No excuse for failure to recuse

In 1984 18-year-old Terrance Williams murdered a 51-year-old man named Amos Norwood in Philadelphia. He was tried, convicted and sentenced to death. Thirty-two years later, in May, his appeal to the U.S. Supreme Court resulted in a major constitutional ruling on judicial ethics. Williams v. Pennsylvania, 2016 DJDAR 5552 (June 9, 2016). In the years following his sentencing, Williams pursued numerous appeals and habeas corpus petitions, the last one resulting in a decision in his favor by a Pennsylvania trial court. That court held that the prosecution had improperly and unconstitutionally withheld evidence. His execution was stayed.

When that decision was appealed to the Pennsylvania Supreme Court, the lower court's decision was reversed, the stay was canceled and the judgment of execution reinstated. Williams' further contentions in defense of this life were based on the dual role of Ronald Castille in the case.

The argument went back to his 1984 trial. When Williams was tried, the prosecutor's office rule was that before there could be a demand for the death penalty, the assistant district attorney trying the case was required to have the district attorney himself approve the demand. The district attorney who approved the successful request for capital punishment was Ronald Castille.

Flash forward to 2014. Ronald Castille has become a member of the Supreme Court of Pennsylvania, in fact the chief justice. When the state's appeal of the lower court stay was brought to the Supreme Court, Williams moved to have Castille recuse himself, or refer the question to the full court for decision.

Castille declined to do either, and the death penalty was reinstated. Appeal to the U.S. Supreme Court followed.

The basic issue is not a complex or particularly controversial one. To assure a fair trial, a judge who has had a role as a lawyer on one side of the case should not sit in judgment of the same matter. That is the rule in most states. The issue in the high court was whether that rule has constitutional status, so that it must be followed by the state courts.

The Supreme Court ruled in Williams' favor, by a 5-3 vote. The four liberal justices (Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor) were joined by Justice Anthony Kennedy, who wrote the opinion. Chief Justice John Roberts dissented, joined by Justice Samuel Alito. Justice Clarence Thomas also dissented, joined by no one. (The late Antonin Scalia's absence from the current eight-justice court made no difference in this case. He would no doubt have dissented, resulting in a 5-4 division. We would, however, have been favored by an articulate and blistering dissent.)

Kennedy's holding: "The Court now holds that under the Due Process Clause [of the 14th Amendment] there is an impermissible risk of actual bias when a judge earlier had a significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case."

The risk of unfairness is sufficient under this test to raise the constitutional bar. Note that actual bias need not be shown: The risk is sufficient. Kennedy emphasizes that the test is an objective one; no actual prejudice need be shown.

Castille was one of only seven judges making the decision on Williams' fate. Kennedy found that where the decision was made by a group including a disqualified judge, there is no room for argument that the error was harmless. The deliberations of such a group are entirely confidential, and there is no way of knowing whether one judge's arguments were important in the court's decision. The disqualified judge need not have cast a deciding vote to disqualify a decision made by a panel of which he was a member.

The state argued that Castille's role was a minor one, only signing off on a 1 1/2-page form. In fact, Kennedy wrote, the decision to seek the death penalty is a key matter in a criminal case, that can affect the entire nature of the trial. And evidence showed that Castille's campaign literature emphasized that as district attorney he sent numerous people to death row.

There are few Supreme Court precedents in this area, but the court recently showed its concern for an elected judiciary when it decided in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), that campaign contributions to a state high court judge could be of sufficient magnitude to call into question the court's decision in favor of the contributor.

Roberts' dissent in Williams was based in part on the procedural posture of the case. He further distinguished earlier precedent as cases which contained evidence of actual bias. But he concedes that Caperton established a new standard based on a constitutional rule when "the probability of actual bias ... is too high to be constitutionally tolerable."

His ultimate conclusion is that even if the due process clause should not be applied, state law could well find that the justice's conduct was inappropriate.

Thomas' dissent is based on the highly questionable proposition that Williams' post-conviction legal efforts constituted a different case from his trial.

There were strong dissents in both Caperton and this case. The conservative bloc (four votes or three) does not view the due process clause as the proper means of assuring fair trials in state courts. Dissenting in Caperton, Scalia wrote:

"Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution."

Williams is a narrow case on its facts, and is unlikely to benefit the defendant. The case is remanded to the same set of judges (now without Castille) who gave him no succor the first time.

But it is an important statement by the court's majority that the functioning of the state courts is subject to basic constitutional principles, which the Supreme Court will, when necessary, enforce.

Chief Justice Roberts accuses the majority opinion of resting "on a proverb rather than precedent." But the rule that none can serve as both an accuser and an adjudicator in the same case is more than a proverb - it is a principle of elemental fairness in the judicial process.