosed in
violation of the Act and that the disclosure resulted in media coverage sufficient to
overwhelm the grand jurys independent judgment in returning the indictment
against him. There are two fatal flaws in Hubbards Motion.
First, Hubbard fails to identify any specific piece of information disclosed in
violation of the Act. Sections 215 and 216 of the Act provide that only grand
jurors, witnesses, and court reporters are subject to the Act, and only what
occurs in the grand jury room is prohibited from disclosure. Section 215
provides, in pertinent part:
No past or present grand juror, past or present grand jury witness or
grand jury reporter or stenographer shall willfully at any time directly
or indirectly, conditionally or unconditionally, by any means whatever,
reveal, disclose or divulge or attempt or endeavor to reveal, disclose or
4

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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.
Ala. Code 12-16-215. Section 216 provides, in pertinent part:
No past or present grand juror, past or present grand jury witness or
grand jury reporter or stenographer shall willfully at any time, directly
or indirectly, conditionally or unconditionally, by any means whatever,
reveal, disclose or divulge or endeavor to reveal, disclose or divulge or
cause 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 person in response thereto or any other
evidence, testimony or conversation occurring or taken therein.
Ala. Code 12-16-216. While Hubbard quotes from and cites to numerous articles
and other publications in his Motion, he fails to identify any information in the
articles or publications that was disclosed in violation of these two provisions. In
fact, a close review of the materials he relies upon 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.
Second, even if one assumes for the sake of argument that one or more of the
articles might contain some piece of information disclosed in violation of the Act,
Hubbard fails to demonstrate that coverage of any of the allegedly disclosed
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information prejudiced him before the grand jury. For Hubbard to prevail on his
claim, he would need to demonstrate that the coverage was so prejudicial as to
overcome the independent judgment of the grand jury when it chose to indict him.
He does not and cannot make such a showing, especially given that he must
demonstrate that the media coverage supplanted the voluminous amount of
testamentary and documentary evidence that the grand jury considered before it
indicted him.
Finally, as an additional matter, Hubbard is not entitled to an evidentiary
hearing, and such a hearing would make no difference in any event. Hubbard
included 242 pages of documentary exhibits with his Motion, the contents of which
speak for themselves. Hubbard has made no showing as to how any witness or other
document would demonstrate a violation of the Act or show that the grand jurys
judgment was displaced.
STATEMENT OF FACTS
On January 31, 2013, Attorney General Luther Strange requested that Van
Davis, a supernumerary district attorney, assume oversight of the States interests
in the current investigative matters relating to State Representative Mike Hubbard,
to include all criminal matters arising from that investigation. (January 31, 2013
letter, attached hereto as Exhibit A). As part of his oversight of these investigative
matters, Davis requested that this Court empanel a special grand jury. The special
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grand jury was empanelled on August 19, 2013. (See July 29, 2013 Order, attached
hereto as Exhibit B).
Less than a month later, prior to the grand jury meeting to receive any
testimony, the media reported that Hubbard was attacking both Attorney General
Luther Strange and Deputy Attorney General Matt Hart, one of the lead prosecutors
in this case. Specifically, on September 12, 2013, it was reported that Hubbard had
recently told supporters that Attorney General Strange is overly-ambitious and out
to get him because he wants to be governor in 2018. (Bill Britt, Hubbard in Full
Damage Control Promising Big Money/Threatened Lawsuits, ALABAMA
POLITICAL REPORTER, Sept. 12, 2013.)2 It was also reported that Hubbard had
begun referring to Hart as crazy. (Id.) Around the same time, Hubbards attorney
Mark White reportedly told the media that he was not doing criminal defense
work, but instead was investigating alleged statements about Hubbard, and White
reportedly expressed interest[] in communications about grand jury activities.
(Kim Chandler, Speaker Mike Hubbard hires attorney to fight libelous
information, AL.COM, Sept. 11, 2013.)3

Located at http://alreporter.com/editorials-2/latest-editorial/5113-hubbard-in-fulldamage-control-promising-big-money-and-threatening-lawsuits.html.
3

Located at
http://web.archive.org/web/20140610133822/http://blog.al.com/wire/2013/09/speaker_mike_hub
bard_hires_att.html.
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Contemporaneously and still prior to the grand jury actually hearing

testimony from any witnesses, Hubbards attorneys wrote a letter to Acting
Attorney General Davis and raised concerns about possible violations of the Act.
(See September 13, 2013 Letter from Mark White to Van Davis, attached hereto as
Exhibit C). On October 16, 2013, Davis sent a letter to Hubbards attorney
requesting that any violations be reported to him immediately to allow the State to
take action, if necessary, to enforce the law and to protect the integrity of the
grand jury process. (October 16, 2013 Letter from Van Davis to Mark White,
attached hereto as Exhibit D).
Hubbards defense team responded to this letter on January 23, 2014, and
asserted that violations of the Act had occurred. (See January 23, 2014 Letter from
Mark White to Van Davis, attached hereto as Exhibit E). On March 5, 2014, the
State wrote to Hubbards attorney to inform him that a thorough investigation had
shown that the supposed violations were not supported by any credible evidence:
[T]he State utilized significant attorney and agent time to fully investigate
the allegation you reported concerning possible violations of the Alabama
Grand Jury Secrecy Act. We also paused grand jury activity in order to
determine, with certainty, if there was a problem with secrecy. After
thoroughly investigating the matter, we determined that there is no credible
evidence of any violation.
(March 5, 2014 Letter from Van Davis to Mark White, attached hereto as Exhibit
F).

