E-Filed

08/02/2017 @ 08:36:18 AM
Honorable D. Scott Mitchell
Clerk Of The Court

No. CR-16-0012
_____________________

IN THE ALABAMA COURT OF CRIMINAL APPEALS

______________________

MICHAEL GREGORY HUBBARD, Appellant,

vs.

STATE OF ALABAMA, Appellee.

_______________________

On Appeal from the Circuit Court of Lee County

_______________________

REPLY BRIEF OF APPELLANT

_______________________

William J. Baxley Sam Heldman

Joel E. Dillard The Gardner Firm
David McKnight 2805 31st St. NW
Baxley, Dillard, McKnight Washington DC 20008
James & McElroy Phone: 202 965 8884
Post Office Box 530333 Fax: 202 318 2445
Birmingham, Alabama 35253 sam@heldman.net
Phone: 205.271.1100
Fax: 205.271.1108 Philip E. Adams, Jr.
bbaxley@baxleydillard.com Blake Oliver
dmcknight@baxleydillard.com Adams White Oliver Short
jdillard@baxleydillard.com & Forbus LLP
205 South Ninth Street
R. Lance Bell Opelika, Alabama 36801
Trussell Funderburg Phone: 334.745.6466
Rea & Bell PC Fax: 334.749.3238
1905 First Avenue South padams@adamswhite.com
Pell City, Alabama 35125 boliver@adamswhite.com
Phone: 205.338.7273
Fax: 205.338.6094
lance@tfrblaw.com

ORAL ARGUMENT REQUESTED

 Table of Contents

Table of Authorities . . . . . . . . . . . . . . . . . iii

Summary of the Argument . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Introduction . . . . . . . . . . . . . . . . . . . . 3

2. Count 5: Voting on the House version of the 2013

General Fund bill did not violate 36-25-5(b). . . 7

3. Counts 16 through 19: investments in Craftmaster

Printing did not violate 36-25-5.1(a). . . . . . 14

a. Not a thing of value (and error in

failing to charge the jury on this issue). . . 14

b. Not lobbyist, subordinate of a lobbyist,

or principal. . . . . . . . . . . . . . . . . 19

4. Count 23: seeking advice from Mr. Brooke did not

violate Ala. Code 36-25-5.1(a). . . . . . . . . . 23

5. Counts 6 and 10: Consulting contracts with APCI

and Edgenuity did not violate 36-25-5.1(a). . . . 24

6. Counts 11 through 14: Hubbard did not violate the

statutes at issue, when assisting a job-creating
business located within his legislative district. . 29

7. Sumners expert testimony, as to what Alabama

law means and what it forbids, was improper and
is grounds for a new trial at least. . . . . . . . 37

8. The trial courts failure to investigate juror

misconduct during trial, and its concealment of
the misconduct from the defense during trial,
require reversal. . . . . . . . . . . . . . . . . . 42

i
9. The trial court should have dismissed the case
before trial, based on prosecutorial misconduct
including misconduct occurring before the grand
jury. . . . . . . . . . . . . . . . . . . . . . . . 49

Conclusion . . . . . . . . . . . . . . . . . . . . . . 52

Certificate of Service . . . . . . . . . . . . . . . . 54

ii
 Table of Authorities

Burkhart v. Washington Metro. Area Transit Auth.,

112 F.3d 1207 (D.C. Cir. 1997) . . . . . . . . . . 38

Carroll v. State, ___ So.3d ___, 2015 Ala. Crim. App.

LEXIS 65 (Ala. Crim. App. 2015) . . . . . . . . . . 43

Cleburne County Comm'n v. Norton,

979 So.2d 766 (Ala. 2007) . . . . . . . . . . . . . 11

Complete Cash Holdings, LLC v. Powell, ___ So.3d ___,

2017 Ala. LEXIS 38 (Ala. 2017) . . . . . . . . . . . 7

Cooks Pest Control, Inc. v. Rebar,

28 So.3d 716 (Ala. 2009) . . . . . . . . . . . . . 7

Dill v. State,

723 So.2d 787 (Ala. Crim. App. 1998) . . . 19, 31, 33

Ex parte Dial, 387 So.2d 879 (Ala. 1980) . . . . . . . 38

Fitch v. State,

851 So.2d 103 (Ala. Crim. App. 2001) . . . . . . 38-41

Grimes v. Alfa Mut. Ins. Co., ___ So.3d ___,

2017 Ala. LEXIS 7 (Ala. 2017) . . . . . . . . . . . 11

Holland v. State,

588 So.2d 543 (Ala. Crim. App. 1991) . . . . . . 42-48

Johnson v. United States, 135 S.Ct. 2551 (2015) . . 6, 28

iii
Kirkland v. State,

529 So.2d 1036 (Ala. Crim. App. 1988) . . . . . . . 9

Marshall v. State,

182 So.3d 573 (Ala. Crim. App. 2014) . . . . . . . 48

McDonnell v. United States, 136 S. Ct. 2355 (2016) . . 27

Owen v. Tennessee Valley Printing,

168 So.3d 1221 (Ala. Civ. App. 2014) . . . . . 10, 12

People v. Wilkins, 68 N.Y.2d 269 (N.Y. 1986) . . . . . 52

Perkins v. State,

144 So.3d 457 (Ala. Crim. App. 2012) . . . . . . . 46

State v. Johnson, 463 N.W.2d 527 (Minn. 1990) . . . . . 52

State Superintendent of Educ. v. Ala. Educ. Ass'n,

144 So.3d 265 (Ala. 2013) . . . . . . . . . . . . . 9

United States v. Mechanik, 475 U.S. 66 (1986) . . . 50-52

Warger v. Shauers, 135 S. Ct. 521 (2014) . . . . . . . 45

Ala. Code 13A-10-61 . . . . . . . . . . . . . . . . . 3

Ala. Code 36-26-1.1 . . . . . . . . . . . . . . . . . 30

Ala. Code 36-25-1(2) . . . . . . . . . . . . . . . 9-11

Ala. Code 36-25-1(8) . . . . . . . . . . . . . . 8-9, 13

Ala. Code 36-25-1(34) . . . . . . . . 14-16, 18, 24, 28

Ala. Code 36-25-5(a) . . . . . . . . . . . . . . . 32-33

iv
Ala. Code 36-25-5(b) . . . . . . . . . . . . . . 7-9, 13

Ala. Code 36-25-5(c) . . . . . . . . . . . . . . . 34-37

Ala. Code 36-25-5.1(a) . . . . . . . . . . 14, 22-24, 28

Ala. Code 36-25-5(f) . . . . . . . . . . . . . . . . 8-9

Ala. Code 36-25-7 . . . . . . . . . . . . . . . . 3, 22

Ala. Code 36-25-18 . . . . . . . . . . . . . . . . . 20

Ala. Code 36-25-19 . . . . . . . . . . . . . . . . . 20

Ala. Code 36-25-27(a)(1) . . . . . . 13, 19, 24, 28, 35

Ala. R. Crim. P. 21.3 . . . . . . . . . . . . . . . . . 7

Ala. R. Evid. 606(b) . . . . . . . . . . . . . . . 45, 48

Ala. R. Evid. 704 . . . . . . . . . . . . . . . . . . 39

Ethics Commn Advisory Opinion No. 2016-27 . . . . . . 27

v
 Summary of the Argument

The prosecutors brief is made up of false rhetoric,

faulty legal reasoning, and efforts to ignore the absence

of evidence.

The prosecutors say repeatedly that Hubbard sold his

office, even though they conceded repeatedly at trial that

none of the matters involved in this case even allegedly

involved a quid pro quo. If Hubbard had sold his office, he

could have been and would have been charged with doing so,

as a quid pro quo; Alabama has laws that clearly prohibit

that. But he was not charged with, nor did he do, any such

thing.

