Parties in the trial of Mobile County License Commissioner Kim Hastie are awaiting a ruling from U.S. Magistrate Judge Katherine Nelson that will decide whether attorney Buzz Jordan will remain a part of Hastie’s three-man legal defense team.
Federal prosecutors requested the court to disqualify Jordan earlier this month after a correspondence he sent to Hastie after her office was raided by federal agents was allowed to be submitted as evidence for both sides.
Inadvertently, that also increased the likelihood Jordan would be called to the stand himself.At a hearing Wednesday, Assistant U.S. Attorney Gregory Bordenkircher argued that Jordan shouldn’t be allowed to “wear two hats” and remain part of the defense counsel after “inserting himself in the case as a material witness.”
Bordenkircher went on to suggest testimony from Jordan — whether initiated by the defense or the prosecution — would violate the 11th Circuit Rules of Professional Conduct and accepted pattern jury instructions, which state that any comments from attorneys during a trial can’t be considered evidence by a jury.
“You can’t have an advocate stand up and say, ‘my client told me this and so it’s a fact,’” Bordenkircher said. “This seems to be a bootstrapped method at a good faith argument that’s attempting to keep Mrs. Hastie veiled from prior actions.”
Bordenkircher expanded on those comments by analyzing court documents submitted by Hastie’s lead defense attorney, Neil Hanley, that also argued in favor of admitting Jordan’s letter as evidence.
Defense attorneys said they intended to use the documents as evidence Hastie “made a mistake” by paying Jonathan Gray of Strategy Public Relations for lobbying efforts out of a segregated account within the License Commission.
That account, created by legislation Hastie championed, is funded through a $1.25 fee added to electronic transactions at the License Commission, and according to its corresponding legislation, was intended to be used exclusively for the purchase of computer equipment.
Prosecutors believe Hastie did not mistakenly use that account to pay Gray, but did so intentionally. During his arguments Wednesday, Bordenkircher said Hastie claimed in previous interviews she “did purposely use the $1.25 fund and could use it for whatever she liked.”
News articles from Lagniappe have also been introduced in corresponding court files, which prosecutors believe document Hastie initially claiming to have not compensated Gray for his legislative services.
Among other instances of using the restricted fund improperly, Bordenkircher claimed Hastie attempted to pay economist Dr. Seemoon Chang for a study of her plan to merge the offices of Mobile County’s License and Revenue Commission out of the same account. Hastie ultimately did not use those funds for the study, and Chang told Lagniappe as of March 3, he hadn’t been compensated for his work.
Prosecutors also said Jordan’s involvement with an alleged incident of “intimidation” at Hastie’s office could be a factor in the case. Those claims stemmed from an unannounced meeting Jordan had with several License Commission employees in Hastie’s office in late January.
A hearing on the issue produced a court order barring Hastie or her attorneys from using the License Commission office or any public space to further their legal defense.
Still, defense attorneys are accusing the government of actively trying to deny Hastie’s right to the counsel of her choosing, which is established in the Sixth Amendment to the U.S. Constitution.
Hanley also said the defense has no plans to call Jordan to the stand as a material witness, and have taken issue with the government’s assertion it would. Hanley also said it was the government that initially urged the court to admit the letter as evidence in the case — a statement corroborated by court records.
“We’re not going to call Buzz Jordan to the stand,” Hanley said. “If (Bordenkircher) wants to get into Mrs. Hastie’s intentions, that’s on him, but I don’t see what questions he could ask other than, ‘Is this your legal opinion?’ and ‘Are you the author of this letter?’”
Hanley said getting into the factors behind the letter — which he originally contested to be privileged — would involve private conversations between Hastie and Jordan and would clearly be protected under the attorney-client privilege.
Jordan himself spoke during the hearing and said his disqualification could easily lead to a reversible error in the case because he was not attempting to “wear two hats” and had never represented himself as a “necessary witness.”
“If I’m disqualified, this is reversible if they don’t call me to stand, or if they do call me to testify and everything that’s gathered could have been stipulated without testimony,” Jordan said. “ I’m not going to testify for the defense, and I urge you not to grant their motion to dismiss me.”
Though the defense claimed multiple times they had no intention to seek testimony from their counsel, Assistant U.S. Attorney Sinan Kalayoglu said prosecutors had a hard time trusting those statements because Hanley had originally said he planned to submit Jordan’s letter as evidence, but has since decided not to.
Hanley, an officer of the court for more than 40 years, said he took offense to having his word questioned in open court.
Nelson, who called the issue “a complex one,” said she would take issue under advisement and issue an order by the end of the week.