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Although defense counsel was not aware of the details of the States
investigation or the evidence before the grand jury, counsel responded that he did
not agree with some of [the States] statements and conclusions concerning the
operation of the grand jury. (March 10, 2014 Letter from Mark White to Van
Davis, attached hereto as Exhibit G). Based on information published in press
reports, Hubbards attorneys continued to allege that violations of the Act had
occurred. (See March 24, 2014 Letter from Mark White to Van Davis, attached
hereto as Exhibit H; April 14, 2014 Letter from Mark White to Van Davis,
attached hereto as Exhibit I). Notably, even though defense counsel indentified
alleged leakers to the State, at no point in time did Hubbards attorneys identify
Henry T. Sonny Reagan, a (now former) deputy attorney general in the Attorney
Generals Office, as a potential source of grand jury leaks.
The day before the grand jury indicted Hubbard, the State had a meeting with
Hubbards lawyers and informed them that charges would be presented for the grand
jurys consideration on October 17, 2014. The next day, the day when White knew
that the grand jury was being presented with the indictment, White and Hubbard met
together in Hubbards office in Auburn with two reporters. (See Charles J. Dean,
Mike Hubbard still free after long day of rumors and waiting, AL.COM, Oct. 17,
2014; Kim Chandler, Ala House speaker denies wrongdoing amid probe,

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ASSOCIATED PRESS, Oct. 18)4. One reporter with whom White and Hubbard met
privately quoted Hubbard (who knew the indictment was being presented to the
grand jury) as claiming that there were leaks and rumors from the grand jury.
(Dean, supra). The reporter described how Hubbard and White waited . . . from the
wee hours of the morning and throughout the day and into the night as rumors
swirled that he had been indicted by a Lee County grand jury on public corruption
charges. (Id.) The reporter also conveyed Hubbards incendiary charge that the
investigation was a political witch hunt and that he was not going to let the bad
guys make the decision as to whether he would remain in public office or not. (Id.)
Consistent with the information conveyed in the meeting with White, the
State presented the grand jury with a 23 count indictment against Hubbard on
October 17th. Prior to being presented with the indictment against Hubbard, the
grand jury met 46 days over a twelve month period from October 2013 to October
2014. During that twelve month period, the grand jury heard testimony from over
150 witnesses and reviewed hundreds of thousands of subpoenaed documents.
Based on this evidence, the grand jury found probable cause that Hubbard had
committed the crimes charged in the indictment and, accordingly, indicted him.
4

AL.com article located at

http://web.archive.org/web/20141216105944/http://www.al.com/news/index.ssf/2014/10/mike_h
ubbard_still_free_after.html;
AP article located at http://www.washingtontimes.com/news/2014/oct/18/ala-housespeaker-denies-wrongdoing-amid-probe/?page=all.
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ARGUMENT
I.

Hubbard Has Failed to Show That Any Violation of the

Grand Jury Secrecy Act Occurred.
A. The Act prohibits only grand jurors, witnesses, and court
reporters from disclosing what occurred in the grand
jury room, which Hubbard cannot show.

The Grand Jury Secrecy Act clearly defines information from grand jury
proceedings that is legally protected 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
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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
person in response thereto or any other evidence, testimony or conversation
occurring or taken therein. Id. 12-16-216 (emphasis added).
Hubbards 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)
willfully5 disclosed or attempted to disclose or caused to be disclosed (3) knowledge
or information pertaining to any grand jurors questions, deliberations, opinions or
votes, the evidence considered, or any other questions, testimony, or matter taken
within or occurring before the grand jury.6
B. Hubbards voluminous submission contains no evidence
that any grand juror, witness, or court reporter disclosed
what occurred in the grand jury room.
Hubbard has failed to carry his burden of demonstrating that any information
was disclosed in violation of the Act.

Instead, the articles and publications

submitted with Hubbards Motion show merely that the news media and others were
5

Since the plain language of the statute imposes a willfulness requirement, Hubbard is
simply mistaken when he says that Alabamas grand jury secrecy laws contain no qualifications
based on intent. (Motion at 49.)
6
Of course, 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.
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interested in the States investigation into Hubbards conduct and engaged in

speculation regarding the grand jurys activities.

