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DOCUMENT 703

ELECTRONICALLY FILED
4/26/2016 1:13 PM
43-CC-2014-000565.00
CIRCUIT COURT OF
LEE COUNTY, ALABAMA
MARY B. ROBERSON, CLERK

IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA,

)
)
)
)
v.
)
)
)
)
MICHAEL GREGORY HUBBARD, )
)
Defendant.
)

CASE NO.

CC-2014-000565

STATES RESPONSE IN OPPOSITION TO


HUBBARDS SIXTH MOTION TO CONTINUE
Having failed to persuade this Court to grant him a continuance in his last
written motion to continue or in his oral motion at the April 20, 2016 hearing,
Hubbard drops all pretense of persuasion in his Sixth Motion to Continue (Sixth
Motion) that he filed on April 22, 2016 and seeks instead to dictate to this Court
when it can try this case based on implied threats of post-trial appellate review
issues. Unsurprisingly, Hubbards threats are baseless, as case law could not be
clearer that appellate courts routinely affirm trial court orders denying motions to
continue, despite claims from defense counsel that they need more trial preparation
time. Further, in the course of affirming those trial court orders, appellate courts
also routinely affirm that defendants received constitutionally effective assistance

DOCUMENT 703

of counsel. Hubbards implied threats of future appellate issues are therefore as


meritless as his continuance request.
Further, at this point, both this Court, through the granting of multiple
continuances and pretrial hearings, and the State, through its production of its
discovery in an electronically searchable format and its production of its trial
exhibits, have bent over backwards to accommodate the defenses trial preparation
since this case was indicted 18 months ago. There is simply no reason why current
defense counsel, all of whom have been involved with this case in some capacity
since at least its indictment, will not be able to try this case in May or to believe
that delaying the trial until August will change the effectiveness of their
representation. Accordingly, Hubbards Sixth Motion is due to be denied and this
case is due to be tried as currently set.
DISCUSSION
I.

Trial court orders denying motions to continue claiming


inadequate time to prepare for trial are virtually always
affirmed during post-conviction appeals, and the facts and
circumstances of this case demonstrate that Hubbards Sixth
Motion is due to be denied.
In his Sixth Motion, Hubbard noticeably, tellingly, and almost certainly

intentionally omits any discussion of the legal standard for determining a motion
seeking a continuance for lack of adequate pretrial preparation time. Instead, he
offers only a single see citation to Hays v. Alabama, 518 So.2d 768 (Ala. 1988),
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a case in which the Alabama Supreme Court upheld a trial courts denial of a
motion to continue. See Sixth Motion at 7. As shown below, the reason for his
omission is simple: trial court denials of motions to continue claiming inadequate
pretrial preparation time are affirmed in the overwhelming majority of cases and
there is no reason to believe that the appellate courts would not affirm this Courts
denial of Hubbards Sixth Motion given the facts and circumstances of this case.
A motion for a continuance due to a lack of time for adequate preparation is
a matter entirely and exclusively within the sound discretion of the trial court and
its ruling will not be reversed on appeal absent a ... showing of abuse. Loggins v.
State, 771 So. 2d 1070, 1084 (Ala. Crim. App. 1999), aff'd sub nom. Ex parte
Loggins, 771 So. 2d 1093 (Ala. 2000), quoting Reynolds v. State, 539 So. 2d 428,
429 (Ala. Crim. App. 1988). Moreover, [t]he reversal of a conviction because of
the refusal of the trial judge to grant a continuance requires a positive
demonstration of abuse of judicial discretion. Id., quoting Beauregard v. State,
372 So.2d 37, 43 (Ala. Crim. App. 1979), writ denied, 372 So.2d 44 (Ala. 1979)
(emphasis in original).
Consistent with motions to continue being committed to a trial courts sound
and exclusive discretion, the law is clear that trial courts do not abuse their
discretion in denying a motion to continue just because the denial will constrain