On each issue in this appeal, the prosecutors either

mis-state the law, argue for unprecedented and unreasonable

interpretations of the law, or ignore their own failure to

prove facts. Thus for instance they contend that Hubbard

was an employee of APCI, when the undisputed evidence

shows that he was nothing of the sort. They contend that

agents of a principal are principals too, but ignore the

fact that the Ethics Commission has even recently declined

to adopt that view. They argue that one cannot contest the

sufficiency of evidence on a required issue of fact unless

1
one proposed a jury charge about it; but the law is clearly

to the contrary. They argue that a prior opinion from this

Court is dispositive precedent on an issue that was not

addressed in that case. And so on.

As stated in Hubbards opening brief, all of these

prosecutorial errors derive from one overarching problem:

the tendency of some prosecutors to try to stretch ethics

laws to cover everything that those prosecutors deem

unseemly. This case is the prime example. The prosecutors

have trusted their own instinct about what things must be

illegal, more than they trust the Legislature to make the

laws. They even go so far as to tell this Court that if the

Legislatures intent on various points was different from

these prosecutors intuition about what the laws should be,

then ethics legislation was a sham and a cover for

corruption. (Those are their words, verbatim.)

In our democracy the Legislature makes the laws;

prosecutors do not. In our democracy, criminal laws cant

be stretched through novel interpretations in order to

target people whom the prosecutors deem to be bad guys.

Hubbard did not violate Alabamas laws, and his convictions

should be reversed in their entirety.

2
 Argument

1. Introduction.

The prosecutors brief begins with, and is based on,

untrue rhetoric. They say that Hubbard sold his office to

benefit himself (State Brief p. 1), though Hubbard

indisputably did not do that. Alabama law has strong

provisions prohibiting an official from selling his office.1

And the prosecutors repeatedly conceded throughout this

case that they did not even claim that Hubbard violated

those laws or that he engaged in any quid pro quo. (Hubbard

blue brief, pp. 1, 38, quoting prosecutors). A brief that

begins with such exaggeration cannot be trusted.

Yet the prosecutors have the temerity to tell this

Court that if the ethics laws are not read in the way that

1
See Ala. Code 13A-10-61(a)(2) (it is an offense if a
person, [w]hile a public servant, solicits, accepts or
agrees to accept any pecuniary benefit upon an agreement or
understanding that his vote, opinion, judgment, exercise of
discretion or other action as a public servant will thereby
be corruptly influenced.); 36-25-7(b) (No public
official or public employee shall solicit or receive
anything for himself or herself or for a family member of
the public employee or family member of the public official
for the purpose of corruptly influencing official action,
regardless of whether or not the thing solicited or
received is a thing of value.). Hubbard was not even
charged under these laws; he undisputedly did not violate
them. Yet the prosecutors now want to act as though he did.

3
the prosecutors prefer, those laws are a sham designed to

let lawmakers disguise unethical conduct with a veneer of

legality and a cover for corruption. (State Brief, pp. 1,

75). If the Legislature (having already strongly outlawed

corruption) did not enact laws to cover everything that

these prosecutors deem unseemly, then these prosecutors

tell this Court that the Legislature as a whole was

nefarious and corruptly motivated.

Such rhetoric has no place in this Court, and no place

anywhere when coming from attorneys representing the State.

People can disagree about how far the states ethics laws

should go beyond prohibiting actual corruption, which

Alabamas laws strongly prohibit. People can disagree about

how far the laws should go to prohibit things that might

present just the appearance of possible impropriety even

when (as here) there is no actual corruption of official

action. People can disagree about what the laws should be.

But no reasonable person should disagree with the

principle that the laws are what the laws say, not what

prosecutors think the laws should say.

Yet these prosecutors have not approached this case

based on the law. The sworn testimony of Lt. Col. Henry

4
Sonny Reagan, a former colleague of the lead prosecutor

in this case, recounted what lead prosecutor Hart had said

about this case: that he had determined [that Hubbard] was

a bad guy and that while he had may not have committed

crime[s], he had done everything possible to look guilty.

[R-1125]. Therefore, Hart said he would tie a noose around

[Hubbards] [expletive] neck and cinch it down until he is

grasping for [expletive] air [R-1155]. He said he would

ruin Mr. Hubbard politically, that specifically he would

put a one five five millimeter Howitzer right through him.

And he didn't care about the collateral damage to anyone

else. [R-1161]. Notably, the prosecutors do not even deny

in their brief to this Court that Hart said those things.

That is the very same approach that pervaded the

prosecution throughout and that still pervades the

prosecutors appellate brief. It is not about the law,

rationally debated and fairly applied. It is not actually

about whether Hubbard committed crimes as set out by the

Legislature. Instead it is about whether he violated the

prosecutors sense of what should be a crime or what

look[s] guilty [R-1125], such that Hubbard should be

ruined politically. As predicted in Hubbards opening brief,

5
the prosecutors brief is an attempt to paint a bad

picture of the facts, combined with an attempt to gloss

over the differences between the law as written by the

Legislature and the law as the prosecutors think it should

have been written.

Further, as Hubbard showed in his opening brief, where

there is doubt about what the Legislatures chosen words

mean, those words are to be read narrowly rather than

broadly. No one can be jailed for doing something unless

the law gave him advance fair notice that it was a crime.

Johnson v. United States, 135 S.Ct. 2551, 2557 (2015). When

a prosecutor asks the courts to read a law broadly to cover

something never before known to be covered, that is unfair

and indeed unconstitutional, a due process violation.

Another grossly erroneous legal argument by the

prosecutors in their brief to this Court must be mentioned

at the outset. The prosecutors argue repeatedly that this

Court is barred from reviewing the sufficiency of the

evidence on various points, because (the prosecutors say)

Hubbard waived the issue by not requesting jury

instructions on such points. (State Brief, pp. 63, 66, 68).

6
In support of this waiver contention, the prosecutors

cite only Ala. R. Crim. P. 21.3, and no other authority.

This argument by the prosecutors is contrary to law, so

badly so that one must wonder whether they are actively

trying to mislead the Court. Under Rule 21.3, a

contemporaneous request for an instruction is necessary if

one seeks to argue on appeal for reversal based on failure

to give that instruction. But that is entirely separate

from the question of appellate reversal for evidentiary

insufficiency. Just as the Supreme Court has held in the

procedurally analogous civil context, see Complete Cash

Holdings, LLC v. Powell, ___ So.3d ___, ____ n.7, 2017 Ala.

LEXIS 38, *14 (Ala. 2017), citing Cook's Pest Control, Inc.

v. Rebar, 28 So.3d 716, 722-23 (Ala. 2009), one need not

request or object to any jury instruction in order to

preserve an evidentiary-sufficiency argument.

2. Count 5: Voting on the House version of the 2013

General Fund bill did not violate 36-25-5(b).

Hubbard showed in his opening brief that he did not

violate Ala. Code 36-25-5(b) by voting on the House

version of the 2013 General Fund bill, because he did not

have a conflict of interest within the meaning of the law.

7
 Hubbard showed that there is no evidence at all that

his vote could have or would have affected his own personal

interest. The prosecutors admit this; they do not claim

that the vote would affect Hubbard, but only that it would

affect APCI. (State Brief, p. 62).

Hubbard showed also that he did not have a conflict of

interest as that term is defined in 36-25-5(f). The

prosecutors admit this, at least silently, through their

failure to dispute it.

Hubbard also showed that the -5(f) definition is

controlling, in terms of what counts as a conflict of

interest for a legislative vote under -5(b). The

prosecutors dispute this, arguing that the other definition

of conflict of interest in 36-25-1(8) is also

applicable. But, as Hubbard showed, the prosecutors

argument would make the entire subsection -5(f) completely

pointless. The only material difference between -1(8) and -

5(f), so far as any party here has pointed out, is

that -5(f) does not deem it a conflict when the legislator

is an employee of a business affected by legislation.