Such interest, coverage, and

speculation is not prohibited by Act, and is in fact protected by the First

Amendment. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (Freedom of the
press is a fundamental personal right which is not confined to newspapers and
periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its
historic connotation comprehends every sort of publication which affords a vehicle
of information and opinion.) (quoting Lovell v. City of Griffin, 303 U.S. 444, 450,
452 (1938)). Further, given Hubbards political position, it is unsurprising that his
political opponents would question his ability to carry out the anti-corruption
platform he espoused, based upon speculation about the grand jury. (See, e.g.,
Motion at 31-35). Such speculative opinion about what might be occurring
before the grand jury is not prohibited by the Act and is likewise protected by the
First Amendment. Branzburg, 408 U.S. at 704 (quoting Lovell, 303 U.S. at 452).
While the Facts section of Hubbards Motion runs over 40 pages, the closest
he comes to alleging a specific violation of the Act is less than a page, and, tellingly,
vague. His attempt reads:
The secrecy of this Special Grand Jury has not remained
inviolate. Instead, this Grand Jury has become what can only be
described as a public spectacle. There have been numerous articles
written about the individuals who are under investigation by the Special
Grand Jury. There has been public discussion about evidence
submitted to the Special Grand Jury. Witnesses who have appeared
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before the Special Grand Jury have publicly discussed not only what
they testified, but also the substance of their testimony. At least one
Special Grand Jury witness has publicly stated the prosecutors
themselves authorized him to speak publically about matters that the
law clearly requires to be kept private.
Information regarding the Special Grand Jury has apparently
been leaked to the press since the day the jury was convened, a leak
which can only come from inside the Special Grand Jury room itself.
Yet, despite the States denial of any misconduct or negligence, the
leaks continue to appear.
(Motion at 49.) A review of these assertions reveals them to be baseless. Instead,
what is shown is that Hubbards defense team manufactured a bogus narrative of
leaks from the inception of the grand jurys investigation to baselessly attack the
prosecution, influence the media, poison the jury pool, deflect attention from
Hubbards wrongdoing, and create a false premise upon which to demand an
evidentiary hearing. Since Hubbard possesses no evidence to support his false
claims, an evidentiary hearing is improper and would only provide Hubbard with a
forum to conduct a circus sideshow.
i.

Hubbards statement that secrecy has not

remained inviolate is not evidence that any grand
juror, witness, or court reporter disclosed what
occurred in the grand jury room.

Although difficult to fully decipher since it largely consists of sweeping

generalities, none of Hubbards assertions demonstrates a violation of the Act.
Hubbards first assertion that the secrecy of this Special Grand Jury has not
remained inviolate fails to specify how the Act has been violated, and appears
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either to assume its own conclusion or to rely upon the remainder of the paragraph
as evidence. In either event, it is insufficient to demonstrate a violation.
ii.

Hubbards statement that the grand jury has

become a public spectacle is not evidence that any
grand juror, witness, or court reporter disclosed
what occurred in the grand jury room.

Hubbards second assertion that the grand jury has become a public
spectacle and his third assertion that there have been numerous articles written
about the individuals who are under investigation similarly fail to show a violation
of the Act. News coverage of public events related to the grand jurys work, such as
the Rep. Greg Wren plea, Rep. Barry Moore trial, and the events leading to Sonny
Reagans resignation, does not violate the Act. Neither do stories based on media
reports of individuals seen going into the Lee County Courthouse or of cars
belonging to certain people being parked in the Lee County Courthouse parking lot.
Finally, stories based upon speculation regarding the grand jurys work or the
outcome of the grand jurys work likewise do not violate the Act.
Additionally, it must be noted that Hubbard and his counsel took actions that
increased the amount of news coverage devoted to both the grand jury and Hubbard.
As set forth in the Statement of Facts above, news reports of Hubbard attacking both
General Strange and the prosecutors in this case surfaced prior to the grand jury even
hearing testimony from its first witness, as did reports of Whites expression of
interest[] in communications about grand jury activities. (Supra, p. 7.) Such
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attacks and allegations of leaks continued, including Hubbards statements on the

day he was indicted when he met privately with his attorney and reporters after a
courtesy meeting the previous day between Davis and Hubbards attorney where
Davis explained that an indictment would be presented to the grand jury. In other
words, while Hubbard complains about the press coverage afforded the grand jury,
his own actions substantially increased the amount of that coverage. Further, those
actions indicate that Hubbard took the initiative to shape the press coverage to his
benefit. If the grand jury could be called a public spectacle, it was a spectacle
created and shaped to a large degree by Hubbard himself, and his attorneys and
public relations team. Cf. Phillips v. State, 443 So.2d 1328, 1331 (Ala. Crim. App.
1983) (noting that it would be absurd to allow a defendant to complain about
activity which he himself set into motion).
iii.

Hubbards statement that witnesses have discussed

their testimony is not evidence that any grand
juror, witness, or court reporter disclosed what
occurred in the grand jury room.

Hubbards fourth assertion, that there has been public discussion about
evidence submitted to the Special Grand Jury and his fifth assertion, that
[w]itnesses who have appeared before the Special Grand Jury have publicly
discussed not only what they testified, but also the substance of their testimony
appear related to his sixth assertion, that [a]t least one Special Grand Jury witness
has publicly stated the prosecutors themselves authorized him to speak publically
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about matters that the law clearly requires to be private, a reference to the news
coverage related to comments Josh Pipkin, a former candidate for State House
District 91, allegedly made at a campaign event. According to a press report, Pipkin
allegedly stated that he had received permission from the Attorney Generals
Office to publicly address the issue, but it is unclear from the article what
exactly that issue was. (Motion at 22 (quoting Kyle Mooty, And in this Corner . . .,
THE ENTERPRISE LEDGER, Apr. 16, 2014).)
As an initial matter, Pipkin did not receive any permission from the Attorney
Generals Office to violate the Act.

Additionally, none of the news reports

concerning Pipkins alleged comments appears to contain information disclosed in

violation of the Act. While the cited report alleges Pipkin said he received some sort
of permission from the Attorney Generals Office, it does not appear to contain any
information actually protected from disclosure by the Act.7 Finally, Hubbards
attorney reported Pipkins alleged comments to Van Davis contemporaneous with
their occurrence in April 2014. Again, as noted above, the State informed Hubbard
that none of the alleged violations of the Act that his counsel identified in his letters
to the State were supported by any credible evidence.

