IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA. CC v. CC CC JSJ RUDOLPH LEMETRICK AGNEW, AMENDED MOTION FOR RECUSAL

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1 ELECTRONICALLY FILED 7/26/2013 5:59 PM 02-CC CIRCUIT COURT OF MOBILE COUNTY, ALABAMA JOJO SCHWARZAUER, CLERK IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA STATE OF ALABAMA CC v. CC CC JSJ RUDOLPH LEMETRICK AGNEW, Defendant AMENDED MOTION FOR RECUSAL COMES NOW the Defendant, RUDOLPH AGNEW, and amends his motion that Judge Joseph S. Johnston recuse himself from further proceedings in the above-styled case and that the Presiding Judge of this Circuit (or whoever the law provides) appoint a special judge to hear the remainder of the proceedings in this case. In support of this motion, Mr. Agnew submits to the Court the following: 1. On the afternoon of January 29, 2013, during trial of the above-styled cases, Judge Johnston had incorrectly ruled that Mr. Friedlander could not make a reasonable inquiry into a civil suit that Beadnell had filed against Mr. Agnew as evidence of bias in Beadnell s testimony. 1 (T. 232) (Trial transcript excerpts attached collectively as Exhibit 1 ). When Mr. Friedlander asked a question which Judge Johnston believed was too suggestive of bias, he (the judge), in so many words, asked the State to ask for a mistrial. The State declined, and the case moved on to two more witnesses. (T ). 2. Later on the afternoon of January 29, during the testimony of Dr. Curt Harper, Defense Counsel Jonathan Friedlander objected to the chain of custody of a blood sample 1 Morrison v. State, 100 So. 2d 744, 745 (Ala. 1957); Malone v. State, 358 So. 2d 490, (Ala. Crim. App. 1978); Ex parte Brooks, 393 So. 2d 486, 487 (Ala. 1980); Moody v. State, 495 So. 2d 104, (Ala. Crim. App. 1986); Weaver v. State, 564 So. 2d 1007, 1013 (Ala. Crim. App. 1989) (rev d on other grounds by Ex parte Gentry, 689 So. 2d 916 (Ala. 1996)); Pettway v. State, 597 So. 2d 737, (Ala. Crim. App. 737). 1

2 purportedly taken from Mr. Agnew, because Dr. Harper mentioned a person in his testimony who had handled the blood sample, but who had not been disclosed by the State to the Defense when the State had induced the Defense to stipulate to the chain of custody. (T ). Jonathan Friedlander objected and withdrew the stipulation, and took Harper on voir dire regarding the chain of custody until he was satisfied that the State could prove the chain without the aforementioned person s presence. (T ). Judge Johnston took issue with this question, and took the time to berate Defense Counsel for allegedly not knowing about a statute which he believed rendered the issue moot, but which does not even apply to biological samples 2, ironically stating, I m surprised you would say that and admit your lack of knowledge on that in open court. (T. 252). 3. After the voir dire questioning of Dr. Harper, at about 4:15 p.m., Judge Johnston for unknown reasons stormed off the bench just as the jury returned to the courtroom. On his way out the door, he stated We re going to recess until 8:30 tomorrow. Sorry. See you then. (T. 257). He then refused to allow Counsel to enter his chambers to inquire as to the reason for the early recess. 4. On the morning of January 30, 2013, the third day of trial, before taking the bench, Judge Johnston surreptitiously passed a note through his court reporter to Assistant DA Matthew Simpson stating I am going to grant a mistrial based on the question not on the defense sub-par performance (sic). (Ex parte note attached as Exhibit 2 ). Defense Counsel was not made aware of said note by either the Court or the State. 4. Upon taking the bench at approximately 10:30 a.m., Judge Johnston stated that he was going to declare a mistrial based on the alleged prejudice to the State s case caused by the 2 Ala. Code (1975); Scott v. State, 2012 WL *50 (Ala. Crim. App. 2012) (clarifying Birge v. State, 973 So. 2d 1085 (Ala. Crim. App. 2007)). 2

3 question asked to Beadnell by Donald Friedlander the previous day. (T. 259). He then turned around and stated that he was not going to tell anybody why he granted the mistrial. Id. Inexplicably, he also stated that he believed Beadnell s civil case had been prejudiced. Id. However, Judge Johnston then stated that he was going to blame himself. Id. 5. Defense Counsel objected, and Donald Friedlander stated his reasons for said objection on the record. (T ). In response, Judge Johnston then stated that he would have had to grant a Rule 32 petition for ineffective assistance of counsel based on the questioning of Dr. Harper regarding the chain of custody of the blood sample, because it demonstrated that they did not know the law in certain areas which are basic[,] because [the] defense lawyers have said that they did not know the law specifically on chain of custody, on evidence when it s been the law since 96 (T ), despite the fact that even had the judge been correct as to the chain of custody issue, which he was not, 3 it would not have been prejudicial to Mr. Agnew and therefore would not have been grounds for a Rule 32 petition. Donald Friedlander attempted to object and state reasons for the record, but Judge Johnston replied, All right. The record is over., and would not allow Defense Counsel to finish making a record. (T. 261). Johnston must have known that none of this would have been grounds for a Rule 32 petition, and it appears from context that the comments were made out of vindictiveness for daring to argue against his earlier rationale regarding the questioning of Beadnell. These inappropriate comments may in themselves be grounds for recusal under Alabama case law. See Ex parte Eubank, 871 So. 2d 862 (Ala. Crim. App. 2003); see also Ex parte Rollins, 495 So. 2d 636 (Ala. 1986). 6. Judge Johnston had repeatedly stated during the trial that he refused to try the case on Thursday, January 31, 2013, despite the fact that the case had been specially set (for the 3 See Scott v. State, supra at *50. 3

