ORAL ARGUMENT REQUESTED; STAY REQUESTED

CR-

In the ALABAMA COURT OF CRIMINAL APPEALS

-------------------------------------
Ex Parte Mac Bailey Marquette
--------------------------------------

(In re: Mac Bailey Marquette,

Defendant-Petitioner,
v.
State of Alabama
Plaintiff-Respondent.)
-----------------------------------------
On Petition for Writ of Mandamus to the
Hon. Charles B. Elliott, Circuit Judge, Eighth Judicial Circuit

Morgan Circuit Court CC-2024-09

------------------------------------------

MAC BAILEY MARQUETTE PETITION FOR A

WRIT OF MANDAMUS AND MOTION FOR STAY

J.D. Lloyd Brett M. Bloomston

The Law Office of J.D. Lloyd The Bloomston Firm
2320 Arington Ave. S. 1914 Fourth Ave. N., Ste 100
Birmingham, AL 35205 Birmingham, AL 35203
(205) 538-3340 205-212-9700
JDLloyd@JDLloydLaw.com Brett@thebloomstonfirm.com

Elizabeth A. Young
Dummier Young LLC
1400 21st Way S.
Birmingham, AL 35205
205-631-8004
lyoung@dummieryoung.com
 STATEMENT OF ORAL ARGUMENT

The petitioner respectfully requests oral argument in this matter pur-

suant to Rule 28(a)(1), Ala. R. App. P. This case presents an ideal oppor-

tunity for this Court to consider a recusal request in the light of a judge

admitting he engaged in ex parte communications that would lead a rea-

sonable person to question his impartiality. Similarly, this Court could

explore when a self-serving affidavit in response to a recusal motion isn’t

determinative of factual issues inherent in the recusal request, a ques-

tion that should be addressed considering the court below relying on Ex

Parte Knotts, 716 So. 2d 262 (Ala. Crim. App. 1998).

2
 TABLE OF CONTENTS

Statement of Oral Argument .................................................................... 2

Table of Authorities ................................................................................... 5

Index to Petitioner’s Exhibits ................................................................... 7

Statement of the Issues ............................................................................. 8

Statement of the Case and Facts .............................................................. 9

A. The Shooting................................................................................... 10

B. The prosecution, immunity request, and recusal motions ............ 13

Why The Writ of Mandamus Should Issue ............................................. 18

A writ of mandamus must issue directing Judge Elliott to recuse from

this case because his actions surrounding Marquette’s request for an
immunity hearing, motions for recusal, and request for a hearing on the
recusal motions violated several Alabama Canons of Judicial Ethics and
would lead a reasonable person to question his impartiality in this mat-
ter. In the alternative, the writ must issue directing the circuit court to
conduct an evidentiary hearing on the recusal motion ........................ 18

A. Judge Elliott’s ex parte conversations were improper, unwarranted,

and evidenced violations of multiple Canons of Judicial Ethics ... 23

1. Judge Elliott’s late-night ex parte interrogation of defense coun-

sel Brett Bloomston was highly improper ................................. 23

2. Judge Elliott’s late-night ex parte conversations with the State

and conversations with other judges about defense counsel were
highly improper ......................................................................... 25

3
 3. A reasonable interpretation of Judge Elliott’s affidavit raises the
question of whether he had an ex parte conversation with Bur-
leson about Bloomston, which would be highly improper ........ 29

B. Judge Elliott’s impartiality can reasonably be questioned on the

grounds that he denied Marquette procedural due process in sum-
marily denying his recusal motion with a self-serving affidavit .. 30

Conclusion ............................................................................................... 37

Certification of Compliance..................................................................... 38

Certificate of Service ............................................................................... 39

Appendix

4
 TABLE OF AUTHORITIES

Cases Page(s)

Chambers v. State, 356 So. 2d 767 (Ala. Crim. App. 1978) .................... 32

Ex parte Bryant, 682 So. 2d 39 (Ala. 1996) ............................................. 29

Ex parte Crawford, 221 So. 3d 1110 (Ala. Civ. App. 2016) ............... 26,27

Ex parte George, 962 So. 2d 789 (Ala. 2006) ........................................... 18

Ex Parte Knotts, 716 So. 2d 262 (Ala. Crim. App. 1998) ......... 15,16,33,34

Ex parte Smith, 282 So.3d 831 (Ala. 2019) ............................................. 21

Ex parte White, 300 So. 2d 420 (Ala. Crim. App. 1974) .......................... 19

Keaton v. State, 375 So. 3d 44 (Ala. Crim. App. 2021) ...................... 26,27

In re Murchison, 349 U.S. 133 (1955) ..................................................... 19

In re Sheffield, 465 So. 2d 350 (Ala. 1984).............................................. 33

McMurphy v. State, 455 So. 2d 924 (Ala. Crim. App. 1984) ................... 21

Offutt v. United States, 348 U.S. 11 (1954)............................................. 19

State v. Moore, 988 So. 2d 597 (Ala. Crim. App. 2007) ........................... 22

Wallace v. Wallace, 352 So. 2d 1376 (Ala. Civ. App. 1977) .................... 19

Ala. Code 1975

§ 13A-6-2 .................................................................................................... 9

§ 13A-6-23 ........................................................................................ 9,11,17

5
Alabama Rules of Court

Rule 21, Ala. R. App. P. ........................................................................... 37