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defense counsels time to prepare for trial. As the Alabama Supreme Court has
summarized:
Not every restriction on counsel's time or opportunity to investigate or
to consult with his client or otherwise to prepare for trial violates a
defendant's Sixth Amendment right to counsel. See Chambers v.
Maroney, 399 U.S. 42, 5354 (1970). Trial judges necessarily require
a great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors at
the same place at the same time, and this burden counsels against
continuances except for compelling reasons. Consequently, broad
discretion must be granted trial courts on matters of continuances;
only an unreasoning and arbitrary insistence upon expeditiousness in
the face of a justifiable request for delay violates the right to the
assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
Ex parte Hays, 518 So. 2d 768, 771-72 (Ala. 1986), quoting Morris v. Slappy, 461
U.S. 1, 1112 (1983); see also Hulsey v. State, No. CR-13-0357, 2015 WL
4162901, at *18 (Ala. Crim. App. July 10, 2015) (A positive demonstration of
abuse of judicial discretion is required even where the refusal to grant the
continuance is somewhat harsh) (quoting Hays v. State, 518 So. 2d 749, 759
(Ala. Crim. App. 1985), affirmed in part, reversed on other grounds, 518 So. 2d
768 (Ala. 1986); Sullivan v. State, 939 So. 2d 58, 66 (Ala. Crim. App. 2006) (As a
general rule, continuances are not favored, In re R.F., 656 So.2d 1237, 1238 (Ala.
Civ. App. 1995), and [o]nly rarely will [an] appellate court find an abuse of
discretion in the denial of a motion for a continuance.).
Demonstrating the breadth of discretion afforded to trial courts, the United
States Supreme Court has affirmed a death sentence in a case originating in
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Alabama when appointed counsel had only three days to prepare for trial. See
Avery v. State of Alabama, 308 U.S. 444 (1940). In that case, as in this one,
defense counsel moved for a continuance and attached affidavits to their motion.
Id. at 447. As summarized by the U.S. Supreme Court, those affidavits stated as
follows:
One attorney's affidavit alleged that he had not had time to
investigate and prepare the defense because he had been actually
engaged in another trial from the time of his appointment at 2 P.M.,
Monday, until 9 P.M. that evening; his presence had been required in
the court room on Tuesday, March 22, due to employment in other
cases set, but not actually tried; he had been detained in court
Wednesday, March 23, waiting for petitioner's case to be called; but
after his appointment he had talked with petitioner and had serious
doubts as to his sanity.
The affidavit by the other attorney stated that he too had not had
proper time and opportunity to investigate petitioner's case because of
his employment in other pending cases, some of which were not
disposed of until Tuesday at 4:30 P.M.
Id. at 447-48.
Despite the affidavits, the trial went forward as scheduled on Thursday,
March 24, resulting in the defendant being found guilty and sentenced to death. Id.
at 448. After considering these affidavits and the facts and circumstances of the
case, the Supreme Court affirmed the death sentence:
Under the particular circumstances appearing in this record, we do not
think petitioner has been denied the benefit of assistance of counsel
guaranteed to him by the Fourteenth Amendment. His appointed
counsel, as the Supreme Court of Alabama recognized, have
performed their full duty intelligently and well. Not only did they
present petitioner's defense in the trial court, but in conjunction with
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counsel later employed, they carried an appeal to the State Supreme


