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Tuesday, June 21, 2016

Are Birmingham law firms -- especially Maynard Cooper Gale -- angling to tackle Mike Hubbard's appeal on convictions related to Alabama ethics law?


Mike Hubbard
Of the many questions raised by the conviction of former Alabama House Speaker Mike Hubbard on ethics-law violations, this might be one of the most interesting: Who will handle Hubbard's appeal? (A related question: Will the matter go to the Alabama Court of Criminal Appeals or directly to the Alabama Supreme Court?)

The obvious answer to the primary question is Bill Baxley and his Birmingham-based law firm. After all, they represented Hubbard at trial and should be well acquainted with issues that might be raised on appeal. The Baxley firm, however, produced a poor result for Hubbard the first time around. According to one report, court insiders rated defense attorney Lance Bell's closing as the "most bizarre and amateurish" they had ever witnessed.

I can think of at least two other Birmingham firms who might want in on the Hubbard appellate action -- one is Bradley Arant and the other is Maynard Cooper Gale. In fact, one of those firms already has produced written material that indicates it's ready to jump into the game.

Bradley Arant might be a fairly obvious choice for Hubbard. It's a right-wing, pro-business firm with longstanding ties to former governor Bob Riley and his Riley Inc. political machine, of which Hubbard is a prominent member. Kevin C. Newsom, chair of the firm's appellate group, reportedly has an exceptionally close relationship with U.S. District Judge William Pryor. It was Pryor, of course, who largely ushered in the Riley governorship by refusing to allow a recount after votes for Democratic incumbent Don Siegelman had disappeared overnight in heavily Republican Baldwin County.

Kevin C. Newsom
(From bradley.com)
As for Maynard Cooper Gale (MCG) the firm already has produced a blog post titled "The Hubbard Verdict: Some Initial Thoughts on What Businesses Need to Know." What is the purpose of the blog post? The headline suggests it is designed to counsel MCG's business clients (and potential business clients) about possible lessons from the Hubbard verdict -- and that might be the post's one and only purpose.

But it also has a tone of, "We think the jury got it wrong, and here are key points we could use to get the verdict overturned and ensure Mike Hubbard's freedom." In fact, the post highlights five points, with brief explanations, that could form the foundation of Hubbard's appeal. Here they are:

(1) The prosecution and jury broadly interpreted the term "principal"

"In the Hubbard matter, two of the counts on which the Speaker was convicted (Counts 16 and 23) involved the receipt of a “thing of value” from an individual described in the indictment as a board member of a trade association. According to the prosecution, therefore, a board member of an association that employs lobbyists is a principal, and is therefore prohibited from providing a thing of value to a public official. Given the conviction on these counts, the jury seems to have agreed with this interpretation. If the verdict stands, the meaning of principal would apparently be much broader than many believed prior to the Hubbard trial and places many businesses and associations at unknown risk if they employ lobbyists."

(2) The prosecution and jury interpreted the phrase "thing of value" broadly, and included intangible items such as advice and introductions.

"In the Hubbard matter, Count 23 alleged that a board member of a trade association provided “assistance with obtaining new clients . . . and/or financial advice” to the Speaker. Essentially, the charge alleged that the board member assisted the Speaker with an analysis of the Speaker’s business, and advice as to how to revive that business. Further, the Count alleged that the board member helped find possible investors in the Speaker’s company and may have provided introductions to those potential investors. The “thing of value” provided in Count 23 was therefore intangible, and not a gift, a sum of money, a trip, or a junket. Instead, it was something that—at least arguably—had no resale or intrinsic value. From the perspective of interaction with public officials and public employees, this creates the risk that non-monetary assistance such as advice will be considered a “thing of value.” If it is provided by a principal or lobbyist, it may create criminal liability.

(3) Though a “friendship” exception exists in the Act, the jury did not always accept the defense’s arguments based on it.

Throughout the Hubbard trial, the defense elicited testimony from those alleged to have provided things of value to the Speaker that they were friends with the Speaker, and that this friendship was what had motivated them, rather than the Speaker’s role in Alabama government. The jury appears to have accepted that defense in certain instances, as it acquitted the Speaker on numerous counts involving the receipt of advice or assistance from some people. However, the jury rejected the defense on other counts, particularly on that [involving] a person who had known and considered the Speaker a friend for 14 years before Speaker Hubbard ever ran for office.

