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IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA, )

)

)

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v. ) CASE NO. CC-2014-000565

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)

)

MICHAEL GREGORY HUBBARD, )

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Defendant. )

STATE’S RESPONSE IN OPPOSITION TO

DEFENDANT’S 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 Hubbard’s (“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 Hubbard’s 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

ELECTRONICALLY FILED3/23/2015 1:56 PM

43-CC-2014-000565.00CIRCUIT COURT OF

LEE COUNTY, ALABAMAMARY B. ROBERSON, CLERK

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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, Hubbard’s 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 jury’s ability to reach an independent decision to indict on the basis of the

actual evidence it received and considered. Hubbard’s 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 jury’s

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 State’s 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 §36-25-

1.1, 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 jury’s 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 jury’s independent judgment was

overwhelmed by news reports and other publications speculating about the grand

jury’s inquiry.

The vehicle through which Hubbard attacks the grand jury’s 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 jury’s independent judgment in returning the indictment

against him. There are two fatal flaws in Hubbard’s 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

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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 jury’s

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 State’s 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, Hubbard’s 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

2 Located at http://alreporter.com/editorials-2/latest-editorial/5113-hubbard-in-full-

damage-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, Hubbard’s 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 Hubbard’s 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).

Hubbard’s 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 Hubbard’s 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 State’s

investigation or the evidence before the grand jury, counsel responded that he did

“not agree with some of [the State’s] 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, Hubbard’s 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 Hubbard’s attorneys identify

Henry T. “Sonny” Reagan, a (now former) deputy attorney general in the Attorney

General’s Office, as a potential source of grand jury leaks.

The day before the grand jury indicted Hubbard, the State had a meeting with

Hubbard’s lawyers and informed them that charges would be presented for the grand

jury’s 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 Hubbard’s 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 Hubbard’s 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-house-

speaker-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).

Hubbard’s 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 juror’s 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. Hubbard’s 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 Hubbard’s 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 “Alabama’s 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 State’s investigation into Hubbard’s conduct and engaged in

speculation regarding the grand jury’s 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 Hubbard’s 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 Hubbard’s 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 State’s 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 Hubbard’s defense team manufactured a bogus narrative of

“leaks” from the inception of the grand jury’s investigation to baselessly attack the

prosecution, influence the media, poison the jury pool, deflect attention from

Hubbard’s 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. Hubbard’s 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 Hubbard’s assertions demonstrates a violation of the Act.

Hubbard’s 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. Hubbard’s 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.

Hubbard’s 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 jury’s work, such as

the Rep. Greg Wren plea, Rep. Barry Moore trial, and the events leading to Sonny

Reagan’s 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 jury’s work or the

outcome of the grand jury’s 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 White’s expression of

“interest[]” in “communications about grand jury activities.” (Supra, p. 7.) Such

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attacks and allegations of “leaks” continued, including Hubbard’s 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 Hubbard’s 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. Hubbard’s 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.

Hubbard’s 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 General’s

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

General’s Office to violate the Act. Additionally, none of the news reports

concerning Pipkin’s 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 General’s Office, it does not appear to contain any

information actually protected from disclosure by the Act.7 Finally, Hubbard’s

attorney reported Pipkin’s 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.

7 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 Pipkin’s 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,

Hubbard’s 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 state’s 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).

Hubbard’s 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. Hubbard’s 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.

Hubbard’s 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. Hubbard’s 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.

Hubbard’s eighth and final assertion is that “despite the State’s 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 jury’s

independent judgment in choosing to return the indictment such that any relief could

be granted.

Therefore, Hubbard’s assertions that violations of the Act have occurred are

baseless.8 In fact, the grand jury’s 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 Hubbard’s 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 Hubbard’s 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 Jury’s 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 jury’s work, and that those same people covered

public events such as the Wren plea agreement and the Moore trial that resulted

from the grand jury’s 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 jury’s 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

DOCUMENT 129

23

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 20–month 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 jury’s 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 jury’s extensive investigation of

Hubbard’s activities prior to its issuance of the indictment.

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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, 260–264 (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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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 Moore’s 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 Hubbard’s 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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26

pre-indictment publicity, rather than its source, which is the significant consideration

in determining whether an indictment should be dismissed.”).

