A dispute over legal representation is complicating preparations for the upcoming federal criminal trial of Mobile County License Commissioner Kim Hastie, after prosecutors raised concerns that one of her attorneys may need to testify as a witness in the case.
During a hearing in U.S. District Court in Mobile, Assistant U.S. Attorney Gregory Bordenkircher told the court the situation has grown more complicated the deeper prosecutors look into it. “We’ve been thrown into the briar patch,” he said, describing the tangled legal question of whether the attorney can continue representing Hastie while also potentially taking the stand.
At issue is a letter the attorney sent to Hastie and others last August, prior to her indictment, advising her against using money from a county fund to pay a lobbying firm for its services. According to prosecutors, the firm was paid $10,000 to draft legislation supporting Hastie’s push to merge the License Commission with the Mobile County Revenue Commission, a plan detailed in the indictment made public in November.
U.S. District Judge Callie V.S. “Ginny” Granade ruled earlier this year that the letter is a public record, rejecting arguments from Hastie’s defense team that it should remain shielded. Prosecutors plan to introduce the letter as evidence and to call its author as a witness, calling it a key piece of their case.
Bordenkircher told the court he believes Hastie’s legal team may try to use the letter to argue that her subsequent actions were shielded because she received advice after the fact, calling that approach “a bootstrap method of trying to make a good faith argument.”
One of Hastie’s three defense attorneys, Neil Hanley, pushed back on the government’s position, saying he was “totally confused” by the effort to potentially disqualify counsel of Hastie’s choosing. “The bar should be very, very high when you disqualify an attorney,” Hanley told the court, citing constitutional protections for defendants to choose their own legal representation.
U.S. Magistrate Judge Katherine Nelson said she would issue a ruling on the matter by the end of the week, noting skepticism that the attorney could serve simultaneously as both witness and counsel without confusing a jury. “What the attorneys say is not evidence, except when the attorney takes the stand,” Nelson said, explaining her concern.
Hastie and her husband face federal charges alleging they failed to report more than $58,000 in income to the IRS from land transactions, timber cutting and land-clearing work. Additional charges filed earlier this year allege Hastie coordinated a scheme involving thousands of forwarded emails to a political consulting firm.