DOCUMENT 765

ELECTRONICALLY FILED
7/11/2016 5:11 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 HUBBARDS

POST-TRIAL MOTION ALLEGING JUROR MISCONDUCT
TO BE FILED EX PARTE AND UNDER SEAL AND REQUEST FOR
HEARING ON DEFENDANTS MOTION FOR INVESTIGATION BY LEE
COUNTY SHERIFF INTO JUROR MISCONDUCT
The State of Alabama respectfully submits its Response in Opposition to
Defendant Michael Gregory Hubbards (Hubbard) Motion to Allow Unredacted
Version of Defendants Motion for Investigation to be Filed Ex Parte Under Seal
and for Hearing on this Motion. For the reasons stated below, the State opposes
Hubbards request.
1.

On June 8, 2016, this Court sentenced Hubbard to prison for the 12

felony Ethics Law violations of which Hubbard was adjudicated guilty.

2.

Almost immediately after being sentenced, Hubbard publicly filed a

redacted version of his Motion for Investigation by Lee County Sheriff into Juror
Misconduct, which included an affidavit executed on July 6, 2016.

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3.

Hubbard then publicly filed a Motion to Allow Unredacted Version of

Defendants Motion for Investigation to be Filed Ex Parte Under Seal and for
Hearing on this Motion, which essentially asks this Court to prevent the State and
the public from knowing the details of his motion. After Hubbard filed his motions,
this Court entered an Order requiring the State to respond Hubbards ex parte request
by July 11.
4.

Hubbard presents no legal authority for his request to proceed ex parte.

In a review of Alabama case law, there seems to be only one instance in a criminal
prosecution where an ex parte motion is required. That is in the circumstance of an
indigent defendant requesting expert assistance. See e.g. Ex parte Moody, 684 So.
2d 114 (Ala. 1996); Finch v. State, 715 So. 2d 906, 909 (Ala. Crim. App. 1997);
Bush v. State, 695 So. 2d 70, 104 (Ala. Crim. App. 1995), affd sub nom. Ex parte
Bush, 695 So. 2d 138 (Ala. 1997). The court gave three reasons why an ex parte
hearing in that context is necessary: (1) protection of the privilege against selfincrimination; (2) prevention of premature disclosure of evidence, potential
witnesses, and overall defense strategy; and (3) preservation of the right to effective
assistance of counsel. Finch, 715 So. 2d at 909. None of these reasons applies here.
Furthermore, in another case, State v. White, the trial court was reversed for
conducting an ex parte hearing on defendants motion for a speedy trial because the
issue was adversarial in nature and the State should have been given the opportunity
2

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to prevent evidence. 962 So. 2d 897, 903-04 (Ala. Crim. App. 2006). As a result,
there is legal basis for Hubbards ex parte request.
5.

Hubbards request to proceed ex parte violates the principles of our

criminal justice system and impedes the proper administration of justice. The United
States Supreme Court has emphasized the importance of our adversary system of
criminal justice:
[T]ruth, Lord Eldon said, is best discovered by powerful statements on
both sides of the question. This dictum describes the unique strength of our
system of criminal justice. The very premise of our adversary system of
criminal justice is that partisan advocacy on both sides of a case will best
promote the ultimate objective that the guilty be convicted and the innocent
go free.
United States v. Cronic, 466 U.S. 648, 655, 104 S. Ct. 2039, 2044-45, 80 L. Ed. 2d
657 (1984) (quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555,
45 L.Ed.2d 593 (1975)) (footnotes omitted). Accordingly, Hubbards ex parte
request not only has no legal basis, but also is contrary to the fundamental principles
of our justice system.
6.

Moreover, the Motion for Investigation by the Lee County Sheriff into

Juror Misconduct is likewise without precedence or legal support. What Hubbard is

seeking is an unfettered fishing expedition into the deliberations of the jury, without
any possibility for the State to conduct a similar investigation or object. This should
not be allowed. The remedy available to Hubbard to challenge his guilty verdict is a

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Motion for New Trial under Rule 24.1. Hubbard has filed no such motion. And the
only proper authority with jurisdiction to address Hubbards alleged juror
misconduct claims is this Court. The State objects to the relief sought by Hubbards
motion and requests a hearing on the matter.
7.

The State has a right to know the basis of Hubbards request to

investigate the Lee County jurors that found him guilty after seven hours of
deliberation. As such, the State opposes Hubbards request to file his jury
misconduct motion ex parte.
8.

Accordingly, the State objects to the ex parte request and requests the

defense immediately provide to the State the unredacted version of Hubbards

Motion for Investigation by Lee County Sheriff into Juror Misconduct. Further,
the State requests a hearing on Hubbards Motion for Investigation by Lee County
Sheriff into Juror Misconduct and on this Courts Order regarding contact with
jurors.
Respectfully submitted this 11th day of July, 2016.
W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Miles M. Hart
Miles M. Hart
Deputy Attorney General
mhart@ago.state.al.us

DOCUMENT 765

OF COUNSEL:
W. Van Davis
Supernumerary District Attorney
Acting Attorney General
423 23rd Street North
Pell City, AL 35125
vandclaw@centurylink.net
John D. Gibbs
Deputy Attorney General
jgibbs223@outlook.com
Michael B. Duffy
Deputy Attorney General
mduffy@ago.state.al.us
Katie Langer
Assistant Attorney General
klanger@ago.state.al.us
Megan Kirkpatrick
Assistant Attorney General
mkirkpatrick@ago.state.al.us
Kyle Beckman
Assistant Attorney General
kbeckman@ago.state.al.us
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, AL 36130

DOCUMENT 765

CERTIFICATE OF SERVICE
I hereby certify that I have, this the 11th day of July 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:
William J. Baxley
Joel E. Dillard
David McKnight
Baxley, Dillard, McKnight, James & McElroy
2700 Highway 280
Suite 110 East
Birmingham, AL 35223
bbaxley@baxleydillard.com
jdillard@baxleydillard.com
dmcknight@baxleydillard.com
R. Lance Bell
Trussell, Funderburg, Rea & Bell, P.C.
1905 1st Avenue South
Pell City, AL 35125
lance@tfrblaw.com
Phillip E. Adams, Jr.
Blake Oliver
Adams White Oliver Short & Forbus, L.L.P.
205 South 9th Street
Opelika, AL 36801
padams@adamswhite.com
boliver@adamswhite.com
/s/ Miles M. Hart
Deputy Attorney General