SCOTUS Asks When Judges Should Bow Out

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By Nicholas Datlowe

Feb. 29 — Pennsylvania Supreme Court Justice Ronald Castille's decision not to recuse himself from a case where habeas corpus was denied to a man Castille once prosecuted was the focus of oral argument before the U.S. Supreme Court Feb. 29.

The justices wrestled with the attorneys' positions on both sides, seeking a bright-line rule to determine when recusal would be required.

But the justices did not appear to get what they were looking for.

Justice Samuel A. Alito Jr.—a former prosecutor—in particular sought a limiting principle to govern when a judge who had previously been involved in a case would be required by due process to recuse herself from sitting in judgment on it.

“You want us to get pretty deeply into the issue of a constitutional recusal policy for judges. So it's not really enough to just say what happened here was bad,” he said.

Assuming that Castille's decision was wrong, “how far does this go?” he asked Stuart Lev of the Federal Community Defender Office, Philadelphia, who represented petitioner Terrance Williams.

He pressed Philadelphia Deputy District Attorney Ronald Eisenberg, representing the state, equally hard.

“We're talking about a constitutional recusal rule which would have very serious consequences,” he said. “And I really don't see a clear rule that would encompass this situation, other than a rule that said that a judge is required by the Constitution to recuse in any case in which the judge had personal participation as a prosecutor.”

The court room was energized because Justice Clarence Thomas broke his 10-year silence and asked a series of questions during the earlier argument. However, Thomas resumed his usual silence during the morning's second argument.

Recusal Request

Williams was convicted of the 1984 murder of Amos Norwood. Castille, then the district attorney for Philadelphia, personally authorized the prosecutor to seek the death penalty in the case.

Williams was convicted and sentenced to death, but in 2012 brought a habeas corpus petition based on the testimony of a codefendant who said, among other things, that he had been urged by the prosecution to testify falsely about the motive for the crime.

In the meantime, Castille had been elected to the state Supreme Court, campaigning in part on his successful record for putting 45 defendants—including Williams—on death row.

The state trial court granted Williams's request for relief. When the state appealed, Williams requested that Castille recuse himself from the case.

Castille refused, and the court ultimately unanimously reversed the lower court's habeas ruling.

Searching for a Standard

Justice Anthony M. Kennedy joined Alito in pressing for a clear rule.

“What is the rule, then, that you're formulating?” he asked Lev. “Recusal is required when… and then fill in the blank,” he prompted.

“When the prosecutor has direct personal involvement in a substantial decision in the case, and the issue before the court reflects upon that decision,” Lev responded.

In response to questions from Kennedy and Chief Justice John G. Roberts Jr., Lev acknowledged that this rule might have less force in the context of making purely procedural decisions, unless they called into question the integrity of the prosecutor's office.

But “that doesn't follow with the rule you gave me at the outset,” Kennedy responded.

“I guess I'm a little bit unclear as to what you're arguing,” Justice Elena Kagan said. “One rule could be, did the judge have some significant involvement in a critical trial decision as a lawyer. Is that your rule, or are you adding something to that rule?” she asked.

Lev said that formulation would be “consistent” with the court's precedents, and urged it to apply the totality-of-the-circumstances test used in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 2009 BL 122448 (2009) .

A Matter of Time?

Eisenberg faced similarly tough questions.

“What would be your standard?” Roberts asked. “I assume you would agree that in certain circumstances, a failure to recuse would raise a constitutional problem,” he said.

Eisenberg pointed to a number of factors, including the degree of prior involvement, the size of the prosecutor's office, and the recency of the attorney's involvement.

“If I understood your answer to the Chief Justice, you said significant involvement in a critical trial decision would be a critical factor in deciding when a person had crossed the constitutional line. You then simply said that there's a kind of statute of limitations on it,” Kagan said.

The length of time between the person's involvement as a prosecutor and as a judge seemed to matter particularly to Kagan. “What time is the critical time? Is it six months? Five years? Ten years?”

Eisenberg said that there was no bright line rule, but that it did matter that it was 30 years later—just as it had mattered in Caperton that there had been $3 million in campaign donations to the implicated judge, and not $30,000.

“But as I understand you, the one factor that seems to be controlling here is the time limit,” Kagan said. “Other than that, everything points to due process demanding a recusal,” she said.

A Prosecutor Unleashed

Eisenberg also pointed out that more than 2,000 murders took place in Philadelphia while Castille was the district attorney, and that the memo recommending the death penalty in Williams's case was a mere one-and-a-half pages long.

“Do you think he didn't take” the death penalty “decision extremely seriously?” Kagan asked.

Yes, Eisenberg said, but with less reflection than he would have, making it in the first instance.

“Did all 2,000 cases get the death penalty treatment?” Justice Sonia Sotomayor—also a former prosecutor—asked, appearing to step into her former role.

“No, you honor, but a significant percentage of them—”

“Were there cases where he said no to some death penalties?” she interrupted.

“No, your honor. Not—”

“Were there policies he established to establish when the death penalty was appropriate?”

“There was no sort of written policy, your honor,” Eisenberg said.

“That's an interesting use of words,” Sotomayor replied.

‘We Don't Know What Happened.'

“What do you do with the fact that Chief Justice Castille was not solely responsible for the decision in this case?” Alito asked of Lev. The court below had reversed the lower court's habeas ruling unanimously.

If Castille had voted to affirm the lower court, “would that decision still be invalid on the ground that he shouldn't have been participating?” he asked.

“It might be,” Lev said, because Castille might convince his fellow justices to reverse, and then vote in such a way that wouldn't raise the conflict of interest issue here.

Alito didn't seem convinced. “So he might have persuaded a majority to vote to reverse, and then he turned around and wrote an opinion saying that there should be an affirmance,” he said.

“The problem is we don't know what happened,” Lev responded.

Kagan pointed out another difficulty with Lev's argument. “If the idea is that one judge can affect a whole panel, which seems right to me, but presumably that effect doesn't go away the moment that we send it back and they have to deal with it again.”

Lev pointed out that the Pennsylvania Supreme Court is constituted differently than it was when it heard the habeas appeal , and Castille has since retired.

“The remaining justices may have to consider whether or not they can put aside the prior proceedings and start from fresh, or whether they're tainted,” he said. He also noted that courts “do that all the time,” when they are reversed by superior courts.

Experience Matters

Sotomayor called this an “ideal case for someone to make a due process claim, because the judge here actually signed his name to his review of the facts and his decision to seek the death penalty.”

“At what point do we give meaning to the constitutional command that you can't be prosecutor and judge?” she asked Eisenberg.

He suggested that ethical codes and statutes could take care of the division, and that this case was a poor vehicle to decide the constitutional question because there didn't appear to be an “intolerable probability of actual bias” in the case.

Wouldn't the public perceive the decision to seek the death penalty “as a great probability of actual bias?” Sotomayor asked.

Eisenberg countered that judges are humans who had positions and passions before taking the bench.

“We don't want to have a situation where the only people who can become judges and sit on cases are people with no prior experiences,” he said.

To contact the reporter on this story: Nicholas Datlowe in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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