Montgomery attorney Julian McPhillips is again moving to have the case against the three Selma Police Department (SPD) officers – Toriano Neely, Jeffery Hardy and Kendall Thomas, who celebrated when the case was thrown out earlier this year, only to be indicted a second time on the same charges – claiming that the same issues that caused the first case to be tossed are still in play.

The first case was thrown out due to the fact that Susan Smith, a special agent with the Alabama Attorney General’s office, “was present in the grand jury room while it was [in] session taking testimony with the prosecutors assigned to the case” and was taking notes “for her investigation of all of the witnesses who appeared before the grand jury,” according to the May 21 ruling.

“The same information she illegally and improperly attained the first time, [Smith’s] trying to use again,” McPhillips said. “She can’t purge her own mind. She cannot cure herself.”

For his part, McPhillips asserts that the grand jury process has been “irreparably tainted and impugned” due to Smith’s actions and, therefore, the case “cannot be reinstated, it must be dismissed.”

In the four-page dismissal motion filed Friday, McPhillips claims that Smith’s “improper attendance during grand jury testimony” caused the first indictment to be dismissed and, as such, should bear the same result in the second round of indictments.

The motion notes also that Smith was the state’s “only witness in obtaining identical unsubstantiated indictments against” the three Selma officers.

“The present indictments, like any other indictment tainted by Special Agent Susan Smith’s prior grand jury presence, must be dismissed ‘to preserve the integrity of the Grand Jury process, and to safeguard the rights of the accused,’” the motion states.

Further, McPhillips’ motion claims that “the secrecy of the grand jury in each indictment was clearly violated.”

To make this point, McPhillips cites a Sept. 26 letter from City of Selma Acting Personnel Director Sean VanDiver to Thomas, which states that the officer will be paid for 115 hours every two weeks and that no “additional details” about the investigation can be provided due to the Grand Jury Secrecy Law – that letter was followed the same day by one signed by SPD Capt. Natasha Fowlkes and SPD Capt. Johnny King, which stated that “there’s a pending grand jury indictment against” him.

The words “grand jury indictment” are crossed out in pen and the words “outside agency investigation” are written above it, a move McPhillips asserts was taken after the fact to clear the department of potential claims of wrongdoing.

“It is the Selma Police Department’s knowledge of a ‘pending Grand Jury Indictment’ that further reveals how the grand jury’s secrecy had been violated and that those responsible for placing the [officers] on administrative leave actually knew of the [officers’] November ‘pending grand jury indictments’ as early as September 2018,” the motion states.

McPhillips is confident that the court will see the issue similarly and he is anxious for the hearing scheduled for next week – McPhillips noted that his co-counsel, David Sawyer, who has been instrumental in continually pleading this case and others, has been working pro bono on the officers’ case because he and McPhillips take it so seriously.

“I feel confident the judge will agree with us,” McPhillips said. “This is the same argument we had before. The harm that the Attorney General’s office has done to these men is indescribable. They’re all hurting really bad.”