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Ethics 101: The Same Person Cannot Serve as Prosecutor and Judge in the Same Case. The Supreme Court Needs to Say So

Ronald Castille’s conflict of interest in Williams v. Pennsylvania, which will be before the Supreme Court on Monday, is so extreme and antithetical to fundamental fairness that the Supreme Court needs to step in.

February 25, 2016

Cross-posted on the Huff­ing­ton Post

Every so often, a state judge’s conflict of interest in decid­ing a partic­u­lar case is so extreme and anti­thet­ical to funda­mental fair­ness that the Supreme Court needs to step in to cleanse the taint.

The court did exactly that six years ago with its much-publi­cized opin­ion in Caper­ton v. Massey writ­ten by Justice Anthony Kennedy, the court’s swing justice. The modest but import­ant decision struck a mean­ing­ful blow in favor of fair courts by declar­ing the obvi­ous: The refusal of a member of West Virgini­a’s Supreme Court to recuse himself in an appeal of a large damages award by someone who had just spent $3 million to help elect him created “an uncon­sti­tu­tional poten­tial for bias.”

Lament­ably, four justices on the court’s right flank—Chief Justice John Roberts and Justices Scalia, Thomas and Alito—­could­n’t bring them­selves to say that, so the victory for due process, although still a big win, was just 5–4.

On Monday, Febru­ary 29th, the eight-member post-Scalia Supreme Court will hear argu­ments in a new recusal case where the “poten­tial for bias” is glar­ing—ar­gu­ably even more glar­ing than it was in the Caper­ton v. Massey situ­ation. At a moment when the Supreme Court’s own repu­ta­tion for even-handed­ness isn’t exactly pristine (and the farcical Repub­lican antics over repla­cing Justice Scalia won’t help that), it would be an espe­cially posit­ive depar­ture for the disgrace­ful conflict of interest now before the court to be rejec­ted by more than a single vote. Call­ing Chief Justice Roberts.

The current case, Willi­ams v. Pennsylvania, involves a Pennsylvania death row inmate named Terrance Willi­ams who had been sched­uled to be executed in March 2015 for a brutal homicide he commit­ted at age 18, until Pennsylvani­a’s Demo­cratic governor, Tom Wolf, declared a death penalty morator­i­um—one of several dates with death aver­ted over the years. (Mr. Willi­ams also killed another person, when he was 17, for which he did not receive a death sentence, and which is not part of the current tangle.)

But the real focus here, in any event, is not the death penalty, which remains a highly conten­tious subject on the court, as witnessed by last June’s 5–4 opin­ion uphold­ing Oklaho­ma’s most recent method of lethal injec­tion.

Rather, just as in Caper­ton, the current case turns on a tran­scend­ing prin­ciple at the core of the nation’s justice system and the rule of law, one that should not be contro­ver­sial—­namely, the right to a fair hear­ing before an impar­tial judge.

Mr. Willi­ams was denied that right, by any reas­on­able reck­on­ing, when Pennsylvani­a’s Chief Justice, Ronald Castille, who is now retired, declined to recuse himself in a 2014 ruling by his court uphold­ing Mr. Willi­ams’ death sentence, notwith­stand­ing an aston­ish­ing conflict: He person­ally approved and over­saw Mr. Willi­ams’ prosec­u­tion and post-trial defense of the death verdict in his earlier role as Phil­adelphi­a’s district attor­ney.

Defend­ers of this parody of judi­cial neut­ral­ity attempt to portray Mr. Castille’s prosec­utorial involve­ment as merely a token admin­is­trat­ive thing and of no consequence for the appear­ance and real­ity of justice. It does­n’t cut it. A more real­istic assess­ment is that Mr. Castille’s conduct profoundly under­mined the integ­rity of the judi­cial proceed­ings and evis­cer­ated any idea of due process.

Toss in, too, that Mr. Castille portrayed himself as a pro-death penalty warrior in his winning 1993 elec­tion campaign for the Keystone State’s top court. He boas­ted to voters of send­ing to death row 45 defend­ants, includ­ing Mr. Willi­ams, further commit­ting himself publicly to Mr. Willi­ams’ guilt and the appro­pri­ate­ness of his death sentence.

Some conflicts of interest make for tough calls. Not this one.

Still, it seems unlikely that this non-recusal case would have reached the Supreme Court were it not for this astound­ing compound­ing factor: The decision that Mr. Castille was so insist­ent about parti­cip­at­ing in directly implic­ated his own record as district attor­ney and his own profes­sional repu­ta­tion.

Specific­ally, the decision in ques­tion tossed aside a trial judge’s ruling order­ing a new senten­cing hear­ing for Mr. Willi­ams that was based on a find­ing of seri­ous ethical miscon­duct by prosec­utors work­ing under Mr. Castille.

Mr. Castille, in other words, saw no prob­lem passing judg­ment on a prosec­u­tion he person­ally approved and over­saw, and on a trial judge’s strongly crit­ical ruling on the conduct of lawyers he super­vised.

As judi­cial conflict of interests go, that’s pretty basic.

“No reas­on­able person could conclude that Chief Justice Castille could impar­tially eval­u­ate the perform­ance of his own colleague, acting under his lead­er­ship, because that eval­u­ation would require—both impli­citly and expli­citly—a judg­ment about his own lead­er­ship and super­vi­sion.” So sums up a valu­able amicus brief filed by the Ethics Bureau at Yale, a legal clinic at Yale Law School, the Louis Stein Center for Law and Ethics at Ford­ham Law School, Hofstra Law School’s James Sample and other experts in this area.

After admir­ably taking the trouble to dig into the evid­ence (an exer­cise for which she was chas­tised by Mr. Castille in a separ­ate concur­ring opin­ion), the state trial judge hear­ing Mr. Willi­ams’ request for a new senten­cing trial concluded that Mr. Castille’s former under­lings at the D.A.'s office had “plainly suppressed” and “know­ingly with­held” and misrep­res­en­ted evid­ence indic­at­ing that the victim had sexu­ally abused the teen­age defend­ant, which might have avoided a death sentence by provid­ing a mitig­at­ing factor in the killing.

In reject­ing the trial judge’s find­ings and order for a new senten­cing hear­ing, Mr. Castille and his colleagues said that Mr. Willi­ams could have raised his sexual past with the victim at the time, but test­i­fied instead that he had never met the man. It may be that the imma­ture defend­ant, lack­ing adequate coun­sel, was too embar­rassed to talk about it. It is not unusual for victims of child sexual abuse not to be ready to confront what happened until many years or even decades later.

But all of this is beside the point. Mr. Castille had no busi­ness ruling in the case and the denial of a new senten­cing hear­ing, made with Mr. Castille’s parti­cip­a­tion, must not stand.

It should not matter to the justices that, unlike the recusal-reluct­ant judge inCaper­ton v. Massey, Mr. Castille did not cast the decid­ing vote. Deem­ing his fail­ure to recuse a “harm­less error” because of that would ignore the real­it­ies of the delib­er­at­ive process and the well-estab­lished consti­tu­tional bar to “a judge sitting as a judge in his own case.”

(Photo: Think­stock)