The Supreme Court’s 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 jury’s 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) (O’Connor, 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

defendant’s 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

DOCUMENT 129

27

Act (which he has obviously failed to do), he does not and cannot show that the

publicity was sufficient to substantially influence the grand jury’s decision to indict

or raise grave doubts about the effects of the publicity on the grand jury’s decision

such that an order dismissing the indictment would be reasonable or necessary. The

grand jury’s 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 jury’s 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

jury’s decision. For example, the grand jury’s 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 witness’s

testimony would have influenced the grand jury’s indictment decision. Finally, to

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28

the extent that journalists, commentators, anonymous sources, or Hubbard’s political

opponents speculated about the grand jury’s work and its ultimate outcome, there is

yet again no reason to believe that such speculation substantially influenced the

grand jury’s decision to indict.

In short, the grand jury’s decision to indict Hubbard was based on a

substantial amount of evidence that it received over the course of a year-long, in-

depth investigation. Indeed, by hearing testimony from over 150 witnesses and

receiving hundreds of thousands of subpoenaed documents, the grand jury’s

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 jury’s 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, Hubbard’s Motion fails to identify a single unlawful

disclosure – either by the prosecution or by any individual covered by the Act.

DOCUMENT 129

29

A. Hubbard’s 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 jury’s investigation. (Id. at 55-56.)

As more fully described in the State’s Response to Hubbard’s motion to dismiss

regarding the grand jury’s jurisdiction, the July 22, 2014 memorandum Hubbard

cites was written on the advice of Reagan’s attorney, Bill Baxley, a lawyer whom

Reagan, shared with Barry Moore who was being prosecuted by the Attorney

General’s 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

DOCUMENT 129

30

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 Reagan’s 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 Hubbard’s 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 General’s Office in lieu of being terminated on December 2, 2014.

General Strange released a memo to the employees of the Attorney General’s Office

on December 11, 2014, explaining that Reagan no longer worked in the Attorney

General’s 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 State’s Response

to Hubbard’s motion to dismiss regarding the grand jury’s jurisdiction, the upshot is

that neither Reagan nor the two documents he wrote cited in Hubbard’s request for

an evidentiary hearing provide the Court a credible basis for such a hearing. In

DOCUMENT 129

31

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. Hubbard’s citation to Pipkin’s 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 Hubbard’s 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 Hubbard’s Motion comes is the

previously-discussed article regarding Josh Pipkin’s alleged “‘permission’”

comments. But it is unclear what exactly Pipkin was referring to. (Supra, pp. 17-

19.) 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 Pipkin’s 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.

DOCUMENT 129

32

C. Hubbard’s 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 court’s

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 Hubbard’s 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

DOCUMENT 129

33

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, Alabama’s 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 Hubbard’s 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.

DOCUMENT 129

34

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

Party’s 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 Party’s 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 Hubbard’s 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.

DOCUMENT 129

35

investigation was motivated by Attorney General Strange’s 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 Hubbard’s request for an evidentiary hearing, like

his Motion, should be denied.

DOCUMENT 129

36

CONCLUSION

In accordance with the foregoing, the State respectfully requests this Court

deny the Defendant’s “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

DOCUMENT 129

37

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

DOCUMENT 129

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Page 1 1 STATE OF ALABAMA

2 ALABAMA ATTORNEY GENERAL'S OFFICE

3

4

5

6 IN RE:

7 JOSHUA PIPKIN/BARRY MOORE DEBATE

8

9

10

11

12 * * * * * * * * * * *

13

14 VIDEOTAPED DEBATE BETWEEN JOSHUA

15 PIPKIN AND BARRY MOORE transcribed from a DVD

16 recording by Dee Coker, Registered

17 Professional Reporter and Commissioner for

18 the State of Alabama at Large.