A fairly strong argument could—and likely will—be made on appeal that the standard set forth in the statute may be too vague to impose criminal liability.

(4) The definition of a legislative "conflict of interest" is broader than the language of the Act itself.


Drayton Nabers
(From maynardcooper.com)
"In Count 5 of the indictment, Speaker Hubbard was charged with having acted under a conflict of interest when he voted for a General Fund budget that included language that would have benefited a business for which he was acting as a consultant. Section 36-25-5(b) of the Act prohibits a legislator from taking action on a measure when he knows or should have known that he has a “conflict of interest”. A conflict for a legislator is defined in Section 36-25-5(f), which states that conflict of interest exists when a legislator “has a substantial financial interest by reason of ownership of, control of, or the exercise of power over any interest greater than five percent of the value of any . . . business entity of any kind”. This conflict language was adopted by the Legislature following an Alabama Supreme Court case which held the same, and has been in place since the 1990s. However, it is undisputed that Speaker Hubbard did not have a “substantial financial interest” in the company at issue as defined under section 5(f). Instead, he simply had a contract with that company, under which he was paid a monthly fee. In other words, he was not even an employee. Despite these facts, the jury returned a guilty verdict on this count."

(5) Written consultation with the Ethics Commission is more important than ever.

Speaker Hubbard was acquitted on several counts for activity about which he had specifically met with the Ethics Commission’s staff and had received a letter indicating he was permitted to undertake. In contrast, the Speaker was convicted for conducting very similar activity for other entities in situations that he did not have written pre-clearance. It appears that the different verdicts on these similar counts may have been based [on] the existence of the letter authorizing the Speaker’s employment and activities.

What does this sound like to you? To me, it sounds like the lawyers of Maynard Cooper Gale believe Hubbard has some substantial issues to raise on appeal--and they are just the lawyers to do it.

Will that prove to be true? It's too early to tell, but Drayton Nabers, former chief justice of the Alabama Supreme Court, is "of counsel" at MCG. Who appointed Nabers as chief justice? Why, it was none other than then Governor Bob Riley, who had to fill the vacancy in 2003 when Roy Moore was removed from office for his insistence on keeping a Ten Commandments monument in the courthouse. Nabers served for three years, until Democrat Sue Bell Cobb beat him in a major 2006 upset.

Nabers clearly is a member of Riley Inc., and if Hubbard still is making the mistake of taking advice from the Riley clan, Nabers' law firm could wind up at the heart of Hubbard's appeal.

22 comments:

Anonymous said...

I don't see a lot of money or time being spend to have Hubbard's case overturned. The reason is that in this world there are no true friends. Hubbard the man did not have any friends, Hubbard the speaker of the house, well that's a all new ball game. These people only cared for Hubbard because of the power he had. Now that he is not longer speaker, I'm betting most of these friends could care less of what becomes of Hubbard the man. He's done period. Appeals might clear his record but he will never be the speaker, never have the power he once had. His friends have bigger fish to fry, more law makers to payoff. Ask any of them today, and I'm betting it will be Mike, who?

Anonymous said...

Knew I smelled Drayton Nabers in this post from the beginning. Hubbard was probably calling Riley begging him to "Call Drayton, Call Drayton", as soon as court was let out the day Hubbard got off the stand. Maybe before that. Drayton Nabers is clearly their fix it guy. BCA (Bill Canary) has him writing misleading friend of the court briefs on corrupt banker's behalf, to the Supreme Court of which he use to preside as you've pointed out. Moreover, Drayton Nabers was receiving MANY thousands of dollars from those same banks while cheif justice of the supreme court.

I can't help but hope Drayton Nabers does enter this case so that a spotlight is shined on the core problem in this state and how "their" use of the court is playing a huge role in our state's demise and maltreatment of its citizens.

Scumbag is too nice a term for Nabers. Leave it to a bonesman to screw up our country yet again! Just take a look at that peach of a photo.

Hopefully then Matt Hart will include Nabers too. It would be well deserved and a long time coming!

legalschnauzer said...

Very interesting points, @2:30. I've wondered, for example, if Hubbard has remained in touch with Bob Riley and that crowd since the convictions. Would Riley even take his phone call?

Another question I've had: Would Maynard Cooper see it as a valuable thing to take on Hubbard's appeal, or would they rather stay away, seeing the Speaker as damaged goods? Same thing with BABC.

Anonymous said...

