A Conversation With Bill Baxley – Part II
By Donald V. Watkins
©Copyrighted and Published (via Facebook) on May 5, 2016
©Copyrighted and Published (via Facebook) on May 5, 2016
Bill Baxley called me on Tuesday. I had not talked with Baxley in months. The call came after I had published an article titled, “From ‘Storming the Statehouse’ to Jail on Corruption Charges: The Incredible Rise and Fall of House Speaker Mike Hubbard”. The article was based on information from multiple sources that I have used for several decades. Two of them guided me through former federal judge Mark Fuller’s 2014-15 wife-beating scandal and the Robert Bentley-Rebekah Mason “sex for power” and public corruption scandal with remarkable accuracy. All of them are familiar with the players in Mike Hubbard’s case. Individually and collectively, they have a 100% rating for credibility, reliability, and accuracy.
Because of a gag order issued in Hubbard’s criminal case by Judge Jacob A. Walker on January 8, 2016, Baxley did not discuss any specific matters regarding the case.
As a litigator of complex criminal cases, I fully understood the limitations imposed on Baxley by the gag order. As such, I did not ask Baxley any questions about the evidence in this case or what Hubbard planned to do when the trial commences on May 16, 2016.
We began the conversation by discussing Baxley’s workload for the coming weeks. Baxley said he is very busy preparing for Hubbard’s upcoming trial. He told me that he expected the prosecution’s case to last at least four weeks. Baxley did not say how long Hubbard’s defense case would take.
These statements did not surprise me because continuous trial preparation is what successful trial attorneys do, even when there is the possibility that a defendant may end up accepting a plea deal.
Baxley did not discuss any aspect of his dealings with prosecutors in the case other than to say he had not discussed any plea deal with them. Baxley volunteered that some plea talks occurred early on in the case.
Without elaborating, Baxley wanted me to know that I have been right on a lot of my Facebook reporting. He also stated that I was “being lead down the wrong road” with respect to my report of a plea deal for Hubbard.
The rest of the conversation dealt with: (a) a discussion of George Beck’s poor job performance as the U.S. Attorney in Montgomery, (b) David Byrne’s conduct as the Governor Bentley’s chief legal advisor, and (c) various family matters.
I believed Baxley was completely truthful about everything he told me during our conversation. As a seasoned litigator, however, I listened very carefully to what Baxley was saying and not saying.
Mainstream media organizations like AL.com subsequently interviewed Baxley and reported him as saying that there is no plea deal for Hubbard. In these stories, Baxley is quoted as saying that he was speaking out because he did not want the potential jury pool tainted by reports of a deal. These media groups ceased any further inquiries at that point. Afterwards, they referenced my published article and dismissed it on the basis of Baxley’s denial of a plea deal.
After Baxley and I finished talking, I checked again with my sources for the story. Without hesitation, they affirmed the accuracy of what had been reported. At this juncture, I had to reconcile two different versions of the truth – one provided by Baxley and another one described by my sources. This happens a lot in litigation.
Based upon the proven reliability and credibility of my sources and my extensive experience in representing high-profile criminal defendants in politically charged environments, the following is my legal analysis of what is happening in Hubbard’s case:
The May 16, 2016, criminal trial comes at an awful time for Mike Hubbard. Alabama is engulfed in a growing “sex for power” and public corruption scandal involving Governor Bentley and Rebekah Mason. Public opinion of Bentley, Hubbard, Senate President Del Marsh, and other top state officials is at an all-time low.
Jurors in Hubbard’s case will be drawn from the Lee County voter rolls. Voters across the state are angry about the widespread public corruption in state government. The charges against Hubbard look, feel and smell like more of the same engrained public corruption they are experiencing in Bentley’s case.
What is more, a mock trial of Lee County residents carried out by Hubbard’s lawyers as part of his trial preparation found him guilty on all 23 counts in his indictment. Even with a top defense lawyer like Bill Baxley representing him, Hubbard’s chances of winning on all 23 counts in his case are very slim.
Hubbard’s defense is impaired by the fact that Baxley cannot put Hubbard on the witness stand during his trial. There are simply too many ways for a skilled prosecutor like Matt Hart to destroy Hubbard’s credibility in front of jurors. Additionally, a conviction on any one of the 23 counts would send Hubbard to prison for two to twenty years.
The prosecution has its share of major weaknesses as well. For example, Governor Bentley is referenced in the indictment. Bentley cannot go under oath as a witness for the prosecution (or anybody else). The governor is a known habitual liar and the target of an ongoing federal public corruption probe.
Also, Hubbard is charged with soliciting or receiving hundreds of thousands of dollars from Republican power players around the state. However, none of the individuals listed as having paid bribes to Hubbard has been charged with bribery. This prosecutorial approach stands in stark contrast to the way prosecutors handled the 2005 bribery case involving former Democratic governor Don Siegelman and Richard Scrushy. In that case, both the alleged “giver” of bribes (Scrushy) and “taker” of bribes (Siegelman) were indicted. Both men were convicted in 2006 and sentenced to prison. The glaring disparate treatment between the two high-profile bribery cases in Alabama would be hard to explain to trial jurors. It reeks of preferential treatment for the “givers” based solely upon their political party affiliation. This makes it easy for Baxley to argue that Hubbard is the “fall guy” in a Republican power struggle that has gone horribly wrong. Otherwise, the “giver” and “taker” of each bribe would have been charged, as was done in the Siegelman-Scrushy case.
Plea deal talks occur in every criminal case. Hubbard’s case is no exception. In high-profile cases, these discussions are usually initiated, in the first instance, through behind-the-scenes intermediaries, rather than direct talks between the trial attorneys. This approach affords prosecutors and defense counsel “plausible deniability” in the event a plea deal is reached in principle and becomes public, or falls through the cracks, before the defendant formally enters his/her guilty plea in court. This approach also allows prosecutors and defense counsel to truthfully say to inquiring reporters that there is “no plea deal” until such time as a deal has been presented in court.
Again, my sources stand by their account of a plea deal. Hubbard is not bound by any tentative deal reached by intermediaries unless and until he announces it in open court and Judge Walker accepts it. Lawyers in high-profile cases handle plea deals in this fashion in order to avoid the appearance of weakness in their PR spin and trial positions in the event their client elects to proceed with a trial and take his/her chances with a jury verdict.
The deal described in Tuesday’s article is an incredibly attractive one for Hubbard and prosecutors. It allows both sides to declare victory.
I have never been a “guilty plea” lawyer. I won all of my criminal cases. In this case, however, it would be very difficult to recommend that Hubbard walk away from this deal. If Hubbard tries this case and loses, he will lose big and go to prison for a long time.
In the end, I predict that Hubbard’s case will end with a plea deal. The stakes are simply too high for Hubbard to place his freedom in the hands of a trial jury.
Donald V Watkins
The Meck Report/Blog
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