19

20 * * * * * * * * * * *

21

22

23

Page 2 1 MR. PITTMAN: I'm from Coffee County. 2 My mother and father are sitting right over 3 here, Richard and Twilla. Most of you know 4 them. Richard is the director of the YMCA. 5 Mom is a principal at College Creek. 6 My wife, Katie, couldn't be because 7 we've got twins and a three year old and 8 nobody to take care of them. But anyways, 9 maybe we can (inaudible.)10 But what about me. I am an attorney.11 And I understand what comes with that. I12 think it's the 99 percent of attorneys who13 gives the 1 percent a bad name.14 I'm a prosecutor for the City of15 Enterprise. I am the representative for16 Coffee County and for New Brockton, and I'm a17 conservative. I'm a conservative that18 believes in lower taxes, smaller and more19 efficient government, and the protection of20 our Second Amendment rights.21 I believe in the sanctity of life.22 And I hope to create a better future for my23 children and grandchildren. I believe in a

Page 3 1 strong defense. I believe that our community 2 and State need do everything we can to remain 3 in good standing with BRAC so we can keep 4 good paying jobs here. 5 I believe the three most important 6 issues facing the state government today are 7 jobs, education, and corruption. I believe 8 my opponent has failed us in all three. 9 These issues facing our state's jobs, or the10 lack of, good middle -- middle class paying11 jobs: Our state leaders, including my12 opponent, must stop working against each13 other, against local officials, and work with14 us. We have a healthy community here. With15 the right cooperative efforts, we can make16 very low unemployment a reality.17 I represent the Coffee County18 Commission and have a very good working19 relationship with the city governments.20 These relationships, along with my21 involvement with the Wiregrass Economic22 Development Corporation, will bode well --23 very well with bringing new industry to our

Page 4 1 district. With the right industrial 2 recruitment and the right cooperative 3 movement by the state and local government, I 4 believe that we can bring high skilled 5 paying -- high paying, high skilled jobs to 6 Coffee County. 7 The second most important issue, in 8 my opinion -- probably the most important 9 issue -- is education. The investment we10 make in our children is the most important11 investment we can make. If we don't make12 that investment and don't make it succeed,13 our outlook is gloomy.14 My mother, my wife, my sister are all15 educators. I understand the concerns that16 are in the classroom. To achieve economic17 success, we need to have a workforce prepared18 to handle the rigors of a work environment19 that's fast paced. We need legislature20 that's focused on educating all of our21 children and not just those destined for22 college.23 My opponent voted to take $1,000 out

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Page 5 1 of every classroom in Coffee County and send 2 it to private schools in Montgomery and 3 Birmingham. Think about it. Our 4 representative voted to take money out of our 5 classrooms and send it to private schools in 6 other districts, over $500,000 out of Coffee 7 County classrooms. I will never vote to take 8 money out of Coffee County schools and send 9 it to private schools. Our representative10 should have been bringing money to our -- to11 our county instead of taking it out.12 The bill I'm referring to is the13 Accountability Act. The legislature passed14 this bill under cover of darkness without any15 (inaudible). My opponent never read the16 legislation, and he'll tell you that himself.17 I vow to you that I will never vote18 on a bill without reading it. I will read19 the bill, dissect the bill, and bring that20 bill home to my constituents. If it's a bill21 that impacts auto dealers, I intend to call22 Seth Sherwin, I intend to call Jimmy Cook,23 Tim Whitehead, John Mitchell, other folks in

Page 6 1 that industry. If the bill affects 2 education, I'm going to contact our 3 superintendents. If I don't do that, this 4 woman right over here might -- might have my 5 hide. I intend to contact people in the 6 industry when there's a bill that impacts 7 industrial development and economic 8 development. 9 I'll contact these local individuals,10 communicate with them. And it's not being11 done. That's a real problem. And we can't12 afford to rubber stamp what's going on in13 Montgomery. We can't do it. We need someone14 that's going to work for us, not the special15 interests and title brokers in Montgomery.16 The third issue in state government17 is corruption. Four years ago, when our18 legislature held a special session to enact19 what they called the Handshake with Alabama,20 I thought Alabama was on the way to ending21 corruption that plagued our state. It was22 referred to as Sweeping Ethics Reform. It23 eliminated PAC-to-PAC transfers. It

Page 7 1 eliminated gifts from lobbyists. And now, 2 our now republican legislature promised 3 things would be different. 4 What we're finding out now is that 5 corruption is rampant in state government. 6 My opponent wasn't in office more than two 7 months when he took tickets to the Auburn 8 championship games. I was one of the people 9 trying to get those tickets and spent a lot10 of money chasing them down. I won't do that.11 It hasn't just stopped there.12 Instead of ending corruption, they promised13 they would create an environment of14 corruption -- they promised to create an15 environment without corruption, but they've16 created stealth corruption. We now have17 these foundations where we can't track where18 the money is coming from. We still have19 legislators, my opponent included, getting20 State contracts while they're in office.21 That needs to end.22 I intend to put an end to all of it.23 You won't have to wonder if the headlines are

