Montgomery attorney Julian McPhillips, in his long-fought legal battle against the state on behalf of three Selma Police Department (SPD) officers, filed a new motion earlier this week opposing the state’s motion to have Judge Collins Pettaway recuse himself from the case.

“I think it’s pretty desperate on their part,” McPhillips said of the state’s last-minute recusal motion, which was filed only days before the parties were scheduled to go before a judge in Dallas County Circuit Court. “They’ve already tried it once before and it didn’t work. I think they’re just trying to head off another ruling that they don’t like.”

The three SPD officers – Toriano Neely, Jeffrey Hardy and Kendall Thomas – thought their case had come to a close in May, when the court ruled that the cases against them were to be dismissed “without prejudice,” only to be indicted a second time on the same charges weeks later.

The first indictment was tossed out because Alabama Attorney General’s office Special Investigator Susan Smith was present during grand jury testimony and then called as a witness herself, contradicting long-standing rules regarding the secrecy of the grand jury process.

McPhillips has asserted multiple times that the second indictment presents no new incriminating information and is still tainted by Smith’s involvement.

According to McPhillips, the state’s motion for recusal rests on two accusations – one based on the fact that Pettaway was present during an August 2017 meeting to discuss the officers’ refusal to produce evidence and the fact that the judge approved a request for indigent status for one of the officers.

McPhillips’ motion contesting the state’s recusal request calls into question the timing of the motion, as well as the legal precedents set out in multiple Alabama courts.

First, McPhillips asserts that the state’s recusal motion, filed more than four months after the cases were assigned to appear before the court, undermines the precedent set in the Johnson v. Brown case, which found that a recusal motion “should be filed at the earliest opportunities because ‘requests for recusal should not be disguises for dilatoriness on the part of the [moving party].’”

McPhillips also states in the motion that the state’s assertion that the court has displayed an “appearance of an impropriety and/or bias” relies upon “unfounded facts” and flies in the face of an Alabama Supreme Court ruling that found the “burden is on the party seeking recusal to present evidence establishing the existence of bias or prejudice” and that the “law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.

“[T]here must be a factual basis for disqualification, as distinguished from mere notions that a party would fare better before another judge,” the motion states. “The state, in its belated motion, has presented neither substantial facts nor evidence of prejudice or bias of a personal nature from any extrajudicial source.”

“Anything he was doing in the grand jury was a judicial exercise,” McPhillips said of the accusations being levied against Pettaway by the state. “What the judge did was entirely correct and straight.”

For his part, McPhillips is keeping his eye on a second dismissal for the officers, who he contends are ready to put the controversy to rest.

“Our policemen are really hurting badly,” McPhillips said. “They can barely feed their families and, in psychological and other ways, they have been bamboozled by these charges.”