By Donald V. Watkins
©Copyrighted and Published on November 22, 2018; Republished on May 3, 2021
[Author's Note: On April 6, 2021, Jefferson County Circuit Court Judge Tracie Todd was temporarily removed from her judgeship by the Alabama Judicial Inquiry Commission (JIC) following a 100-page complaint filed against her by this judicial oversight body. While gift-wrapped in nice-sounding legal platitudes, the JIC's complaint was the state of Alabama's way of using its judicial billy-club to beat a black state court judge into submission for following the mandates of the U.S. Supreme Court on cases involving the death penalty, as opposed to the all-white Alabama Court of Criminal Appeals' and Alabama Supreme Court's judicial opinions that have historically sought to eviscerate the U.S. Constitution and U.S. Supreme Court's mandatory requirements for fairness and impartiality in the administration of the death penalty. This JIC beating is Alabama's modern-day version of the infamous 1991 Rodney King beating by racist police officers in Los Angeles. It is designed to frighten and intimidate all of Alabama's duly elected African-American state court judges. Like Judge James Horton in the Scottsboro Boys case in the 1930, Judge Todd chose an alliance to the U.S. Constitution over the traditional acceptance of the systemic racism that is embedded in Alabama's disparate administration of the death penalty. Judge Horton lost his judgeship due to the virulent reaction exhibited by white racists to his fair administration of justice in overturning the convictions in the Scottsboro Boys' capital rape case. Judge Todd lost her judgeship due to Alabama's racially-motivated reluctance to embrace the fair administration of the death penalty. Finally, any court of appeals or supreme court in an Old South Confederate state that has a 25% or more black population AND all-white judges on the bench in 2021 lacks the integrity and credibility necessary to instill public confidence on judicial decisions involving racial matters. What is more, the entrenched all-white status of Alabama's high two courts of appeals and state supreme court is a far greater danger to the fair administration of justice in the state's court system than any judicial action taken by Judge Todd in a death penalty case. Yet, the Alabama State Bar Association, the JIC, the Alabama Court of the Judiciary, the Administrative Office of the Courts, and Alabama's mainstream media organizations are silent on this matter. Why? Because racism is white-hot and sizzling in Alabama. Now, please read the article below about Judge Tracie Todd -- a judge with high moral character, an abundance of personal and professional integrity, and a healthy respect for the Supreme law of the land.]
On March 3, 2016, Jefferson County, Alabama Circuit Judge Tracie A. Todd issued a landmark ruling declaring that Alabama's capital murder sentencing scheme, which allowed a judge to override a jury recommendation of life without parole and instead impose the death penalty, was unconstitutional. Based upon a thoughtful and scholarly opinion about the influence of partisan politics and its potential for bias in the judiciary in Alabama death penalty cases, Judge Todd barred the death penalty in the cases of four men charged in three murders.
Judge Todd is a super-smart and highly respected jurist. A Birmingham native, Judge Todd is fluent in Japanese and worked in Japan prior to assuming her judgeship. She is a graduate of Dillard University and The University of Alabama School of Law. She is also a former Jefferson County deputy district attorney.
Judge Todd’s ruling acknowledged what many criminal defense attorneys and judges have whispered at cocktail parties throughout my 45-year legal career – defendants who are convicted in capital cases usually receive the death penalty when they are poor and/or black. Additionally, many prosecutors, judges and governors who run in partisan elections on tough “law and order” platforms tend to seek, impose (upon a conviction), and uphold the death penalty, whether a defendant is actually innocent, or not.
The “Scottsboro Boys” Were Sentenced to Death on Multiple Occasions
In Alabama, race-baiting politicians have enjoyed a long and distinguished record of trying to put innocent criminal defendants to death for selfish political gain. The most famous case evidencing this truism involves the nine black “Scottsboro Boys” who were arrested in 1931 and accused of raping two white women on a freight train traveling through Morgan County, Alabama. Due to extreme racial prejudice, political expediency, and the inflamed passions of an all-white criminal justice system, eight of the Boys were nearly executed on multiple occasions.
Only Limestone County Circuit Judge James E. Horton, Jr., governed himself properly during the trials of the Boys. In 1933, Judge Horton set aside the jury’s guilty verdict in the retrial of defendant Hayward Patterson. Horton, a respected jurist, was soundly defeated by white voters when he ran for re-election after setting aside the verdict.
All of the other State of Alabama trial and appellate judges who passed judgment in the Scottsboro Boys rape cases over the next two decades made a mockery of the criminal justice system, and did so solely for political reasons. They took pride in imposing and upholding the death sentences in the Boys cases. This group of judges included the all-white Alabama Supreme Court, which upheld the death penalty for several of the Boys on multiple occasions.