Rule 28, Ala. R. App. P. ............................................................................. 2

Rule 32, Ala. R. App. P. ........................................................................... 37

Alabama Canons of Judicial Ethics

Canon 1 .......................................................................................... 20,23,35

Canon 2. .................................................................................... 20,23,24,35

Canon 3 ............................................................................................ passim

6
 INDEX TO PETITIONER’S EXHIBITS

Indictment .................................................................................... Exhibit 1

Motion for Gag Order ................................................................... Exhibit 2

Order temporarily granting gag request ..................................... Exhibit 3

Gag order ...................................................................................... Exhibit 4

Defense immunity request ........................................................... Exhibit 5

Order setting immunity hearing .................................................. Exhibit 6

Defense recusal motion (filed under seal).................................... Exhibit 7

Order setting hearing on recusal motion ..................................... Exhibit 8

Amended order setting hearing on recusal motion ..................... Exhibit 9

Defense amended recusal motion (filed under seal) .................. Exhibit 10

Order denying recusal ................................................................ Exhibit 11

First amended order denying recusal ........................................ Exhibit 12

Second amended order denying recusal .................................... Exhibit 13

7
 STATEMENT OF THE ISSUE

A writ of mandamus must issue directing the Hon. Charles B. Elliott

Elliott to recuse from this case because his actions surrounding

Marquette’s request for an immunity hearing, motion for recusal, and

request for a hearing on the recusal motion violated several Alabama

Canons of Judicial Ethics and would lead a reasonable person to question

his impartiality in this matter. In the alternative, the writ must issue

directing the circuit court to conduct an evidentiary hearing on the

recusal motions.

8
 STATEMENT OF RELIEF SOUGHT

Mac Bailey Marquette respectfully requests that this Court issue a

writ of mandamus (1) directing the Hon. Charles B. Elliott to recuse from

Marquette’s matter in the Morgan Circuit Court, CC-2024-9; or (2) direct

the circuit court to conduct a full and proper evidentiary hearing on Mar-

quette’s motion for recusal that affords him a reasonable time to sub-

poena witnesses to present his evidence for recusal.

Filed in conjunction with this mandamus, Marquette also respectfully

requests that this Court issue a stay of the proceedings in the circuit

court.

9
 STATEMENT OF THE CASE AND FACTS

This petition concerns the prosecution of Marquette, formerly a patrol

officer with the City of Decatur Police Department (“DPD”). The State

charged Marquette with the murder of Stephen Perkins, a violation of

§ 13A-6-2, Ala. Code 1975. Exhibit 1. Marquette, while on duty with DPD,

shot and killed Perkins after Perkins targeted his pistol at a third-party

and Marquette. After Marquette moved for immunity pursuant to § 13A-

3-23(d), see Exhibit 5, he learned that Judge Elliott indicated privately

(to a subpoenaed witness) that he would deny the immunity request be-

cause of (1) the “high-profile” nature of this “controversial” case, (2) his

concern for the safety of his wife and children, and (3) the backlash he

would potentially face in his re-election bid if he granted immunity;

therefore, Marquette asked for Judge Elliott to recuse. See Exhibit 7 and

10. Judge Elliott denied the recusal request, swearing he never made

such statements, all while admitting he engaged in multiple ex parte com-

munications, including one where he questioned defense counsel about

the recusal request. See Exhibits 11, 12, and 13.

A. The shooting

Marquette’s immunity request lays out the pertinent facts:

10
1. On January 4, 2024, the Defendant, a certified law enforcement
police officer, was indicted and arrested for the charge of murder.
The charge stems from an on-duty shooting of an armed suspect,
Stephen Perkins, in an incident wherein the suspect pointed a
handgun at a tow-truck driver and the Defendant. Perkins died as
a result of the of the shooting.

2. On the day of the incident, Defendant was on duty as a patrol

police officer employed by the City of Decatur, Alabama. As a result
of a tow-truck driver’s call to the police about having been threat-
ened with a gun during an attempted, lawful repossession of a ve-
hicle, a Decatur police officer was dispatched to meet the tow-truck
driver at the driver’s business address. The Defendant was subse-
quently called as backup to the responding officer and drove to the
tow truck business. The tow-truck driver requested an escort back
to Perkins’ residence to avoid any violent confrontation, as Perkins
had already menaced and threatened the driver with a gun. The
Defendant’s supervisor and several other officers accompanied the
driver back to Perkins’ residence with an intent to ensure the safety
of the driver and to investigate a menacing charge.

3. The Defendant and his fellow officers took various positions

around Perkins’ residence to observe the situation and to protect
the tow-truck driver. When the driver began the process of the law-
ful repossession of the vehicle, Perkins came out of the residence
with his arm extended with a firearm in plain view. In addition, the
firearm that Perkins was brandishing, a Glock 9 mm, had a
weapon-mounted flashlight affixed to its frame, thereby illuminat-
ing where Perkins was pointing the weapon. Upon exiting his resi-
dence, Perkins rapidly advanced toward the tow-truck and was
pointing the gun at the driver - still in his vehicle.

