Do the Eighth and Fourteenth Amendments require an appellate judge’s recusal in a capital punishment appeal when the judge, previously a district attorney, oversaw the office that prosecuted the same case?
In 1984, Terrance Williams was sentenced to death for the murder of Amos Norwood. After successfully receiving post-conviction sentencing relief in 2012, the Supreme Court of Pennsylvania reversed and reinstated Williams’ sentence. In this case, the U.S. Supreme Court will decide whether the Eighth and Fourteenth Amendments require the recusal of an appellate judge—here Pennsylvania Chief Justice Ronald Castille—from participation in a capital punishment appeal when the judge led the District Attorney’s Office that prosecuted the same case. Williams argues that due process compels recusal, given the risk of potential bias and partiality that may taint both the judge’s decision-making and the reviewing tribunal’s impartiality. However, Pennsylvania argues that Justice Castille’s recusal was not constitutionally required under the Court’s holding in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), nor was his presence on the Supreme Court of Pennsylvania in violation of the Eighth and Fourteenth Amendments. This case will impact an appellate judge’s ability to make discretionary determinations regarding his or her own recusal.
Questions as Framed for the Court by the Parties
- Whether the Eighth and Fourteenth Amendments violated where the presiding Chief Justice of a state supreme court declines to recuse himself in a capital case where he had personally approved the decision to pursue capital punishment against Petitioner in his prior capacity as elected District Attorney and continued to head the District Attorney’s office that defended the death verdict on appeal; where, in his state supreme court election campaign, the Chief Justice expressed strong support for capital punishment, with reference to the number of defendants he had “sent” to death row, including Petitioner; and where he then, as Chief Justice, reviewed a ruling by the state post-conviction court that his office committed prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963), when it prosecuted and sought death against Petitioner?
- Whether the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?
On June 11, 1984, Terrance Williams and Marc Draper robbed and murdered Amos Norwood. See Brief for Petitioner at 4. The Philadelphia District Attorney’s Office, under the leadership of then-District Attorney Ronald Castille, prosecuted the defendants. Id. at 3. At trial, Draper testified that he and Williams committed the crime. Id. at 6; Brief for Respondent at 5. Williams, however, denied his involvement in the crime. Commonwealth v. Williams, 105 A.3d 1234, 1236 (Penn. 2014). The jury convicted Williams of first-degree murder and robbery, and on February 3, 1986 the jury sentenced Williams to death as a result of his prior third-degree murder conviction. Id.; Brief for Petitioner at 6. Williams appealed his conviction. On February 8, 1990, the Supreme Court of Pennsylvania affirmed the judgment. See Williams, 105 A.3d at 1236.
On March 24, 1995, Williams filed a Post Conviction Relief Act (“PCRA”) petition, offering new testimony in place of his previous testimony. Williams, 105 A.3d at 1236. Williams now argued that he had killed Norwood but that he was motivated by a sexually abusive relationship with Norwood. Brief for Petitioner at 11; Brief for Respondent at 7. The PCRA court denied relief and the Pennsylvania Supreme Court, with District Attorney Castille now serving as Chief Justice, affirmed the decision. Williams, 105 A.3d at 1236; Brief for Petitioner at 11. On December 19, 2005, after several more petitions for PCRA relief, Williams filed a federal habeas corpus petition. Williams argued that his trial counsel was ineffective because counsel failed to present evidence of psychological damage stemming from Norwood’s sexual abuse. Williams, 105 A.3d at 1236. The court denied the petition and the U.S. Court of Appeals for the Third Circuit affirmed.
