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Judicial Bias

JUSTICE ... This Is What A Real Case Of Judicial Bias Looks Like

Burgess COMMENTARY

Peter Burgess

JUSTICE ... This Is What A Real Case Of Judicial Bias Looks Like CREDIT: AP PHOTO/CHARLES DHARAPAK

American voters have spent the last two weeks receiving a strange lesson in the rules governing judicial recusals. In case you missed it, a judge isn’t required to remove themselves from a case if they have Mexican parents, no matter what Donald Trump may tell you.

But real cases of judicial bias do exist, and the Supreme Court just decided one of them. The remarkable thing about Williams v. Pennsylvania isn’t that the Court just held that a former prosecutor cannot sit on a case involving a man he once helped condemned to death, it’s that there were three dissenting votes.

Ronald Castille is the former chief justice of the state of Pennsylvania. He also previously served as Philadelphia’s district attorney. In that capacity, he personally approved a trial attorney’s request to pursue the death penalty against Terrance Williams. Many years later, as chief justice, Castille heard and voted on a Pennsylvania Supreme Court decision that effectively reinstated Williams’ death sentence after a lower court struck it down. The questions in Williams are whether Castille should have recused himself from this decision, and whether his failure to do so justifies striking the state supreme court’s decision down.

An important underlying question in Williams is just what led the death row inmate to kill a 56 year-old man more than three decades ago. Williams’ original trial paints him as a monster and a sadist. He and a friend allegedly asked for a ride home from a stranger, gave the stranger false directions, ordered the man out of his car, tied him up in his own clothes, and beat him to death with a tire iron. Williams’ accomplice in this murder testified that their motive was robbery. Williams testified that he did not know the victim.

Years later, in a proceeding challenging Williams’ sentence, a different narrative emerged. Williams claimed that he did, in fact, know the victim — and that he had been sexually abused by him. Eventually, his attorneys uncovered evidence that prosecutors knew that the victim “was sexually involved with boys around [Williams’] age at the time of his murder,” but that they’d failed to turn this evidence over to Williams’ defense team.

As a general rule, the death penalty is reserved for the most depraved of murderers. So it matters a great deal whether Williams is, in fact, the sort of man who would entrap and kill a kindly stranger, or whether he exacted a violent reprisal against a man who sexually abused him. Victims who target their sexual abusers are especially poor candidates for a death sentence.

Based on the evidence that prosecutors hid exculpatory evidence from Williams’ legal team, a lower court ordered a new sentencing hearing. This was the decision that Castille helped reverse from his perch as chief justice.

“Bias,” the Court warns in Williams, “is easy to attribute to others and difficult to discern in oneself.”

The four liberal justices all joined an opinion by Justice Anthony Kennedy, which holds that Castille’s failure to recuse himself was a serious error. Castille, Kennedy writes, acted “as both accuser and judge” in Williams’ case. He played a crucial role in deciding whether the state would seek the ultimate punishment for Williams, and then he sat on a case that effectively reimposed that punishment on Williams. This is not allowed.

“Bias,” the Court warns in Williams, “is easy to attribute to others and difficult to discern in oneself.” Thus, there must be an “objective standard” that requires certain judges to recuse regardless of whether they think they are capable of deciding a particular case impartially. The Constitution’s due process guarantees, the Court concludes, establish that “there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”

As Kennedy explains, moreover, such a risk exists in this case. The decision “whether to ask a jury to end the defendant’s life is one of the most serious discretionary decisions a prosecutor can be called upon to make.” And there is too much “risk that the judge ‘would be so psychologically wedded’ to his or her previous position as a prosecutor that the judge ‘would consciously or unconsciously avoid the appearance of having erred or changed position.’”

Significantly, Williams holds that the Pennsylvania Supreme Court must redecide this case (this time without Castille, who retired in 2014), even though Castille did not cast the deciding vote. An appellate court’s internal deliberations are generally confidential, so there is no way to know how Castille influenced the outcome in this case. Thus, “the fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position.”

This isn’t the first time Kennedy crossed over to vote with his liberal colleagues in a case alleging judicial bias. In 2009’s “judge for sale” case, Caperton v. A.T. Massey Coal, a West Virginia Supreme Court justices failed to recuse himself in a case involving a mining company whose CEO spent $3 million to place that justice on the state supreme court. Kennedy wrote the decision in Caperton, holding that the West Virginia justices should have recused. Chief Justice John Roberts led three of his fellow conservatives in dissent.

Roberts, in an opinion joined by Justice Samuel Alito, reprises his role as the defender of a judge’s right to remain on a case under doubtful circumstances in Williams. As district attorney, Castille decided to pursue the death penalty against Williams. As a justice, Castille was called upon to decide a narrower issue related to Williams’ death sentence — whether Williams’ successful challenge in the lower court was procedural barred. Because these are different legal questions, Roberts writes, Castille should be allowed to remain on the case — the majority’s concerns about a judge’s desire to “avoid the appearance of having erred or changed position” notwithstanding.

(Justice Clarence Thomas, meanwhile, wrote a separate dissent complaining that the majority opinion departs from “settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors” — as he is often wont to do.)

Roberts’ position is consistent with the chief justice’s general skepticism for arguments alleging that an individual’s due process rights were violated, but it is also a strange one. Roberts has written eloquently and persuasively about why judges should be cautious about reading substantive rights into provisions of the Constitution that explicitly deal only with process. But an allegation that a court failed to treat a condemned man with fairness and impartiality is the quintessence of a proceedural argument.

In any event, Roberts’ views failed to carry the day, and Williams will prevent future judges from sitting on cases involving the men and women that they helped prosecute. That is, at least, if Williams remains good law. While Thursday’s decision is clear, it was also closely divided. It’s not hard to imagine the Supreme Court removing these protections in a future case if the man who thinks judicial recusal has more to do with race than with real bias gets to name the next set of justices.