4. The Defendant, who was located behind the vehicle that was to
be repossessed, saw Perkins and clearly saw him pointing a weapon
at the tow-truck driver. This was evidenced by the flashlight illu-
minating the tow-truck driver. The Defendant then reacted to the
threat posed by Perkins by yelling and identifying himself as police
and giving him a loud verbal command to drop the weapon. Instead
11
 of dropping the weapon as instructed, Perkins turned and pointed
the gun directly at the Defendant. In fear for his life and the lives
of others, the Defendant fired his duty weapon to eliminate the
deadly threat to himself, his fellow officers, and the tow-truck
driver.

5. That Alabama Code §13A-3-23 specifies a person does not have

a duty to retreat when in a place where he has the right to be and
is not engaged in unlawful activity.

6. That the Defendant was lawfully fulfilling his duties as a munic-

ipal police officer and was acting in defense of himself, his fellow
officers, and the tow-truck driver when he fired his duty weapon.

Exhibit 5.

B. The prosecution, immunity request, and recusal motions.

The State indicted Marquette for murder on January 4, 2024. Exhibit

1.

The case generated enough controversy and attention – including pro-

tests and demonstrations in the community – that the State moved for a

gag order. See Exhibit 2. The circuit court entered a temporary and, ulti-

mately, a full gag order. Exhibits 3 and 4. On January 7, 2025, Marquette

moved for immunity pursuant to § 13A-3-23(d) asserting he lawfully used

lethal force in shooting Perkins. Exhibit 5. A hearing on this motion is

currently set for March 25, 2025. Exhibit 6.

12
 In the wake of this immunity request, on February 14, 2025, Mar-

quette moved for Judge Elliott to recuse from this case after hearing from

reliable sources that Judge Elliott had, through ex parte conversations,

told DPD Lt. Mike Burleson – a State-subpoenaed witness and someone

subject to the gag order – that he would deny Marquette’s immunity re-

quest. Exhibit 7 at ¶ 4.1 According to the allegations contained in the de-

fense motion, Judge Elliott told Burleson that he would not grant immun-

ity based on his concern that “in this high-profile and controversial case,

the safety of his wife and children would be in peril.” Id. Further, Mar-

quette pleaded that Judge Elliott told Burleson that “he wants to run for

re-election and feared public backlash of what could be a potentially un-

popular decision” if he granted immunity. Id.

Marquette alleged that he learned about Judge Elliott’s predetermi-

nation because Burleson spoke about this conversation with the judge in

a setting wherein it was heard by others, who, in turn, told Marquette.

Id. Marquette also pleaded that these allegations were reliable because

Burleson spoke of other matters disclosed by Judge Elliott that would

1Out of respect for Judge Elliott, Marquette filed this motion under seal
and out of the public eye.
13
have only been known by the judge – like the number of jury panels for

the trial. Id. Citing Canons 1, 2, and 3 of the Alabama Canons of Judicial

Ethics, Marquette asked Judge Elliott to recuse, or, at the least, grant

him an evidentiary hearing where he could subpoena witnesses to testify.

Id.

That same day of filing (Friday, February 14, 2025), Judge Elliott set

a hearing on the motion for Tuesday, February 18th at 2:00 pm – the day

following a federal holiday, thus not giving the defense an opportunity to

subpoena witnesses. Exhibits 8, 9. On the night of February 17, 2025,

Judge Elliott placed an ex parte call to defense counsel Brett Bloomston,

telling him the “Defense needed to have their witnesses ready to testify”

and that Judge Elliott would have his own witnesses ready to testify as

to his integrity. Exhibit 10 at ¶ 6. Judge Elliott also told Bloomston the

conversation with Burleson never took place. Id. Judge Elliott asked

Bloomston if he ever spoke with Burleson, but Bloomston responded that

“this conversation needed to occur on the record.” Id. Bloomston told

Judge Elliott that they had requested a hearing with advance notice so

they could subpoena witnesses, which was impossible for a hearing the

14
following day because of the court’s closure for President’s Day on Febru-

ary 17th. Id.

Judge Elliott accused Bloomston of filing this motion “ ‘recklessly’ and

with disregard for the truth.” Id. Bloomston replied that he had consulted

the Alabama State Bar and the Judicial Inquiry Commission for guidance

before filing the motion. Id. When Bloomston pointed out that the defense

filed this under seal and out of the public eye, Judge Elliott responded,

“Impugn me privately, impugn me publicly.” Id. Judge Elliott told Bloom-

ston that he had spoken with other judges that know Bloomston and told

him “they were surprised to hear he filed a motion for recusal,” which

Bloomston interpreted as Judge Elliott questioning Bloomston’s profes-

sional judgment and integrity. Id.

Because of this concerning ex parte call, Marquette filed (again under

seal) an Amended Motion for Recusal addressing the improper call. Ex-

hibit 10.

As defense counsel was travelling to the scheduled hearing on Febru-

ary 18, 2025, Judge Elliott denied the request without a hearing. Exhibit

11. Judge appended an affidavit to his order in which he swore that he

(1) never talked to Burleson (who he admitted is a personal friend that

15
he speaks to regularly) about the specifics of this case; (2) has no partic-

ularized fear for safety about this case; (3) has no concerns about re-elec-

tion; and (4) did not know what decision he would be making on the im-

munity request. Id. That same day Judge Elliott issued an amended or-

der, citing Ex Parte Knotts, 716 So. 2d 262 (Ala. Crim. App. 1998), as

grounds for his decision.

