Philadelphia Common Pleas Court Judge Leon Tucker filed an order Dec. 7 giving 10 days for attorneys for Mumia Abu-Jamal and the Philadelphia district attorney’s office to provide input on former Pennsylvania Supreme Court Justice Ronald Castille’s possible violation of a PA Judicial Canon on Conduct requiring recusal if there was an appearance of bias or lack of impartiality.

Tucker is requesting opinions on how this code of conduct applies to Abu-Jamal’s appeal and how it fits into the U.S. Supreme Court case Williams v. Pennsylvania, upon which the appeal is based.  Lawyers must respond by Dec. 17 unless an extension is requested and granted.

Tucker took final arguments on Dec. 3 from attorneys for Abu-Jamal and the Commonwealth of Pennsylvania.  Both agreed they had no additional evidence to submit. The judge’s new request is very important in that it asks for opinions on how the application of the Judicial Canon on Conduct applies to Abu-Jamal’s case and how it fits into the Williams case.

The question of possible judicial bias extends to Castille’s activities on capital cases — not just as the former district attorney — but while he was running for election as a judge or was a judge.

Castille’s focus on ‘police killers’

Tucker is considering the broader argument that due process requires an unbiased decision maker. Abu-Jamal’s attorneys added this second legal basis to grant the political prisoner new appeal rights in amended petitions and oral arguments during an Oct. 29 court proceeding.  They argued that Williams provides a specific application of that principle as applied by SCOTUS in a case where the prosecutor later became the judge on the same case.

Due process claims based on judicial bias do not require proof of actual bias, only the appearance of bias — that “a reasonable observer could conclude that a judge harbored disqualifying bias against the petitioner.” The question is whether the judge would be neutral or whether there is unconstitutional potential for bias. The PA Supreme Court has maintained that recusal is required wherever there is substantial doubt about a jurist’s ability to preside impartially.

Commonwealth attorneys claim that during months of searching hundreds of boxes of DA records documents showing Castille was personally involved in Mumia’s case were not found. But the prosecution released documents that expose Castille’s personal bias on capital cases.  One was a letter DA Castille wrote in June 1990 to then Gov. Robert P. Casey, a death penalty opponent, who would not sign death warrants.

Urging Casey to “send a clear … message to all police killers that the death penalty in Pennsylvania actually means something,” Castille asked Casey to sign death warrants and provided him with a list of capital cases where they could be applied.

Abu-Jamal’s case was not on the list because his case was still being appealed to SCOTUS. However, Abu-Jamal’s attorneys assert that Castille’s letter to Casey targeted Abu-Jamal. His was one of three capital cases at that time involving a convicted so-called “police killer.” They charge that this reflects Castille’s personal involvement in a critical decision in Abu-Jamal’s case.

Castille: FOP’s ‘Man-of-the-Year’

Evidence also surfaced of DA Castille’s support for a campaign by former PA State Sen. Mike Fisher regarding passage of legislation that would further restrict state appeals of death penalty convictions.  The legislation included removal of final approval for death warrants from the governor’s office. A status report on certain death row inmates that was sent to Fisher included Abu-Jamal’s name.

Abu-Jamal’s attorneys stated on Oct. 29: “On Sept. 23, 1988, DA Castille wrote directly to Fisher urging passage of an amendment to the death penalty law and conveying his fears about the impact of Mills v. Maryland.” (That U.S. Supreme Court case, a 5-4 decision in 1988, reversed a Maryland Court of Appeals death sentence affirmation on the ground that the jury verdict form used was unconstitutional.) Castille feared that “Mills may lead to the vacating of scores of death penalties.”  Abu-Jamal’s appeal contained a Mills claim regarding Judge Albert Sabo’s improper instructions to the jury, which became the basis for overturning his death sentence.

There is ample evidence of other instances of Castille’s bias and that he took responsibility for death sentences. The Williams decision included citations from news articles quoting Castille bragging about putting “45 murderers on death row.”  Some 36,000 Pennsylvania police officers endorsed him. The Fraternal Order of Police gave Castille “Man-of-the-Year” awards, political support and donations during his campaign for the PA Supreme Court.

The American Bar Association filed an amicus brief in the Williams case, which noted that Castille was on “a crusade against” the Federal Community Defender Organization that represented Williams. The ABA notes, “He was incensed by its involvement in state post-conviction proceedings, and even more so by its zealotry on behalf of its clients.”

Refusal to recuse in Abu-Jamal’s case

In 1996 Abu-Jamal appealed his post-conviction challenge to his death sentence and death penalty denied by Judge Sabo to the PA Supreme Court over his 1982 conviction by a mostly white jury for the 1981 shooting of police officer Daniel Faulkner. He also filed a motion requesting that Justice Castille not hear the case. The grounds for requesting the recusal were based on Castille’s FOP relationship and defense of prosecutorial conduct in the face of evidence of significant prosecutorial misconduct.

As a former Philadelphia district attorney, Castille’s name appeared on appeal briefs which argued that Abu-Jamal’s trial was fair and that evidence against him was compelling. Castille oversaw the legal efforts to keep Abu-Jamal on Pennsylvania’s death row.

Abu-Jamal’s lawyers at that time requested that Castille not deliberate over their client’s appeal because of his prior role as DA and his long-time association with the FOP, which actively campaigned for Abu-Jamal’s execution.

Arguing that his decision not to step down from the hearing was a “personal one for him alone to make,” Castille noted that while the FOP endorsed him, it also endorsed four other PA court justices hearing the case.  Castille claimed he had never “personally” participated in any aspect of Abu-Jamal’s case. Yet four years earlier when he ran for the state court, four aides reported that as district attorney, Castille was actively involved in death penalty cases, particularly “high-profile cases,” of which Abu-Jamal’s topped the list.

Whether Judge Tucker is genuinely interested in evidence of Castille’s inherent bias regarding the class of capital cases involving murders of police officers or if he is simply seeking to cover all bases and make his decision appeal-proof remains to be seen.  Due to the long history of this case, Abu-Jamal supporters know that reliance on the courts to rule fairly for Mumia is never a given.

Mumia Abu-Jamal is innocent.  A judicial win and granting new appeal rights for him would be a significant decision against the widespread policy whereby former prosecutors are elected and appointed as judges with the financial and political support of police organizations.

Abu-Jamal’s supporters have already launched an Emergency Response Network to fill the streets whichever way Judge Tucker rules. Demonstrations will take place outside the DA’s office at 4 p.m. on the day after Tucker’s decision. For more information and to sign the pledge to show up, go to Mobiliztion4Mumia.com.

(Photo: Joseph Piette)