As was predicted by attorneys when he took an extended leave of absence in early February, Mobile County Circuit Court Judge Joseph “Rusty” Johnston announced his retirement this week. After 18 years, Johnston will officially leave the bench at the end of April.
Johnston’s leave was originally scheduled to end May 15. Retired judge Jim Wood has held the office in Johnston’s absence.
According the Circuit Court of Mobile County, Johnston’s retirement will take effect on April 20, but he won’t be returning to the bench during that time. The court has set a noon deadline on April 22 for the submission of candidates to replace Johnston.
Individuals may submit, in writing, their own name or the name of another person eligible to hold the office for consideration. Submission questionnaires may be obtained from Nancy Cowart within the circuit court office.
According to a press released from the office, the names submitted to the Mobile County Commission will be announced no later than April 23, and the public will be given the opportunity to provide comments through noon on May 6. The Commission will ultimately submit three names for consideration and Gov. Robert Bentley will have the final decision in filling the vacancy left by Johnston.Though his initial leave of absence was medically related, Johnston — appointed to the bench in April 1997 — has been in at the center of some public controversy within the court over the past two years.
While no one would speak on the record, several Mobile attorneys told Lagniappe during Johnston’s leave of absence the judge had developed a reputation over the past couple years for starting court late or suddenly canceling or rescheduling hearings — a situation particularly problematic for cases involving expert witnesses flown in from out of town to testify.
However, Johnston’s courtroom practices caught the general public’s eye in 2013 when a rift when defense attorneys Donald and Jonathan Friedlander also drew media attention.
That issue began during a criminal case against Rudolph Lemetrick Agnew, who was charged with first-degree assault and second-degree possession of marijuana after wreck he was involved in three years prior left a Mobile police motorcycle officer with significant injuries.
During that case, Johnston abruptly declared a mistrial based on the “lawyers’ conduct,” which prompted defense attorneys Donald and Jonathan Friedlander to file a bar complaint against Johnston and ask him to recuse himself from the pending retrial.
That case was later dismissed after Circuit Judge Graddick found Johnston had no legally valid reason to declare a mistrial. The Friedlanders later entered a plea for double jeopardy, which included transcripts from the original trial arguing their behavior had been in line with proper courtroom practices. It went to declare Johnston had “no legal basis” for any of his rulings or comments.
After he was asked to recuse himself from the retrial, Johnston issued an eight-page response accusing the Friedlanders of “sub-par and ineffective assistance” and included several other scathing comments.
In February, attempted to determine whether that behavior prompted a complaint to Alabama’s Judicial Inquiry Commission, which has been rumored since the outcome of the Agnew case.
However officials with the JIC said they couldn’t confirm or deny the receipt of any complaint.