Page 8 1 true while I'm in office. I will stay so far 2 away from troubles, I will stay so far away 3 from what's right and wrong -- the line 4 between what's right and wrong that you won't 5 have to worry about my impropriety. 6 My opponent's campaign is funded by 7 special interests. My money comes from the 8 folks right here in Coffee County, and I'm 9 proud of it. I'm proud of standing before10 you today and saying I haven't taken a penny11 from special interests, not one penny.12 You'll notice a handout that I just13 sent around the room. It has a pi chart on14 it. It also lists the special interests that15 have contributed to my and my opponent's16 campaign. You'll notice I haven't taken a17 penny from it.18 How much time do I have left?19 First off, I'll go ahead and tell20 you, my opponent, he's going to come up here21 and tell you that the liberals are attacking22 him, the AEA is attacking him, that -- some23 other made-up story about who is attacking

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Page 9 1 him. 2 The facts are I'm a conservative 3 republican. I'm the treasurer of this party. 4 This local party, I'm the treasurer of it. 5 I'm involved in this party on the state and 6 local level. I've attended I think every 7 republican meeting save three or four in the 8 last five years. I believe that -- that 9 we -- we need to focus on what's -- what's10 really conservative and what's not. I think11 small government is conservative.12 The truth is there's three parties in13 this state. There's the republicans, there's14 the democrats, and there's the Hubbard Party.15 One of those is corrupt, and I believe the16 democrats are also.17 As a good republican, I'm standing up18 to the corruption of the Hubbard Party. As a19 good republican, I'm standing up to what the20 Hubbard Party and my challenger have done.21 Their way of attacking a challenger to the22 Hubbard Party is to call him a liberal, to23 accuse him of working with special interests,

Page 10 1 to accuse him of God knows what. And the 2 truth is, it's in the pudding. Like I said, 3 take a look at that chart. I haven't taken a 4 penny from any special interests. I'm only 5 beholding to my constituents. 6 Okay. There's been a lot of news 7 coverage the last couple of weeks about the 8 corruption within our party within our own 9 district. You probably all heard the phone10 conversation that took place between my11 opponent. And I'm -- I'm going to address12 it.13 Simply put, my opponent called me and14 told me the Speaker of the House, Mike15 Hubbard, was going to kill not only 100 jobs16 in our county, but kill a junior college as17 well. I spoke with the Attorney General on18 Thursday and said, look, I've got to be able19 to explain this to the people of Coffee20 County.21 Everything that I say can be22 corroborated by the Attorney General; it can23 been corroborated by five sources here in

Page 11 1 Coffee County and across the state. They'll 2 either testify -- They already have testified 3 or they'll testify in the next two weeks at a 4 Lee County grand jury. 5 Last year, the AG was conducting an 6 investigation into illegal dealings of Mike 7 Hubbard and his cohorts. I received a call 8 notifying me that threats were being made to 9 a junior college deal in a deal that could10 cost Coffee County over 100 jobs. I was told11 I would likely to get a similar threat from12 my opponent. As you know, I got that call13 from my opponent.14 Because of this investigation into15 these matter, I can't go too far into the16 details. But let me assure you of a few17 things. First, I didn't ask to be called. I18 didn't ask to be threatened. Mike Hubbard19 was threatening jobs in our district, and my20 opponent didn't stand up to him.21 Please know that I will stand up to22 anyone who threatens our friends and23 families, and I think I have proven that. If

Page 12 1 someone wants to threaten our junior college 2 or our jobs in our community, I won't help 3 pass on those threats. I will stand up to 4 those threats, expose those threats, and do 5 everything to protect this community. I wish 6 my opponent had those same values. 7 As much as I hate my name being 8 plastered all over the news pages along with 9 these people that are doing these bad things,10 I believe he public needs to know. I believe11 in the United States Constitution. I believe12 the people of Coffee County have a right to13 choose who will be representing them. I14 believe they deserve to know when someone in15 Montgomery is trying to deprive them of their16 jobs, their schools, and their right to elect17 their own leaders.18 I didn't ask for any of this. I19 didn't make my opponent call me and make20 those threats. Sue knew I knew about these21 threats in October and chose to do nothing22 about it. Her response to me was, Do you23 want to be the one taking on the Speaker? My

