Mike Hubbard Post Trial Hearing 101

Mike Hubbard, former Alabama Speaker of the House, and his wife, Susan, arrive for a post trial hearing at the Lee County Justice Center in Opelika, Ala., on Friday, Sept. 2, 2016. (Albert Cesare//The Montgomery Advertiser via AP, Pool)

(Albert Cesare)

Lee County Circuit Judge Jacob Walker today denied the request of former House Speaker Mike Hubbard's lawyers for a sheriff's investigation into possible misconduct by the jury that convicted Hubbard.

Walker did not rule on the claim of jury misconduct and left open the possibility that he would hear testimony from jurors on the issue later.

Walker also did not rule on Hubbard's motion for a new trial during this morning's hearing, which lasted about two hours.

The judge denied prosecutors' request to order Hubbard to pay $1.1 million in restitution to the state.

A Lee County jury convicted Hubbard on 12 felony ethics charges in June.

Walker sentenced him to four years in prison and ordered him to pay $210,000 in fines.

Hubbard, who is out on bond, attended this morning's hearing.

In July, Hubbard's lawyers filed a motion asking for an investigation after a juror gave the defense a sworn statement saying that other jurors made comments during the trial indicating a bias against Hubbard.

Hubbard's motion asks for an investigation by the Lee County Sheriff's Department or "another similarly situated neutral law enforcement agency."

Walker, however, said he found no precedent in case law for such an investigation and that he was not inclined to be a "pioneer."

Walker said he was prepared to hear testimony on the matter, including from the juror who gave the affidavit.

Hubbard attorney Bill Baxley said the defense was not prepared to call witnesses today but wanted, instead, to let the sheriff investigate and present findings to the court.

This morning, Walker called to the witness stand two bailiffs who worked the case. In response to questions from the judge, both said they did not hear witnesses discussing the case.

The two said they alternated sitting beside the jury box during the trial.

Walker also called Court Administrator Patricia Campbell to the witness stand.

The juror who gave the affidavit alleging jury bias brought those concerns to Campbell during the trial, according to the affidavit.

Campbell testified today that a juror told her that another juror was making comments in the jury box such as "uh huh," "yes" and "now the truth is coming out."

Campbell said she told Walker, who directed her to tell a bailiff to speak with the juror making the comments.

That bailiff, Bobby Bond, testified that Campbell told him to talk to a juror who was making comments under her breath.

Bond said he called the juror aside and told her not to do that.

Bond said no other complaints about the jury were brought to his attention.

Hubbard's lawyers pressed their claim of jury misconduct after hearing today's testimony.

"There's no way Mike Hubbard got a fair trial," attorney Lance Bell told Walker.

Prosecutors have said Hubbard is seeking an "unfettered fishing expedition into the jury" by his request for an investigation.

They say the affidavit alleging misconduct is inadmissible because rules of evidence exclude juror testimony about "internal influences" on the jury.

Before Walker sentenced Hubbard, prosecutors asked him to order Hubbard to pay $1.1 million in restitution to the state under the reasoning that the state was the victim of his crimes.

Walker rejected that argument before sentencing and did so again today.

The amount, $1.1 million, was the total amount of consulting contract payments and business investments Hubbard received from the transactions for which he was convicted.

Prosecutors had argued that Hubbard should not be allowed to keep "ill-gotten gains obtained as a result of breaching the public's trust."

"It would be a just order for this court to enter because this defendant has no legitimate right to that money," Deputy Attorney General Mike Duffy told Walker.

Baxley called their request a "ludicrous claim," saying that Hubbard's case did not involve taking any money from the state or any payments made by the state.

"They're just seeking a windfall and trying to be vindictive," Baxley said.

Baxley told Walker the strongest reason that a new trial is justified was the testimony of former Ethics Commission Executive Director Jim Sumner.

Sumner testified as an expert witness for the state. He testified about finer points of the ethics law, including the definition of "principal," the legal term for a person or business that hires a lobbyist, and about what kind of transactions would be covered under a friendship exception in the ethics law.

Baxley said the defense was not properly notified of Sumner's expert testimony and had no chance to try to rebut it.

"We were blindsided, bushwhacked and ambushed," Baxley said.

Among Hubbard's convictions are that he solicited and received investments of $150,000 for his debt-strapped Craftmaster Printers business from each of four business executives.

The jury found the investments violated the ethics law prohibition against a public official receiving a thing of value from a principal because the four men were officials in companies that employ lobbyists.

Three of the four, Great Southern Wood President Jimmy Rane, Hoar Construction President Robert Burton and former Business Council of Alabama Chairman Will Brooke, all testified that they were longtime friends of Hubbard.

Hubbard's lawyers argue that the friendship exception should have applied to their investments in Hubbard's business and the transactions were not crimes.

Assistant Attorney General Megan Fitzpatrick said the jury made the determination of whether the friendship exception applied after hearing all the testimony and evidence.

Walker asked prosecutors about Rane's investment in Craftmaster Printers, noting that Rane testified that Rane and Hubbard had been friends since the 1980s.

Rane made the investment from personal funds, not his company's funds.

"Where is the connection between Great Southern Wood and Craftmaster?" Walker asked prosecutors.

Kirkpatrick told the judge that Rane's status as a principal did not change because he used personal funds to make the investment. She noted that a transaction does not have to be a "quid pro quo," an official action in exchange for money or a favor, to be a crime under the ethics law.

Sumner had testified that the friendship exception was intended to apply to exchanges like gifts or shared expenses on a joint vacation.

Deputy Attorney General Duffy told Walker said Alabama has the "toughest ethics law in the country" because it defines individuals who are officials with companies that hire lobbyists as principals, not just the companies themselves.

Otherwise, Duffy said there would be a loophole in the law because those officials could reimburse themselves with company funds for individual transactions.