Next Monday, the Supreme Court will consider whether the constitution is violated if the chief judge on the highest court of the state refuses to disqualify himself in a death penalty appeal where he was the chief prosecutor who authorized the defendant's death sentence, obtained the death sentence through his office's misconduct, and campaigned for the judgeship by showcasing how many people he put on death row, including the defendant.
To be sure, some judges play fast and loose with the rules of ethics, especially rules relating to bias and unfairness, and occasionally judges are disciplined for their misconduct. But it is unusual to find a case in which a judge's bias is so clear, even if the judge in question is so tone deaf that he believes he can be fair. However, believing in one's own fairness is not the test. As the Supreme Court has explained in other cases, the test is objective: whether under the circumstances the average judge is likely to be neutral. In addition, however, constitutional Due Process requires from a judge not just the absence of actual bias but the absence of even the appearance of bias. As the Supreme Court famously observed: "Justice must satisfy the appearance of justice."
In the case before the Supreme Court , Pennsylvania v. Williams, defendant Terrence Williams and a co-defendant were convicted in Philadelphia in 1984 of beating the victim to death with a tire iron and then burning his body. Williams was eighteen and had several previous convictions for violent crimes, including third degree murder and robbery. As is required by law, Philadelphia's elected District Attorney, Ronald Castille, authorized his staff to seek the death penalty against the defendant. The trial prosecutor argued to the sentencing jury that Williams killed the victim "for no other reason but that a kind man offered him a ride home." Given the defendant's violent history, the jury agreed with the prosecutor's plea, and sentenced Williams to death. But the prosecutor did not tell the jury the truth.
In a post-conviction hearing many years later, the defendant discovered evidence in the prosecutor's files that showed that the sentencing jury was given an incomplete and distorted picture of the killing. The victim was not nearly as sympathetic as the trial prosecutor argued. In fact, as several documents discovered from the prosecutor's files revealed, the victim was a pedophile who had engaged in many homosexual encounters with young boys, including the defendant when he was 13 years old. According to the defendant, the sexual pressure imposed on him by the victim was a critical circumstance in the killing. But the sentencing jury never learned these facts. Why? Because for thirty years the Philadelphia District Attorney's Office suppressed information that would have been relevant on the jury's penalty decision. The prosecutor suppressed a statement from the victim's widow that her husband engaged in sexual encounters with young boys; suppressed a statement from the pastor at the local church that the victim engaged in sexual encounters with parishioners at his church; suppressed evidence that the prosecution gave benefits to the co-defendant in return for his testimony; and failed to correct this witness's false testimony at the trial. Based on this serial misconduct by the prosecution, the hearing court vacated the death sentence. The court described the prosecutor's conduct as playing "fast and loose with the truth," engaging in a "pattern of misconduct," "disregarded her ethical obligations," and "took unfair measures to win."
The prosecution appealed to the Pennsylvania Supreme Court. Williams filed a motion asking Chief Judge Castille to recuse himself from the appeal, and if he denied the motion, to refer the motion to the entire court. Recall that in 1993, District Attorney Castille campaigned for election to become a Judge on the Pennsylvania Supreme Court. He stressed his record as Philadelphia District Attorney championing the death penalty. He proclaimed that he "put 45 people on death row," one of whom was the defendant. The media sensationalized his campaign oratory, hailing him as a "tough as nails scourge of criminals," repeatedly quoting Castille "bragging that he sent 45 people to death row," and that he "wears that statistic as a badge." Castille was elected and assumed his position in January 1994. Now, in response to the defendant's motion to recuse him, he issued a terse one sentence order: "The Motion for Recusal is DENIED, as is the request for referral to full Court."
The Pennsylvania Supreme Court reversed the hearing court and reinstated the death sentence. Chief Judge Castille joined in the Court's unanimous reversal and lifting the stay of execution. He did not write the opinion for the six-member court, but he did write a concurring opinion that can only be described as a tirade in which he attacks the hearing judge for bias and incompetence, and the conduct of the defense lawyers as unlawful and unethical. According to Judge Castille, the hearing court's ruling on the defendant's "blatantly frivolous motion" was "extraordinary and unauthorized," "ignored the law," "misapprehended discovery rules," and "most troubling, lost sight of [the trial judge's] role as a neutral judicial officer." He alleged, incredibly, that the hearing judge "seized the files of the Commonwealth and the police for no legitimate reason," "independently reviewed the materials," and then allowed these materials to be used at the hearing.
Chief Judge Castille's attack on the defendant's lawyers - the Federal Community Defenders Office - was uniquely vicious. He charged them with "gaming the system," " representing clients throughout Pennsylvania illegitimately," "pursuing an obstructionist death-penalty agenda," "anointing themselves as a statewide de facto capital defenders office," employing "tactics" that included "multiple attempts to delay and obstruct cases and unsettle and undermine Pennsylvania law," and turning legal proceedings into a "circus where [these lawyers] are the ringmasters, with their parrots and puppets as a sideshow."
Given this astonishing attack against the hearing judge and the defense lawyers, it is no wonder that Judge Castille refused to disqualify himself from reviewing his own conduct as District Attorney who supervised the defendant's prosecution and death sentence. It appears Judge Castille wanted the opportunity to vilify those individuals whom he believed were trying to undermine his own past work. His opinion merely reinforces the view that he could not be fair and impartial, and that the defendant's constitutional right under Due Process and the Eighth Amendment was violated by his refusal to remove himself from the proceedings. Indeed, Judge Castille's ideological bias is even more audaciously displayed in that part of his opinion that disparages lawyers who take capital punishment cases and in which he demeans the noble principle, restated many times by the Supreme Court, that "death is different," because, Judge Castille asserts, it causes "mischief" to the legal system.
Under all the circumstances, Judge Castille could not realistically pretend he could be neutral when he was adjudicating his own conduct and the conduct of others he supervised. He could not pretend that there is no appearance of unfairness in his conduct. Would the general public really believe that he could be fair when, as District Attorney, he authorized the defendant's death sentence, supervised a prosecution permeated by misconduct by his own staff, and campaigned for his judgeship on having sent 45 persons to death row, including the defendant? Regardless of whether he subjectively believed he could be fair - an assertion of a state of mind that can never be conclusively refuted - there is no doubt that under an objective test he could never be perceived as neutral. His refusal to disqualify himself, as the Supreme Court almost certainly will conclude, violated Due Process and the Eighth Amendment.
But the result also reinforces that this is not the end of the case. There remains one final issue, and a big one. Judge Castille was part of a panel of six judges that heard the appeal and decided in favor of the prosecution, but his vote was not decisive. In other words, even though there may be a biased judge on a panel of judges, as there clearly was here, if his tainted vote is not controlling, has the defendant sufficiently shown that he was harmed by the judge's refusal to recuse himself? The lower courts are split on this question. Does bias on the part of one member of a multi-judge tribunal taint the entire proceeding? Can one reasonably contend that a tribunal is impartial when one member is biased? Moreover, there is no way of knowing how the tainted judge may have influenced the other judges. And needless to say, Chief Judge Castille, as the presiding judge of the state supreme court, has special responsibilities of supervising deliberations, assigning opinions to the other judges, and generally administering the processes of the court. This question is tricky. And without Justice Scalia, a 4-4 split on the Supreme Court is possible. And if that is the result, then under the Supreme Court's rules the decision of the Pennsylvania Supreme Court would be affirmed - and Terrence Williams will be executed.