Section -1(8) does, by virtue of its use of the term

business with which the person is associated, which is

8
defined in -1(2). With -5(f) being narrower than -1(8),

there would be no reason to have -5(f) at all unless it was

the standard that governs under -5(b). Otherwise -5(f) is

pointless; and statutes are not read in ways that would

make a whole provision pointless. State Superintendent of

Educ. v. Ala. Educ. Ass'n, 144 So.3d 265, 273 (Ala. 2013).

The only way to read the statutory scheme in a way that

gives effect to all its provisions is that the -5(f) scope

of conflict of interest applies to legislative votes,

while the -1(8) provision applies to all other sorts of

official action.2

Hubbard further showed that even if the -1(8)

definition of conflict of interest were applied, still

there was no proof that he had a conflict of interest. The

only thing that the prosecutors claim, in response, is that

he was an employee of APCI, such that APCI was a

business with which [he was] associated under -1(2). See

36-25-1(2) (defining that term to mean [a]ny business of

2
The prosecutors seem to say that this reading would make -
1(8) pointless, but not so. Under Hubbards reading, -1(8)
would apply to all official actions other than legislative
votes. Kirkland v. State, 529 So.2d 1036, 1039 (Ala. Crim.
App. 1988) (we find that the legislature intended a
conflict of interest to be a necessary element of each
ethical violation proscribed in Chapter 25).

9
which the person or a member of his or her family is an

officer, owner, partner, board of director member, employee,

or holder of more than five percent of the fair market

value of the business.). But that is simply false.

There is no evidence that Hubbard was an employee of

APCI. Instead the undisputed fact is that APCI had a

business-to-business contract with Auburn Network, of which

Hubbard was an officer, and that pursuant to that contract

Auburn Network was to provide consulting services to APCI.

[C-6606]. Hubbard, for Auburn Network, performed those

consulting services.

To be an employee of a business ( 36-25-1(2)) is a

recognized type of legal relationship. An employee is not

the same as an independent contractor; those are, legally

and factually, two different sorts of relationships. An

employee is also not the same as a business-to-business

relationship. Employee is a legal term with well-

understood and settled meaning. See, e.g., Owen v.

Tennessee Valley Printing, 168 So.3d 1221 (Ala. Civ. App.

2014). (One very common distinction, which is quite

probative, is that employees are required to receive W-2s

for their pay; independent contractors get 1099s of

10
course.) Lawyers, working for a law firm retained by a

business, are not that businesss employees. Consultants,

working for a consulting business retained by another

client business, are not that client businesss employees.

Any lawyer, and indeed any lay person, understands this.

The legislature chose to include employees in

the -1(2) definition of business with which the person is

associated, and chose not to include independent

contractors or business-to-business relationships. We

presume that the Legislature knows the meaning of the

words it uses in enacting legislation. Cleburne County

Comm'n v. Norton, 979 So.2d 766, 773 (Ala. 2007).

Furthermore, the Legislature is presumed to be aware of

existing law and judicial interpretation when it adopts a

statute. Grimes v. Alfa Mut. Ins. Co., ___ So.3d ___, 2017

Ala. LEXIS 7, *33 (Ala. 2017) (internal quotation marks,

brackets and citation omitted). The prosecutors plainly

think that the legislature should have adopted a different

and broader definition of business with which the person

is associated, such that it included more than employees,

but their policy preference is irrelevant.

11
 The prosecutors argue that whether Hubbard was an

employee of APCI is simply a question of fact. It would

indeed be a question of fact if the prosecution had

submitted evidence on it; it is, after all, an element of

the conflict of interest that they claim was the core of

the charged offense, and so it was their burden to prove it

beyond a reasonable doubt. But there is not an iota of

evidence much less proof beyond a reasonable doubt that

Hubbard was an employee of APCI. There is no evidence that

APCI retained control over the details of how Auburn

Network and Hubbard performed consulting services, or other

factors under the test described in Owen, supra.

Unable to cite to any evidence that Hubbard was an

employee of APCI, when in fact he was the officer of a

company that had a business-to-business consulting contract

with APCI, the prosecutors resort to a falsehood: they say

(State Brief, p. 64) that Hubbard suggests that he was an

employee of APCI. See Appellant Br. 71. This is pure

falsehood, as the Court can see by reading page 71 of

Hubbards blue brief.

Hubbard also showed another reason why the undisputed

evidence showed that he was not guilty on Count 5: that

12
even according to the testimony of the prosecutors own

witnesses when he voted for the House version of the bill

he knew, intended and expected that the APCI-favored

provision would never be included in the enacted version of

the General Fund bill. Therefore he did not intentionally

( 36-25-27(a)(1)) cast a vote that would materially

affect (-1(8)) APCI. What is the prosecutors response to

this specific point? None. They may say it is a fact

question. But it is a fact question on which they had the

burden of proof, yet they offered nothing to prove it. Even

their own witnesses testimony definitively refutes the

idea that the vote would materially affect APCI. This was

exhaustively set out in Hubbards opening brief, and the

State cites to no evidence allowing a different conclusion.

For this reason too, Hubbard did not violate 36-25-5(b).

Hubbard respectfully asks the Court to note, therefore,

that this is an example of what Hubbard has pointed out in

the introduction above. These prosecutors doggedly pursued

Hubbard on a charge under 36-25-5(b), without evidence.

They latched onto a provision of criminal law that looked

vaguely promising, without analyzing whether it actually

applied given the particulars that the Legislature enacted.

13
When now pressed into a corner, to actually wrestle with

what the law says, they say that Hubbard was an employee

of APCI contrary to the undisputed evidence. This is not,

and never was, a law- and fact-driven prosecution. Instead

it is exactly the sort of improper prosecutorial conduct

that lead prosecutor Hart told Lt. Col. Reagan he was doing,

as quoted at p. 5 supra.

3. Counts 16 through 19: investments in Craftmaster

Printing did not violate 36-25-5.1(a).

Counts 16-19 charge Hubbard with violating Ala. Code

36-25-5.1(a) (no public official shall solicit or

receive a thing of value from a lobbyist, subordinate of a

lobbyist, or principal ) when he sought investors in

Craftmaster Printing. On these charges too, the prosecutors

responses to Hubbards arguments are incorrect.

a. Not a thing of value (and error in failing to

charge the jury on this issue).

Hubbard showed in his opening brief that the

investments in Craftmaster Printing did not violate 36-

25-5.1(a) because, first, those investments were not a

thing of value. They were excepted from that phrase by

the exception in 36-25-1(34)(b)(9): [a]nything for which

the recipient pays full value.

14
 Hubbard also showed that the trial court erred in

refusing to charge the jury on this exception. That remains

true, but is mostly academic because the prosecutors do not

dispute that the investments price was fair, full, and not

inflated at all. There is no evidence to the contrary, and

the prosecutors do not even claim so. Acquittal is

therefore the proper result, once it is established that

the full value exception, properly interpreted, could

apply to a transaction such as these investments.

The prosecutors do not try to support the trial courts

view that this full value exception applies only to

things that are somehow like football tickets. [R-7659

to -61]. As Hubbard showed in his opening brief, and the

prosecutors seem to now accept, the full value provision

covers literally anything. See 36-25-1(34)(b)(9).

But the prosecutors argument, it seems, is that the

payment to Craftmaster could not come within this provision

because Craftmaster was receiving money and was giving

stock shares in return. The prosecutors suggest that this

will not fit within the statute because of the supposed

meanings of the words recipient and pays, in the phrase

[a]nything for which the recipient pays full value.

15
 But the prosecutors are simply wrong. Certainly one

like Craftmaster can be a recipient of a thing of value

if the thing it receives is money. Money quite obviously

an item of monetary value, 36-25-1(34)(a) is the

quintessential thing of value. One who receives it is, no

doubt, a recipient of a thing of value.

