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| Judge Thomas Young |
Duncan eventually received a retrial and filed a petition for writ of mandamus, asking the Alabama Supreme Court to force the trial judge off the case because his statements from the bench had demonstrated prejudice. The Supreme Court refused, stating that the judge's remarks did not represent the kind of "personal bias" that would "reasonably call his impartiality into question" and force recusal.
That appellate ruling, styled Ex parte Duncan, 638 So. 2d 1132 (Ala., 1994), established black-letter law that governs recusal of an Alabama judge.
A citizen might assume that the justices on today's Alabama high court are well acquainted with the finding in Ex parte Duncan. After all, their predecessors established the law, and under the doctrine of stare decisis, the current-day justices are bound to abide by it.
So how did the high court release an order last week that obliterated the binding precedent of the Duncan case? How did the court force Macon County Circuit Judge Thomas Young off the VictoryLand forfeiture case when no "personal bias" was even alleged, must less shown?
The only answer we can fathom is that our all-Republican high court is so corrupted by political and financial considerations that it no longer takes its legal duties seriously.
Last Friday's ruling in Ex parte State of Alabama makes clear that Attorney General Luther Strange makes no showing, or even allegation, of personal bias against Judge Young. (See full order at the end of this post.) Rather, Strange repeatedly disagrees with Young's interpretation of the law regarding the AG's request for a search warrant at VictoryLand.
The Supreme Court follows suit, claiming Young erroneously applied the law in several instances and exhibited a lack of deference toward the high court itself. The court then issues the writ of mandamus, forcing Young off the case so that "the appearance of justice will be preserved." In reaching such a conclusion, the Supreme Court cites a litany of federal cases that are not applicable or binding in the VictoryLand matter.
What is applicable and binding? It's Ex parte Duncan, but the high court goes to considerable lengths to ignore it. We won't make the same mistake here.
At the heart of the Duncan case was the murder of a state trooper named Elizabeth Cobb. The trial involved disturbing evidence, and the judge apparently allowed himself to get carried away with statements from the bench. Here, from an appellate ruling some seven years after the murder, is a portion of what he said about the circumstances surrounding Elizabeth Cobb's murder:
You know, I just ask myself one simple question; if we got news that they were slaughtering cattle this way in the stockyard, what would the reaction be? Would we say that that's heinous, atrocious and cruel? I would.
Many citizens probably would agree with the judge's statement. But that's not what we expect to hear from someone who is charged with being an impartial arbiter from the bench. Neither is this:
Now the murder in this case was premeditated, it was diabolical, methodical, heartless, cruel, cold, deliberate, it was planned. It was a planned execution and slaughter of an innocent young lady while she quietly and peacefully waited unsuspectingly on the sacred grounds of a little country church on the Sabbath evening. . . . There was no excuse, there was no justification, for a vile, conscienceless, pitiless murder.
The judge left no doubt about where he stood--and you can see where the defendant might not want him to preside over a retrial. But the Alabama Supreme Court found in Ex parte Duncan that the judge's statements did not disqualify him. That's because his statements came in his judicial capacity, not from an extrajudicial source that might lead to personal bias. From the Supreme Court's 1994 ruling:
Therefore, for Duncan to demonstrate a clear right to the relief sought by the mandamus petition, he must show the appearance of impropriety by showing that the alleged bias, hostility, or prejudice is "personal" rather than "judicial":
The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.
The high court then took it a step farther:
In this case, we cannot say, as a matter of law, that the trial judge's statements in and of themselves show bias, hostility, or prejudice toward Duncan; therefore, we cannot say that Duncan has demonstrated a clear legal right to have the trial judge remove himself. The trial judge's statements arose out of a judicial proceeding, not from an extrajudicial source; and although the trial judge's expressed opinions may have been better left unsaid, in our opinion the remarks he made do not show bias, hostility, or prejudice against Duncan arising from a "personal," i.e., extrajudicial, source.
In concluding, the Supreme Court said the burden was on Duncan to make a clear showing that recusal was required--and he failed to reach that high bar. The same bar was set for Luther Strange, and like Duncan, he failed to reach it.
Like Duncan, Strange based his mandamus petition on Judge Young's statements and actions from the bench. But he never came close to showing that Young had a "personal bias" that could be traced to an "extrajudicial source." Strange, in fact, did not even try to make such a showing.
How did the Alabama Supreme Court get around that slight problem. By ignoring Ex parte Duncan altogether and pretty much creating law from the bench.
In other words, our Republican justices did exactly what they vow, as "strict constructionists," to never do--they legislated from the bench.
Actually, they probably did far worse than that. We will stipulate that the justices on Alabama's high court are not ignorant, and they surely know how to conduct relatively simple legal research. If that's the case, it means they knew the correct legal standard for recusal in the VictoryLand forfeiture matter and chose to ignore it. That can only mean external forces are influencing the court's decisions, which would constitute fraud, obstruction of justice, conspiracy, and perhaps other federal crimes.
Many Alabamians reflexively have voted Republican in recent years on statewide judicial races--probably from a misguided notion that conservative justices will be tough on street crime. We now know that creates an environment where justices themselves can engage in white-collar crime that endangers us all.
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