Court, and then brought the matter here for our review. Their
appointment and the representation rendered under it were not mere
formalities, but petitioner's counsel haveas was their solemn duty
contested every step of the way leading to final disposition of the
case. Petitioner has thus been afforded the assistance of zealous and
earnest counsel from arraignment to final argument in this Court.
Id. at 450.
Indeed, the very few instances where Alabama courts have reversed a
conviction based on the denial of a motion to continue based on inadequate pretrial
preparation prove just how extreme the factual situation must be for such a result,
as well as how far the facts of this case are from those cases. See Sullivan v. State,
939 So. 2d 58, 67 (Ala. Crim. App. 2006) (reversing criminal contempt of court
conviction when Sullivan had only 10 minutes to discuss the situation with her
counsel before the hearing began, and there is no indication in the record that
Sullivan had notice of the specific charge against her before the hearing began.
Indeed, Sullivan's counsel had to ask the court at the beginning of the hearing if the
hearing was for a contempt charge, and if so, whether Sullivan was being charged
with direct or constructive contempt.); Bridges v. State, 487 So. 2d 1012, 1017
(Ala. Crim. App. 1986) (finding prejudicial error where trial court denied motion
to continue by defense in first degree murder trial where trial was set less than two
months after arraignment, over a decade passed between the murder and the trial,
there were large distances between places where possible witnesses could be
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located, pretrial motions needed to be presented for a hearing by the trial judge, it
was advisable that defense counsel confer numerous times with their incarcerated
client, and there was a misunderstanding regarding much of the contents of a
number of recorded tapes of the conversations between a paid informant and the
defendant); Owens v. State, 460 So. 2d 305, 313 (Ala. Crim. App. 1984) (reversing
cocaine possession conviction where case was tried one month after indictment,
original defense counsel withdrew two weeks before trial, counsel who tried the
case was retained less than two weeks before trial and lived nearly 200 miles away
from the place of trial, and the key witness for the defenses entrapment defense
failed to appear for trial despite trial counsels attempts to subpoena him); Brown
v. State, 395 So. 2d 121 (Ala. Crim. App. 1980), writ denied, 395 So. 2d 124 (Ala.
1981) (reversing marijuana possession conviction where counsel was appointed 30
minutes before trial, was only able to confer with his client for 10 minutes before
trial, was told by his client that there was a witness who was not in court, and
counsel had no time to investigate or research case); Charles Mfg. Co. v. United
Furniture Workers, 361 So. 2d 1033, 1037 (Ala. 1978) (reversing criminal
contempt conviction where petitioners did not know the charges against them until
the day of the hearing, the plaintiffs evidence showed they were charged with
twenty counts of contempt, and the defense then made two motions to continue for
the purpose of preparing a defense, both of which were denied); Browning v. State,
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326 So. 2d 778 (Ala. Crim. App. 1975) (reversing robbery conviction where
defense counsel was appointed on the day of defendant's trial and had only 15
minutes to prepare to defend on the merits); Kearley v. State, 293 So. 2d 322 (Ala.
Crim. App. 1974) (reversing robbery conviction when counsel was appointed on
the same day the defendant was arraigned and tried).
Consistent with precedent showing that only a handful of convictions have
ever been reversed when a trial court denied a motion to continue claiming
inadequate time to prepare for trial, there is simply no reason to believe based on
the facts and circumstances of this case that this Court would not be comfortably
within its broad discretion to deny Hubbards Sixth Motion. While Hubbard
acknowledges that he has the burden of showing the need for a continuance,
Hubbards Sixth Motion wholly fails to carry that burden. The first three
paragraphs complain about the States recent production of documents
documents that fits within a single bankers box and incorrectly accuse the State
of making misrepresentations to this Court.
Obviously, there is no need for a nearly three month continuance to allow
the defense to review documents that fits within a single bankers box.1 Further
proving that the States production of the documents is no reason for a
1