Pipkin would not be prohibited by the Act from disclosing the contents of a recorded
conversation he had with Barry Moore any more than the eyewitness to a murder would be
prohibited from telling news media what the witness saw. What the Act prohibits is revealing
what takes place inside the grand jury room.
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Regarding what Pipkin actually said at the campaign event, the State has
obtained a transcript. That transcript reveals that Pipkins comments did not violate
the Secrecy Act as they reveal what Pipkin witnessed from the events in question
themselves, not from what took place in the grand jury room:
Simply put, my opponent called me and told me the Speaker of the
House, Mike Hubbard, was going to kill not only 100 jobs in our
county, but kill a junior college as well. I spoke with the Attorney
General on Thursday and said, look, I've got to be able to explain this
to the people of Coffee County. Everything that I say can be
corroborated by the Attorney General; it can been corroborated by
five sources here in Coffee County and across the state. They'll either
testify -- They already have testified or they'll testify in the next two
weeks at a Lee County grand jury. Last year, the AG was conducting
an investigation into illegal dealings of Mike Hubbard and his cohorts.
I received a call notifying me that threats were being made to a junior
college deal in a deal that could cost Coffee County over 100 jobs. I
was told I would likely to get a similar threat from my opponent. As
you know, I got that call from my opponent. Because of this
investigation into these matter, I can't go too far into the details. But
let me assure you of a few things. First, I didn't ask to be called. I
didn't ask to be threatened. Mike Hubbard was threatening jobs in our
district, and my opponent didn't stand up to him.
(Transcript of Pipkin and Moore Debate, pp. 10-11) (attached hereto as Exhibit J).
Moreover, Pipkin testified under oath at the Barry Moore trial consistent with his
actual comments at the debate, which refutes the quote attributed to him that he
claimed to have special permission from the Attorney General. (See Transcript of
Testimony of Josh Pipkin, pp. 522-24, attached hereto as Exhibit K). Thus,
Hubbards claim that Pipkin violated the Act is factually and legally incorrect. As
such, it cannot serve as a basis to dismiss the indictment.
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Hubbard also appears to claim that the Wren plea agreement violated the
Secrecy Act. Although Hubbard expends considerable effort attacking the terms of
the Wren plea agreement and the press coverage of those terms, (Motion at 11-20),
the agreement was written and disclosed in open court in accordance with Alabama
law. Rule 14.3 requires that [i]f a plea agreement has been reached by the parties,
the court shall require the disclosure of the agreement in open court prior to the time
a plea is offered. Ala. R. Crim. Proc. 14.3(b). Accordingly, the agreement would
be reduced to writing in any event either by the court reporter in open court, or the
parties in the form of a written agreement to present to the Court. The Committee
Comments to Rule 14.3 note that, while written plea agreements are not required,
our states appellate courts have encouraged prosecutors to reduce plea agreements,
and all the terms and conditions made a part thereof, to writing. Committee
Comments to Ala. R. Crim. P. 14.3 (citing Ex parte Yarber, 437 So. 2d 1330 (Ala.
1983); Congo v. State, 455 So. 2d 896 (Ala. 1984); Ex parte Swain, 527 So. 2d 1279
(Ala. 1988); Ex parte Cassady, 486 So. 2d 453 (Ala. 1986)).
The Wren plea agreement is fully in accordance with Rule 14.3, as it sets
forth specifically what the terms of the agreement are, including the facts to which
Wren agreed to testify as part of the agreement. Just because Wren agreed to testify
regarding certain facts that implicate Hubbard does not make the terms of the plea
improper or reveal any information protected by the Act. Instead, it ensures that all
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the terms and conditions of the plea agreement are reduced to writing and publicly
known so that the resolution of any potential questions regarding the existence or
contents of [the] plea agreement[] would be greatly facilitated. Ex parte Cassady,
486 So. 2d at 456 (quoted in Committee Comments to Ala. R. Crim. P. 14.3).
Hubbards Motion has no merit, as it does not contain a single example of a
news article or other publication quoting or summarizing grand jury testimony or
otherwise disclosing what occurred in the grand jury room.
iv.

Hubbards statement that information regarding

the grand jury has been leaked by an inside
source is not evidence that any grand juror, witness,
or court reporter disclosed what occurred in the
grand jury room.

Hubbards seventh assertion, that [i]nformation regarding the Special Grand

Jury has apparently been leaked to the press since the day the jury was convened, a
leak which can only come from inside the Special Grand Jury room itself, appears
to be a reference to media coverage of the transcript of the jury venire on August 19,
2013 from which the special grand jury was ultimately picked. There are multiple
flaws in this assertion. First, the grand jury did not even begin to meet to receive
evidence until October 2013, so it is impossible that media coverage of the venire
violated the Act. Second, the proceedings of all venires in Lee County are open
proceedings that are transcribed by court reporters. As a result, the fact that the
August 19, 2013 venire was transcribed, or that the media knew to ask for a copy of
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the transcript, was not unusual. Third, as shown in the transcript of the venire, a
copy of which is attached hereto as Exhibit L, Matt Hart only spoke to the venire
when he was invited to do so by Judge Hughes, and he did not reveal any
information regarding who the target of the grand jury was or the matters into which
the grand jury would be inquiring. In short, nothing in the coverage of the August
19, 2013 venire implicates the Act.
v.