On March 9, 2012, Williams filed another PCRA petition for collateral review based on new testimony from Draper regarding potential governmental interference. Williams, 105 A.3d at 1237. Williams argued that the prosecution withheld three pieces of evidence—a statement by Norwood’s wife, a statement by the pastor of William’s church, and the trial prosecutor’s notes—regarding “Norwood’s homosexual ephebophilia.” Williams, 105 A.3d at 1237–38. After an evidentiary hearing, the PCRA court granted a stay of execution and vacated Williams’ death sentence. Brief for Petitioner at 17. The court concluded the interference may have influenced the defense’s ability to challenge the prosecution’s case. Williams, 105 A.3d at 1237–39. The court reasoned that because Williams did not know about this evidence, there were grounds to support a Brady violation and a new penalty hearing. Id. at 1239. That same day, Pennsylvania sought review of the decision through an emergency application to the Pennsylvania Supreme Court to vacate the stay of execution. Brief for Petitioner at 17.
On October 1, 2012, Williams filed an answer to Pennsylvania’s application and included a motion requesting that Chief Justice Castille recuse himself from the proceedings. Brief for Petitioner at 17. The same day, Chief Justice Castille issued an order denying Williams’ request. Id. On December 15, 2014, after ordering a full briefing on the issues for appeal, the unanimous Pennsylvania Supreme Court reversed the PCRA court’s grant of post-conviction sentencing relief and lifted the stay of execution. Id. at 17–18; Williams, 105 A.3d at 1244–45. The Pennsylvania Supreme Court subsequently denied Williams’ application for re-argument. Brief for Petitioner at 1.
In this case, the Supreme Court will decide if a state appellate court judge’s refusal to recuse himself from a capital case violates that defendant’s Eighth and Fourteenth Amendment rights where he had approved the decision to pursue capital punishment against the defendant in his prior capacity as a prosecutor. See Brief for Petitioner, at 20. Additionally, the Supreme Court will determine whether the participation of a potentially biased judge on a multimember panel of judges deciding a capital case violates that defendant’s Eighth and Fourteenth Amendment rights. See Brief for Petitioner, at 35-36. Williams argues that the appellate judge in this case, Justice Castille, is essentially acting as a judge in his own case by refusing to recuse himself, which violates his due process rights under the Fourteenth Amendment. See id. at 19. Further, Williams contends that a potentially biased justice on multimember panel taints that panel’s final decision, even if that biased justice’s vote was not decisive to the outcome. See id. at 19, 42. Pennsylvania argues that there is no constitutional obligation to disqualify a judge from ruling on case that he previously worked on in a professional capacity. See Brief for Respondent at 19. Pennsylvania responds to Williams’ argument that a potentially biased justice sitting as part of a panel presumptively contaminates the entire panel, by arguing that the constitution requires a probability of bias before the entire panel’s decision can invalidated as set forth in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). See id.
WHAT TEST APPLIES TO ISSUES OF RECUSAL, AND SHOULD JUSTICE CASTILLE RECUSE HIMSELF?
Williams argues that due process requires an objective inquiry into a judge’s bias. See Brief for Petitioner at 20. To find bias in this case, Williams contends that the Court should consider whether “the average judge” in Justice Castille’s position would likely be impartial, and not the justice’s true feelings. See id. at 21. Williams notes that the Eighth Amendment has traditionally required stronger due process protections in capital cases. See id. at 20. To that end, Williams argues that an objective inquiry is better than a subjective one, because it is inherently challenging to find actual bias when judges convene privately. See id. at 21.
Williams next looks to the Court’s precedent. In some cases, the Court found recusal necessary when judges had a financial interest in the case or an interest in receiving campaign contributions, or when a justice was a plaintiff in a very similar lower court case. See Brief for Petitioner at 22. Williams suggests that the judges in these situations are even less in need of recusal than Justice Castillo. Justice Castillo must rule on whether his subordinates committed prosecutorial misconduct when he was the district attorney, which means he has a personal interest in the ruling. See id.