Hubbards Sixth Motion contends that the documents actually require two bankers
boxes. Sixth Motion at 2. While the State disputes that fact, even if Hubbard is correct, that
would not aid him in arguing for a two month continuance based on the production of two boxes
of documents.
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continuance, contemporaneous with its production the State also identified for the
defense the specific 105 pages within the documents that were relevant to this case.
See Exh. A., filed under seal. And, as discussed below, the defense appears to have
been aware of these documents and obtained portions of them over a year ago. See
Exh. B., filed under seal.
After spending the three opening paragraphs complaining about having to
review documents, Hubbard offers three other inadequate justifications for being
granted a continuance in paragraphs four through six of his Motion. Hubbards first
argument concerns the volume of the States discovery production. As this Court is
well aware, Hubbards former counsel filed numerous motions challenging the
volume and reviewability of the States discovery production, arguments that this
Court and the special master thoroughly considered and rejected. As the special
master found, the State produced its document discovery to the defense in the same
format in which the State received the documents, and there are no outstanding
technical issues with that production. Doc. 554 at 15. Further, the State has now
identified its trial exhibits and the defense knows who the State has subpoenaed as
a witness which will enable them to target and refine their review of the
documents. As a result, even if the defense has not reviewed every page of the
States production as claimed in Bells affidavit, there is no reason to believe that it
has not reviewed the documents necessary to defend this case. See States
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Response to Hubbards Fourth Motion to Continue the Trial, Doc. 573, at 6-8
(refuting arguments in Hubbards now-denied Fourth Motion for a Continuance
based on his need for more time to review the States discovery production).
Hubbards second and third justifications for a continuance in Paragraphs 46 are that the Baxley firm was only recently retained as defense counsel and that
the defense needs additional time to conduct witness interviews. Obviously, Lance
Bell, Phil Adams, and Blake Oliver have been counsel for Hubbard at least since
indictment which eviscerates the idea that Hubbards defense team is new to the
case. Further, as has been previously shown, while the Baxley firm may have only
been formally retained by Hubbard in February, that firm is no stranger to this case
or to the States witnesses since it represented a number of individuals during the
grand jury proceedings. See States Request for this Courts Evaluation of
Conflicts under Rules 1.7, 1.9, and 1.10, filed under seal on Mar. 11, 2016, at 1.
Additionally, the defense is not entitled to conduct pretrial witness interviews of all
of the States witnesses, and there is no reason to believe that it has not and cannot
interview any witnesses that it wishes to call as part of its defense between now
and the currently set May trial date.
Further undermining current defense counsels attempt to justify a
continuance based on the Baxley firms recent retention or the need to conduct
pretrial witness interviews, when the Baxley firm was initially retained to replace
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withdrawn defense counsel in February 2016, the trial was set for March 28, 2016.
Alabama courts have held that [o]rdinarily counsel who supplants or supplements
other counsel, who have already had ample time to get ready for trial, should not
expect or ask for a continuance. Minniefield v. State, 260 So. 2d 607, 608 (Ala.
Crim. App. 1972), quoting Bertrand v. State, 238 So. 2d 914, 915 (Ala. Crim. App.
1970). In other words, by voluntarily agreeing to represent Hubbard in this case,
the Baxley firm was well aware that it might have to try this case in March
consistent with its professional duties of diligence and competence and that this
Court was not required to continue this case based on their notice of appearance.
Since they had professional responsibilities to be ready in March but still received
the benefit of a continuance until May, their new complaint that they cannot
effectively represent Hubbard unless the Court continues the trial yet again falls
flat.
Further, it is clear that former defense counsel has done significant trial
preparation that has and will aid the Baxley firms trial preparation. As the
Bertrand court summarized, lawyers retained to supplant or supplement other
counsel should normally presume that the other lawyers have done some spade
work on this case and that [they] will not be plowing all new ground. Bertrand,
238 So. 2d at 915. Indeed, Hubbards previous defense counsel passed along a
substantial amount of work product to the Baxley firm, including notebooks
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devoted to State witnesses. The State also recently became aware that Hubbards
previous lead defense attorney Mark White called an attorney representing one of
the States witnesses within the past few weeks regarding this case. So, not only
does the Baxley firm have multiple co-counsel who have represented Hubbard
since at least indictment and the work product of Hubbards previous defense
counsel, but it also still receives assistance from previous defense counsel. The
combination of these factors demonstrates that a further continuance is both
unwarranted and unnecessary for the Baxley firm to effectively represent Hubbard
at trial.
It is also worth noting that Hubbard has dropped any Brady arguments from
his Sixth Motion to continue, despite its attacks on the State in open court at the
April 20th hearing. Hubbards abandonment of that argument as a basis for a
continuance demonstrates three salient facts: (1) the State has not violated Brady
and has not engaged in any gamesmanship with respect to its discovery
obligations; (2) Hubbard is desperately reaching for any basis to argue for a delay,
including manufacturing false Brady arguments; and (3) the defense has now
conceded that their Brady arguments are meritless by noticeably omitting them
from their Sixth Motion to Continue.
In sum, Hubbard utterly fails to carry his burden of demonstrating the need
for a continuance since the grounds that he offers are easily refuted as insufficient.
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Additionally, the following facts affirmatively demonstrate that it should be


