From [HERE] The Alabama Attorney General's office said in a brief filed with the state Supreme Court today that Montgomery police officer Aaron Cody Smith is not entitled to immunity, a change of venue or recusal of the judge in his upcoming murder trial.
A grand jury indicted Smith for murder for the fatal shooting of Gregory Gunn, 58, in February 2016. Smith's trial, which had been scheduled to start Aug. 13, was put on hold two weeks ago by the state Supreme Court.
Smith, who is white, encountered Gunn, a black man, while Smith was alone on patrol in Montgomery's Mobile Heights neighborhood shortly after 3 a.m. Gunn was walking through the neighborhood, where he lived.
Smith claimed immunity from the murder charge because he said he shot Gunn in his official capacity as a law enforcement officer and in self-defense after Gunn armed himself with a painting pole.
Montgomery County Circuit Judge Greg Griffin held a hearing on Smith's immunity claim in July. After hearing testimony from Smith and others, Griffin made a comment that Smith's lawyers said showed the judge could not be impartial, which prompted them to request recusal. [Since white cop has requested a jury trial - the judge's opinion here is not important. They don't want a Black judge because he is Black.]
Griffin said he often held hearings where he weighed the word of a police officer against that of a defendant.
"And quite often, the officer is credible," Griffin said. "But I have to admit to you that I did not find the officer's testimony today to be credible, and, therefore, I do not feel that you have met your burden of proof that he's entitled to immunity."
Smith's lawyers argued that Griffin's statement, made in open court, implied Smith's guilt when he should be presumed innocent and influenced the jury pool because Griffin's comments were reported by the press. They said a transfer was needed for Smith to get a fair trial.
Griffin denied their motions and scheduled the trial to begin on Aug. 13. But Smith's lawyers appealed Griffin's decision, and the Alabama Supreme Court issued a stay on Aug. 8, putting the case on hold. The Supreme Court asked for responses from the attorney general's office and Judge Griffin, which were due today.
In today's brief, the attorney general's office argues that Smith's lawyers have not shown that Griffin ruled incorrectly in denying immunity.
"Absent a showing that the trial court's decision was plainly or palpably wrong -- and there has been no such showing here -- Smith cannot successfully ask this court to take the place of the factfinder, reweigh the evidence in his favor, and thereby grant him immunity from prosecution," the AG's office wrote. "Further, his attempt to show that the trial court possesses an actual bias against him and is thus required to recuse itself from his case is based on nothing more than its explanation of its reason for denying the motion for immunity, and cannot serve as a ground to require recusal."
A wrongful death lawsuit filed by Gunn's family said Gunn was walking home from a neighbor's house after playing cards when the encounter occurred. It says Gunn was unarmed and that Smith had no reason to stop him.
According to Montgomery Police Chief Ernest Finley the officer thought Gunn looked “suspicious” when he spotted him walking along McElvy Street in Mobile Heights at about 3:20 a.m.
As Gunn neared the house he shared with his 87-year-old mother, the officer exited his patrol car and approached Gunn. A struggle ensued, and the officer fired several shots, fatally wounding Gunn, Finley said, according to the Associated Press.
Neither Finley nor Strange has said what, exactly, was suspicious about Gunn, although Strange said there has been rash of burglaries in the area.
“He was hollering, ‘Help,’ and he was beating [on the neighbor’s door] like it was the last breath of his life,” said Franklin Gunn, who was at his Virginia home when the incident occurred but said he spent the last four days in his home town talking to witnesses.
He claims the city is covering up the truth about the police-involved shooting. He says that the painter’s stick was on the neighbor’s porch, there were several officers involved and that his brother was shot as many as five times, including two rounds in the back.
Most controversially, Franklin Gunn claims police let his brother die.
“They didn’t call [the paramedics] for 20 minutes as my brother laid on the ground and they stood over him and watched him die after they executed him,” he said.
“He was banging on the window and calling my name as loud as you could call it, his voice raising more and more,” Hinson told the Advertiser. “That was the only voice I heard. I didn’t hear anybody say, ‘Stop, halt, lay down.’ Nothing.”
Another neighbor, Scott Muhammad, said he spotted someone get “thrown around” and went outside to break up what he thought was a fight.
“It escalated. You could just feel the energy,” Muhammad told the Advertiser. “I turned around and told my wife to call the police. Then I saw him shoot four or five times and said, ‘Damn, that was the police.'”
He also said Gregory Gunn was shouting for help when he was shot.
“I saw when they killed him,” Muhammad said. “He was calling for his mother, his neighbor. He was knocking on the window.”
Muhammad said he saw two officers on the scene, one standing over Gunn and another laying in Hinson’s yard with a hand over his head.
“The paramedic never even made it over” to Gunn, he told the Advertiser. “Nobody came and actually checked on this brother. Nobody tried any lifesaving techniques or anything like that. I watched the whole thing.” [MORE]