Lee County Judge Jacob Walker today denied a motion from the prosecution requesting that the court order former House Speaker Mike Hubbard to pay $1.125 million in restitution to the state of Alabama. Walker didn't rule on any of the remaining three post-trial motions filed by the defense.
Today's ruling was the second time Walker has dismissed the prosecution's request for restitution. The state has said $1.125 million is the total amount of Hubbard's ill-gotten gain, and he has no right to keep the money.
"It would be a just order for this court because this defendant has no legitimate right to this money because the jury found he illegally obtained it by using his public office," said Deputy Attorney General Michael Duffy.
Hubbard was found guilty in early June of 12 felony violations of state ethics law — the same ethics laws he himself pushed through a December 2010 special session, which was also his first session as Alabama House speaker.
Defense Attorney Bill Baxley urged Walker to deny the motion.
"They made this same ludicrous claim earlier," Baxley said. "Your Honor asked them further questions, they couldn't answer them and you quickly denied it. ... They're seeking a windfall and trying to be vindictive to Mike Hubbard."
Baxley said the prosecution's argument that the state is a person capable of being victimized is not valid. He also said the state, even if it was considered a person, had not been victimized by Hubbard's actions.
"For the purpose of this motion, even if they're right, what difference does it make?" Baxley said. "The state is not a person. They have to prove the state is a victim, even if they are a person. ... They can't be a victim, because the victims were named in the counts ... theoretically. ... In none of these counts has the state suffered any pecuniary loss or any pecuniary damage."
Walker denied the prosecution's motion because of a lack of precedent. He said he didn't have the authority to force Hubbard to pay the state restitution.
The defense has also filed three post-trial motions, one requesting an investigation into juror misconduct, another requesting a new trial or dismissal of charges and a new motion this morning requesting the court unseal documents in the record.
Walker didn't rule on any of the defense's motions today.
Last month, the defense filed a motion with the court seeking an investigation into alleged juror misconduct after one of the jurors from the trial signed an affidavit with the defense that said another juror was making inappropriate, biased comments during the trial.
Jurors are not allowed to discuss the trial with one another or anyone outside of the courthouse prior to deliberations. Walker reminded the jurors not to discuss the trial throughout its length.
Two bailiffs testified on the witness stand during the hearing today. Both said they did not witness any improper discussions or comments from the jurors.
"[Patricia] Campbell asked me to talk to a juror who was making comments under her breath," said Bobby Bond, a Lee County bailiff. "So I called her aside and told her that if she was making comments under her breath, not to do it because it could influence other jurors."
Bond said he never heard the jurors discussing the case firsthand, but Patricia Campbell, the Lee County Court administrator, said she received a complaint from a female juror about another female juror who was making comments under her breath during proceedings.
"Another juror was making comments in the jury box like, 'Uh huh, yeah, now the truth is coming out,'" Campbell said.
Baxley requested an investigation by the Lee Count Sheriff's Department into the alleged juror misconduct. The prosecution said they had full faith in the jury, the court and Walker's ability to render a fair verdict in the case.
"There is no case law that would allow for another agency to come in and investigate," said Assistant Attorney General Katie Langer.
Langer also said the jury's split verdict was also evidence the jury did not hold an inherent bias towards Hubbard. Walker was skeptical of Baxley's request for an investigation by the Lee County Sheriff and later denied it because he could find no precedent or case law.
"I'm not inclined to be a pioneer," Walker said.
However, the general motion on juror misconduct was left open.
Walker said he would be open to testimony from the juror who made the complaint, but the defense would have to call her as a witness before a 60-day limit on the new-trial motion expires. The motion was originally filed last month.
The 45-day window for Hubbard to file for an appeal won't begin until Walker rules on the remaining motions. The judge did not set a date for another hearing or indicate when he would rule on those post-trial motions.
If he files for appeal once the motions are ruled on, Hubbard will remain free on bond until a verdict is rendered in the appeal. The appeal will be handed up to the Alabama Criminal Court of Appeals or the Alabama Supreme Court.
Upon conviction in June, Hubbard was immediately removed from both his office as Alabama House speaker and his seat as Auburn's House representative. A special election was called by Gov. Robert Bentley in late June to replace Hubbard's seat.
Four Republicans and one Libertarian are running to fill the seat. The Republican primary election will be held later this month on Sept. 13. The general election, if no runoff is necessary, is scheduled for Nov. 29.
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