Perhaps it is not a startling position, but “when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case[,]” that judge must recuse himself or herself from judicial or appellate review. That principal is now enshrined not merely as one of professional conduct, but as a guarantee of Due Process. And this came about in a case with some Temple Law connections.
The decision came on June 9 in a 5-3 ruling from the United States Supreme Court in a case from Pennsylvania. In Williams v. Pennsylvania, Terry Williams, a death row inmate, had won a last minute reprieve and the right to a new penalty trial when a Philadelphia Judge determined that “the trial prosecutor had suppressed material, exculpatory evidence…and engaged in ‘prosecutorial gamesmanship.’” When the prosecution appealed that ruling the case went to the Pennsylvania Supreme Court, presided over by then-Chief Justice Ronald Castille.
There was only one problem – the Chief Justice had been the District Attorney at the time of Williams’ original trial and had signed the authorization for prosecutors to seek the ultimate punishment – a sentence of death. A recusal motion was filed and denied, and the Chief Justice and his colleagues overturned the grant of a new penalty trial. This set the stage for the United States Supreme Court to rule on the limits imposed on judges by the Due Process guarantee.
The Court’s analysis turned on the risk of bias. As the Court explained,
Bias is easy to attribute to others and difficult to discern in oneself. To establish an enforceable and workable framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present. The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.
The Court then found that risk to be unconstitutionally high when a “former prosecutor [sits] in judgment of a prosecution in which he or she had made a critical decision.” As to Terrence Williams and Chief Justice Castille, it made clear that “there can be no doubt that the decision to pursue the death penalty is a critical choice in the adversary process.”
There is a second part to the Williams decision. Because the Chief Justice did not stand alone in his vote in the decision denying relief to Williams, the Court had to answer a second question – what is the effect of having one potentially biased jurist on a reviewing court. The answer was simple – one such jurist is too much. “[A]n unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote.”
Undeniably, the Williams decision sets an important threshold for the guarantee of impartial judging. Many members of Temple’s faculty saw it that way – they served as a “moot court” for Williams’ counsel in the month before oral argument, faculty members also contributed ideas to the Briefs, and two attended the oral argument. Their views are not shared by former Chief Justice Castille.
In a June 9th interview with the Legal Intelligencer, he maintained that the decision is “completely wrong” and derided the views as “short sighted.” This writer posted a comment to the Intelligencer in response:
The “short-sighted” view is that of the former Chief Justice. It is “short-sighted” to say that deciding whether to seek the death penalty is “merely administrative.” If that is how he handled capital case decisions, it is a shameful admission. And it is “short-sighted” to be unable to see that both the appearance and actuality of bias can arise when someone who made such a momentous decision is then called upon to judge aspects of that decision and its implementation.
It is no wonder that eight amicus briefs were filed on behalf of Mr. Williams and none in support of the prosecution [and thus none in support of the action of the former Chief Justice]. Those amici included the American Bar Association, the Yale Ethics Bureau, the American Academy of Appellate Lawyers, and ad hoc groups titled “Former Judges With Prosecutorial Experience” and “Former Appellate Court Jurists.” Is the suggestion that they are all “short-sighted” as well?
Professor Jules Epstein
Professor Epstein is Director of Advocacy Programs at Temple Beasley School of Law. He admits his biases – he has litigated capital cases on behalf of death-sentenced inmates, and participated in the mooting of Williams’ counsel. The decision is Williams v. Pennsylvania, 2016 U.S. LEXIS 3774 (June 9, 2016).