Attorneys for former House Speaker Mike Hubbard, R-Auburn, have filed his opening brief with the Alabama Court of Criminal Appeals, launching the formal appeals process more than a year after he was convicted on 12 felony ethics charges.
Within the 118-page brief, Hubbard's attorneys argue that he should be acquitted because they say he did not violate Alabama's ethics laws. Their argument is that prosecutors, and ultimately the court, interpreted the ethics laws in a manner that was far too broad.
"The prosecution depended on either ignoring the specific limitations of the provisions that the Legislature adopted in the Ethics
The arguments in the brief largely reflect arguments made in Hubbard's 2016 Lee County trial, but some are very different. At the conclusion of the trial, the former House speaker was found guilty of 12 felony ethics violations. He was originally charged with 23 counts.
Lee County Circuit Judge Jacob Walker later sentenced Hubbard to four years in a state penitentiary and an additional eight years on supervised probation. He was automatically removed from both his seat as Auburn's representative and from the speaker's chair when he was convicted.
In total — between investments Hubbard was accused of illegally soliciting for his printing company Craftmasters, consulting contracts he funneled through Auburn Network Inc. and
Prosecutors will have 30 days to respond to the brief. It isn't clear whether the Court of Criminal Appeals may rule on the case based on the briefs or if they will allow the case to go to oral arguments later this year.
The Appeals Court could overturn all, some or none of the verdicts from the Lee County Trial and Hubbard's sentence could be adjusted as such.
The former speaker remains free on appeal bond and still hosts a morning classic rock show on his station, WGZZ 94.3 FM, in Auburn.
Hubbard's lead defense attorney Bill Baxley did not immediately respond to requests for comment.
Contracts with APCI and conflicts of interest: Counts Five and Six
Two of the guilty counts, five and six, related to Hubbard's contract with the trade organization American Pharmacy Cooperative Inc. He was found guilty of voting on a General Fund Budget in 2013 with a conflict of interest.
That budget included a provision that would have effectively given APCI a monopoly over the State's Medicaid prescription contracts. The provision would have set APCI up to be the only entity that would have met the requirements to be the state's pharmacy benefits manager, which would have handled all buying and selling of drugs for the state's Medicaid beneficiaries.
All the while, he was being paid $5,000 a month by APCI. Prosecutors said he was still on the payroll when he voted on the legislation.
In the
"Among other things, he was simply not an 'employee' of APCI. Furthermore, at the time Hubbard voted, he knew and intended that the APCI-favored language would never become law; thus his vote (as he intended, and as he ultimately ensured) had no impact on APCI," Hubbard's attorneys wrote.
During his trial, Hubbard took the stand and said he told staff to have the House take the pro-APCI language out of the bill, but there was no time before the impending vote.
"I had no opportunity to vote to take it out," Hubbard said in 2016.
He said he chose to vote on the General Fund because it would have been odd for the Speaker to not vote on his caucus' budget, and he knew that the bill would have to go back to
CV Holdings, Bobby Abrams and Hubbard's 'lobbying efforts': Counts 10-14
Count 10 concerned charges against Hubbard that he accepted money from a consulting contract with an organization that had business before the Legislature.
Counts 11-14 concerns Hubbard 'lobbying' for Bobby Abrams and CV Holdings, the parent company of the Auburn-based Capitol Cups.
Hubbard had a consulting contract with Capitol Cups for $10,000 a month. Prosecutors said he lobbied the Governor's Office and the Department of Commerce on behalf of Abrams and CV Holdings. He was also found guilty of accepting a thing of value in the form of the consulting contract.
Capitol Cups manufacturers coffee mugs,
SiO2 manufactured a plastic test tube with a thin lining of glass. Hubbard said the stuck patent was costing a "major employer" in his legislative district "hundreds of thousands of dollars a day." He also said the contract was with Capitol Cups, not CV Holdings, so he didn't see an issue with helping SiO2 like he helped other constituents; that is, by using his office.
"The prosecution again has attempted to rewrite the laws, and to substitute prosecutorial and juror intuition for the rule of law,"
Was the state's richest man a friend or a not: Counts 16-19 and the friendship exemption
Counts 16–19 found Hubbard guilty of illegally soliciting investments from several prominent Alabama business people, including Jimmy Rane, the state's richest man and CEO of Great Southern Wood.
Rane is also a sitting member of Auburn's Board of Trustees.
