Montgomery police shooting: Eighth judge recuses himself from trial

An eighth judge has recused himself from presiding over the murder trial of Montgomery officer Aaron Cody Smith, who shot and killed Greg Gunn while on duty in February 2016. 

Judge Sam Welch, former presiding judge of the Alabama court of Criminal Appeals, was tapped to oversee the case by the Alabama Supreme Court last Friday after the last Montgomery circuit judge, Judge Jimmy Pool, recused himself. Pool had been the only Montgomery judge left after the Supreme Court ruled Judge Greg Griffin could not weigh impartially on the case and ordered a change in judge and venue.

Hours after Welch's recusal, the state Supreme Court tapped retired Dale County Circuit Judge Philip Ben McLauchlin to hear the case.

The Supreme Court appears to have erred in their selection of Welch. In his recusal, Welch noted that he twice ruled on the Gunn case. Both times, the Court of Criminal Appeals denied a motion from Smith's defense asking for Griffin's recusal. 

Because Chief Justice Tom Parker recused himself from the case as well, the selection of Welch was signed by Senior Associate Justice Michael Bolin, who also wrote the opinion determining Griffin unfit to rule on the case and ordered the case moved out of Montgomery County.

Attempts to reach Bolin to ask if he was aware of the existing conflict of interest with Welch were not immediately successful.

The date and location for the trial has not been decided.

Smith was charged with murder days after he shot and killed Gunn, who was walking home from a neighborhood card game when Smith conducted a random stop-and-frisk. Midway through the patdown, Gunn fled from Smith who chased, tased and beat Gunn before shooting him five times. Smith has argued the shooting was in self-defense.

The killing of a black civilian by a white police officer ignited tensions in the city that were somewhat quelled by the swift arrest of Smith. But Smith's defense tried early and often to have the case be seen in a different county by someone other than a Montgomery judge. Three years later, they've succeeded.

Presiding Montgomery County Circuit Judge Johnny Hardwick was the first assigned to the case, but he recused himself in December 2016 due to an unstated "personal conflict," court records show. 

Circuit Judge James Anderson recused himself next in March 2017 after being made aware of a potential appearance of impropriety; Anderson's son was working for the law firm representing Smith against a federal lawsuit brought by relatives of Gunn.

Judge Truman Hobbs, Judge J.R. Gaines and former Judge Roman Shaul recused themselves next without reason.

Shaul soon after stepped down from the bench to serve as general counsel for the Alabama State Bar in May 2017.

The trial fell into the hands of Griffin who, at the time, was the last available Montgomery judge following Shaul's resignation. 

Smith's defense asked for Griffin to recuse himself because of a social media post they said showed he could not rule impartially on the case. Griffin declined and both the appellate court and Supreme Court upheld his decision. 

But last summer, the defense again asked for a new judge and venue after Griffin said, "I don't find the officer's testimony today to be credible," while delivering a ruling that Smith was not immune from prosecution. 

The Supreme Court agreed that Smith had to stand trial, but granted both the change in judge and venue. In allowing the change in venue, the high court broke longstanding precedent that had barred it from changing venue during criminal mandamus petitions like Smith's. 

After Griffin's ouster, the case fell to Pool, who was appointed to fill Shaul's spot in November 2018 while Griffin was presiding over the case.

Pool recused himself earlier this month, giving no reason. 

News tips? Questions? Call reporter Andrew Yawn at 334-240-0121 or email him at ayawn@gannett.com.