Judge Elliott issued a second amended order the following day ad-

dressing allegations regarding his ex parte conversation with Bloomston

on February 17th. Exhibit 13. Judge Elliott explained:

After speaking with fellow judges that have had cases with both of
the defense lawyers, some of them suggested that I reach out to Mr.
Bloomston, which I did on Monday, February 17th, 2025 at 7:16 pm.
I remember telling Mr. Bloomston that I felt that his actions could
constitute a violation of Rule 8.2 as it could be considered reckless
disregard for the truth without first speaking with Lieutenant Bur-
leson to determine if he had made the statements alleged in their
original Motion to Recuse. I did tell Mr. Bloomston that if he were
to attack the Court’s integrity either in private or in public that that
would be addressed publicly. I feel that the power of the judiciary
rests in the trust of the people – a trust which I do not take likely.

Further, in regards to my conversations with fellow judges, one

judge told me that in the past, Mr. Bloomston had reached out to
this judge in past prior to filing a motion to recuse to prepare the
court for the incoming motion. It surprised the Judge that not only
would Mr. Bloomston file such a motion against the undersigned,
but that this judge was surprised that Mr. Bloomston did not reach
out to me prior to filing the motion as he had done with the other
judge.
16
Id. Judge Elliott further explained that he did not hold a hearing after

being directed to Ex parte Knotts by the Administrative Office of Courts

Legal Division. Id.

17
 WHY THE WRIT OF MANDAMUS SHOULD ISSUE

A writ of mandamus must issue directing Judge Elliott to recuse

from this case because his actions surrounding Marquette’s
request for an immunity hearing, motions for recusal, and
request for a hearing on the recusal motions violated several
Alabama Canons of Judicial Ethics and would lead a reasonable
person to question his impartiality in this matter. In the
alternative, the writ must issue directing the circuit court to
conduct an evidentiary hearing on the recusal motion.

Since Marquette moved for the circuit court to hold a hearing on his

immunity request pursuant to § 13A-2-23(d), Judge Elliott has acted in a

way that would case a reasonable person to question his impartiality.

Judge Elliott admittedly initiated numerous ex parte conversations that

an objective observer would conclude were highly improper and wholly

unnecessary. Judge Elliott’s improper ex parte conversation with defense

counsel Brett Bloomston could reasonably be interpreted as an attempt

to intimidate or bully a party. By summarily denying Marquette’s recusal

request through` self-serving affidavits, a reasonable observer could con-

clude that Judge Elliott has purposefully denied Marquette Due Process

in the form of a hearing. A reasonable observer could further reasonably

conclude Judge Elliott’s improper ex parte conversations, perceived in-

timidation, and refusal to allow Marquette a day in court with subpoena

18
power on his motion to recuse evidences Judge Elliott’s attempt to pre-

vent fact-finding that could paint him in a bad light.

The totality of the circumstances here raise legitimate questions about

Judge Elliott’s impartiality and the propriety of his actions under the Al-

abama Canons of Judicial Ethics (hereafter, “Canons”). His affidavits jus-

tifying the denial of the motion raise legitimate questions about his ac-

tions connected with this case. This Court should issue a writ of manda-

mus directing Judge Elliott to recuse from this matter because his actions

ran afoul of the Canons and his impartiality can reasonably be ques-

tioned. In the alternative, this Court should remand the matter for an

evidentiary hearing to address the factual allegations raised by Mar-

quette’s recusal motions.

The Alabama Supreme Court has confirmed that:

A mandamus petition is a proper method by which to seek review

of a trial court's denial of a motion to recuse. A trial judge's ruling
on a motion to recuse is reviewed to determine whether the judge
exceeded his or her discretion. The necessity for recusal is evalu-
ated by the “totality of the facts” and circumstances in each case.
The test is whether “ ‘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.’ ”

Ex parte George, 962 So. 2d 789, 791 (Ala. 2006) (cleaned up).

19
 This Court has observed that: “Implanted in the foundation of public

policy is the general rule that no judge shall preside in a case in which he

is not wholly free, disinterested, and independent.” Ex parte White, 300

So. 2d 420, 429 (Ala. Crim. App. 1974) (citing Tumey v. Ohio, 273 U.S.

510 (1927)). The United States Supreme Court has likewise recognized

that “justice must satisfy the appearance of justice.” Offutt v. United

States, 348 U.S. 11, 14 (1954). Further, “An independent and honorable

judiciary is indispensable to justice in our society, and this requires

avoiding all appearance of impropriety, even to the point of resolv-

ing all reasonable doubt in favor of recusal.” In re Murchison, 349

U.S. 133, 136 (1955) (emphasis added).

To that end, in 1975, the Alabama Supreme Court adopted the Ala-

bama Canons of Judicial Ethics. Wallace v. Wallace, 352 So. 2d 1376,

1378 (Ala. Civ. App. 1977). The adoption of these Canons added “a new

dimension ...to the subject of judge disqualification.” Id. In fact, these

“canons have the force of law.” Id. at 1378, n.1.

Several provisions of the Canons are implicated by Judge Elliott’s ac-

tions in this matter so far. All point to the conclusion that Judge Elliott

must recuse.

20
 Canon 1 states:

An independent and honorable judiciary is indispensable to justice

in our society. A judge should participate in establishing, maintain-
ing, and enforcing, and should himself observe, high standards of
conduct so that the integrity and independence of the judici-
ary may be preserved. The provisions of this Code should be con-
strued and applied to further that objective.

