Things continue to escalate in the attorney general (AG) race, as former Supreme Court Justice Jay Mitchell continues to accuse his opponent, chief counsel in the AG's Office, Katherine Robertson, of skullduggery in her office's previous treatment of a former Montgomery police officer.
Mitchell initially hinted at being displeased with the AG's office for its treatment of officer-involved shootings earlier this month.
SEE: Jay Mitchell: AG's office has 'put its head in the sand' over officer-involved shooting prosecutions
Mitchell doubled down on Tuesday, blaming Robertson and the AG's office for shortages at the Montgomery Police Department shortly after announcing the endorsement of a former Montgomery mayor. AG Steve Marshall later responded, calling Mitchell's assertions "deceptive."
Mitchell's accusation hinges on the case of Aaron Cody Smith, a former Montgomery police officer who was charged with murder in the 2016 shooting of Greg Gunn. Smith was sentenced to 14 years in 2019 for the lesser crime of manslaughter.
After years of failed appeals, Smith's case reached the Alabama Supreme Court, where He requested that his failed appeal be overturned, among other things. The Court denied Smith's request. However, Mitchell wrote a special opinion, joining other justices in saying Smith might be entitled to post-conviction relief and likely had inadequate counsel.
When Smith sought that relief in a Rule 32 petition, Marshall executed a privilege of his office by taking over the prosecution of Smith's case from the Montgomery County District Attorney. Marshall's office then reached a plea agreement with Smith, requiring him to plead guilty to the manslaughter charge, but allowing him to be released on time served. Marshall's office had previously represented the state when Smith's case was up for appeal. However, Marshall claims to have been fulfilling his "statutory duty" as AG, despite having "personal misgivings" about Smith's conviction.
Robertson has publicly boasted of securing the plea deal that allowed Smith to go free, saying she believed he was "wrongfully" convicted.
In responding to Marshall's accusations of deceptiveness, Mitchell contends that Robertson, as a part of her role in Smith's plea agreement, erred by choosing to "prosecute" Smith by representing the state in Smith's appeal, by not getting involved in the case sooner, and by compelling a guilty plea, regardless of the shortened prison time.
"Cody Smith was wrongfully convicted," Mitchell said in a statement to 1819 News. "Katherine Robertson said so herself. But Attorney General Marshall and Katherine could have stopped this case before it happened. They did not have to defend Cody's conviction on appeal. And Katherine certainly did not have to make Cody plead to a felony at the end. It is not ever the Attorney General's 'mandated appellate duty' to defend a wrongful conviction. It is the Attorney General's duty to do justice."
Marshall contends, however, that his office got involved after it had fulfilled its obligation to act as the state's attorney on Smith's appeal and secured his immediate release from prison.
The AG's office took over the prosecution after the court granted Smith's Rule 32 petition, which allows people to challenge their convictions in court based on grounds not raised on appeal. If the petition had been granted, Smith's case would be subject to a new trial and, therefore, a possible dismissal.
However, Marshall contends that a Rule 32 petitioner is not entitled to dismissal and that the petition was not guaranteed to be granted.
"At the time the Attorney General's Office took over the case from the Montgomery District Attorney, the Rule 32 petition had been filed but not granted, and there was no guarantee that it would be granted," Marshall said in a statement to 1819 News. "A Rule 32 petitioner can obtain a new trial but not dismissal of the case. Using the procedural tools available to us at the time, we pursued the most direct and efficient path to get Officer Smith out of prison."
Marshall states that his office took the path that guaranteed Smith's freedom. However, Mitchell continues to claim that the AG's office did not do enough in Smith's case.
"Cody's case played a significant role in my decision to leave the Supreme Court and run for Attorney General," Mitchell said. "I want to be in the position to do more for officers like Cody—to use the lawful authority of the Attorney General's Office and prevent these wrongful prosecutions before the damage is done. I did everything I could for Cody. Steve and Katherine did not."
Robertson's campaign declined to comment on the story.
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