And can one pay[] full value for a thing of value, by

trading stock shares for that thing of value? Of course one

can. If you are selling your truck for $5000, and I give

you (and you accept) stock shares worth $5000 for it, have

I paid full value for your truck? Of course I have. For

that matter, if I give you (and you accept) $5000 worth of

canned beans for your truck, have I paid full value for

your truck? Of course I have. Any reasonable user of the

English language would understand this.

And putting these two points together, any reasonable

user of the English language when asked about facts like

those in this case would understand:

Person A: First I want you to understand that the

phrase thing of value includes not only
things like trucks, but things like stock, and
also just plain money. Got it?

Person B: Got it.

16
 A: OK, imagine Im selling you some stock worth
$5000, and youre going to give me $5000 for
it. A completely fair price, we both agree.
Im not gouging you.

B: Got it.

A: What thing of value am I getting from you?

B: My money.

A: Right. Now Im going to ask you an important

question. Have I paid you full value for that
thing of value, when I hand you the stock at
the fair price? If I didnt, Ill probably go
to jail.

Person B, if he or she is a reasonable user of English

language, will always recognize that Person A did pay full

value. Each side paid full value for the thing of value

each received. That is why it was a fair transaction.

Moreover, when one remembers the point of the law and

of this full value exception and does not lose sight of

the forest for the trees it is perfectly clear that the

applicability of the full value exception should not turn

on distinctions such as the prosecution seeks to make. If a

public official buys stock for full value, even from a

principal, that is no crime; this is at the core of what

the full value exception says. So if a public official

sells the same stock for the same value a completely fair

transaction at a fair price why would that be a crime?

17
There is no conceivable reason why the Legislature would

make one a crime and the other not.

At the very least, a reasonable user of the English

language could understand the full value exception in the

way that we have described; and there was nothing that gave

Hubbard or others fair notice that the law would

criminalize such a transaction (or not) depending on which

side was giving the cash and which side was giving the

stock. Therefore it would violate due process to create a

new construction of the statute in this case, in order to

convict Hubbard for having violated a standard that was not

previously clear.3

3
The prosecutors, seeking to evade this reasonable
understanding of the full value exception, suggest that
all of Hubbards hypotheticals of plainly lawful
transactions would be lawful because of the compensation
exception in 36-25-1(34)(b)(10). But that is not so.

When a teacher sells her house or used car to someone who

happens to be the secretary of a lobbyist, that is not
compensation and other benefits earned from a business
relationship, 36-25-1(34)(b)(10). A sale of a used car
or home between private persons does not constitute a
business relationship. Instead, such a sale by the
teacher is lawful and is not a violation of 36-25-
5.1(a) - because of the full value exception, even though
the thing of value the teacher is soliciting from the
lobbyists subordinate is money.

18
 The prosecutors try to muddy this application of law to

undisputed fact and try to convince this Court to ignore

the undisputed fact that the transaction was a fair one -

by trying to convince this Court that Hubbard was somehow a

shady fellow. Again, that is these prosecutors entirely

improper approach to prosecution. This Court follows the

law, and Hubbard did not violate the law.

b. Not lobbyist, subordinate of a lobbyist, or

principal.

Hubbard also showed that Mr. Brooke, Mr. Rane, and Mr.

Burton were not principals. True, they were employees or

officers of principals, but that is not the same as being

the principal.

Hubbard showed that, after this trial, the Ethics

Commission tentatively moved towards a position like the

one the prosecutors advocate - that principal means not

only the entity for which the lobbyist lobbies, but also

some individual agents of that principal but then the

Ethics Commission withdrew that opinion. The prosecutors

ignore this. Hubbard showed that no one could possibly be

said to have intentionally ( 36-25-27(a)(1)) solicited a

thing of value from a principal where there was no notice

that the law deemed him a principal. See, e.g., Dill v.

19
State, 723 So.2d 787, 796-97 (Ala. Crim. App. 1998) (ethics

law offense was not a strict liability offense, and

evidence was insufficient to prove culpable mental state).

The prosecutors ignore this too.

Hubbard showed that no Alabama authority has ever

considered individuals as principals, except in the rare

case where the lobbyist is lobbying for that individual

rather than for an entity. No authority has ever suggested

that people who are merely officers or agents of principals

must file with the Ethics Commission. The prosecutors say

that this latter fact that entities file as principals

but their officers and agents do not - merely reflects a

bureaucratic decision that it is simpler and sufficient to

have only the entity file as principal. (State Brief, pp.

75-76). That argument fails because it is contrary to law.

The statute requires that each principal file with the

Commission (and also requires that a lobbyist disclose each

principal he represents). Ala. Code 36-25-18, -19. If a

principals agents were principals themselves, the

Commission could not ignore this statutory command for the

sake of convenience. The truth, instead, is that no one

not even the Ethics Commission has ever actually

20
considered agents of a principal to be principals

themselves, until these prosecutors decided to prosecute

Hubbard.

Hubbard also pointed out that the prosecutors theory

is hopelessly indeterminate: that they offer no clear

definition of which agents of a principal are also

principals themselves. In their brief, the prosecutors

purport to offer clarity: you are a principal if you are

involved in hiring lobbyists. (State Brief, p. 76). But

this pretense at clarity is a sham, because the facts of

this case would not even meet that supposed test. Take, for

instance, Mr. Brooke. The prosecutors say that the

Executive Committee of BCA, on which Mr. Brooke sat,

employs lobbyists. (State Brief pp. 29-30, 73). But the

first page of evidence that the prosecutors cite for that

proposition shows the truth: BCA hires lobbyists. [R-5952].4

And there is no evidence cited that Mr. Brooke has ever

been involved in hiring a lobbyist, which is the

prosecutors supposed test.

4
Q: Does the BCA have lobbyists on staff?
A: Yes, sir.
Q. And they hire those lobbyists to go execute the agendas
you're talking about are developed for the BCA?
A: Yes.

21
 Here again, the prosecutors contend that the law must

be as they say, because otherwise the law would be too weak.

(State Brief, pp. 74-75). This is the same fundamental

error of approach that Hubbard has pointed out before. But

even more than that, it is based on exaggeration and

fabrication.

That is, the prosecutors say that if Hubbards argument

is correct, then a lobbyist and a principals president

could approach a legislator, speak to him about proposed

legislation, and hand him thousands of dollars. In fact,

the prosecutors hypothetical is clearly prohibited, but

not on the theory that the president of a principal is a

principal too. Instead their hypothetical would be

prosecuted successfully, if the facts are as hypothesized

as quid pro quo bribery under 36-25-7. It would also,

arguably, violate 36-25-5.1, but not because (as the

prosecutors theorize) the principals president is a

principal too. It would arguably violate -5.1 because the

principals president was acting for the principal when

giving the thing of value, thus making the principal itself

responsible. (In this case, by contrast, there is no

evidence nor even any allegation that Mr. Brooke, Mr. Rane,

22
or Mr. Burton were acting on behalf of their employers when

investing in Craftmaster.)

Again, this is all hypothetical, and the scenario that

the prosecutors imagine can be addressed by the Ethics

Commission or the courts if it ever arises concretely. The

point for present purposes is that the prosecutors

rhetoric is misleading and does not justify their

overreaching.

4. Count 23: seeking advice from Mr. Brooke did not

violate Ala. Code 36-25-5.1(a).

As has been shown above, Mr. Brooke was not a

principal, and it would be unconstitutional to expand the

definition of principal in this case to ensnare Hubbard

without advance fair notice of any such expansive

definition. Accordingly, Count 23 must fall.

Also, as noted above, the prosecutors have misstated

the evidence in stating that the executive board [of BCA]

employs lobbyists. [State Brief, p. 73]. BCA employs

lobbyists. The executive board is part of its governance

structure, of course. But the prosecutors do not even cite

any evidence that Mr. Brooke, in his role within BCA, had

part in selecting or hiring any lobbyist.