(Emphasis added).

Canon 2 provides that:

A. A judge should respect and comply with the law and should con-
duct himself at all times in a manner that promotes public con-
fidence in the integrity and impartiality of the judiciary.

B. A judge should at all times maintain the decorum and temper-

ance befitting his office and should avoid conduct prejudicial to
the administration of justice which brings the judicial office into
disrepute.

C. A judge should not allow his family, social, political, or

other relationships to influence his judicial conduct or
judgment.

(emphasis added.)

Canon 3A(1) states that “A judge should be faithful to the law and

maintain professional competence in it. He should be unswayed by

partisan interests, public clamor, or fear of criticism.” Canon 3A(4)

also provides that:

A judge should accord to every person who is legally interested in a

proceeding, or his lawyer, full right to be heard according to law,
21
 and, except as authorized by law, neither initiate nor consider
ex parte communications concerning a pending or impend-
ing proceeding. A judge, however, may obtain the advice of a dis-
interested and impartial expert on the law applicable to a proceed-
ing before him; provided however, a judge should use discretion in
such cases and, if the judge considers that justice would require it,
should give notice to the parties of the person consulted and the
substance of the advice, and afford the parties reasonable oppor-
tunity to respond.

(Emphasis added.)

Finally, Canon 3C(1) provides that recusal is required when the court’s

“impartiality might reasonably be questioned[.]”

The Supreme Court of Alabama recently reiterated the objective na-

ture of the Canon 3C(1) test to apply to issues of judicial disqualification

based on the appearance of partiality:

“ ‘[t]he standard for recusal is an objective one: whether a reasona-

ble person knowing everything that the judge knows would have a
“reasonable basis for questioning the judge's impartiality.” [Ex
parte] Cotton, 638 So.2d [870,] 872 [(Ala. 1994)]. The focus of our
inquiry, therefore, is not whether a particular judge is or is not bi-
ased toward the petitioner; the focus is instead on whether a rea-
sonable person would perceive potential bias or a lack of impartial-
ity on the part of the judge in question.’”

Ex parte Smith, 282 So.3d 831, 840 (Ala. 2019) (quoting Ex parte Bryant,

682 So. 2d 39, 41 (Ala. 1996)) (alterations in Ex parte Smith).

The burden of proof is on the party seeking recusal. See e.g. McMurphy

v. State, 455 So. 2d 924, 929 (Ala. Crim. App. 1984). Marquette need not
22
prove actual bias because a trial court’s duty extends not only to situa-

tions where bias is shown, but also when the judge’s impartiality might

reasonably be questioned. See State v. Moore, 988 So. 2d 597, 600-01 (Ala.

Crim. App. 2007). Put differently, the facts of Marquette’s case must be

considered under the applicable objective standard for recusal:

“[W]hether a reasonable person knowing everything that the judge

knows would have a ‘reasonable basis for questioning the judge’s impar-

tiality.’” Moore, 988 So. 2d at 601 (quoting Ex parte Cotton, 638 So. 2d at

872).

A reasonable person would question Judge Elliott’s impartiality in this

matter.

C. Judge Elliott’s ex parte conversations were improper, un-

warranted, and evidenced violations of multiple Canons of
Judicial Ethics.

Judge Elliott admitted that he contacted multiple people ex parte.

These ex parte conversations –with defense counsel, the district attorney,

an assistant district attorney, and multiple other judges – were improper

and unjustified. Recusal is warranted because these ex parte communi-

cations give the appearance of bias and a lack of impartiality.

1. Judge Elliott’s late-night ex parte interrogation of de-

fense counsel Brett Bloomston was highly improper.
23
 Judge Elliott responded to Marquette’s recusal motion with improper

ex parte contact with Bloomston. He admitted to calling Bloomston on the

night of February 17, 2025 – a federal holiday and the day before Mar-

quette’s originally scheduled recusal motion hearing. See Canon 3A(4) (“A

judge should…neither initiate nor consider ex parte communications con-

cerning a pending or impending proceeding.”) He admitted to talking

about the recusal motion. Id. He admitted to following another judge’s

purported advice (advice that would be improper under this same Canon)

to contact Bloomston about the recusal motion. Id. He warned Bloomston

this filing “could constitute a violation of Rule 8.2 [of the Alabama Rules

of Professional Conduct]” if the motion were filed recklessly. Exhibit 13;

see also Canon 3A(4).

Nothing about this call was justified. Judge Elliott should be ordered

to recuse because one could reasonably interpret his actions as an at-

tempt to intimidate or bully Bloomston and the defense team for filing

the recusal motion. A judicial attempt to bully or intimidate a litigant

would violate Canon 1 (“ A judge…should himself observe, high stand-

ards of conduct so that the integrity and independence of the judiciary

may be preserved.”); Canon 2A(1) (“A judge should…conduct himself at

24
all times in a manner that promotes public confidence in the integrity

and impartiality of the judiciary.”); Canon 2A(2) (“A judge should at all

times maintain the decorum and temperance befitting his office and

should avoid conduct prejudicial to the administration of justice which

brings the judicial office into disrepute.”); and Canon 3A(1) (“A judge

should be patient, dignified, and courteous to…lawyers…”)(emphasis

added). A specter of bullying or intimidation by a judge creates an ap-

pearance of bias justifying recusal.

