On Feb. 29, the U.S. Supreme Court heard arguments in Williams v. Pennsylvania. The Williams case could set new standards for judicial recusals in courtrooms across the country. Convicted murderer Terrance Williams is challenging his death sentence because the district attorney whose office prosecuted his case, Ronald Castille, was chief justice when the Pennsylvania Supreme Court overturned his right to a new sentence hearing.
The issue has become so controversial, a group of former judges wrote a brief on behalf of Williams trying to persuade the U.S. Supreme Court that Castille crossed the line, wrote Tony Mauro of the National Law Journal.
Jeffrey Green, counsel of record on the judge’s brief, said the “distinguished former judges” behind the brief were adamant that “Appellate judges do not operate in silos, and the effect of a biased judge’s participation cannot be reduced to a ‘no harm, no foul’ determination based on vote distribution.” The Williams decision — by the Castille court — was unanimous.
Williams asked Castille to disqualify himself from hearing his appeal. Castille refused, telling the Philadelphia Inquirer before the U.S. Supreme Court argument, “In Pennsylvania, we leave it up to the judge’s personal conscience ... I’ve always been confident that I can be fair and impartial.”
The Pennsylvania Code of Judicial Conduct requires judges who “served in governmental employment, and in such capacity participated personally and substantially” in a case, to disqualify themselves. According to the National Law Journal, the code also requires disqualification in proceedings in which a judge “served as a lawyer in the matter in controversy” or in which the judge’s “impartiality might reasonably be questioned.”
Pennsylvania lawyer Lawrence Fox of Drinker Biddle & Reath told the The Legal Intelligencer in another judicial ethics case in Pennsylvania, “I believe avoiding the appearance of impropriety is as important as avoiding impropriety itself ... [w]e want the public to have confidence in the decisions of the courts.”
The Philadelphia DA’s office argued that Castille played only a fleeting part in Williams’ prosecution, limited to signing off on the decision to seek the death penalty. “His signature on that (capital case) memo, in January 1986, was his first, last and only contact with this case,” prosecutors said during oral argument before the U.S. Supreme Court.
A majority of U.S. Supreme Court justices voiced concern that Castille participated in the case. Justice Sonia Sotomayor said, “The judge here actually signed his name to the review of the facts and the decision to seek the death penalty.”
Justice Anthony Kennedy asked Stuart B. Lev, of the Philadelphia Public Defender’s office, “Well, what is the rule, then, that you’re formulating … [r]ecusal is required when, and fill in the blank?” Lev replied, “When the prosecutor has direct personal involvement in a substantial decision in the case, and the issue before the court reflects upon that decision.”
Justice Elena Kagan indicated Castille should have recused himself because he personally signed off on seeking the death penalty. “He made the most important decision that could be made in this case,” Kagan said.
Brianne J. Gorod, chief counsel of the Constitutional Accountability Center wrote, “By deciding to judge the conduct of his own office in a case in which he was personally involved, Castille created a judicial conflict so obvious and so extreme that it violated the Due Process Clause’s guarantee of an impartial justice system.”
Chief Justice John Roberts, suggested to the Philadelphia DA’s office, “I mean, if the individual who should have been recused occupied a dominant role in the discussion and was successful in persuading colleagues and all that — and of course, that’s the sort of evidence you certainly can’t have access to.”
A decision is expected this summer from the high court.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.