23
5. Counts 6 and 10: Consulting contracts with APCI and
Edgenuity did not violate 36-25-5.1(a).

Hubbard showed in his opening brief that the consulting

contracts of Auburn Network with APCI and Edgenuity did not

violate 36-25-5.1(a).5 As he showed, Hubbard did not

intentionally violate this law ( 36-25-27(a)(1)) because

these contracts come within the 36-25-1(34)(b)(10)

compensation exception to the definition of thing of

value. At the very least, the contours of that exception

were so ill-defined at the time he acted, that he cannot

constitutionally be convicted based on an after-the-fact

holding about the precise meaning of the exception.

The fact, undisputed, is that neither APCI nor

Edgenuity retained Auburn Network in order to have Hubbard

exercise legislative power, or any other sort of

governmental power. To the extent his legislative role was

any sort of plus in their eyes, it was merely that the

legislative role had some impact on his networking ability

5
Hubbard also showed that he would be entitled to a new
trial on these counts in any event, because of the trial
courts refusal of his requested instruction on the full
value exception to the definition of thing of value. The
prosecutors argument against this point is based solely on
their erroneously narrow understanding of that exception,
which has already been discussed in Section 3 above.

24
with out-of-state individuals. This was discussed in

Hubbards opening brief. The prosecutors do not disagree.6

And the fact, undisputed, is that there is no evidence

that Hubbard had reason to think, believe, or intend that

those entities wanted his consulting services so that he

would exercise any governmental authority on their behalf.

Nor is there any evidence that he had any reason to believe

that they hired him to curry favor with him for reasons

relating to any Alabama law or policy. Nor is there any

evidence that he had any reason to believe that they were

paying more than they, and he, thought reasonable for the

private-sector value he brought to the table. Again this

was discussed in Hubbards opening brief. The prosecutors

do not disagree.

So when the prosecutors say that Hubbard was sell[ing]

his public office in these contracts (State Brief, p. 71),

that is not legitimate argument; it is false rhetoric with

6
The prosecutors do suggest at one point (State Brief, p.
69) that these companies retained Auburn Network so that
Hubbard could influence other legislators. They leave
unspoken the fact that, if this was true, it would only be
by making networking contact with legislators in other
states, over whom Hubbard held no governmental influence
whatsoever.

25
no evidence to back it up. Such false rhetoric has no place

in a brief to this Court.

And as Hubbard showed, the prosecutors view of this

law would make a crime of much conduct that no one could

reasonably believe was intended to be criminalized. If

Alabama Power Company retains an expert witness for a trial

in Lee County who is a prominent engineering professor at

Auburn, is that a crime? On the prosecutors theory it

would seemingly be so, because one might reasonably

conclude that his selection had something probably a lot

- to do with his job as a public employee, including the

reputation, persuasive power, and aura that his status

yields. But that is surely not what the law means. The

prosecutors do not dispute this.

Yet the prosecutors want to apply exactly that sort of

loose and vague standard to Hubbard, even though at the

time Hubbard acted no one had ever been found to have

violated Alabamas Ethics Laws on similar facts.

In wanting to apply this loose and vague standard to

Hubbard, they demonstrate again that they are not concerned

with legal clarity or with making sure that the same

standard applies to all. They prefer a standard that allows

26
prosecutors to target those whom they want to target, and

they want this Court to trust that they will select their

targets wisely. That is not how criminal law is to work.

McDonnell v. United States, 136 S. Ct. 2355, 2375 (2016)

(noting that the focus of an appellate court, in defining

the law, is not with tawdry tales . It is instead with

the broader legal implications of the Governments

boundless interpretation of the statute.).

Indeed even now even years after Hubbard acted the

Ethics Commission is still wrestling to put together a

vague, multi-factor analysis of the compensation

exception, an analysis under which no one could possibly

know in advance whether he was on safe ground taking a job.

See Advisory Opinion No. 2016-277 (opinion on the

compensation exception, rendered years after Hubbard

acted, setting out a non-exhaustive 10-factor list of

things to be consider[ed], with each of those 10

containing various sub-parts, while emphasizing that the

opinion is not a checklist that if satisfied gives any

legal protection based on the offer or receipt.).

7
Available at <http://216.226.177.42/docs/pdf/AO2016-
27.pdf.pdf>.

27
 Given that the law even now is so ill-defined that even

the Ethics Commission gives that caveat just quoted in

essence, that even if you satisfy their list of factors you

cant know if you are in the clear there is a real due

process problem in using the process of criminal law to

define the compensation exception. In a first-impression

criminal case, Hubbard cannot be held to a legal standard

of which neither he, nor anyone else, had fair notice at

the time he acted. Johnson v. United States, 135 S.Ct. 2551,

2557 (2015).

The way out of this due process problem, for now, is to

recognize that in criminal cases a public official cannot

be held to have intentionally8 violated 36-25-5.1(a) by

seeking or accepting a contract establishing a client

relationship, where there is no evidence that the official

knew or intended that he was being retained in order to

exercise his governmental authority. For now, at this

moment, that should be the boundary of criminal

prosecution: that a job or business relationship is

[]related to the recipient's public service as a public

official or public employee, 36-25-1(34)(b)(10), only if

8
Ala. Code 36-25-27(a)(1).

28
the purpose is to have the official or employee exercise

governmental authority (or, perhaps, to provide a no-show

source of income with no duties but that possibility has

nothing to do with the facts of this case). That standard

comports with the statutory language. And there is no

evidence that Hubbard intentionally violated that standard.

The law can then be further developed through non-

criminal processes, including Ethics Commission opinions

and perhaps through judicial opinions in non-criminal cases.

And if the Ethics Commission or the courts ever define a

different standard that is definite in its application

such that a person knowing the facts will have fair notice

whether his conduct is permitted or not then there can

possibly be criminal prosecutions on that standard.

But on this record, Hubbard did not intentionally

violate the law and these counts must fall.

6. Counts 11 through 14: Hubbard did not violate the

statutes at issue, when assisting a job-creating
business located within his legislative district.

By the time we come to the final charges, having to do

with various successful businesses of Robert Abrams, the

pattern of prosecutorial argument in this case is familiar.

29
 Take, for instance, Counts 12 and 13, involving Ala.

Code 36-25-1.1 (No member of the Legislature, for a fee,

reward, or other compensation, in addition to that received

in his or her official capacity, shall represent any person,

firm, corporation, or other business entity before an

executive department or agency.). That statute clearly

requires proof that the member of the Legislature was paid

for representing a person or business before the executive

branch. That is the only possible reading of what it means

to represent for a fee, reward, or other compensation:

there must be proof that this was, in fact, what the client

was paying the legislator to do. It must be the reason why

compensation was paid. This is a fact that the prosecutors

must prove. The prosecutors offer no reasonable contrary

reading of this statute.

In this case, there simply was no proof that Hubbard

was paid for representing SI02 before the executive branch.

The proof including from the prosecutions own witness,

Mr. Abrams, a State witness and eminent businessperson with

no apparent hostility to the prosecution was exactly the

opposite: that the payments to Hubbard or Auburn Network

were pursuant to a consulting contract with Capitol Cups,

30
and that this consulting contract was exactly what it

purported to be. It was not a sham or a cover-up. It was

for help in the cup-selling business.

The prosecutors, having no evidence that Hubbard was

paid to represent SIO2 (rather than just being paid for

help in cup-selling), suggest that the jury could

nonetheless find that fact based simply on disbelieving

Hubbards own testimony. [State Brief, p. 99]. The State

cites no Alabama authority for such a remarkable

proposition, that prosecutors need not provide evidence of

the elements of a charged offense so long as the defendant

takes the stand and denies them. Such a rule would be

illogical in the extreme. It would allow convictions

without any affirmative testimony that the defendant

violated the law. Fortunately, that is not the law. Instead,

even if one posits that the jury rejected the defendants

testimony, it is still up to the State to prove its case

with evidence. If the State does not do that, then a

judgment of acquittal results. Dill, 723 So.2d at 803.