4 second time) specifically so it could take the whole week if needed. (T. 16, 20). The Court did not have a docket that Thursday, and Judge Johnston refused to answer questions from Counsel regarding the reason why he would not try the case on Thursday. Despite this emphasis on getting to a verdict by Wednesday, Judge Johnston was approximately two hours late each day of the trial, and cut off an hour by leaving at 4:15 on Tuesday afternoon. 7. As to the note passed by Judge Johnston to ADA Simpson, the purpose of said note is clear: a. Where a mistrial is declared over the objection of the Defendant, there must exist manifest necessity, as the Defendant is deprived of his right to have his case decided by a particular jury. 4 Ex parte Sullivan, 779 So. 2d 1157, (Ala. 2000). b. The State, by expressly declining to ask for a mistrial when the question was asked regarding Beadnell s civil lawsuit, essentially waived any contention that manifest necessity existed for a mistrial. (As it turns out, none did exist, as noted previously, because Judge Johnston did not know the law regarding questioning a witness about a civil suit to show bias, and had committed reversible error by not allowing the question as well as more in-depth cross of Beadnell on this issue). c. However, Judge Johnston did know the law regarding manifest necessity and wanted to be able to declare a mistrial either because of his mysterious Thursday plans or because he felt the State would lose but wanted to be able to re-try Mr. Agnew at a later date. The note was an (admittedly cryptic) attempt to suggest to the State that they should move for a mistrial or otherwise suggest that manifest necessity existed, so that a retrial would be possible. 4 This was especially applicable in the trial of this case, since half of the jury was black, as is Mr. Agnew. The State even became so worried about this fact that ADA Simpson made a reverse Batson challenge to the jury. (T. 6-7) 4

5 d. ADA Simpson apparently did not know the law regarding manifest necessity, or did not understand Johnston s note, and did not ask for a mistrial. However, on the orders of Chief ADA Deborah Tillman, who apparently did know the law on this issue, ADA Kristy Dugan frivolously moved to have Defense Counsel held in contempt for asking the question regarding the civil suit. (T. 262). This could only have been a late attempt to preserve some sort of claim by the State that manifest necessity existed. 8. In addition to communicating ex parte with the State, Judge Johnston also exhibited other conduct that indicated bias toward the State and/or against the Defense and/or Defense Counsel, to wit: a. The week after the trial, Johnson made disparaging remarks about Defense Counsel in open court, in front of numerous attorneys and others, to the effect that The Friedlanders don t know any law, (despite the fact that we were correct on the issues which Johnston cited in declaring a mistrial). See Ex parte Eubank, supra. & Ex parte Rollins, supra. b. Johnston made several bizarre and baseless evidentiary rulings in addition to barring questions about Beadnell s lawsuit, such as: (1) Allowing the State to ask, and jury venire members to testify as to, their opinion of the effects of marijuana in voir dire, in a clear attempt to allow expert testimony in the back door and to prejudice Mr. Agnew. (T. 4-6) (some argument omitted from transcript). He attempted to justify this as lay witness testimony as to intoxication, despite the fact that this principle obviously refers to the observation of third persons by actual witnesses, and does not apply to potential jurors. Id. 5

6 (2) Until the State finally stipulated to its authenticity, Johnston appeared ready to keep out of evidence a video which proved that three police officers had committed material perjury during the trial of this case. (T , ) c. At one point in the trial, Donald Friedlander briefly sat down during cross examination to read his notes before proceeding. He did not indicate that he was finished. ADA Simpson then attempted to begin re-direct examination. Donald Friedlander then said that he was not finished. Johnston blurted out, in front of the jury, It would help first of all if you would keep on your feet out of respect for the jury. But I guess you can do what you want to. (T. 71). This inappropriate comment was clearly suggestive to the jury that Donald Friedlander did not respect them, and it was therefore prejudicial to Mr. Agnew. See Ex parte Eubank, supra. & Ex parte Rollins, supra. d. Exhibiting unnecessarily condescending and inappropriate behavior toward Donald and Jonathan Friedlander throughout the trial of this case, improperly threatening to cut off Mr. Agnew s right to cross-examine witnesses, and refusing to allow Mr. Friedlander to make a reasonable record. (T , , , 261). 9. Judge Johnston has exhibited bizarre behavior other recent cases, including but not limited to: a. Cancelling dockets on an almost weekly basis, and/or appearing one or more hours late on an almost daily basis; b. Appearing in court in several civil cases for a total of just a few hours over a course of multiple days, only appearing in court to show the parties videos of the firearms courses he teaches. A random mistrial was also declared in one of these cases simply because the case was not finished by the end of the Wednesday of that week. 6

