Montgomery officer denied immunity, granted change of venue in murder trial

MONTGOMERY, AL (WSFA) - The Alabama Supreme Court has handed a victory to the defense in the case of Montgomery police officer Aaron “Cody” Smith, though only partially.

Smith, a white police officer, is charged with murder in the February 2016 on-duty shooting death of Gregory Gunn, a black man. He was set to go on trial in Circuit Judge Greg Griffin’s courtroom in August but the state supreme court issued a stay in the murder case following petitions from Smith’s attorneys on several grounds.

Friday, the high court denied Smith immunity from prosecution but agreed the judge over the case should recuse and the trial should be moved.

Smith’s legal team had hoped to block prosecution of their client on grounds that he was immune from prosecution. The high court denied that petition, saying they determined he did not prove by a preponderance of evidence during his immunity hearing that deadly force was justified.

“Smith failed to demonstrate a clear right to the relief sought,” the opinion cited. That means Smith can still be tried for Gunn’s death.

Despite losing the immunity petition, the police officer won two others he’d fought for and lost on appeals prior to the supreme court’s ruling.

The court granted Smith’s petition to order Griffin’s recusal saying the judge’s comments surrounding the credibility of Smith’s testimony in his immunity hearing could create bias with an impartial jury.

“Based on the totality of the facts and the circumstances presented in this particular case,” the court said, “we conclude that Smith has satisfied his burden of showing that the comment made by Judge Griffin provides a reasonable basis for questioning Griffin’s impartiality.”

The comment Griffin made came during the immunity hearing and drew immediate claims of bias by the defense. Griffin stated, “I have to admit to you I didn’t find the officer’s testimony credible. I don’t feel you have met the burden of proof. This trial will proceed on August 13.”

The order stated Griffin’s comments also weighed on their decision to order his recusal and to grant a change of venue.

“A news report that the trial judge himself finds Smith not to be credible carries more weight than the typical news report involving a notable case,” the high court’s opinion stated. “The trial judge’s statement equates to a judicial decision, and it could undoubtedly negatively influence potential jurors.”

With Griffin’s recusal, all judges in the circuit, with the exception of new Circuit Judge Jimmy Pool, are now recused from the case. However, Pool presided over Smith’s preliminary hearing in district court.

During the appellate process, the state strongly opposed changing the venue in this case, stating the defense’s arguments didn’t meet the legal standard. With the high court’s ruling, this becomes the first criminal prosecution from Montgomery County that will be heard in a different judicial circuit in recent memory.

As for which judge will be named to the case, the Alabama Supreme Court generally appoints a judge and the new judicial circuit in these cases.

Chief Justice Lyn Stuart and Justices Tommy Bryan and William Sellers concurred with the opinion.

Justice James Main concurred in the result, which generally means the justice didn’t want to side with either opinion but agrees with the final outcome.

Justice Brad Mendheim concurred with the opinion addressing immunity and dissented in Parts II and III regarding recusal and change of venue.

Justices Tom Parker, Greg Shaw, and Alisa Wise recused themselves.

Officer AC Smith was arrested and charged with murder in the shooting death of Montgomery resident Greg Gunn. (Source: Montgomery County Jail)
Officer AC Smith was arrested and charged with murder in the shooting death of Montgomery resident Greg Gunn. (Source: Montgomery County Jail)

Copyright 2019 WSFA 12 News. All rights reserved.