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The Supreme Court Should End The Wild West of Recusal

A death penalty appeal from Pennsylvania gives the Justices the opportunity to set specific rules for when a judge should not hear a case.

February 26, 2016

When it comes to its appellate courts, Pennsylvania’s judges have some very specific rules. They have deadlines. They have rules about how to staple briefs. Rules about brief covers: “so firm in texture that the ink will not run.” The type must be 14-point. Death penalty appellate briefs are limited to 17,500 words, not a syllable more. And please file a word count certificate of compliance if you exceed the page count.

But, when it comes to rules governing themselves, specifically for determining whether a judge is so compromised by financial or other biases that he or she should be disqualified from a case, the rules are loose.

Pennsylvania’s courts are like most others in this regard. Judges, the ultimate arbiters of our laws governing public corruption and ethics in all branches of government (legislative, executive, and judicial), have surprising blind spots in their own house.

Next week, the U.S. Supreme Court will peer into one of those dark corners when it hears oral arguments in Williams v. Pennsylvania, a case involving the non-recusal of a Pennsylvania Supreme Court Justice. The Court will have the opportunity to stare directly into the general judicial recusal mess and provide some guidance. But will it?

Or, instead, will the Court focus narrowly on the particular issues raised in Williams, a case that poses the question whether the bias of the Justice who failed to recuse himself violated the Eighth and Fourteenth Amendments, and if so, what is the remedy?

The facts are dispiriting. As a teenager in the mid-1980s, Terrance Williams killed two men. Both men had sexually abused him. Williams was tried on the two homicides separately. In the first trial, where evidence of the abuse was introduced, he was convicted of third-degree murder. In the second trial, where the jury was ignorant of the sexual abuse, Williams was convicted of first-degree murder and sentenced to death.

After his conviction, Williams pursued a number of appeals. In 2012, though, new evidence revealed Brady violations (i.e. failure of the prosecutor to turn over exculpatory material) and other prosecutorial misconduct in the second trial. The prosecution had suppressed evidence of the abuse Williams had suffered. An appellate court reviewing the misconduct vacated the death sentence.

The appeal then made its way to the Pennsylvania Supreme Court. The Chief Justice of the Court was Ronald Castille. He knew the Williams case well. Before joining the Court, Castille was the District Attorney who oversaw Williams’ prosecution, was the man who approved seeking the death penalty, and ran the office that suppressed evidence. Williams’ legal team asked Castille to recuse himself, noting that in addition to his involvement in the original case, the Justice had also run for his Supreme Court seat by boasting how many people he had sent to death row.

But Castille did not recuse himself, and two years later, Williams’ death sentence was reinstated when a unanimous Pennsylvania Supreme Court rejected his appeal. This is the path the Williams case followed to the U.S. Supreme Court, where oral argument will be heard February 29.

The Court will likely get sucked into the specific facts. But step back a minute and ask, as the Brennan Center did in its amicus brief: how did Castille come to his questionable decision to hear the case and why didn’t a grown up tell him that what he was doing was unwise at best, unconstitutional at worst? Castille was the top jurist of one of the nation’s largest court systems. A court, remember, with lots of rules, procedures, cross checking, and systems. But none of that for Chief Justice Castille?

Pennsylvania’s Supreme Court recusal system is pretty much the Wild West. Each Justice is the sheriff and makes up his or her own mind. And that’s pretty much it. In that regard, Pennsylvania is like the U.S. Supreme Court and 37 other states (plus D.C.). Only 14 state Supreme Courts have some mechanism to objectively review a recusal question.

It’s a little better on the lower court level, where 22 states have some processes for independently evaluating a recusal motion at the time it’s made. And at least for the states that have nothing, there is a later opportunity for appellate review, which is generally not available when a Supreme Court is at work.

The lack of review procedures or systematic guidance on recusal issues is more than just a shame. Even if most recusal matters don’t rise to a constitutional level, our court system rises and falls on confidence in the integrity of judges. And too often they are acting as judges in their own cases, as did Castille.

In its last major case on recusals in 2009, Caperton v. A. T. Massey Coal Co., the Supreme Court put its finger on the problem: “The difficulties of inquiring into actual bias [of a judge], and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case.”

Courts know how to deal with problems like that: rules and procedures, neutrally administered. They’ve got them for the types of metal fasteners used on briefs. Why not for something that implicates the very integrity of the courts?

P.S. Last year, newly-elected Pennsylvania Gov. Tom Wolf (D) granted Williams a reprieve and instituted a statewide moratorium on the death penalty, saying that its use was “riddled with flaws, making it error prone, expensive, and anything but infallible.”

(Photo: Thinkstock)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

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