denied:
Hubbard was indicted on October 17, 2014, which means this case
will have been pending for 577 days by the time trial beings as
currently set.
Three of Hubbards current defense counsel have represented him
since at least indictment.
While the Baxley firm was not formally retained by Hubbard until
February 2016, it is familiar with this case since it represented
multiple individuals in front of the Special Grand Jury.
The State produced document discovery to Hubbard in the same
format in which the State received those documents from third parties
one year ago, the majority of the documents are electronically
searchable, (see Special Masters Findings and Recommendation
Regarding the States April 30, 2015 Production, Doc. 554, at 15) and
the special master has affirmed that there are no outstanding
technical issues related to the States April 30, 2015 production. Id.
The State provided a detailed description of the evidence supporting
the charges against Hubbard in its Motion for More Definite
Statement Response fourteen months ago. See States Response in
Opposition to Defendants Motion for More Definite Statement, filed
February 27, 2015.
Hubbards Motion to Dismiss: Unconstitutionality of the Alabama
Ethics Act originally filed over six months ago on August 13, 2015,
demonstrates that he understands the charges against him and had
already begun formulating defenses to those charges at the time of
that filing.
The State provided a list of its trial exhibits to the defense three
months ago on January 28, 2016 sixty days before the thenscheduled trial date of March 28, 2016. See Order of January 29,
2016, Doc. 579.
The majority of the States trial exhibits, and large portions of its
discovery production, consist of emails or other documents drafted by
or sent to Hubbard.
The State has now served 135 witness subpoenas commanding its
witnesses, many of whom live in other states, to appear at the
currently set May 16th trial date.
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Hubbards previous defense counsel from the White Arnold & Dowd
firm have given the Baxley firm their work product, which includes
notebooks on State trial witnesses.
Withdrawn defense counsel continues to participate in some aspects
of Hubbards defense and remains available to assist current defense
counsel in preparing this case for trial.
Hubbard already has been granted multiple continuances for the
purpose of preparing for this trial and reviewing the States discovery
production.
Respectfully, these facts prove both that this Court should deny Hubbards Sixth
Motion and the chances of this Courts denial of that motion resulting in the
reversal of any eventual conviction in this case are virtually non-existent.
II.

There is no reason to believe that Hubbard will receive ineffective


assistance of counsel if this Court denies his Sixth Motion.
Recognizing his complete inability to affirmatively justify being granted yet

another continuance, Hubbard ominously warns this Court that Alabamas


appellate courts will judge this Courts decision on his Sixth Motion based on the
constitutional ineffective assistance of counsel standard in Strickland v.
Washington, 466 U.S. 668 (1984). Sixth Motion at 7. Based on this warning,
Hubbard contends that the prudent course of action would be to grant a
continuance until August and eliminate this from being an issue during the trial of
this matter. Id.
In fact, prudence does not counsel the granting of Hubbards Sixth Motion
for multiple reasons. First, as discussed in Section I, only an extreme minority of
cases are reversed on appeal when a motion to continue based on claims of
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adequate pretrial preparation time is denied. Not only are the vast majority of
cases where such a motion is denied upheld, but the affirmance of those cases often
includes a finding that the defendant still received ineffective assistance of counsel.
See also Sixth Motion at 7 (acknowledging that [w]hile the burden is on the
defendant to show the need for a continuance, the standard of review is whether he
can show that he did not receive a fair trial, a trial whose result is reliable).
Accordingly, appellate decisions reviewing denials of motions to continue, notably
including Hays which is the only decision cited in the Sixth Motion, provide no
support for the notion that Hubbard will receive ineffective assistance of counsel if
his Sixth Motion is denied (as it should be).
Second, given the elements of an ineffective assistance claim under
Strickland, the likelihood that denying Hubbards Sixth Motion will result in a
successful ineffective assistance claim is remote. As set forth in Strickland, to
prove an ineffective assistance claim, a defendant must show that counsel's
performance was deficient, meaning that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed the defendant by the Sixth
Amendment, and that the deficient performance prejudiced the defense,
meaning that counsel's errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687
(1984).
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Hubbards defense attorneys are some of the most experienced criminal