Hubbards statement that leaks continue to

appear is not evidence that any grand juror,
witness, or court reporter disclosed what occurred
in the grand jury room.

Hubbards eighth and final assertion is that despite the States denial of any
misconduct or negligence, the leaks continue to appear. Because Hubbard has not
identified the first leak, leaks cannot be said to continue. Additionally, as
discussed more fully in Part II, only preindictment violations of the Act would be
relevant to determine whether they had the effect of overriding the grand jurys
independent judgment in choosing to return the indictment such that any relief could
be granted.
Therefore, Hubbards assertions that violations of the Act have occurred are
baseless.8 In fact, the grand jurys investigation into the allegations brought to its
attention by Hubbard demonstrates the steps taken by the Lee County Special Grand
8

While the State denies Hubbards unsupported allegations regarding witness

intimidation, (Motion at 44), those allegations have no bearing on the issue of whether
violations of the Secrecy Act occurred and should be stricken.
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Jury to ensure there were no such leaks. Because Hubbards lengthy submission
does not identify a single violation of the Act, his Motion is due to be denied.
II.

Even If Hubbard Had Identified a Violation of the Grand

Jury Secrecy Act, His Motion Would Still Fail Because He
Has Not Demonstrated that the Grand Jurys Independent
Judgment Was Overwhelmed By Any of the Coverage and
Discourse.

As demonstrated in Part I of the Argument section, Hubbard has not shown

that any violation of the Grand Jury Secrecy Act occurred.

The articles and

publications he cites in his Motion show that the media and others were interested in
and speculated about the grand jurys work, and that those same people covered
public events such as the Wren plea agreement and the Moore trial that resulted
from the grand jurys investigation. None of the articles or publications shows that
any information was disclosed in violation of the Act. The Court should deny the
Motion on that ground alone.
If the Court chose not to deny the Motion on that ground, it could instead
deny the Motion on the alternative basis that Hubbard has failed to demonstrate that
the grand jurys independent judgment was overridden by any of the coverage and
discourse referenced in the Motion.9
9

Even if this Court found that any violations of the Act occurred, it has the ability to order
measures short of dismissal to address the violations. The enforcement provision of the Act
recognizes that the circuit courts may use their traditional contempt powers or sanctions which
may apply to acts or events which violate the provisions of this division and authorizes them to
issue whatever other reasonable orders as may be necessary to accomplish the purposes of this
division. Ala. Code 12-16-226. As demonstrated herein, a dismissal order would not be
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The grand jury voted to indict Hubbard only after fully considering all of the
facts: it met for 46 days over a twelve-month period, heard testimony from over 150
witnesses, and received hundreds of thousands of pages of subpoenaed documents.
Even if there was a violation of the Act, it would have to be weighed against the
voluminous amount of evidence that led the grand jury to indict Hubbard. 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 20month investigation, an
investigation involving dozens of witnesses and thousands of documents). Viewed
in the context of the thorough investigation that occurred prior to indictment in this
case, an order of dismissal would be unreasonable and unnecessary even if Hubbard
could demonstrate that a violation of the Act had occurred.
Recognizing his failure to demonstrate that the grand jurys independent
judgment was displaced, Hubbard argued in his Motion that this Court should
presume prejudice against him based on the extent and nature of the publicity
surrounding the grand jury. (Motion at 1.) Situations where prejudice may be
presumed due to errors in the grand jury process, however, are extraordinary,
United States v. Carter, No. 04 CR. 594 (NRB), 2005 WL 180914, at *4 (S.D.N.Y.
Jan. 25, 2005), and consist of cases in which the structural protections of the grand
reasonable or necessary in the present case in light of the grand jurys extensive investigation of
Hubbards activities prior to its issuance of the indictment.
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DOCUMENT 129

jury have been so compromised as to render the proceedings fundamentally unfair,

allowing the presumption of prejudice. Bank of Nova Scotia, 487 U.S. at 257.
Such cases are exemplified by Vasquez v. Hillery, 474 U.S. 254, 260264 (1986),
which involved racial discrimination in the grand jury selection process, and Ballard
v. United States, 329 U.S. 187 (1946), where women were intentionally excluded
from the grand jury. Bank of Nova Scotia, 487 U.S. at 257. The reason to presume
prejudice when race- or sex-based discrimination infects the grand jury selection
process is that, under those unique circumstances, [t]he nature of the violation
require[s] unguided speculation to determine whether there was prejudice or the
error was harmless. Id.
Case law clearly establishes that motions to dismiss based on pre-indictment
publicity do not fall within the presumed prejudice line of cases. As one district
court recently summarized,
The cases which have considered the question of preindictment
publicity and its effect on the grand jury, rather than holding that
preindictment publicity is inherently prejudicial and cause for dismissal
of the indictment, have held that the defendant must show specifically
that such publicity caused prejudice and bias in the grand jurors and
that the indictment returned was the result of essential unfairness.
United States v. Jackson, 22 F. Supp. 3d 636, 645-46 (E.D. La. May 23, 2014)
(quoting United States v. Civella, 648 F.2d 1167, 1173 (8th Cir. 1981)). Stated
slightly differently, [t]o successfully challenge an indictment based on publicity, a
defendant must show that such pretrial publicity caused actual prejudice and that the
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DOCUMENT 129

