U.S. prosecutors have asked a federal judge to disqualify one of Mobile County Licence Commissioner Kim Hastie’s three defense attorneys from her upcoming public corruption trial, one scheduled to begin jury selection in a matter of weeks.
In a motion filed today, the government argued that testimony from attorney Buzz Jordan is almost certainly expected and it’s possible he could play the role of an “advocate-witness.”Previously filed court documents indicate that Jordan was planning to testify during the trial at least in reference to a letter between Hastie and himself acknowledging “a mistake” Hastie made when she paid for lobbying services with funds from a restricted account.
A judge has previously deemed the letter admissible at the request of the prosecution, but Hastie’s lawyers have also expressed plans to use the letter in their defense. However, because prosecutors plan to question Jordan about the letter during the trial, they’ve suggested his continued representation of Hastie could be improper or even “prohibited.”
The prosecution is planning to use Jordan’s letter at trial as non-hearsay evidence showing that “Strategy, Inc. was not eligible to be paid from the $1.25 account” and that the company’s founder later reimbursed the money.
As for Jordan’s testimony, prosecutors say it would be relevant to the trial because he was the sole author of the letter and would be the only witness with insight into the “scope and nature” of the legal opinion cited in the correspondence.
““It is unlikely Mr. Jordan will not be called by one or both parties to testify,” the motion reads. “Under these facts, it is difficult to see how Mr. Jordan may avoid serving as a witness in a trial in which his client is the lead defendant.”
Cited in the prosecution’s motion, Rule 3.7 of the Alabama Rules of Professional Conduct states that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, except where “the testimony relates to an uncontested issue; the testimony relates to the nature and value of legal services rendered in the case or disqualification of the lawyer would work substantial hardship on the client.”
Prosecutors also believe Hastie doesn’t meet any of those qualifications because the letter — or at least its intentions — are disputed by the parties and doesn’t pertain to the value of Hastie’s defense efforts. In the motion, Assistant U.S. Attorneys Gergory Bordenkircher and Sinan Kalayoglu also suggest that any hardship imposed upon Hastie by Jordan’s disqualification would “not be ‘substantial’” because the license commissioner has been represented by two other attorneys since her indictment in November.
“In light of the Court’s expressed concern over a potential conflict of interest at trial, the high likelihood that such a conflict will arise and unfairly prejudice the United States, Yeager, and even Hastie herself, and the unlikelihood that remedies other than disqualification could actually remedy the conflict, the United States requests that Mr. Jordan be disqualified from further representation of his client to ensure a fair trial for all parties,” the motion concludes.
Attorneys for the prosecution said if the court moves to disqualify Jordan, they would agree to a continuance for one month “in the interests of justice.”
Jordan said he hadn’t yet read the motion, but said state prosecutors had removed him from a case for similar reasons in the past.
“In the State of Alabama vs. Thomas Lane, the state forced me off a case. But, the court later reversed it on appeal because the removal, like this instance, would be a violation of my client’s right to counsel of her choice,” Jordan said. “We’ll file a response and likely have a hearing on the matter, but I suspect they will fail similarly.”