Similarly, on Count 11, the prosecutors likewise argue

facts without evidence, and fail to stick closely to the

law. In order to obtain the consulting contract with

31
Capitol Cups, did Hubbard use his official position or

office? That is the operative question that must be asked,

and that is what the prosecutors were required to prove.

The prosecutors make clear that the personal gain they

allege as to this count is the consulting fees paid

pursuant to the consulting contract. (State Brief, p. 89).

The statute, Ala. Code 36-25-5(a), says that a public

official may not use or cause to be used his or her

official position or office to obtain personal gain for

himself So, as noted above, the prosecutors were

required to prove that Hubbard used his position or office

to obtain the consulting contract.

Did he do that? The uncontradicted evidence, including

from the prosecutions own witness Mr. Abrams, is that he

did not. The legislature had nothing to do with it. [R-

6134 (Abrams)]. Capitol Cups retained Hubbard as a

consultant because of his knowledge and connections in the

world of sports. [R-6131 (Abrams)]. Hubbard did happen to

try to help Capitol Cups in other industries too. But still

he did not use his official position or office in order to

get the consulting contract or to get payment pursuant to

that contract; and there was no evidence that the

32
continuation of his contract was dependent on any success

his efforts might yield outside the sports industry.

As with Counts 12 and 13 discussed above, the

prosecutors cannot evade their failure of proof by positing

that the jury may have disbelieved Hubbard; it was still

the prosecutors duty to prove the elements of their charge,

Dill, 723 So.2d at 803, and they failed to do it. They now

attempt to portray Hubbards actions as improper or

unseemly, but that is no substitute for proof of the

elements of a charged offense. Hubbard simply did not

violate 36-25-5(a) as charged here.

Count 14 continues this pattern: the prosecutors try to

paint a bad picture, but whether their bad picture is

accurate or not is irrelevant because it would not

constitute the charged offense under the law. Here, the

prosecutors note that Hubbard and his staffer Blades spent

a little bit of work time, and state email addresses, on

solving the delayed-patent problem for SI02. The

prosecutors cite evidence which, if taken to its utmost,

might be read to suggest that Hubbard was motivated in part

by some gratitude towards Abrams for past payments under

the Capitol Cups contract; we do not believe that is a

33
reasonable inference, but assume for purposes of argument

that it is. Even still, that is not what the charged

statute, 36-25-5(c), would cover.

Section 36-25-5(c) provides:

No public official or public employee shall use or

cause to be used equipment, facilities, time,
materials, human labor, or other public property
under his or her discretion or control for the
private benefit or business benefit of the public
official, public employee, any other person, or
principal campaign committee as defined in Section
17-22A-2, which would materially affect his or her
financial interest

The prosecutors have no clear and correct understanding of

the meaning of this provision. This is demonstrated by

their statement that this charge was supported by evidence

that Hubbard used or caused to be used a state computer,

state email, and the time and work of his chief of staff

for his own benefit by receiving money from Abrams

(State Brief, p. 93). That sentence makes no sense. To say

that Hubbard used state time, email addresses, and so forth

for his own benefit by receiving money from Abrams is a

nonsensical grouping of words. So is the assertion that

Hubbard used the computer, email, or human labor for his

own benefit or the benefit of a business with which he was

associated by receiving money from Abrams. (Id.).

34
 What the prosecutors had to prove is that Hubbard:

(1) intentionally ( 36-25-27(a)(1))

(2) used (or caused to be used) public worktime and

resources

(3) for the private benefit of himself or anyone else

(any other person, 36-25-5(c) . . .

And now let us stop here and realize that if we stopped

there, the statute would apparently cover and criminalize

every bit of constituent service that every state and local

official ever engages in, whenever they help a constituent

with a problem. So naturally the statute requires more:

(4) which would materially affect his or her financial

interest.

See 36-25-5(c).

Contrary to what the prosecutors may be trying to imply

at p. 95, there is no evidence that Capital Cups had paid

Hubbard consulting fees for months so that that he would

help out with this later-arising patent problem. (Again, as

the prosecutors themselves repeatedly state, there was no

quid pro quo charged in this case.) Thus the question is

not (as the prosecutors say, State Brief pp. 93, 95)

whether all the money Hubbard had received from his Capitol

35
Cups consulting contract materially affected his financial

interest.

The question instead is whether the little bit of

constituent-service work that Blades did, or the use of

public telephones etc., was intentionally done in order to

create (i.e., for, 36-25-5(c)) private or business

benefit which would materially affect Hubbards

financial interest. And the answer to that specific

question, the question which the statute asks, is a clear

no.

There is no evidence that doing this bit of work on the

patent issue created any private benefit to Hubbard

himself, to a degree which would materially affect his

financial interest. Nor is there any evidence that this

work on the patent issue, insofar as it conferred a

business benefit on SIO2, would materially affect

Hubbards financial interest. Neither of those things was

proven, by any evidence whatsoever, because there was no

evidence that Hubbards continued consulting relationship

with Capitol Cups was dependent at all on whether he did or

did not do this little bit of constituent service to SI02.

Even if one indulged the prosecutors inference that

36
Hubbard had gratitude to Abrams for past compensation for

his consulting services, that does not mean that Hubbard

intentionally engaged in this constituent service so that

he would get some future financial benefit.

The prosecutors can say, all day long, that they find

Hubbards constituent service to SI02 unseemly. They can

say, as loud as they want, that they think it should be

against the law to help one constituent business while

working under a consulting contract with a sister business.

But the law and in particular, this law 36-25-5(c), as

the Legislature wrote it - does not actually prohibit that.

7. Sumners expert testimony, as to what Alabama law

means and what it forbids, was improper and is grounds
for a new trial at least.

Hubbard showed that the trial court erred in allowing

the prosecution to introduce the testimony of Mr. Sumner,

in which Mr. Sumner gave testimony about what various

provisions of Alabamas ethics laws mean, how they apply to

various circumstances, and what they were intended to

accomplish. Hubbard also showed that on various points, Mr.

Sumners testimony about what Alabama law means was wrong

in multiple ways, and far afield from the statutes

themselves including his appeal to the concept of aura

37
and his assertion (led by the prosecutors friendly

questioning) that it is ethically problematic for a

legislator even to sell vacuum cleaners in his home

district. [R-5492 to -93].

Hubbard showed that there is a simple rule of law that

governs this issue: in an Alabama courtroom, there is no

witness who should testify as an expert about Alabama law

(much less about what provisions of law mean, or how they

apply to certain fact patterns, or what they were intended

to mean). See, e.g., Ex parte Dial, 387 So.2d 879, 880 (Ala.

1980). Explanations of law, in the courtroom, come from the

Judge as statements the jury must accept. Explanations of

law do not come from witnesses, whose credibility the jury

can accept or reject. As stated in an opinion that the

prosecutors themselves invoked earlier (but appear to have

forgotten now), Each courtroom comes equipped with a

legal expert, called a judge. [C-3358, quoting Burkhart

v. Washington Metro. Area Transit Auth., 112 F.3d 1207,

1213 (D.C. Cir. 1997).]

In response, and as anticipated in the opening brief

(at p. 91 n.15), the prosecutors rely on Fitch v. State,

851 So.2d 103 (Ala. Crim. App. 2001). But Hubbard already

38
pointed out in his opening brief that Fitch addressed only

an issue under Ala. R. Evid. 704, the ultimate issue

doctrine. Id. at 116-18. This Court, in Fitch, did not

address the argument that there is simply no room for an

expert witness to tell the jury what Alabama law is.

