State motion in Lowell Barron case

7/30/2019 State motion in Lowell Barron case

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IN THE CIRCUIT COURT OF DEKALB COUNTY. ALABAMA

STATE OF ALABAMA, )VS.

))) CASE NO. CC 2013-77))LOWELL RAY BARRON, )))DEFENDANT. )

STATE OF ALABAMA, )))vs. ) CASE NO. CC 20t3-78))RHONDA JILL JOHNSON, )))DEFENDANT. )

STATE'S RESPONSE TO COURT ORDERAND MOTION FOR LIMITED DISCLOSURE OF MATERIALThe State of Alabama, by and through Attorney General Luther Strange,

submits its Response to this Court's August 21, 2013 Order and Motion forLimited Disclosure of Material. In support of its Motion, the Attorney Generalstates as follows:

ELECTRONICALLY FILED8/30/2013 3:13 PM

28-CC-2013-000077.00CIRCUIT COURT OF

DeKALB COUNTY, ALABAMAPAM SIMPSON, CLERK


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1. On August 21, 2013, this Court found that "any evidence held by theState tending the show the relationship fbetween the defendants] was other thanpersonal is exculpatory in nature" and ordered the State to "submit to the court forin camera inspection all witness statements procured by the State in connectionwith the charges against the defendants obtained both before and after theindictment was returned." (Order, at p. 3).

2. In accordance with this Order, the State is providing the followingmaterials to the Court for in camera inspection: (a) Copies of recorded audiointerviews; (b) Special Agent Tom Coram's investigative notes of these interviews;(c) Excerpts of certain Grand Jury testimony;' (d) a Summary Memorandum,which sets forth a synopsis of the portions of the interviews and testimonyregarding the relationship between Barron and Johnson; and (e) a DisclosureMemorandum, which sets forth the information discoverable under this Court'sAugust 21" Order.2

3. The State moves this Court to not disclose the materials listed aboveto the defendants because these materials do not contain exculpatory evidence.

t Although the Court's Order specifically "reserve[d] for further consideration the issue relatingto grand jury testimony", the State has submitted these materials for the Court's in camera..ri"* because it contains information similar to the information contained in the statements.(Order, atp.4).2 B""u,rr"-the Court ordered that the materials be submitted for in camera review, the itemsdescribed have not been submitted to defense counsel pending further order of the Court. At thetime of this filing, the State sent the items described to the Court by Federal Express, nextbusiness day delivery.


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Alternatively, the State requests that the court limit disclosure to the defense ofonly the Disclosure Memorandum and not disclose the entire interviews and grandjury transcripts.4. In support of its request, the State asserts that (l) Brady and itsprogeny do not apply pre-trial; and (2) the submitted materials are not exculpatory.As such, the materials should not be disclosed to the defense, or, alternatively, thedisclosure should limited to the information contained in the DisclosureMemorandum.

5. As the State argued at the hearing on this issue, "fn]either Brady norAgurs requires disclosure of exculpatory evidence, before trial, as a matter ofcourse." Ex parte Duncan,456 So. 2d 362,364 (Ala. 1984) (emphasis added); seealso Bates v. State,549 So. 2d 60I,609 (Ala. Cr. App. 1989) ("Furthermore, therule of Brady applies only in situations which involve discovery after trial ofinformation which had been known to the prosecution but unknown to thedefense.") (internal citations and quotations omitted) (emphasis in original).3

6. Accordingly, Brady and its progeny have no application to this earlystage of litigation and the State moves this Court to not disclose the submitted3 The practical basis for this rule is based on the fact that materiality cannot be determined untilthe end of trial. See United States v. Agurs, 427 U.S. 97, ll2 (1976) (stating that the materialityof undisclosed evidence "must be evaluated in the context of the entire recort') (ernphasisadded). And evidence cannot be exculpatory unless it is also material. See Nicl


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materials to the defense.a In the alternative, the State requests that the Court onlyproduce the Disclosure Memorandum to the defense.

7. Even if Brady applies here, the submitted materials are notexculpatory in nature. "Evidence is exculpatory if it tends to disprove a fact inissue which is material to guilt or punishment." Nicks v. State,783 So. 2d 895,915(Ala. Cr. App. 1999) (internal citation omitted).

8. The relationship between Barron and Johnson - whether business orpersonal - is simply not an element of the charges in this case. That is, the State isnot required to prove that the defendants had a personal relationship in order toconvict them of violating the State's Ethics Law or the Fair Campaign PracticesAct. To be sure, the State is only required to prove that Barron and Johnson had acriminal relationship (i.e., principal and accomplice).

9. Although the defense argued at the hearing that the State has to provethat the defendants had a "personal relationship"s to show that the campaign fundswere converted to "personal use," this is not an element of the offenses charged.See $36-25-6 ("Contributions to an office holder, a candidate, or to a publicofficial's inaugural or transitional fund shall not be converted to personal use.");a The State also asserted at the hearing that it has complied with Rule 16.1, Ala. R. Crim. P., bydisclosing over 12,000 pages of documents and the statements of defendant Johnson to lawenforcement.s Defense counsel argued that "personal relationship" means it was of a "romantic" nature.("[T]he people that we have interviewed have said no romantic, no dating...."). (August 9, 2013Hearing Transcript, p. 11).