7 c. Misleading fellow members of the Circuit Bench regarding his whereabouts when he has missed his dockets. This has been shown by courthouse access card records. d. Making and showing a video of himself teaching a firearms course in a courtroom he constructed at a shooting range in order to practice shooting wood cutouts of the bad guys in a courtroom setting. These cutouts were painted black, while the good guys cutouts were painted white. While this is not in itself evidence of any racial bias, Mr. Agnew believes that this will make it difficult for him to receive a fair trial from Judge Johnston, and it could obviously create the appearance of impropriety in a case with a black defendant and a white alleged victim. 10. Judge Johnston has been approached by members of the Circuit Bench and representatives of the Mobile Bar Association in regard to his bizarre behavior, but has apparently not undertaken to make any changes besides moving his dockets an hour later. It is widely believed that he suffers from addiction to prescription pain medications as a result of chronic back pain. Obviously this would affect his judgment in this case as well as in other cases. 11. 'Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge. Specifically, the Canon 3(C) test is: Would a person of ordinary prudence in the judge's position knowing all the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality? The question is not whether the judge was impartial in fact, but whether another person, knowing all the circumstances, might reasonably question the judge's impartiality--whether there is an appearance of impropriety.'" Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala. 2003) (citations 7

8 omitted). A judge has a duty to disqualify himself whenever, at whatever stage of the ligtigation, it appears that his impartiality might reasonably be questioned. Streater v. Woodward, 7 F. Supp. 2d 1215, 1218 (M.D. Ala. 1998). Actual bias is not necessary. Crowell v. May, 676 So. 2d 941 (Ala. Civ. App. 941). In light of his ex parte communication with an Assistant District Attorney on a material matter with the intent to attempt to influence future proceedings, as well as the other issues discussed herein, it is apparent that Judge Johnston has a personal bias in this case against Mr. Agnew and/or Defense Counsel, and/or in favor of the State. He also demonstrated favoritism toward Mr. Beadnell by expressing excessive, undue, and unfounded concern for his civil case. (T. 259). Judge Johnston has also shown a willingness to manifest this bias in front of the jury, which further deprives Mr. Agnew of a fair trial. Furthermore, Johnston has also exhibited behavior which could be construed as demonstrating racial bias against Mr. Agnew, and it even appears possible that Johnston is impaired while on the bench. The totality of the circumstances in this case demonstrate that, if even if Judge Johnston is not actually biased, his conduct creates at the very least the appearance of impropriety and of the denial of a fair trial to Mr. Agnew. Therefore, the Defense moves that Judge Johnston recuse himself prior to the hearing on the Defendant s Plea of Double Jeopardy and Motion to Dismiss, and prior to any proceedings in CC It is expected that Judge Johnston shall be called as a witness in order to explain his ex parte communication with the State, his reasoning in declaring a mistrial, and his other erratic conduct in this as well as other cases. 12. The Defense believes that, as the bench in Mobile County has been witness to Judge Johnston s conduct, they would, through no fault of their own, have conflicts of interest in hearing the Defense argument as to the Plea of Double Jeopardy and Motion to Dismiss, as the 8

9 Defense expects to subpoena Judge Johnston, members of his staff, and members of the Mobile County District Attorney s Office. Therefore, the Defense requests that a special judge from another Circuit be appointed to hear this motion. 13. MR. AGNEW DEMANDS ORAL ARGUMENT ON THIS MOTION. WHEREFORE, the Defendant, Mr. Agnew, respectfully moves that Judge Joseph S. Johnston recuse himself from further proceedings in the above-styled case, and that the Presiding Judge of this Circuit or the Administrative Office of the Courts appoint a special judge to hear the remainder of the proceedings in this case. RESPECTFULLY SUBMITTED, /s/donald A. FRIEDLANDER Donald A. Friedlander (FRI 010) THE FRIEDLANDER LAW FIRM Attorney for Defendant P.O. Box 2554 Mobile, AL (251) donniefried@aol.com /s/jonathan B. FRIEDLANDER Jonathan B. Friedlander (FRI 042) THE FRIEDLANDER LAW FIRM Attorney for Defendant P.O. Box 2554 Mobile, AL (251) jbf@friedlanderlawfirm.com CERTIFICATE OF SERVICE 9

10 I hereby certify that I have, on this 26 th day of July 2013, served a copy of the foregoing upon opposing counsel by electronic filing it with the State Court filing system at Alafile.com, which will automatically send a copy of this document to opposing counsel by electronic mail, or, if opposing counsel does not participate in electronic filing, then by direct electronic mail upon the assistant district attorney assigned to this case. /s/donald A. FRIEDLANDER DONALD A. FRIEDLANDER /s/jonathan B. FRIEDLANDER JONATHAN B. FRIEDLANDER 10