Pennsylvania contends that the Constitution requires a finding of actual bias, and the facts supporting bias must be strong. See Brief for Respondent at 20. Pennsylvania suggests there are several mitigating factors in this case that indicate Justice Castille’s involvement with Williams’ capital case do not warrant a finding of actual bias. See id. For example, twenty-nine years passed between prosecution and Justice Castille’s refusal to recuse. See id. at 20–21. Pennsylvania contends that even if the Court presumes the existence of bias, the presumption must have a “half-life,” and dissipate over time. See id. at 25. Otherwise, the presumption would require the justice to recuse himself from all of the District Attorney Office’s cases, because he supervised the entire office. See id. at 27-28. Instead, Pennsylvania contends the question should be whether there is any bias currently affecting Justice Castille, thirty years after his involvement in the prosecution. See id. at 22.
Pennsylvania argues that recusal must be based in ethics or statute, not the constitution. See Brief for Respondent at 41. Pennsylvania asserts that the Supreme Court has clearly held that at the time the Constitution was ratified, the Fifth Amendment’s Due Process Clause incorporated the common law regarding judicial recusal. See id. Pennsylvania then argues that the only common law incorporated into the due process clause regarding judicial recusal was recusal in cases where a judge had a direct financial interest, which is absent in this case. See id.
WAS THE RECUSAL ERROR HARMLESS?
Williams argues that allowing a biased justice to sit on a panel of justices violates his right to an impartial tribunal. He claims this is what the Court calls “a structural error”—an error that cannot be cured by harmless-error analysis. See Brief for Petitioner at 37. In harmless error analysis, appeals courts can affirm judgments, despite actual or potential errors, because the errors did not affect defendants’ rights. Williams contends that allowing a biased judge to sit on a tribunal satisfies both attributes of structural errors: (1) those that threaten the integrity of the “entire adjudicatory framework,” and (2) those for which the consequences are “necessarily unquantifiable and indeterminate.” See id. at 37–38 (internal quotations omitted). Williams argues that the “collegial” and private nature of the judicial decision making process make it possible for one biased justice to taint a decision, but at the same time makes it difficult to determine the consequences of the bias. See id.
Williams notes that Justice Castille not only participated in the tribunal, but presided over it. See Brief for Petitioner at 39. Furthermore, Williams argues that when an appellate court hands down a decision, the power behind the decision is institutional, as opposed to personal. The court, and not an individual judge, issues the decision. See id. at 40. Accordingly, Williams concludes that any bias that threatens one judge’s integrity affects the integrity of the institutional court. See id.
Pennsylvania disputes Williams’ characterization of what constitutes structural error. See Brief for Respondent at 58. Pennsylvania cites the Court’s decision in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), for the proposition that the Court should not look to just one judge’s potential bias. Rather, the Court should examine whether the panel as a whole was biased. See id. at 58-59. Pennsylvania raises the possibility that the other justices sitting with Justice Castille would actively argue against the bias that supposedly tainted their decision. See id. at 59. Pennsylvania explains that because each justice considers the issues and exercises her own judgment, it is reasonable to believe the unbiased judges would temper biased viewpoints. See id.
For two reasons, Pennsylvania contends that Williams has already received the relief he requests: consideration of his case without the participation of Justice Castille. See id. at 48-49. First, Pennsylvania points out that when Williams had his re-argument hearing, it was more than a month after Justice Castille retired, so Williams had access to a panel free from any potentially biased justices to hear his claim of prosecutorial misconduct. See id. at 49. Second, Pennsylvania points to the state’s moratorium on capital sentences. See id. at 52.
Some amici suggest that judges who have prosecuted cases, which go on appeal, and then preside over the same case may improperly influence multimember tribunals, or undercut the public’s trust in the judiciary. But Pennsylvania contends that judges often have ties to cases they adjudicate, and that tribunals are more than capable of avoiding the taint of bias.