There is simply no place in the law for a judge to use the power of his

office to intimidate or bully a party. An outside observer of this conversa-

tion could very well conclude that Judge Elliott’s actions were an attempt

to intimidate or bully Bloomston and the defense. There is no question

that this conversation took place. There is no question to its contents.

There exists a reasonable question about Judge Elliott’s impartiality in

the wake of this improper ex parte conversation.

Accordingly, this Court should direct Judge Elliott to recuse for his

improper ex parte conversation with Bloomston.

2. Judge Elliott’s late-night ex parte conversations with the

State and conversations with other judges about defense
counsel were highly improper.

25
 Judge Elliott had at least four2 additional ex parte conversations

about defense counsel and the matters at hand. Judge Elliott ad-

mitted that after he called Bloomston, he called the district attorney and

an assistant district attorney about his conversation with Bloomston. Ex-

hibit 13. He admitted he previously called “fellow judges” that have had

cases with Bloomston and his co-counsel, Elizabeth Young3. Id. These ex

parte conversations were improper under Canon 3A(4). There was no jus-

tification for Judge Elliott to have ex parte conversations with the prose-

cutors – that he forced an ex parte conversation upon defense counsel

Bloomston would not justify further ex parte conversation. Further, con-

versations with other judges about defense counsel run afoul of Canon

3A(4) as well. See id. (“A judge, however, may obtain the advice of a dis-

interested and impartial expert on the law applicable to a proceeding be-

fore him.”) The affidavit does not indicate Judge Elliott talked to these

other judges about the nuances of recusal law. Instead, Judge Elliott

2 Judge Elliott stated he spoke to “fellow judges” about defense counsel.

Without knowing an exact number and because he spoke in the plural,
Marquette conservatively assumes at least two fellow judges were con-
tacted in these ex parte information-hunts.

3 While not specifically named in the affidavit, Young would have been
the other defense attorney referenced by Exhibit 13.
26
apparently sought information about how defense counsel had handled

previous recusal requests. Such ex parte fishing expeditions fall well out-

side the purview of Canon 3A(4).

Importantly, the ex parte communications set forth in Judge Elliott’s

second affidavit meet the prejudice standard required for recusal. While

ex parte communications are categorically prohibited by Canon 3A(4),

they rise to the level of recusal when a reasonable person might question

the judge’s impartiality on account of the content or nature of the ex parte

communications. See Keaton v. State, 375 So. 3d 44, 139-40 (Ala. Crim.

App. 2021); Ex parte Crawford, 221 So. 3d 1110, 1116 (Ala. Civ. App.

2016).

This is not the case of Crawford, where a judge received a phone call

from a nonparty regarding a pending case. Ex parte Crawford, 221 So. 3d

at 1117. In that circumstance, the Court of Civil Appeals observed that

while the “receipt of unauthorized communications” may affect impar-

tiality or the appearance of it to require recusal, the call at issue was

brief, the judge disclosed the substance of the call to the parties, and the

caller “did not say anything during the telephone conversation disparag-

ing of either party.” Id. at 138.

27
 Nor is this case akin to Keaton v. State, 375 So. 3d at 139, 140, involv-

ing an ex parte call the State initiated to discuss a scheduling matter with

the court. Although this Court admonished any ex parte communications

even for innocent scheduling purposes, the defendant in Keaton could not

demonstrate the brief calls showed bias or prejudice against the defend-

ant. Id. at 140.

Here, unlike receipt of brief unsolicited and innocuous calls, Judge El-

liott initiated a minimum of five ex parte communications in direct re-

sponse to Marquette’s amended motion to recuse. Exhibit 13. Not only

did the trial court initiate the improper communications, but from the

circuit court’s second affidavit it appears the purpose of at least three

calls—to Bloomston and to unnamed judges—was to admonish Bloom-

ston and gather intel on his (and co-counsel’s) past practices to suggest

Bloomston singled Judge Elliott out in some improper way. This is on a

level of arguable “disparaging” a party that is wholly apart from Ex parte

Crawford and certainly cannot be viewed as regarding scheduling alone

like Keaton.

There exists a reasonable question about Judge Elliott’s impartiality

due to multiple improper ex parte conversations. Accordingly, this Court

28
should direct Judge Elliott to recuse for his improper ex parte conversa-

tions with the district attorney, assistant district attorney, and fellow

judges.

3. A reasonable interpretation of Judge Elliott’s affidavit

raises the question of whether he had an ex parte conver-
sation with Burleson about Bloomston, which would be
highly improper.

Judge Elliott’s affidavit could reasonably be read as an admission that

he spoke to Burleson about Bloomston in the wake of the first recusal

motion. In the affidavit, Judge Elliott stated, “I remember telling Mr.

Bloomston that I felt that his actions could constitute a violation of Rule

8.2 as it could be considered reckless disregard for the truth without

first speaking with Lieutenant Burleson to determine if he had

made the statements alleged in their original Motion to Recuse.” Exhibit

13 (emphasis added). Judge Elliott could only know that Bloomston had

not spoken with Burleson if Burleson had told Judge that Bloomston

had not reached out to him. This sentence could also be interpreted

as Judge Elliott warning Bloomston of a potential problem – i.e., Bloom-

ston could have run afoul of Rule 8.2 if he didn’t first talk to Burleson

before filing. A reasonable person, however, could read this as an admis-

sion that Judge Elliott had talked to Burleson about the issue in after
29
Marquette’s recusal motion. Marquette’s second amended recusal motion

indicates Judge Elliott asked Bloomston if he had spoken to Burleson,

but Bloomston did not answer this substantive question, and instead re-

sponded “this conversation needed to occur on the record.” Exhibit 10.

