Could the strategy work in the long run anyway? A seasoned Alabama attorney says it is extremely unlikely, especially since Hubbard has opened himself up to cross examination from prosecutor Matt Hart. Attorney Donald Watkins says putting Hubbard on the stand is like throwing a desperation "Hail, Mary" pass at the end of a football game--and Hart is likely to bat it down.
According to a report from Bill Britt at Alabama Political Reporter (APR), the defense's plan was to call former governor Bob Riley back to the stand, along with Kitty Brown, a partner at the White Arnold Dowd firm that originally represented Hubbard.
Riley, under questioning from defense counsel Bill Baxley, was to discuss his opinion of the Alabama Ethics Law. But Judge Walker wasn't having it. At least three times, the defense tried to get Riley's testimony about the ethics law; three times, the prosecution objected; and three times, Walker sustained the objection. Ultimately, Riley left the stand without providing much help to the defense--at least on the subject of the ethics law.
Baxley then tried to introduce a memo from Brown, allegedly showing that Hubbard had informed the Alabama Ethics Commission of his contract with American Pharmacy Cooperative Inc. (APCI) before voting on a budget that would have given his client a monopoly on Medicaid prescriptions. The memo, however, did not include the date when Hubbard allegedly first contacted ethics commissioner Jim Sumner. With the jury in recess, Walker denied the defense's request to enter the memo and Brown's testimony.
Where did that leave the defense? Here is how Britt reports it:
In his testimony, Sumner stated Hubbard called him after the vote and said he wanted to speak to him. He thought his Chief of Staff, Josh Blades, may have done something wrong. Judge Walker denied the Defense’s request to introduce the memo and Brown’s testimony.
Apparently, over the lunch break, Hubbard’s defense team had filed a motion to have Riley recalled to the witness stand, to give his opinion on the Ethics Laws. Eventually, Judge Walker ruled that he would not allow Riley back on the stand.
The reason that Hubbard took the stand after lunch? Judge Walker did not allow Baxley’s first two witnesses, Brown and Riley.
With the jury reconvened, Baxley attempted, yet again, to have Riley called as a witness. The Judge told Baxley to call his next witness, which was Hubbard.
Was it a wise move to put Hubbard on the stand? No, says Donald Watkins, who called the move "unthinkable":
I have been a litigator for 43 years. During my career, I have handled scores of high profile, complex criminal cases. I hold the record in American jurisprudence for winning the largest number of criminal counts against a single defendant in the federal criminal case of former HealthSouth CEO Richard Scrushy. In November 2003, Scrushy was indicted on 85 counts of conspiracy, fraud and money laundering. He faced up to 650 years in prison. On June 28, 2005, Scrushy won an acquittal on the 36 counts that actually made it to a jury trial.
Hubbard’s decision to take the witness stand in his own case shocked me. As a defense attorney, I have never put the weight of winning a criminal case on the shoulders of the accused. Winning the case was my job, and I did it well. All of my clients in criminal cases walked out of the courtroom as free men and women.
What is the key downside to all of this for Hubbard? Watkins explains:
Testifying in his own defense is a high-risk move for Hubbard. He faces up to 20 years in prison on each of his 23 counts. Matt Hart, the lead prosecutor in this case, is a seasoned pit bull with plenty of courtroom experience. Hubbard’s decision to take the witness stand has placed him squarely inside the Lee County backyard of a pit bull that has prepared for this defensive play for nearly two years.
Now I understand why Hubbard turned down an attractive plea deal that had been worked out for him by some of his friends. Hubbard actually thinks he can talk his way out of a guilty verdict on all 23 counts. The chances of this happening are slim to none.
Does that mean Hubbard is toast? Not in my view. We've already had reports of witnesses possibly being threatened. I have no doubt Hubbard's well-heeled "friends" have the resources to buy off a juror or two, resulting in acquittals or, at worst, a mistrial. Heck, some jurors might eyeball Susan Hubbard, the Speaker's comely wife, and say, "I don't want to throw her husband in prison, no matter how big a crook he is." (Have you noticed that, in all photos of Hubbard taken outside the courtroom, Susan Hubbard always is in the frame, right next to Hubby? What message is being sent? "She's white, she's blonde, she's easy on the eyes, she's produced two white kids, we mustn't burden her by throwing her louse of a husband in the slammer.")
Assuming the case isn't rigged, things don't look good for Hubbard, Watkins says:
I do not believe Hubbard’s lawyers recommended that he take the witness stand in his own defense. No highly skilled criminal defense attorney would willingly allow a vulnerable politician to square off against a known pit bull prosecutor in this “let’s clean up public corruption” ethics reform environment. I think Mike Hubbard made this ill-advised tactical decision all by himself. Hubbard apparently felt the need to “lawyer” his way out of this mess by testifying in his own defense.
This unexpected move signals to me that Hubbard’s trial is not going well for the defense. Hubbard’s act of taking the witness stand is the courtroom equivalent of a “Hail Mary” pass in the waning days of his trial.
There is very little upside for Hubbard in testifying in his own defense. The trail of damning emails and the documented flow of millions of dollars to Hubbard from an unsavory den of so-called “friends” (i.e., the new definition for “influence peddlers”) have already killed him.