indictment returned was the result of that prejudice. Jackson, 22 F. Supp. 3d at 645
(quoting United States v. Lewis, 738 F.2d 916, 922 (8th Cir. 1984)); see also United
States v. Waldon, 363 F.3d 1103, 1109 (11th Cir. 2004) (affirming trial court refusal
to dismiss indictment even though case was undoubtedly the subject of much press
in the [local] area because publicity is generally not a basis for dismissal of an
indictment) (citing United States v. Washington, 705 F.2d 489, 499 (D.C. Cir.
1983); In re Grand Jury, 508 F.Supp. 1210, 1213 (S.D.Ala.1980) ([i]t does not
appear that any indictment has thus far been dismissed on th[e] ground that it
was induced by prejudicial publicity) (citing 8 Moores Federal Practice P.
6.03(4), at 6-61 (2d ed.1979))) (emphasis added); cf., State ex rel. Baxley v.
Strawbridge, 296 So. 2d 784, 785 (Ala. 1974) (holding that the prevailing view . .
. is that the presence of an unauthorized person during grand jury proceedings, is,
at most, a mere irregularity, not sufficient to constitute a ground for setting aside
the indictment returned by the grand jury, unless prejudice to the accused is
shown. (emphasis added)).
Since Hubbards Motion insinuates that the State was responsible for at least
some of the preindictment publicity in this case, an unfounded accusation the State
denies, it is worth noting that the preindictment publicity inquiry does not change if
the government engendered the pretrial publicity. Jackson, 22 F. Supp. 3d at 646;
see id. at 646 (quoting Civella, 648 F.2d at 1174) ([i]t is the prejudicial effect of
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DOCUMENT 129

pre-indictment publicity, rather than its source, which is the significant consideration
in determining whether an indictment should be dismissed.).
The Supreme Courts Bank of Nova Scotia opinion supplies the standard for
determining whether the preindictment publicity prejudiced Hubbard before the
grand jury such that the indictment against him should be dismissed. See United
States v. York, 428 F.3d 1325, 1332 (11th Cir. 2005) (citing Bank of Nova Scotia
standard in holding that a defendant had failed to establish that publicity
surrounding his case substantially influenced the ultimate decision to indict him
and thereby caused him actual prejudice.). Under Bank of Nova Scotia, dismissal
of the indictment is appropriate only if it is established that the violation
substantially influenced the grand jurys 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) (OConnor, J. concurring)). In light of the

extremely high standard for a showing of prejudice, [d]ismissal of an indictment
based on bias of the grand jury caused by publicity is an extreme remedy, and the
defendants burden is a heavy one. Jackson, 22 F. Supp. 3d at 645 (quoting
Civella, 648 F.2d at 1173)).
Applying the Bank of Nova Scotia standard to this case, even if Hubbard
could show that some of the preindictment publicity resulted from a violation of the
26

DOCUMENT 129

Act (which he has obviously failed to do), he does not and cannot show that the
publicity was sufficient to substantially influence the grand jurys decision to indict
or raise grave doubts about the effects of the publicity on the grand jurys decision
such that an order dismissing the indictment would be reasonable or necessary. The
grand jurys decision to indict was the result of the enormous amount of
evidence it considered. It does not make sense to say that speculative reports
about what the grand jurors might have considered supplanted their ability to
consider the actual evidence for themselves.
Hubbard has offered no reason to believe that the grand jurys decision was
based on anything other than the evidence. In fact, there are good reasons to believe
that many of the articles and publications cited would have no bearing on the grand
jurys decision. For example, the grand jurys investigation developed the facts that
led to the Wren plea deal and the Moore indictment. Since the grand jury had
reviewed the original, primary evidence that led to the Wren plea and Moore
indictment, there is no reason to believe that press accounts commenting on or
speculating about those events would influence its decision to indict Hubbard.
Similarly, since the grand jury received testimony from scores of witnesses, there is
no reason to believe that press accounts commenting on or speculating about who
had been called as a witness by the grand jury or the subject of a particular witnesss
testimony would have influenced the grand jurys indictment decision. Finally, to
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DOCUMENT 129

the extent that journalists, commentators, anonymous sources, or Hubbards political

opponents speculated about the grand jurys work and its ultimate outcome, there is
yet again no reason to believe that such speculation substantially influenced the
grand jurys decision to indict.
In short, the grand jurys decision to indict Hubbard was based on a
substantial amount of evidence that it received over the course of a year-long, indepth investigation. Indeed, by hearing testimony from over 150 witnesses and
receiving hundreds of thousands of subpoenaed documents, the grand jurys
investigation was more thorough and substantial than the overwhelming majority of
criminal cases. Hubbard has not and cannot show that the articles and publications
he cited in his Motion supplanted the overwhelming amount of evidence that the
grand jury received sufficient to influence at all, much less completely compromise,
the grand jurys decision to indict him. Accordingly, his Motion is due to be denied.
III.

An Evidentiary Hearing Is Unnecessary.

At the conclusion of his Motion, Hubbard claims that an evidentiary hearing

is necessary because of alleged leaks by the prosecution. (Motion at 55.) As
previously discussed, however, Hubbards Motion fails to identify a single unlawful
disclosure either by the prosecution or by any individual covered by the Act.