lawyers in Alabama and have decades of trial experience. The probability that a
these attorneys will be unable to provide constitutionally effective counsel,
particularly when three of them have been counsel of record since before
indictment is exceedingly remote. Adding to this, the Baxley firm represents
individuals that the State expects to call at trial, the current defense attorneys have
the benefit of previous counsels work product, and they already know both what
evidence the State intends to introduce at trial and what witnesses it intends to call.
Given their experience and abilities combined with the information they possess,
there is no reason to believe that the adversarial system will break down so as to
support a successful ineffective assistance claim. See Ex parte Hays, 518 So. 2d at
772 (The right to the effective assistance of counsel is the right of the accused
to require the prosecution's case to survive the crucible of meaningful adversarial
testing. When a true adversarial criminal trial has been conductedeven if defense
counsel may have made demonstrable errorsthe kind of testing envisioned by the
Sixth Amendment has occurred.) (quoting United States v. Cronic, 466 U.S. 648,
656 (1984).
Further, because any ineffective assistance claim could only be made posttrial, defense counsels affidavits obviously do not establish that such a claim will
exist if this Court does not grant the Sixth Motion or, even if such a claim is raised,
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that it will be successful. See, e.g., State v. Jones, 237 P.3d 1195 (Haw. Ct. App.
2010) (rejecting ineffective assistance claim based on record of proceedings even
though counsel told the trial court just before trial that he was unprepared to try the
case). Instead, to support any future ineffective assistance claim, Hubbard will
have to come forward with specific allegations of how defense counsel were
defective and how those defects made the trial result unreliable. In the absence of
a specific showing of the manner in which counsel's alleged errors and omissions
were constitutionally deficient and how they prejudiced his right to a fair trial, a
habeas petitioner cannot prevail on an ineffective assistance of counsel claim.
Davis v. State, 44 So. 3d 1118, 1132 (Ala. Crim. App. 2009), quoting Rose v.
Johnson, 141 F. Supp. 2d 661, 689-90 (S.D. Tex. 2001).
Since [m]ere conclusory allegations in support of claims of ineffective
assistance of counsel are insufficient as a matter of law to raise a constitutional
issue, Hubbard will not be able to merely say that he was denied ineffective
assistance because his counsel might have discovered helpful evidence or
witnesses if the case was continued. Id.; see also McWilliams v. State, 897 So. 2d
437, 453-54 (Ala. Crim. App. 2004) overruled on other grounds by Ex parte
Jenkins, 972 So. 2d 159 (Ala. 2005) (Prejudicial ineffective assistance of counsel
under Strickland cannot be established on the general claim that additional
witnesses should have been called in mitigation. There has never been a case
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where additional witnesses could not have been called.) (internal citations
omitted); Hunt v. State, 940 So. 2d 1041, 1067 (Ala. Crim. App. 2005), quoting
Rosario-Dominguez v. United States, 353 F.Supp.2d 500, 513 (S.D.N.Y.2005)
([T]he mere existence of a potential alternative defense theory is not enough to
establish ineffective assistance based on counsel's failure to present that theory.).
Given the amount of time and effort that former and current defense counsel
have devoted to the defense of this case and the substantial amount of work
product they have shared, the States production of discovery in a searchable
format a year ago, the States identification of its trial exhibits three months ago,
and the experience level of the defense team, the notion that trying this in May (19
months after indictment) versus August (22 months after indictment) will result in
Hubbard being able to successfully assert an ineffective assistance claim is highly
implausible. Accordingly, it provides no basis for granting the continuance
requested in Hubbards Sixth Motion.
III.

The State made no misrepresentations to this Court at the


April 20, 2016 hearing, and Hubbards contentions to the
contrary are red herrings designed to distract from the
complete lack of evidence supporting his Sixth Motion.

