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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

The Huffington Post The Huffington Post 25/02/2016 Dorothy Samuels

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 in Caperton 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."

Dorothy Samuels is a Senior Fellow at the Brennan Center for Justice at New York University School of Law.

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