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Page 13 1 response to that is summed up by a Teddy 2 Roosevelt quote. I'm going to use one too. 3 He said, In a moment of decision, the 4 best thing you can do is the right thing; the 5 worst thing you can do is nothing. 6 Doing nothing (inaudible) the private 7 citizens of Coffee County a choice. I will 8 not be bullied. I will not be threatened for 9 standing up for what's right. These bullying10 tactics just leave me with a question. My11 question isn't why he didn't stand up for12 Coffee County jobs. My question isn't why he13 didn't stand up for the junior college. My14 question is simple. If you're elected, are15 you going to re-elect Mike Hubbard as Speaker16 of the House?17 (Second CD)18 MR. PIPKIN: When I decided to run19 for office, I didn't ask for a phone call. I20 didn't ask for threats to be made against my21 family. I didn't ask for threats to be made22 against my community.23 Like I said earlier, there's three

Page 14 1 parties in Alabama. There's republicans, 2 there's democrats, and there's the other 3 party. I'm a republican. 4 And I'll ask it again, why did you 5 hire defense counsel? 6 (Audience making comments) 7 MR. MOORE: Okay. Stop slinging mud, 8 Guys. 9 You know, the funny thing that I10 found in this race is not one time have I11 been attacked on my voting record, you know.12 I mean, usually -- I mean, at least Garrett13 will get up here and say, Well, y'all check14 my voting record.15 Well, I'm going to leave you with the16 same thing he said. Check my voting record.17 If I'm the most conservative member in the18 Alabama Legislature, then I'm voting the way19 this rendition wants me to vote. There20 should be no question.21 Now, yeah, they're going to sling22 some mud. But let me leave you with another23 Ronald Reagan quote that I always have to use

Page 15 1 in my speeches. 2 The government's hiding on the 3 economy. If it's moving, you tax it. If it 4 keeps moving, you regulate it. And when it 5 fails, you subsidize it. And all we're doing 6 is fighting taxes and regulations so we don't 7 have to subsidize (inaudible) businesses. 8 That's what we're going to do. 9 Remember that Reagan quote.10 MR. PIPKIN: I'll attack you on your11 voting record if you want me to.12 Mr. Moore will tell you himself he13 did not read the Accountability Act. He'll14 tell you that. That bill came out in the15 middle of the night, and he refused to read16 it, and voted for it.17 He mentioned -- He mentioned Donnie18 Chesteen earlier. Donnie Chesteen voted19 against it because he read it. Now, that's20 the voting record.21 We need responsible, conservative22 representation. And I intend to be your23 voice in Montgomery.

Page 16 1 AUDIENCE: Sir, you have crossed the 2 line. We had a question. You have not 3 answered it. The question concerned what to 4 do concerning your (inaudible) community. 5 The consensus seems to be the voters will 6 decide based on what they feel you have done. 7 I believe you have crossed the line. 8 UNIDENTIFIED: Okay. Now, folks, we 9 have ten seconds. We're going to have a --10 (DVD ends)11

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Page 17 1 REPORTER'S CERTIFICATE

2 STATE OF ALABAMA

3 MONTGOMERY COUNTY

4 I, Dee Coker, Registered Professional

5 Reporter and Commissioner for the State of

6 Alabama at Large, hereby certify that I

7 transcribed the videotape of the DEBATE

8 BETWEEN JOSHUA PIPKIN AND BARRY MOORE (two

9 parts) contained herein and that pages 2

10 through 16 contain a true and accurate

11 transcription, to the best of my ability, of

12 the proceedings on the videotape.

13 I further certify that I am neither

14 kin nor of counsel to any of the parties to

15 said cause nor in any manner interested in

16 the results thereof.

17

18

19

20 /s/Dee Coker DEE COKER, CCR, RPR

21 Commissioner for the State of Alabama at Large

22 CCR 85, Expires 9/30/2015

23 COMMISSION EXPIRES: 1/14/2017

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< F >facing   (2)

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< H >handle   (1)handout   (1)Handshake   (1)

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