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DOCUMENT 129

A. Hubbards citation to the Reagan events provides no

basis for an evidentiary hearing.
The only evidence Hubbard cites to substantiate his claim that he is entitled to
an evidentiary hearing are two documents, one memorandum dated July 22, 2014
and one letter dated September 22, 2014, each authored by Sonny Reagan, the
former deputy attorney general who resigned in lieu of being terminated in
connection with his actions regarding the grand jurys investigation. (Id. at 55-56.)
As more fully described in the States Response to Hubbards motion to dismiss
regarding the grand jurys jurisdiction, the July 22, 2014 memorandum Hubbard
cites was written on the advice of Reagans attorney, Bill Baxley, a lawyer whom
Reagan, shared with Barry Moore who was being prosecuted by the Attorney
Generals Office. Additionally, given that Baxley filed a motion in the Moore case
to compel the production of the memo he advised Reagan to write, it appears that the
memo was written as part of an attempt to undermine the Moore prosecution.
Further confirming that the memo was written for the purposes of interfering
with the Moore prosecution, when Reagan was subpoenaed to testify before the
grand jury, he initially attempted to quash the subpoena rather than explain himself
to the grand jury. When that effort failed, he testified for only a short time before
his attorney informed the Court that Reagan would refuse to answer further
questions based upon his Fifth Amendment right not to incriminate himself. He then
filed a sealed emergency mandamus petition seeking to have his grand jury
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DOCUMENT 129

testimony stricken. Although he was still a deputy attorney general at that time, one
of his arguments was that General Strange, at whose pleasure Reagan served, lacked
the authority to appoint Davis to oversee the Lee County investigation and that the
grand jury was therefore illegally empanelled. When the Court of Criminal Appeals
unsealed a redacted version of Reagans mandamus petition and ordered that
General Strange be served a copy of it, General Strange placed Reagan on
administrative leave.
Reagan wrote the September 22, 2014 letter cited in Hubbards Motion while
he was on administrative leave. Unsurprisingly, given his situation when he wrote
it, Reagan lauds himself in the letter while attacking the Lee County prosecutors.
Despite the defensive posture taken in the letter, Reagan ultimately resigned from
the Attorney Generals Office in lieu of being terminated on December 2, 2014.
General Strange released a memo to the employees of the Attorney Generals Office
on December 11, 2014, explaining that Reagan no longer worked in the Attorney
Generals Office because he had violated his duties of loyalty and confidentiality to
the Office and the State.
While all of these facts are explained in greater detail in the States Response
to Hubbards motion to dismiss regarding the grand jurys jurisdiction, the upshot is
that neither Reagan nor the two documents he wrote cited in Hubbards request for
an evidentiary hearing provide the Court a credible basis for such a hearing. In
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DOCUMENT 129

short, the only witness Hubbard directly identifies as supporting his request for an
evidentiary hearing, Reagan, is an individual who was compromised by a conflict of
interest in favor of the defense. Reagan is not credible, and Hubbard identifies no
further information he believes he needs to elicit from Reagan in any event.10
B. Hubbards citation to Pipkins statement provides no
basis for an evidentiary hearing.
To the extent Hubbard contends that media articles or other publications
should entitle him to an evidentiary hearing, he is likewise mistaken. Just as no
article or publication cited in Hubbards Motion contains or identifies information
disclosed in violation of the Act, similarly no article or publication cited in his
Motion specifically identifies any of the prosecutors in this case or any person
subject to the Act as a source.

The closest Hubbards Motion comes is the

previously-discussed article regarding Josh Pipkins alleged permission

comments. But it is unclear what exactly Pipkin was referring to. (Supra, pp. 1719.) In any event, nowhere in that article is any information identified that was
actually disclosed in violation of the Act. (Id.) Further, the State did not give Pipkin
permission to violate the Act, which is evidenced by Pipkins actual comments in
the transcript.

10

To the extent Hubbard is requesting to use an evidentiary hearing to investigate

whether violations of the Act occurred, the Court should deny the request as an attempt to usurp
the powers and role of the grand jury.
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DOCUMENT 129

C. Hubbards citation to articles based on no sources,

anonymous sources, or sources close to the
investigation provides no basis for an evidentiary
hearing.
The remainder of the articles cite no sources, or they refer to anonymous
sources or sources close to the investigation or some similar nonspecific
designation. As the Seventh Circuit has explained, this Court should be justifiably
unimpressed inasmuch as news reporters, as all the world knows, invariably attribute
the information they receive to confidential sources and, in connection with stories
of this nature, to unnamed sources close to the investigation. Matter of Special
Apr. 1977 Grand Jury, 587 F.2d 889, 892 (7th Cir. 1978) (upholding district courts
dismissal of petition seeking to terminate grand jury proceedings based on alleged
information leaks by prosecution without an evidentiary hearing).
D. Matters of public record, and the actions of Hubbard and
his defense team, provide no basis for an evidentiary
hearing.
Similarly, careful review of the information contained in the news articles and
publications Hubbard cites reveals that it could have been disseminated during the
Government investigation that preceded impanelment of the [grand] jury or by the
rumor mills that grind into motion even before such investigations begin. Id. For
example, news reports regarding Hubbards alleged payment of Alabama
Republican Party funds to businesses he owned, including Craftmaster Printers, date
back to at least October 2010, three years prior to the empanelment of the Lee
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DOCUMENT 129

County grand jury.