Despite the fact that the document the State recently produced to the
defense documents that fit into a single bankers box or that the State has identified
the specific pages from the document that it intends to introduce at trial, Hubbard
devotes the first three numbered paragraphs of his Sixth Motion to that document
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and his claims that the State made misrepresentations to this Court about it.
Obviously, documents that fit into a single bankers box (and were also produced
electronically) is not, as Hubbard risibly describes it, a document dump
sufficient to justify the continuance of the current trial to August.
While his claims that the State made misrepresentations about the document
are irrelevant red herrings designed to distract attention away from the actual
substance of his Sixth Motion, they are also false. Specifically, the representations
were based on the States conversations with the attorney who produced the
documents to the State. That attorney stated that he had produced some of these
documents to an attorney affiliated with the defense, although he did not name the
attorney. Following the filing of Hubbards Sixth Motion, the State followed up
with the producing attorney and obtained the documents contained in Exhibit B,
filed under seal. Those documents show that portions of the documents were in
fact provided to an attorney affiliated with the defense. Furthermore, the defense
does not deny that Hubbards own records largely mirror the relevant portions of
the documents recently obtained by the State and produced to the defense pursuant
to a protective order. Accordingly, Hubbards attacks on the State based on its
statements at the April 20, 2016 hearing are just as meritless as his current request
for a continuance.

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CONCLUSION
While Hubbards Sixth Motion is due to be denied as an unpersuasive
attempt to dictate to this Court when it can try this case, the State is in full
agreement with Hubbard that [t]his case has been, since long before return of the
indictment of Defendant Hubbard, an expensive and taxing undertaking upon Lee
County Circuit Court personnel. Sixth Motion at 12. Indeed, those personnel
have devoted substantial amounts of time to all of the pretrial hearings on
Hubbards rejected motions to dismiss and rejected complaints about the States
discovery. Further, those personnel have also devoted substantial time and effort
preparing for the trial of this case in May when it is currently set, such time and
effort including processing over 130 witness subpoenas that have now been served.
Continuing this case until August will only further increase the expense and
further tax court personnel while making no impact on the level of representation
that Hubbard will receive at trial. Further, given that the defense has used every
previous continuance to file serial meritless motions to dismiss, granting another
continuance would likely result in yet more meritless motions that would
unnecessarily increase the expensive and taxing nature of this case even more. The
time has come to end such unnecessary expenditures of time and effort.
Accordingly, the State respectfully requests that this Court deny Hubbards Sixth
Motion so that this case can be tried as currently set.
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Respectfully submitted this 26th day of April, 2016.


W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Miles M. Hart
Miles M. Hart
Deputy Attorney General
mhart@ago.state.al.us
OF COUNSEL:
W. Van Davis
Supernumerary District Attorney
Acting Attorney General
423 23rd Street North
Pell City, AL 35125
vandclaw@centurylink.net
John D. Gibbs
Deputy Attorney General
jgibbs223@outlook.com
Michael B. Duffy
Deputy Attorney General
mduffy@ago.state.al.us
Katie Langer
Assistant Attorney General
klanger@ago.state.al.us
Megan Kirkpatrick
Assistant Attorney General
mkirkpatrick@ago.state.al.us
Kyle Beckman
Assistant Attorney General
kbeckman@ago.state.al.us
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, AL 36130

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CERTIFICATE OF SERVICE
I hereby certify that I have, this the 26th day of April 2016, electronically
filed the foregoing using the AlaFile system which will send notification of such
filing to the following registered persons, and that those persons not registered with
the AlaFile system were served a copy of the foregoing by U. S. mail:
William J. Baxley
Joel E. Dillard
David McKnight
Baxley, Dillard, McKnight, James & McElroy
2700 Highway 280
Suite 110 East
Birmingham, AL 35223
bbaxley@baxleydillard.com
jdillard@baxleydillard.com
dmcknight@baxleydillard.com
R. Lance Bell
Trussell, Funderburg, Rea & Bell, P.C.
1905 1st Avenue South
Pell City, AL 35125
lance@tfrblaw.com
Phillip E. Adams, Jr.
Blake Oliver
Adams White Oliver Short & Forbus, L.L.P.
205 South 9th Street
Opelika, AL 36801
padams@adamswhite.com
boliver@adamswhite.com
/s/ Miles M. Hart
Deputy Attorney General

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