I'm no lawyer (although I did stay at a Holiday Inn Express once), but the reasoning cited above sounds reasonable for appeal. It is hard when you have citizen juries trying to interpret law in cases like this. I'm not pulling for or against one side. Just my comments.

legalschnauzer said...

I hear you, @2:32. I consider Drayton Nabers to be the lowest form of reptile, except I hate to insult reptiles that way. Worst of all is his arrogance, phoniness, and sense of elite white guy entitlement. Have you read his book, "The Case of Character"? What Drayton Nabers knows about character should fit into a thimble, with lots of room left over. He truly represents much of what is wrong with Alabama. I could see him using his BCA ties and Supreme Court ties to try to get Hubby off--although I'm sure he wouldn't sully his hands by actually working the case.

legalschnauzer said...

Good line, @2:42. I think I got my "law degree" at a Holiday Inn Express--or maybe it was Trump University, I can't remember which. It does appear that the MCG lawyers have put some thought into this. For a different take on these issues, here is a piece today by Bill Britt of Alabama Political Reporter:


http://www.alreporter.com/its-not-the-ethics-laws-its-the-commission/

MoreOrLes said...

I agree with @2:30. I think Hubbard is a nobody now to the Big Mules who run Alabama. He really is "Mike Who?" now. Wonder if Rob Riley still is trying to raise money for Hubbard's defense fund--although I guess it's not a defense fund anymore; it's an appellate fund.

Anonymous said...

I think Maynard Cooper is trying to drum up business or publicity, or both. I doubt they have any interest in carrying out Hubbard's appeal--unless, of course, he has a big check to drop in front of them.

Anonymous said...

Didn't I read somewhere, maybe on your blog, that Maynard Cooper has ties to Sterne Agee, which was the subject of one count in the Mike Hubbard case?

legalschnauzer said...

You have a very good memory, @3:35. You might have read it somewhere else, but I definitely wrote about it. Here is the URL for post:


http://legalschnauzer.blogspot.com/2015/08/did-probe-of-former-judge-scott-vowell.html

e.a.f. said...

Would appear not all are keen on the decision of 12 members of the community. They want the decision reviewed by the elites, so one of their own, doesn't have to be subject to the same rules every one else has to. Just think "an elite" being subject to the law of the land.

Anonymous said...

Good Lord, Drayton Nabers and Bentley look like brothers! Creepy critters.

Anonymous said...


OPELIKA—James L. Sumner, Executive Director of the Alabama Ethics Commission for close to 18 years before his retirement last year, testified yesterday the legal protections afforded to public officials and employees who seek formal ethics opinions do not apply to people seeking what he termed “informal opinions.”

Hubbard is charged with several counts related to conduct for which he alleges he received approval from Sumner while he was Director of the Ethics Commission. Those opinions were not formal opinions; rather, they were informal opinions in the forms of letters, phone calls, or in-person conversations.

Wasn't the Ethics Opinions an informal one, and why did it protect Hubbard like this lawyer is saying here. Quite confusing

Were the ones he was found guilty of informal opinions while the ones he was acquitted of formal opinions.

http://www.alreporter.com/former-ethics-chief-hubbard-without-ethics-protection/

Anonymous said...

Just how close are Kevin Newsome and Bill Pryor. Judge Pryor is the one with gay-porn pix in his past, right?

legalschnauzer said...

Yes, Pryor is famed for his appearance at badpuppy.com. I hear they are very close. I'm working with several sources to find out just how close Pryor and Newsome are? Pryor, when he was AG, appointed Newsome solicitor general.

Anonymous said...

Isn't D Nabors close to the oldest law firm in Birmingham,
too?

Anonymous said...

You may have better luck researching Kevin C. Newsome if you spell his last name without an "e".

legalschnauzer said...

You are correct, @11:42. I misspelled it and will make that correction. Thanks for calling that to my attention.

Anonymous said...

Just remember Help may be around the corner for Hubbard not because he has friends but because of what he knows on people.

Hatecrookedlawyers said...

You are 100% right , if people only knew what Maynard Cooper and Gayle really represent, they would kick them out of the state , except they are connected to the governors hip pocket.

Hatecrookedlawyers said...

Maynard cooper and Gayle represent Mcwane pipe and lie about the hazardeous waste they dump on private property.

Hatecrookedlawyers said...

Chris Williams lies about lead and arsenic in neiborhoods yet speaks at the University of Alabama about safe water, it makes me sick to see people fooled by these thugs.