The prosecution alleged that Hubbard solicited four different Alabama businessmen and trade organization executives for investments in his failing Auburn-based printing business Craftmaster Printers.
The men were all "principals" under Alabama Ethics Laws, which means they employ lobbyists before the Legislature, prosecutors said. Principals cannot give things of value to legislators or other government officials.
Each count was for each of the men who contributed $150,000 to the business in the form of an investment loan. Prosecutors argued that the investments were illegal because principals were giving things of value to a government official; the defense argued that they were all his "friends."
Giving a thing of value is not necessarily a crime if a friendly relationship
In
"The prosecution and the trial court ignored the fact that the plain text of the 'full value' safe-harbor covers 'anything' for which full value is paid," attorneys wrote. "And the trial court further erred by refusing the defense request to instruct the jury on the statutory 'full-value' safe-harbor."
His attorneys are also now arguing that the investors were not principals under the Ethics Law.
The defense now says the prosecution depended on expanding that definition to include not only the entity for which a lobbyist
"That is not what the law says, nor what any contemporaneous legal authority said at the time, and it would be unconstitutional to apply such a novel reading of a criminal-law provision without fair notice in advance," Hubbard's attorneys wrote.
Will Brooke and the Business Council of Alabama: Count 23
Count 23 found Hubbard guilty of illegally soliciting and accepting advice from Will Brooke, an executive with the powerful Business Council of Alabama.
The BCA is known for its intense lobbying efforts in Montgomery before the Legislature. Prosecutors said Hubbard used his position to get financial advice from Brooke about his printing business and help getting more clients for Auburn Network.
The defense's argument is brief: Brooke was a friend and the advice was not a thing of value as the prosecutors said it was.
Former Ethics Commission Director Jim Sumner: Was he an expert witness?
The attorneys attest Hubbard was not provided a fair trial due to the expert testimony of former Ethics Commission Executive Director Jim Sumner. Sumner served as executive director when Hubbard approached the commission for informal ethics decisions.
The informal advice pertained to several consulting contracts between Hubbard's Auburn Network Inc. and several trade organizations and companies. At one point, Hubbard was being paid as much as $30,000 a month from his consulting contracts.
The defense said in post-trial motions that Sumner's testimony on the stand only partly related to Hubbard's consulting contracts and the commissions' blessings. Sumner, helping to guide the jury at the bequest of the prosecution, also testified as an expert on the state's ethics laws, according to the defense.
In their new brief, Hubbard's attorneys said witnesses like Sumner can't give the jury advice on the law even when they "may be right." The law should come only from a judge, they wrote.
"Mr. Sumner’s testimony was all the more harmful because in various ways it was a misinterpretation of the Ethics
Walker ruled in post-trial motions that the complaints against the prosecution about Sumner's testimony were unfounded.
Was there juror misconduct or prosecutorial misconduct? Hubbard's attorney say yes. Judge Walker said no.
In August 2016, Hubbard’s attorneys filed a post-trial motion alleging possible juror misconduct after a juror in the trial signed a sworn affidavit accusing other jurors of violating court rules.
The juror said they witnessed other jurors make biased remarks and discuss the trial before deliberations, against Walker’s orders.
Juror misconduct, he continued, is not automatically grounds to dismiss a verdict. Juries that deliver split verdicts like the jury in Hubbard’s case are not usually under the influence of bias, Walker said, citing a 2004 United States Supreme Court Case.
Hubbard's attorneys in the appeal brief said the court erred in failing to investigate juror misconduct as reported by the juror, and in keeping that report a secret from the defense.
"Rather than investigating to any degree, the trial court sent word to the apparently-prejudiced juror simply instructing them to be quiet," they wrote. "This was the antithesis of the careful and painstaking investigation that the law requires."
The attorneys also write that the court made a mistake in not dismissing the case based on allegations of prosecutorial misconduct. Hubbard's attorneys said Deputy Attorney General and prosecutor Matt Hart inappropriately influenced a Grand Jury and leaked documents.
Walker later found no grounds for those charges.
"The evidence allows only one reasonable conclusion: that the grand jury’s decision to indict was likely swayed by that misconduct," the attorneys wrote. "The case should have been dismissed on this basis."
Hubbard Opening Brief by Chip Brownlee on Scribd
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Chip Brownlee, senior in journalism and political science, is the editor-in-chief of The Auburn Plainsman.