(See Paul Davis, Hubbard Spins a Tangled Web, THE

TUSKEGEE NEWS, Oct. 28, 2010, attached hereto as Exhibit M).11

In November 2012, an article was published on AL.com regarding a review of
Alabama Republican Party finances during the time period when Hubbard was
chairman. (See Charles J. Dean, Alabamas Republican Party Not One Big Happy
Family These Days, AL.COM Nov. 21, 2012, attached hereto as Exhibit N).12 The
AL.com article stated that the financial review reportedly uncovered the payment of
Alabama Republican Party funds to Craftmaster Printers, and quoted unnamed
Alabama Republican Party Executive Committee members as saying that the
Executive Committee was sharply divided over the importance of the contract with
Craftmasters, with some saying it showed Hubbard had personally profited using
party dollars. (Id.) The article further reported that Alabama Republican Party
Chairman Bill Armistead refused to say if he believed the report indicated improper
actions by Hubbard, if the financial review eased any concerns he might have had
regarding how party dollars were used in 2010, or if he was concerned that his
refusal to clear the air regarding the report could be seen by some as casting a
shadow over Hubbards tenure as party chair. (Id.)

11

Located at
http://www.thetuskegeenews.com/articles/2010/10/28/opinion/doc4cc8753903ed9709148896.txt.
12
Located at http://blog.al.com/spotnews/2012/11/alabamas_republican_party_not.html.
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DOCUMENT 129

While the results of the audit were not public at the time the AL.com story
was written, Armistead told the Alabama Republican Party Executive Committee
members that the audit was subpoenaed by a Montgomery County Special Grand
Jury.13 The audit results were made available for review by the media in early
December 2012. (See Kyle Whitmire, Alabama Attorney General Subpoenas State
GOP Records, AL.COM, Dec. 17, 201214 (Last week the Alabama Republican
Partys steering committee voted to make the audit available to the media for
review.).)
As might be expected given that the media and general public were aware of
the audit of the Alabama Republican Partys finances during the time Hubbard was
chairman, the rumor mills began churning out speculative stories when it became
known that Armistead had received a subpoena related to Party finances.

As

demonstrated by Hubbards own submission, those same rumor mills continued to

speculate when they became aware of the Lee County grand jury empanelment, the
Greg Wren plea agreement, and the Barry Moore indictment and trial.

No

evidentiary hearing is necessary to establish those facts. Further, as documented in

the Statement of Facts, Hubbard actively contributed to the speculation regarding the
grand jury by asserting, prior to the grand jury even hearing its first witness, that the
13

(See George Talbot, Alabama GOP Finances Under Investigation, Chairman Tells Party
Leaders, AL.COM, Dec. 14, 2012, located at
http://blog.al.com/live/2012/12/alabama_gop_finances_under_inv.html.)
14
Located at http://blog.al.com/spotnews/2012/12/alabama_attorney_general_subpo.html.
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DOCUMENT 129

investigation was motivated by Attorney General Stranges desire to be governor in

2018, claiming that Deputy Attorney General Matt Hart was crazy, and by his
attorney expressing interest[] in communications about grand jury activities.
(Supra, p. 7.) Hubbard has thus fed the very rumor mills that he complains about in
his Motion. (See, e.g., Motion at 56 (It is no secret that there has been public
speculation about both Attorney General Strange and Hubbard running for the same
political office in the future.).)
In sum, there is no need for an evidentiary hearing because the articles and
publications Hubbard cites speak for themselves and Hubbard does not identify a
credible witness who could testify that any grand jury leaks occurred. Since he has
identified no actual evidence or even an evidentiary source that would support his
claim, his request for an evidentiary hearing is in substance a request for leave to
conduct an investigation in the form of a hearing so that he [can] particularize
his allegations. Matter of Special Apr. 1977 Grand Jury, 587 F.2d at 893. Such an
investigation would impose a burden on the [State], if not necessarily on the grand
jury, that would not be justified given the lack of any real indicia of
improprieties. Id. Accordingly Hubbards request for an evidentiary hearing, like
his Motion, should be denied.

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DOCUMENT 129

CONCLUSION
In accordance with the foregoing, the State respectfully requests this Court
deny the Defendants Motion to Dismiss Indictment: Violations of Grand Jury
Secrecy Act.
Respectfully submitted this 23rd day of March 2015.
W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Miles M. Hart
Miles M. Hart
Deputy Attorney General
Chief, Special Prosecutions Division
mhart@ago.state.al.us
OF COUNSEL:
W. Van Davis
Supernumerary District Attorney,
Acting Attorney General
423 23rd St. North
Pell City, AL 35125-1740
vandclaw@centurylink.net
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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DOCUMENT 129

CERTIFICATE OF SERVICE
I hereby certify that I have, this the 23rd day of March 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
mwhite@whitearnolddowd.com
adowd@whitearnolddowd.com
wmbowen@whitearnolddowd.com
cwaller@whitearnolddowd.com
R. Lance Bell
Trussell Funderburg Rea & Bell, PC
1905 1st Ave South
Pell City, AL 35125-1611
lance@tfrblaw.com
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
padams@adamswhite.com
/s/ Miles M. Hart
Deputy Attorney General

37