Thus, if the interpretation that Judge Elliott was accusing Bloomston of

not first talking to Burleson is accurate, Judge Elliott would have had to

talk to Burleson to learn if Bloomston had reached out to Burleson prior

to filing the motion. This potentially admitted ex parte contact would

cause a reasonable person to question Judge Elliott’s impartiality.

Again, while two interpretations of Judge Elliott’s statement exist, it

would be reasonable for someone to believe Judge Elliott had, in fact,

talked to Burleson and admitted as much in this affidavit, which would

violate Canon 3A(4). Because there is a reasonable perception of impro-

priety as to possible ex parte conversations with Burleson, this Court

should “resolv[e] all reasonable doubt in the favor of recusal.” Ex parte

Bryant, 682 So. 2d 39, 41 (Ala. 1996) (internal citations omitted).

D. Judge Elliott’s impartiality can reasonably be questioned on

the grounds that he denied Marquette procedural due pro-
cess in summarily denying his recusal motion with a self-
serving affidavit.

30
 Judge Elliott should have afforded Marquette a day in court complete

with subpoena power to prove his request for recusal. Instead, he set a

hearing on an unjustifiably expediated timeline that precluded Mar-

quette from subpoenaing any witness. Judge Elliott then summarily de-

nied the motions and issued two self-serving affidavits that raised more

questions than they settled. These actions violated Canon 3A(4), which

provides that a judge should “accord to every person who is legally inter-

ested in a proceeding, or his lawyer, full right to be heard according to

law…” A reasonable person would question Judge Elliott’s impartiality

since he effectively quashed the recusal motion on the back of a self-serv-

ing affidavits that evidenced violations of the Canons.

Despite the defense request for a setting to subpoena necessary wit-

nesses, Judge Elliott (after 4:00 pm on Friday, February 14th) set the

hearing for Tuesday, February 18th, where that Monday would be a court

holiday. Exhibit 8. This action denied Marquette any opportunity to sub-

poena witnesses. During Judge Elliott’s improper ex parte call to Bloom-

ston, Judge demanded Bloomston have his witnesses ready for the fol-

lowing day’s hearing. Exhibit 10. Bloomston told him it would be “impos-

sible” for him to subpoena witnesses for the hearing given the court’s

31
Monday closure. Id. Judge Elliott asked how long it would take the de-

fense to prepare for a hearing, and Bloomston told him a week. Id. Yet,

Judge Elliott did not continue the hearing but summarily denied the

recusal request the following day. Exhibits 11 and 12.

A reasonable person would question why Judge Elliott responded to

the recusal request in this aggressive and unobjective manner through a

series of ex parte communications. A reasonable person would question

the propriety and prudence of Judge Elliott setting an unreasonably ex-

pedited hearing that would deny Marquette subpoena power only to can-

cel the hearing and summarily deny the motion on the back of two self-

serving affidavits that evidence violations of Canons. A reasonable per-

son very well could interpret Judge Elliott’s actions as using his capacity

to limit fact-finding and the public discussion of Marquette’s Due Process

rights. A reasonable person could ask why Judge Elliott wouldn’t give

Marquette his day in court with subpoena power. Given that Judge El-

liott admitted ex parte conversations with Bloomston (as well as others)

took place, a reasonable person could question whether Judge Elliott was

fairly and prudently treating this serious issue.

32
 Judge Elliott’s impartiality can reasonably be questioned because he

failed to afford Marquette a hearing on this motion, in violation of Canon

3A(4). Accordingly, this Court should direct Judge Elliott to recuse for

violating Canon 3A(4), or, in the alternative, direct Judge Elliott to hold

a hearing on Marquette’s recusal request wherein Marquette is afforded

a meaningful opportunity to present evidence.

Further, a reasonable person would question whether Judge Elliott’s

self-serving affidavits are determinative of the questions presented. This

Court has long rejected evidence made by a party on their own behalf

that is self-serving. See generally Chambers v. State, 356 So. 2d 767, 769

(Ala. Crim. App. 1978) (“One is not allowed to make evidence in his behalf

by making self-serving declarations.”) This Court must look deeper than

the four corners of Judge Elliott’s two affidavits.

For example, Judge Elliott’s second affidavit can reasonably be inter-

preted to raise the question of whether the Judge engaged in an ex parte

extrajudicial conversation with Burleson about whether Bloomston

reached out to him prior to filing the recusal motion. This interpretation

alone is reason for this Court to conclude that Judge’s affidavit is not

determinative of the recusal request. It also demonstrates an appearance

33
of impropriety in that Judge Elliott responded to the recusal request by

possibly engaging in conduct that warrants recusal (i.e., talking with

Burleson about Bloomston). This is especially so considering that the

avoidance of any appearance of impropriety requires “‘resolving all rea-

sonable doubt in favor of recusal.’” In re Sheffield, 465 So. 2d 350, 357

(Ala. 1984) (quoting Canon 1, Alabama Canons of Judicial Ethics).