THE APPEARANCE OF OBJECTIVITY AND IMPARTIALITY
Allowing a judge with prior prosecutorial involvement in a case to preside over the case on appeal may undercut judicial impartiality. See Brief of AAAL at 6; Brief of Former Judges with Prosecutorial Experience (“Former Judges”), in Support of Petitioner at 5. Even a risk of bias, amici argue, could tarnish the appearance of a “fair, independent, and impartial judiciary.” Brief of Former Judges at 5. The American Bar Association (“ABA”) notes that the Model Code of Judicial Conduct requires judges to promote public confidence in the fairness of the judiciary. The ABA argues that allowing a judge whose office prosecuted a case to preside over the same case on appeal erodes the public’s confidence. See Brief of Amicus Curiae American Bar Association, in Support of Petitioner at 10, 15. A judge’s prior prosecutorial role could make it difficult, if not impossible, for the judge to act as a neutral arbiter. See Brief for Petitioner at 23; Brief of AAAL at 6; Brief of Constitutional Accountability Center, in Support of Petitioner at 15. Asking a judge to review neutrally a case she previously prosecuted, the American Academy of Appellate Lawyers says, “calls for the impossible.” Brief of AAAL at 6. As some former judges note, judges might try to justify their prosecutorial decisions. See Brief of Former Judges at 23.
However, Pennsylvania maintains that mandatory recusal compromises a judge’s “duty to sit.” See Brief for Respondent at 46. Mandatory recusal will lead to more empty seats on judicial panels because many states do not provide for replacements. Id. at 47. And constitutionally mandated recusal could harm defendants by preventing experienced judges from overseeing appeals in the judges’ areas of expertise. Id. Pennsylvania contends that a judge’s having prior involvement in a case is not unusual. See Id. at 42. Pennsylvania notes that many other judges, including Supreme Court justices, have participated in cases with more significant and recent connections. Id.
RISK OF BIAS TO OTHER TRIBUNAL MEMBERS
Amici suggest that a biased judge’s participating in a multimember tribunal does not alleviate any taint of bias. In fact, the judge may improperly influence the decision-making of the tribunal. See Brief for Petitioner at 50; Brief of ABA at 27–28. Williams and amici note that, given the reviewing court’s desire to reach a unanimous decision, the court may engage in “group think.” Brief for Petitioner at 45–46; Brief of ABA at 27–28. Because of the collaborative nature of appellate courts, and Justice Castille’s position as chief, amici suggest that even a unanimous multimember tribunal is not shielded from an individual judge’s bias. See Brief of ABA at 27–28; Brief of Former Appellate Court Jurists, in Support of Petitioner at 12.
Pennsylvania argues that judges have a duty to be impartial even when facing prejudicial information. Brief for Respondent at 59. Moreover, because appellate court opinions must publicly explain the rationales of the tribunal’s decisions, Pennsylvania contends that any risk of a judge’s improper, private influence on a multimember tribunal is sufficiently negated. See Id.
In this case, the Supreme Court will decide whether the Eighth and Fourteenth Amendments require an appellate judge to recuse herself from participation in a capital punishment appeal where the judge had been previously involved in a prosecutorial capacity in earlier proceedings of that same case. See Brief for Petitioner at i. In order to resolve this issue, the Supreme Court must determine whether a judge’s presence on an appellate tribunal creates an unconstitutional risk of potential bias and partiality that will taint both the judge’s decision-making and the reviewing tribunal’s impartiality or whether recusal claims still fall under the narrow standard set forth in Caperton v. A.T. Massey Coal, 556 U.S. 868 (2009). Id. at 20, 35; Brief for Respondent at 20. This case will impact the appellate judge’s ability to make discretionary recusal determinations, as well as potentially impact the degree of impartiality and objectivity in the judiciary. See Brief for Petitioner at 20; Brief for Respondent at 20, 63; Brief of AAAL at 8; Brief of Brennan Center at 5.
- Adam Liptak, Supreme Court, in Recusal Case, May Find Itself Looking Inward, N.Y. Times (Jan. 4, 2016).
- Debras Cassens Weiss, SCOTUS Justices in “Ticklish Spot” in Recusal Case, ABA Journal (Jan. 5, 2016).