In other words, the argument addressed in Fitch was

essentially an objection that testimony invaded the

province of the jury: the ultimate issue doctrine. Here,

by contrast, the main argument is an objection to testimony

that invades the province of the court: telling the jury

what the governing law is. (And in addition, Hubbards

arguments include an objection to Sumners incorrect

statements about what the law is, his testimony about why

some aspect of the law was adopted,9 his straying from law

9
Hubbard also pointed out that the error in allowing Mr.
Sumner to testify about why he thought some aspect of the
Ethics Law was adopted what its purpose or intent was
was especially improper because the court forbade Hubbard
from presenting the testimony of former Governor Riley
about the actual purpose. The prosecutors say with some
scorn (State Brief, p. 109) that the law would not allow
Governor Riley to testify about his state of mind when
encouraging passage or signing the 2010 amendments. If
that is so, then it is all the more improper for an
outsider to the legislative process, such as Mr. Sumner, to
testify about a supposed collective legislative state of
mind such as purpose or intent.

39
into such thing as aura, and other problems addressed in

the opening brief).

The prosecutors ignore this distinction, having no

viable response; yet they do not deny that Hubbard has

properly preserved every bit of the argument he is making.

The prosecutors also argue that any error was cured

by a later jury instruction, suggesting that a similar

instruction was held to be curative in Fitch. [State Brief,

p. 107]. That is not true. The curative instruction in

Fitch told the jury flatly that they could not consider the

witnesss testimony about whether the defendants actions

had violated the ethics laws. Id. at 118-19. (In that way,

it directly cured the issue that this Court addressed in

its opinion, i.e., the ultimate issue doctrine.) The

instruction in this case that the prosecutors cite, R-8070

to -71, contains nothing of the sort. It is not at all

similar to the curative instruction in Fitch, as the

prosecutors incorrectly say; and it does nothing to cure

the clear error that Hubbard has identified.

Further, the State does not address the fact that,

unlike this case, the issue in Fitch was moot because the

defendant was acquitted on the charge to which the expert

40
testimony was relevant. Fitch, 851 So.2d at 118.

Hubbard also showed in his opening brief that the

prosecutors failed to disclose that they would call Mr.

Sumner to give expert testimony. The prosecutors do not

deny that they understood Hubbards discovery request as

seeking such disclosure. Moreover, the prosecutors do not

suggest that they ever told Hubbard, or the trial court,

that they would decline to give such notice; thus Hubbard

and the trial court had no reason to believe that there was

a dispute about this obligation. The prosecutors say (State

Brief p. 108) that disclosure was unnecessary because they

once stated that Hubbards former counsel (having

subpoenaed Mr. Sumner to a pretrial hearing) knows that Mr.

Sumner may well be a trial witness; but that does not

indicate that the prosecutors were saying that they planned

to present Sumner as an expert witness at trial. The

failure to give such notice compounded the error in

allowing Mr. Sumners testimony.

41
8. The trial courts failure to investigate juror
misconduct during trial, and its concealment of the
misconduct from the defense during trial, require
reversal.

Hubbard showed in his opening brief that his conviction

must be reversed under cases such as Holland v. State, 588

So.2d 543 (Ala. Crim. App. 1991), because of the trial

courts erroneous response when it learned of juror

misconduct. The trial court did not notify the parties of

the report of misconduct. The trial court did nothing to

investigate as to exactly what was said, or how many other

jurors heard it, or what effect it might have had. (The

prosecutors paint their own picture of the situation, but

they do not deny this fact.10) This was a violation of the

trial courts duty to make a painstaking and careful

10
The prosecutors do say that the juror in question denied
making any comments in the jury box. [State Brief, p. 112,
citing R-8268]. The cited page of the record includes only
the hearsay recounting, by a bailiff, of a conversation. It
does not include evidence even that the unsworn denial was
reported back to the trial court; indeed the cited portion
of the record implies that no such report was made to the
court or any staff. And the trial courts instructions to
its staff had only been this: to go to ask a bailiff to
pull that juror to the -- the juror making the comments to
the side and tell them that they probably didn't realize
that they were talking out loud and not to do that any
longer. [R-8330 to -31]. There was no investigation. There
was no notice.

42
inquiry into the alleged juror misconduct. Carroll v. State,

___ So.3d ___, 2015 Ala. Crim. App. LEXIS 65, *100 (Ala.

Crim. App. 2015). Instead the trial court merely sent a

court staff member to tell the offending juror to keep

quiet. [R-8330 to -31]. And the trial court erred even

further by keeping the matter secret from the parties.

Under Holland, the need for reversal is clear.

The prosecutors purport to distinguish Holland, but

their arguments are wrong. Their main attempt at

distinguishing Holland is (as far as we can discern) to

suggest that it involved the influence of external

misconduct because it involved statements made by venire

members prior to the conclusion of jury selection, one of

whom may not have sat on the jury, while this case involves

the influence of internal misconduct because it involved

a jury member. But Holland itself rejects any such

distinction: The fact that this case involves a

prejudicial comment by a veniremember rather than an

improper remark by an empaneled and sworn juror is

immaterial, because the trial court's duty to ensure that

the accused receives a fair trial is the same in either

situation. Holland, 588 So.2d at 546.

43
 The prosecutors also contend that Holland is different

because it involved specific prejudicial statements.

[State Brief, p. 117]. But to offer this as a distinction

of Holland would turn Holland on its head, because the only

reason there is any lack of clarity about what was said,

here, is that the trial court made even less of an inquiry

than did the trial court in Holland. On the prosecutors

theory, then, a worse violation of the trial courts duty

will give rise to less remedy. That cannot be correct.

Here, the trial court was told by its staff that we

had a juror making comments in the jury box that was making

another juror uncomfortable. [R-8330]. Staff knew that the

comments in question were commentary on the evidence as it

came in. [R-8329]. The affidavit of the juror who brought

this to court staffs attention gives a fuller account:

that this involved very biased comments including

comments indicating a prejudgment of guilt. [C-5548]. If

there is not as much clarity in this case as there was in

Holland about exactly what was said, that is precisely

because the trial court failed in its duty to make a

careful and painstaking investigation.

44
 The prosecutors contend that the affidavit of the juror

who was disturbed by the others prejudicial comments was

inadmissible under Ala. R. Evid. 606(b). [State Brief, p.

114]. That is not true. Rule 606(b), with some exceptions,

forbids evidence from a juror about any matter or

statement occurring during the course of the jurys

deliberations and about the effect of anything upon that

or any other jurors mind or emotions as influencing the

juror to assent to or dissent from the verdict or

indictment or concerning the jurors mental processes in

connection therewith. But this jurors affidavit was

simply not about deliberations, or about what effect the

misconduct had on any jurors vote.

Thus the prosecutors gain no ground by citing cases

such as Warger v. Shauers, 135 S. Ct. 521, 52830 (2014).

Indeed, the prosecutors mischaracterize Warger, saying that

it renders inadmissible statements of most kinds of juror

bias, even if the juror lied during voir dire. [State

Brief, p. 115]. Warger does not do that. The dispositive

point in Warger was that the proof that the juror had lied

in voir dire was something the juror said during

deliberations. That is why the statement in question came

45
within Rule 606(b) (which forbids evidence of statements

made during deliberations). Here, there was no deliberation

going on, not even premature deliberation as the

prosecutors call it. This affidavit was not about

deliberation.11

The prosecutors argue that there was no prejudice

because Hubbard has not shown that anything would have

been different if the court had notified the parties of the

juror complaint during trial. [State Brief, p. 113]. That

same rhetoric could have been used in Holland or in any

case where a trial court fails in its duty to investigate.

But as Holland shows, that is no bar to reversal. The trial

courts failure to provide Hubbard with notice of the

report of misconduct deprived him of due process.