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517-5-7 (a) (forbidding the o'use" of 'ocampaign contributions" for 'oexpenditures"that are not 'hecessary and ordinary" or "reasonably related to performing theduties of the office held").10. As charged in the Indictment, Counts 1 through 4 allege Barron routed552,000.00 in campaign fundsto himself for his own personal use with Johnsonacting as his accomplice. That is, Johnson's "relationship" to Barron in thesecrimes is simply that she aided and abetted. Likewise, Counts 5 and 6 allege thatJohnson received, per Barron's instructions, $6,000.00 from the "Barron ForSenate" campaign account and a Toyota Camry (paid for with campaign funds)and that such transfers were not authonzed under the Fair Campaign Practices Act.Accordingly, the type of relationship between the two - whether business orpersonal - is plainly not an element of the offenses charged in this case.

11. Nor is a "personal relationship" the only possible means to prove themotive of the defendants to convert $52,000.00 in campaign funds for the personaluse of Barron (through sham payments to Johnson) or as simply unauthorizedexpenditures for the benefit of Johnson (e.g., the $6,000.00 and the ToyotaCamry).12. To be sure, the State intends to offer evidence that will prove thatBarron and Johnson's relationship was personal in nature and not simply "businessand professional." Specifically, the evidence will show that: (1) Barron and


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Johnson had extensive, afterhours telephone contact; (2) Barron gave a substantialmonetary gift (from his personal funds) to one of Johnson's family members; (3)Johnson received a $100,000.00 interest free loan from Barron; (4) Barron andJohnson had overnight travel - both out-of-state and foreign - where they shared ahotel room; and (5) witnesses observed Barron and Johnson to be engaged in arelationship which was more than businesslike or professional in nature.

13. Moreover, even if some witnesses stated to law enforcement that theyhad no knowledge of the kind of relationship between Barron and Johnson, thatdoes not tend to prove or disprove any fact of consequence - except that it showsthat the witnesses are unaware of the nature of the defendants' relationship. Inother words, a witness's statement that he or she does not know the precise detailsof the defendants' relationship cannot be exculpatory.

14. Alternatively, if this Court finds the submitted materials to containexculpatory evidence, the State respectfully requests that only the DisclosureMemorandum (not the actual recorded interviews or grand jury transcripts) bedisclosed to the defense. Again, for the reasons stated above, Brady and itsprogeny do not require disclosure of these materials at the pre-trial stage and anysuch disclosure should therefore be limited to only the evidence actually found bythe Court to be exculpatory. Additionally, although the court has reserved rulingon the disclosure of grand jury testimony, the defendants have failed to satis$r "the


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threshold test of showing a 'particulanzed need' for breaching the secrecy of thoseproceedings" and therefore the State opposes any such disclosure. State v.Blaclcrnon, T So. 3d397,409 (Ala. Cr. App.2005), cert. denied, 129 S. Ct.2052(200e).

In accordance with the foregoing, the State respectfully requests this Courtenter an Order finding that the materials submitted for in camera review do notcontain exculpatory evidence and that materials should therefore not be disclosedto the defense. Alternatively, the State respectfully requests this Court limit thedisclosure of the materials to the information set forth in the DisclosureMemorandum.

Respectfully submitted this 30th day of August,2013.

LUTHER STRANGEATTORNEY GENERAL/s/ Miles M. HartMiles M. HartChief, Special Prosecutionsmhart@ago. state.al.us


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OF COUNSEL:Bill Lisenby, h.Assistant Attorney Generalwlisenby@ago. state.al.usPeter J. SmyczekAssistant Attorney Generalpsmyczek@aeo. state.al.usOprrcp oF TrrE ArronNgY GENERAL501 Washington AvenueP.O. Box 300152Montgomery, AL 36130-0152(334) 242-7300(334) 242-4890 - FAx


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CERTIFICATE OF SERVICEI hereby certifii that I have, this the 30th day of August2Ol3, electronically

filed the foregoing using the AlaFile system which will send notification of suchfiling to the following registered persons, and that those persons not registered withthe AlaFile system were served-a copy of the foregoing by U. S. mail:

Attorneys for Defendant Lowell Rav Barron:Joe Espy, IIIBenjamin J. EspyWilliam M. EspyMELTON, ESPY & WILLIAMS, P.C.P.O. Drawer 5130Montgomery, AL 36103Telephon e: 33 4 -263 -6621Facsimile : 33 4-263 -7 [email protected]@mewlegal.comwesp)[email protected] 'Rocky" WatsonWatson & Neeley,LLC305 Grand Avenue, SWFort Payne, AL 35967Telephone: 256-845-04 1 0Attornevs for Defendant Rhonda Jill Johnson:Tony Jennings304 Alabama Avenue SouthFort Payne, Alabama 35967

/s/ Miles M. HartOF COUNSEL

Documents

State motion in Lowell Barron case