Jefferson County Judge Tracie Todd’s trial begins for alleged ethics violations, anti-death penalty advocacy
Jefferson County Judge Tracie Todd’s trial begins for alleged ethics violations, advocating against death penalty
Updated: Nov. 15, 2021, 10:35 p.m. | Published: Nov. 15, 2021, 8:29 p.m.
Jefferson County Circuit Judge Tracie Todd
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By Mike Cason | mcason@al.com
A trial started today in the case of a Jefferson County Circuit criminal court judge accused of violating the judicial principle of neutrality and of abusing power.
The nine-member Alabama Court of the Judiciary is hearing the case against Jefferson County Circuit Judge Tracie Todd.
Todd, who was elected circuit judge in 2012 and was re-elected without opposition in 2018, has been suspended with pay since the Judicial Inquiry Commission filed a complaint against her in April.
Emory Anthony, one of Todd’s attorneys, said during an opening statement today that the allegations are false.
“The evidence will show that Judge Todd did her job,” Anthony said.
Attorney Elizabeth Bern gave the opening statement for the JIC, summarizing the alleged violations of Alabama’s Canons of Judicial Ethics that are spelled out in the 144-page complaint.
Bern said the charges are not based on only legal errors but on a pattern of actions that the JIC says undermine public confidence in the court system:
- Lack of faithfulness to the law or failure to maintain professional competence in the law
- Failure to timely cooperate with other courts and/or to respect their orders in the administration of court business
- Advocating for defendants, issues and/or own rulings
- Denial of full right to be heard, including by way of independent investigations
- Failure to disqualify
- Lack of proper judicial temperament and demeanor.
Anthony said the defense team has not decided whether Todd will testify.
Part of the complaint concerns Todd’s rulings on death penalty cases in Alabama. The JIC accuses Todd of embroilment, which means leaving the role of the impartial judge and becoming an advocate.
Much of today’s testimony was about Todd’s ruling in March 2016 that Alabama’s capital murder sentencing law was unconstitutional.
On March 3, 2016, Todd held a consolidated hearing in four death penalty cases in her court. Lawyers for the defendants had filed motions claiming Alabama’s death penalty sentencing law was unconstitutional because of a U.S. Supreme Court ruling rejecting Florida’s law.
Jefferson County Deputy District Attorney Neal Zarzour, who was lead prosecutor in two of the death penalty cases in Todd’s court and who took part in that hearing, was the first witness called by the JIC today. Zarzour said that as soon as the lawyers finished giving their arguments, Todd began reading a 28-page ruling that Alabama’s death penalty law was unconstitutional based on the Florida case.
The JIC complaint said Todd raised issues none of the defendants’ lawyers had raised about what she said were flaws in the state’s application of the death penalty and its system of elected judges.
Todd said judges were more likely to impose the death penalty during an election year and that judges appointed attorneys to capital cases because of campaign contributions, not expertise.
Todd said appeals of death penalties to higher courts in certain cases were “ceremonial at best” and that “Alabama’s judiciary has unequivocally been hijacked by partisan interests.”
Zarzour, responding to questions from JIC attorney John Selden today, said none of those issues had been raised by attorneys for the four capital murder defendants at the consolidated hearing.
The JIC complaint alleges that Todd, by raising those issues in her order and in media interviews after the hearing, abandoned the judicial role to become an advocate for the defendants “and/or for what she apparently thought the law should be.”
The JIC also made a point that Todd’s ruling, read from the bench at the hearing, indicated her mind was already made up on the issues and was not based on what the lawyers argued in court that day.
Todd’s attorney Anthony, in cross-examining Zarzour, brought up that Todd had been able to review the attorneys’ written arguments before the hearing.
Anthony also brought up that it is not unusual for judges to add editorializing comments to their rulings, a practice he called legal dicta.
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The Alabama Court of Criminal Appeals reversed Todd’s ruling in June 2016, finding that Alabama’s death penalty law was constitutional despite the ruling in the Florida case.
In September 2016, the Alabama Supreme Court, in a ruling not related to Todd’s cases, found that Alabama’s death penalty law was not affected by the U.S. Supreme Court ruling in the Florida case.
If the Court of the Judiciary finds Todd guilty it could impose a range of punishments, including removal from office, suspension without pay, or censure.
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