Judge Elliott’s orders cite Ex Parte Knotts presumably for the proposi-

tion that his affidavit directly refutes the allegations underlying the

recusal request and should serve as the basis for this Court denying the

mandamus request. Ex parte Knotts involved a mandamus petition re-

questing an order of recusal based on allegations that the trial judge op-

posed admission of an out-of-state attorney, ignored mitigating evidence

during the penalty phase, had a “negative opinion” about the defendant,

and that the judge communicated ex parte with the State. 716 So. 2d at

264. In response, the trial judge submitted an affidavit that (1) denied

any comments about allowing a pro hac vice admission noting that he

had allowed the admission, and (2) explained that the imposed death sen-

tence was not due to the defendant’s or victim’s race. Id. at 265-66.

34
 This Court first rejected Knotts’ position that the circuit court’s filing

of a responsive affidavit and swift denial of the recusal motion demon-

strated impropriety. Id. at 265. It then rejected the additional allegations

of failure to consider mitigating evidence or improper reliance on victim

impact letters that Knotts categorized as “ex parte communications with

the prosecution” by pointing to the rejection of these very issues during

the direct appeal. Id. at 266-67. Any other alleged appearance of bias

based on the circuit court’s comments, according to this Court, “were ‘fair

assessments’ of the evidence presented at trial.” Id. at 268.

This case bears no comparison to Ex parte Knotts. Judge Elliott’s affi-

davit admits to ex parte conversations with Bloomston, the prosecution,

and other judges. It could reasonably be read to imply he had an ex parte

conversation with Burleson about Bloomston. Unlike the affidavit in

Knotts, Judge Elliott’s affidavit creates factual questions about its weight

and veracity as well as gives new grounds for believing Judge Elliott vio-

lated the Canons, further raising concerns regarding his impartiality.

Unlike the judge’s affidavit in Knotts, Judge Elliott’s affidavits injected

more factual tensions, more evidence of ethical violations, and more

grounds for recusal.

35
 E. The allegations at the heart of Marquette’s first recusal
motion warrant a day in court.

The facts as alleged regarding Judge Elliott’s extra-judicial concerns

would certainly justify recusal under Canons 1; Canons 2C(A),(B) and

(C); and Canons 3A(1) and 3C(1). Marquette proffered that he needed

subpoena power to call witnesses who would testify to hearing Burleson

recounting how Judge Elliott wouldn’t find Marquette immune because

of outside factors. At the time Judge Elliott would have made such a

statement to Burleson, Judge Elliott would not have known the facts of

this case. He would not have reviewed the mountains of discovery demon-

strating a completely justified police shooting.

As demonstrated above, Judge Elliott’s actions in response to the re-

quest for an immunity hearing could reasonable be interpreted to have

violated several Canons and demonstrate that he may not be fully impar-

tial in this matter. Judge Elliott has admitted to conduct that one could

reasonably conclude violates the Canons. He has denied Marquette a

hearing with subpoena power to prove his claims. He has offered self-

serving affidavits that raise more questions than they answer. Simply

put, either Judge Elliott needs to recuse for these reasons to question his

impartiality or Marquette otherwise needs to be afforded a fair hearing

36
to prove his claims that Judge Elliott predetermined how he would rule

on Marquette’s immunity request before hearing any legal evidence.

CONCLUSION

Because Judge Elliott’s impartiality may reasonably be called into

question, this Court should issue a writ of mandamus directing his

recusal. In the alternative, this Court should remand the matter for an

evidentiary hearing for Marquette to fairly and justly present his case for

recusal.

Respectfully submitted on March 7, 2025.

/s J.D. Lloyd /s Brett M. Bloomston

J.D. Lloyd Brett M. Bloomston
The Law Office of J.D. Lloyd The Bloomston Firm
2320 Arington Ave. S. 1914 Fourth Ave. N., Ste 100
Birmingham, AL 35205 Birmingham, AL 35203
(205) 538-3340 205-212-9700
JDLloyd@JDLloydLaw.com Brett@thebloomstonfirm.com

/s Elizabeth A. Young
Elizabeth A. Young
Dummier Young LLC
1400 21st Way S.
Birmingham, AL 35205
205-631-8004
Counsel for Petitioner lyoung@dummieryoung.com

37
 CERTIFICATE OF COMPLIANCE

I certify that this filing contains 5,941 words and is written in 14-point

Century Schoolbook in compliance with the requirements and limitations

of Rules 21(d) and 32(b)(3), Ala. R. App. P.

/s J.D. Lloyd
J.D. Lloyd

Counsel for Petitioner

38
 CERTIFICATE OF SERVICE

I hereby certify that on March 7, 2025, I electronically filed the fore-

going and served a copy via email on:

Hon. Charles B. Elliott

Circuit Court Judge, Eighth Judicial Circuit
Charles.Elliott@alacourt.gov

Attorney General Steve Marshall

DocketRoom@AlabamaAG.gov

Hon. Scott Anderson

Morgan County District Attorney
sanderson@morgancountyda.com

Hon. Garrick Vickery

Morgan County Assistant District Attorney
gvickery@morgancountyda.com

/s J.D. Lloyd
J.D. Lloyd

Counsel for Petitioner

39