Mike Hubbard defense claims prosecutorial misconduct

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Lawyers for indicted Alabama House Speaker Mike Hubbard on Wednesday tried to buttress claims that the case against the powerful Republican was tainted by politics. During a hearing they had a radio host and a legislator describe calls they got from a lead prosecutor in the case.

Hubbard faces 23 felony ethics charges accusing him of using his political offices for personal gain. Hubbard is seeking to dismiss the charges for prosecutorial misconduct. Lee County Circuit Judge Jacob Walker has yet to rule on the motion while he sorts out whether the defense can question multiple employees of the attorney general’s office.

During a court hearing, talk radio host Leland Whaley and state Rep. Mike Ball described telephone calls they received from Deputy Attorney General Matt Hart after Hubbard was arrested in October.

Both said Hart called them unsolicited to discuss statements they made on air that they thought the case was politically motivated.

“He told me that he was angry with me for saying that I knew for a fact that the prosecution was tainted by politics,” Ball testified. Ball, a former state trooper, said Hart indicated he called him because of his background in law enforcement and that Hart got “very loud” during the call.

In an odd bit of courtroom drama, Hart questioned Ball on the witness stand, giving contrasting recollections of their 44-minute conversation.

The exchanges became heated at times. Hart questioned Ball about his characterization that he was angry.

“Do you remember I used the word ‘disheartened’?” Hart said.

Ball said Hart was loud enough on the call that his wife could hear him across the room.

Whaley said he received a similar call from Hart that he partially recorded. Although both Ball and Whaley said they considered it strange to get a call from Hart, they said he did not discuss the details of the investigation. Ball said he did believe that Hart was trying to convince him Hubbard was guilty.

Prosecutors objected to the testimony, arguing that there was no misconduct because Ball and Whaley are not witnesses or have any other role in the case.

Hubbard’s defense is also trying to question 17 current or former members of the attorney general’s office. Walker has not yet ruled on prosecutors’ request to block those subpoenas. White said the judge has determined a process for deposing those witnesses outside of the public courtroom.

Defense lawyer Mark White said Ball’s testimony was a “smaller piece of the puzzle.”

“Prosecutorial misconduct is very, very difficult to locate and find because so much of it is internalized,” White said outside the courtroom.

“What you essentially had was a prosecutor lobbying a representative who is not in his district to take action on the speaker remaining as speaker and to take a political position.”

Prosecutors have accused Hubbard’s defense of trying to manufacture a bogus narrative of misconduct and of mounting a “fishing expedition” with the subpoenas to the attorney general’s office.

“They have no evidence to support their claims,” Deputy Attorney General Michael Duffy told Walker. “That sounds like a fishing expedition to me. We don’t know what’s going on in the attorney general’s office, but we’d like to know because it could be helpful.”

Walker seemed doubtful of one defense claim. Hubbard’s defense argued that Attorney General Luther Strange did not have the authority to select retired district attorney Van Davis to oversee the investigation when Strange stepped aside from the case. Hubbard’s defense was trying to subpoena any documents related to Davis’ appointment.

Walker asked how that claim was any different than the one raised by Rep. Barry Moore, who was acquitted of perjury charges in a related case. Walker ruled that Davis was rightfully appointed to oversee that case.

The judge told the defense team to seek the information through a discovery request rather than a subpoena.

Republished with permission of The Associated Press.

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