Forty-five years later, the State of Alabama issued a full and unconditional pardon to Clarence Norris, the last living Scottsboro Boy. For the first time, the State acknowledged what the Scottsboro Boys claimed during the entire 45-year ordeal -- they were innocent of the crimes for which they had been charged and nearly put to death.
The Tragic Case of Anthony Ray Hinton
On April 3, 2015, Anthony Ray Hinton walked out of the Jefferson County Jail a free man for the first time in 30 years. Hinton is one of the longest serving death row prisoners in Alabama history and among the longest serving condemned prisoners to be freed after presenting evidence of innocence. Mr. Hinton is also the 152nd person exonerated from death row since 1983.
Thirty-three years ago, Mr. Hinton was arrested and charged with two capital murders based solely on the assertion that a revolver taken from his mother’s home was the gun used in both murders and in a third uncharged crime.
The Equal Justice Initiative, based in Montgomery, Alabama, engaged three of the nation’s top firearms examiners who testified in 2002 that the revolver could not be matched to crime evidence. State prosecutors, including Alabama Attorneys General Troy King and Luther Strange, never questioned the new findings but nonetheless refused to re-examine the case or concede error. Both ran for office as pro-death penalty Republicans.
After 12 more years of litigation, the U.S. Supreme Court unanimously reversed the Alabama Supreme Court’s ruling upholding the death penalty, and a new trial was granted. The trial judge finally dismissed the murder charges in 2015 after state prosecutors conceded that the crime bullets could not be matched to the Hinton weapon.
Anthony Ray Hinton spent 30 years on death row for crimes he did not commit. The refusal of state prosecutors and appellate judges to set aside his conviction when the uncontradicted evidence showed he did not commit the murders was inexcusable. When confronted with a choice to do the right thing in the face of clear and convincing evidence of Mr. Hinton’s innocence, Alabama prosecutors and judges chose death for Mr. Hinton.
This is exactly what Judge Tracie Todd was describing when she talked about the influence of partisan politics and the potential for bias in death penalty cases in Alabama.
Punishing Judge Todd for Telling the Truth About the Death Penalty
As expected, the all-white and all-Republican Alabama Court of Criminal Appeals was quick to punish Judge Todd, who is black, for telling the ugly truth about the imposition of the death penalty in Alabama.
On October 18, 2018, the Court of Criminal Appeals asked the Judicial Inquiry Commission (“JIC”) to investigate Judge Todd to determine whether she violated ethical rules. The Court of Criminal Appeals said it was “troubled” by Todd’s “repeated failure to abide by controlling law and her seemingly cavalier disregard for the orders of this Court and the Alabama Supreme Court.”
Todd’s actions “present questions of grave concern," said the Court of Criminal Appeals before sending the case to the JIC for the Commission to determine whether ethics proceedings should be initiated against Todd.
The JIC investigates ethics complaints, and if necessary files charges, against judges. Those charges are then heard by the Court of the Judiciary, which could discipline or remove a judge from the bench.
The Court of Criminal Appeals' action came 18 months after Alabama Gov. Kay Ivey signed a bill into law on April 11, 2017 that allows juries, not judges, to have the final say on whether to impose the death penalty in a capital murder case. Alabama was the only state in the nation that allowed a judge to override a jury's recommendation when imposing a sentence in a capital murder case.
Epilogue
Like Judge James E. Horton, Jr., in the Scottsboro Boys case, Judge Tracie A. Todd applied the correct constitutional standard to the facts in her capital cases, and did so without fear or favor. Unlike Judge Horton, Judge Todd won re-election to her second six-year term as a judge two years after her landmark ruling.
Now, Judge Todd must defend herself against politically-inspired ethics charges because she stood up for the basic constitutional right of criminal defendants to a fair trial in capital cases before an impartial tribunal. This stance sounds like a simple and easy thing to do in principle. However, in Alabama, this courageous stance may result in a death sentence for Tracie Todd’s career as a respected trial judge.
Whether it comes in the form of a lynching, police shooting, or judicially-imposed execution order, Alabama's ultra-conservative “Christian” politicians enjoy serving as drum majors for the death of poor and/or black criminal suspects/defendants. As demonstrated in Judge Todd’s case, anyone who rains on this political parade is at risk of substantial harm to his/her own career.
This is the politics of death in Alabama.
PHOTO: Jefferson County, Alabama Circuit Judge Tracie A. Todd (left) and Limestone County, Alabama Circuit Judge James A. Horton, Jr., (right). Both judges refused to participate in the ugly politics of death in their capital cases and were punished for it.
