Alabama judge is suspended from bench after she is accused of anti-death penalty predilection

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A judge in Birmingham, Alabama, has been suspended with pay after the Alabama Judicial Inquiry Commission alleged that she showed an apparent predisposition against the death penalty, ignored appellate directives, and showed a lack of appropriate demeanor to prosecutors.

Judge Tracie Todd’s legal errors are part of a continuing pattern with the capacity to harm public confidence in the judicial process, particularly with regards to death penalty issues, according to the commission’s April 6 complaint.

AL.com has coverage.

The ethics complaint alleges abuse of judicial power and “abandonment of the judicial role of detachment and neutrality.” The allegations concern mostly incidents from 2014 through 2018 in matters involving the death penalty, prosecutors and personal vindication of her prior rulings and actions, the complaint says.

“This complaint is about a judge who continued to fail to respect and follow clear directives and rulings of the appellate courts,” the complaint says.

The death-penalty imbroglio began in March 2016, when Todd struck down Alabama’s capital sentencing scheme in which judges could impose the death penalty even when jurors recommended life without parole. Todd struck down the sentencing system as applied to four defendants.

The Alabama Supreme Court later upheld the judicial override system in October 2016. A state law passed in 2017 eliminated the judicial override system but allowed jurors to recommend the death penalty by a 10-2 vote.

Todd had ruled that judicial override was unconstitutional under the U.S. Supreme Court’s January 2016 decision, Hurst v. Florida, which struck down Florida’s death penalty scheme because it allowed judges, rather than juries, to find facts necessary to impose the death sentence. Todd then banned Alabama from seeking the death penalty.

The complaint says Todd’s order denied the state its right to seek the death penalty because her ruling only applied to judicial override cases, not cases in which jurors recommended the death penalty. Her order also “exhibited an apparent predisposition against the death penalty generally,” the ethics complaint says.

Todd’s order also cited secondary sources that she had independently collected, including information that judges are more likely to impose the death penalty during an elections cycle, and that unqualified lawyers were being appointed in capital cases based on campaign contributions. Those extraneous sources “violate a judge’s duty of detachment and neutrality,” the complaint says.

Todd’s order was released to the media, and she gave two interviews the same day that criticized partisan judicial elections, judicial override and attorney appointments based on campaign contributions. The comments also gave the appearance of a preconceived bias against the death penalty, the complaint says.

She also denied prosecution motions to recuse in two other death penalty cases, saying the motions were moot after Alabama eliminated the override system. But the ethics complaint noted an appellate ruling finding that the new law did not apply retroactively.

An appeals court ordered Todd to recuse herself in the cases. She nonetheless ordered a status conference in one case and then said she hadn’t received notice of the appeals court’s judgment.

In November 2017, Todd also banished from her courtroom the prosecutor who had been assigned there, which was “an extreme and unwarranted abuse of judicial authority,” according to the ethics complaint. She cited the prosecutor for contempt the same day and scheduled a hearing.

The prosecutor emailed Todd’s judicial assistant to say he planned to continue coming to the courtroom, absent a judicial order to the contrary.

In an email to the sheriff, Todd said the prosecutor displays “unpredictable mood swings,” and his insistence on appearing before her “demonstrates willful disregard or mental instability.” She then requested extra security in case the prosecutor came to her court.

She also emailed the district attorney about her concerns that the prosecutor displayed a lack of concern and a lackluster performance in two rape prosecutions in which the accusers were Black women. She also noted another person’s observations after viewing one of the prosecutor’s “conniptions” that his behavior toward Todd stemmed from the fact that she was a Black woman, the ethics complaint says.

Todd should not have participated in the contempt proceeding against the prosecutor, the complaint says.

The prosecutor then sought Todd’s recusal in all his cases before her. Todd denied the recusal motions. On appeal, Todd told the appeals court that she was being “persecuted” and “bullied,” and the recusal motions were retaliation for her decision striking down the death penalty.

“Historically, judges in Alabama who made unfavorable rulings against the interests of the power structure were threatened, ostracized and made subject of personal and political retaliation,” she wrote in opposing the recusal appeal. “The methods employed in these petitions amount to tactical relics of dark days past.”

Despite previous appellate rulings on the standards for disqualification, “Todd continued to be unconcerned with any appearance of bias or impropriety,” the complaint says.

Todd did not immediately respond to the ABA Journal’s message left with her office.

Corrected April 14 at 8:02 a.m. to accurately report the Hurst holding.

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