Here, though, we do know what would have happened if

the trial court had done its duty. The concerned juror

11
Perkins v. State, which the prosecutors cite, involved
actual premature deliberations: the evidence (which this
Court said should not have been heard) was that the jurors
had made up their minds to recommend a death sentence after
the guilt phase but before they heard the testimony at the
penalty phase. Perkins v. State, 144 So.3d 457, 493 (Ala.
Crim. App. 2012). Those jurors deliberated debated and
reasoned with each other in an effort to reach a verdict -
albeit prematurely. In our case, by contrast, the evidence
was not about deliberation.

46
would have been called to testify, with the parties present.

She would have said exactly what she said in her affidavit

[C-5548 to -49]. And at least one, if not more, clearly-

biased jurors would have been due to be removed. The

unfairness of this trial, due to at least one biased juror,

would have been corrected. Had the trial court investigated,

it would have learned at least that one juror was making

very biased comments indicating a prejudgment of guilt. [C-

5548]. Had the trial court investigated, that juror (and

perhaps others as well, if the investigation was truly

thorough and found all that the affidavit recounts) would

have been removed and replaced by others who could be fair.

The prosecutors argue that Hubbard somehow forfeited

this point because he forewent the opportunity to examine

the jurors about whether the comments affected their

verdict. [State Brief, p. 113]. Then on the very next page

the prosecutors argue that such examination would have been

barred by Rule 606(b). [State Brief, p. 114]. This is an

odd argument to say the least: that one waived an argument

by not doing something that the law forbade him from doing.

Hubbard waived nothing by not asking jurors whether the

improper comments of others influenced their verdict. Rule

47
606(b) would presumably have forbade that, as the

prosecutors argue. And the law cannot possibly require that,

in order to obtain relief, the defendant prove something

that the law simultaneously forbids him from providing.

Hubbard fully preserved this argument, including through

his motion for new trial. [C-5568 to -70].

Hubbard is not required to show that he would have been

found not guilty but for the jury misconduct and the

failure to investigate it. The proper standard for

determining whether juror misconduct warrants a new trial,

as set out by this Court's precedent, is whether the

misconduct might have prejudiced, not whether it actually

did prejudice, the defendant. The 'might-have-been-

prejudiced' standard, of course, casts a 'lighter' burden

on the defendant than the actual-prejudice standard.

Marshall v. State, 182 So.3d 573, 607 (Ala. Crim. App.

2014) (citations omitted).

In short, this case must be reversed under Holland.

48
9. The trial court should have dismissed the case before
trial, based on prosecutorial misconduct including
misconduct occurring before the grand jury.

As Hubbard showed in his opening brief, the trial court

erred in failing to dismiss the indictment based on

prosecutorial misconduct, including misconduct occurring

before the grand jury.

The prosecutors contend but merely in cursory fashion

that the cited conduct did not occur. But the undisputed

evidence of record is that it did. Hubbards opening brief

explained the misconduct at length, always supported in

detail by citation and quotation of the testimony of

multiple witnesses. The prosecutors cite no evidence to

dispute the facts which this testimony established.

Also, the State does not argue that the cited sorts of

conduct are permissible. The conduct in question was indeed

misconduct. This includes such things as (a) targeting

Hubbard for prosecution and looking for crimes that he

could be charged with, (b) calling Hubbard before the grand

jury knowing that he would decline to testify, just to

taint him in the grand jurys eyes, (c) ridiculing

witnesses, (d) misstating the law, (e) smearing defense

counsel, (f) making his own personal statements as to facts,

49
(g) giving his own opinions, (h) threatening witnesses, (i)

aligning himself with the grand jury as a supposed team on

a mission against Hubbard. The State cites no evidence, no

law, no authority whatsoever for the proposition that these

sorts of behavior are acceptable prosecutorial conduct.

The only proper and reasonable conclusion from the

evidence, as Hubbard showed in his opening brief, is that

this is the rare case in which the misconduct was so

pervasive and egregious that dismissal was appropriate.

This undisputed targeting of Hubbard personally making

him a target then looking for things to charge him with -

was egregious misconduct from the very outset. The grand

jury, which is supposed to be a bulwark against the

prosecutor, was then turned into a tool of the prosecutor

through conduct that is undisputed in the evidence and was

indisputably improper. To allow this conduct to go without

a remedy would guarantee its continuation.

The prosecutors retreat to the argument that the

egregious misconduct that pervaded the seeking of the

indictment was harmless, because the trial jury convicted

Hubbard. In this, the prosecutors rely on only one case:

United States v. Mechanik, 475 U.S. 66 (1986).

50
 But Mechanik is nothing like this case. The only

problem with the grand jury proceedings in Mechanik if

indeed it was even a problem (which the Supreme Court did

not decide, id. at 69) - was a rather minor one: two law

enforcement agents testified together under oath, rather

than one at a time. Thats it. And there was no suggestion

in the opinion that this was done for any improper purpose.

This case, unlike Mechanik, involves misconduct going

to the very heart of the question whether Hubbard should

even have had to stand trial. It is not just whether there

was a single violation of a Rule of Procedure before the

grand jury, as in Mechanik. Hubbard was, as the

uncontradicted evidence showed, targeted by a prosecutor

who was looking for things to charge against him. And the

prosecutors misconduct before the grand jury was, as the

evidence showed, severe and pervasive.

Moreover, as Hubbard has shown, the charges against him

are in fact not supported by the law and not supported by

the evidence. The very premise of Mechanik that the

convictions were validly obtained at trial through

sufficient evidence is inapplicable here.

51
 State courts do not have to follow Mechanik, and

various states have rejected it. See, e.g., State v.

Johnson, 463 N.W.2d 527, 532 (Minn. 1990); People v.

Wilkins, 68 N.Y.2d 269, 277 n.7 (N.Y. 1986).

This Court does not need to decide whether it would

follow Mechanik in a case raising a relatively minor Rule

of Procedure violation in the grand jury room. This Court

should, however, recognize that when the very decision to

target an individual is misconduct and when the same

prosecutor then engages in extreme and pervasive misconduct

to bend the grand jury to his side in order to obtain an

indictment this is egregious unfairness which the

appellate courts will remedy.

Conclusion

As Hubbard has shown in this brief and in the opening

brief, he did not violate any law. The Court should vacate

or at a minimum reverse Hubbards conviction.

52
Respectfully submitted,
/s/ William J. Baxley
William J. Baxley
Joel E. Dillard
David McKnight
Baxley, Dillard, McKnight
James & McElroy
Post Office Box 530333
Birmingham, Alabama 35253
Phone: 205.271.1100
Fax: 205.271.1108
bbaxley@baxleydillard.com
dmcknight@baxleydillard.com
jdillard@baxleydillard.com
R. Lance Bell
Trussell Funderburg
Rea & Bell PC
1905 First Avenue South
Pell City, Alabama 35125
Phone: 205.338.7273
Fax: 205.338.6094
lance@tfrblaw.com
53
/s/ Sam Heldman
Sam Heldman
The Gardner Firm
2805 31st St. NW
Washington DC 20008
Phone: 202 965 8884
Fax: 202 318 2445
sam@heldman.net
Philip E. Adams, Jr.
Blake Oliver
Adams White Oliver Short
& Forbus LLP
205 South Ninth Street
Opelika, Alabama 36801
Phone: 334.745.6466
Fax: 334.749.3238
padams@adamswhite.com
boliver@adamswhite.com
 Certificate of Service

I hereby certify that on the 2nd day of August, 2017, I

served a copy of the foregoing on counsel for the Appellee
by emailing a copy to the following counsel for Appellee
and also by mailing copies by First Class mail to the
addresses shown:

Miles M. Hart
Deputy Attorney General
Office of Attorney General
501 Washington Avenue
Post Office Box 300152
Montgomery, Alabama 36130-0152
Email: mhart@ago.state.al.us

Megan A. Kirkpatrick
Assistant Attorney General
Office of Attorney General
501 Washington Avenue
Post Office Box 300152
Montgomery, Alabama 36130-0152
Email: mkirkpatrick@ago.state.al.us

/s/ William J. Baxley

54